IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 Bail Appl..No. 221 of 2008() ---------------------------- CRIME NO.102/07 OF WALAYAR POLICE STATION : PETITIONER/ACCUSED ----------------------------------- 1. UDHAYA KUMAR, AGED 27 YEARS, S/O.NAGUPAN, MULAYIL HOUSE, ANAPPARA, KOTTEKKAD, PALAKKAD. 2. PRAMOD.T.S., AGED 28 YEARS, S/O.T.SREEDHARAN, MANIKKAL HOUSE, TOOPATTOM, PALAKKAD. BY ADV. SRI.K.B.GANGESH RESPONDENTS: COMPLAINANT ------------------------ 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. S.I. OF POLICE, WALAYAR POLICE STATION. BY PUBLIC PROSECUTOR SRI.JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- B.A.No.221 of 2008 ---------------------------------------- Dated this the 16th day of January 2008 O R D E R Application for anticipatory bail. The petitioners are accused 3 and 4. They face allegations in a crime registered inter alia under Section 326 read with 34 I.P.C. Accused 1 and 2 have already been arrested and enlarged on bail. The alleged incident took place on 28/4/2007. The de facto complainant who was travelling in an autorickshaw was allegedly intercepted by four persons including accused 1 and 2. Accused 3 and 4 were stated to be identifiable persons who had worn helmets and were not named in the F.I.R. Accused 1 and 2 were named in the F.I.R. They had allegedly indulged in the specific overt acts against the de facto complainant. 2. The crime was initially registered under Section 324 I.P.C. But, in the course of investigation, after confirming the fracture suffered by the victim, the allegation under Section 326 I.P.C was also included. The investigating officer did not have any clue about the identity of accused 3 and 4. Long later, when the autorickshaw driver was questioned, he revealed that the petitioners are persons 3 and 4 involved in the incident. Investigation is in progress. Attempts are being made to arrest the petitioner. B.A.No.221/08 2 2. The learned counsel for the petitioners submits that the petitioners are absolutely innocent. They were not miscreants 3 and 4, who had allegedly taken part in the incident. The de facto complainant had not named them then. Long later, as per the report dated 18/12/2007 - after a gap of eight months, they are brought in the array of accused relying on the statement made by the driver of the the autorickshaw in which the de facto complainant was allegedly travelling at the time of the occurrence. The learned counsel for the petitioners banks on the fact that the de facto complainant had not identified the petitioners. He further submits that identification by the autorickshaw driver cannot be held to be convincing, the same having been revealed only on 18/12/2007. The learned counsel for the petitioners further submits that even if the entire allegations were accepted, the petitioners had even allegedly not indulged in any specific acts of violence against the de facto complainant. The short allegation against them is that they had only stopped the autorickshaw. In these circumstances, anticipatory bail may be granted to the petitioners, it is prayed. 3. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that the petitioners are very influential. Succumbing to the influence of B.A.No.221/08 3 the petitioners, the autorickshaw driver had not revealed the identity of the miscreants for a long period of time. Even allegedly, there is no reason for the autorickshaw driver to falsely implicate the petitioners. In these circumstances, it is prayed that the petitioners may not be granted anticipatory bail. Grant of anticipatory bail to them would hamper the smooth course of investigation. The petitioners may be directed to surrender before the investigating officer or the learned Magistrate having jurisdiction and then seek regular bail in the normal course, submits the learned Public Prosecutor. 4. Having considered all the relevant inputs, I find merit in the opposition by the learned Public Prosecutor. I am satisfied that there are no features in this case which would justify invocation of the extraordinary equitable discretion under Section 438 Cr.P.C. It is true that the petitioners have not been brought on the array of accused till the report dated 18/12/2007 was filed. But the driver of the autorickshaw asserts that it was the petitioners who were involved in the incident. He had identified them also. He had offered an explanation for non- disclosure of the name of the petitioners earlier. What to me appears to be crucial is that there is no worthwhile allegation even that the autorickshaw driver has any animus to falsely B.A.No.221/08 4 implicate the petitioner. I am, in these circumstances, satisfied that there are no circumstances which would justify the invocation of the extraordinary equitable discretion under Section 438 Cr.P.C. This, I agree with the learned Public Prosecutor, is a fit case where the petitioners must appear before the investigating officer or the learned Magistrate having jurisdiction and then seek regular bail in the normal and ordinary course. 5. It is submitted that in favour of accused 1 and 2, while their application for anticipatory bail was dismissed, there were specific direction that the learned Magistrate must release the accused persons (accused 1 and 2) on bail if they surrender and are produced before the learned Magistrate. I am of the opinion that it is not necessary to issue such directions. Suffice it to say that the learned Magistrate must consider the application for regular bail, if filed the petitioners, on merits and expeditiously. 6. In the result, this petition is dismissed with the above observations. (R.BASANT, JUDGE) jsr B.A.No.221/08 5 B.A.No.221/08 6 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007