IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 Bail Appl..No. 1763 of 2008() ----------------------------- CRMP.681/2008 of D.C. & SESSIONS COURT,KOLLAM CRIME NO.435/07 OF ANCHAL POLICE STATION .................... PETITIONER: ACCUSED ------------------------ VASUDEVAN, S/O. VELAYUDHAN,AGED 65 YEARS RESIDING AT SALINI BHAVAN, THAZHAMEL, ANCHAL, KOLLAM. BY ADV. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE RESPONDENTS: ------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. JAI GEORGE. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No. 1763 of 2008 ------------------------------------------------- Dated this the 19th day of March, 2008 ORDER Application for anticipatory bail. The petitioner is the 1st accused. He allegedly runs a hire purchase/finance company. The crux of the allegations is that the mercenaries engaged by the petitioner attempted to forcibly take possession of a vehicle from the porch of the house occupied by a couple. On coming to know of the attempt, they attempted to intervene and thwart the attempt of the mercenaries. Their objection/resistance was ignored and the vehicle was taken away using force running it over the master of the house who had attempted to resist the taking away of the vehicle. He succumbed to the injuries. The prosecution alleges that such miscreants were engaged by the petitioner and there was conspiracy between them and the petitioner to forcibly take B.A. No. 1763 of 2008 -: 2 :- away the vehicle and over come all resistance which may be employed to resist the attempt to remove the vehicle. The crime has been registered alleging the offences punishable, inter alia, under Secs.397 and 302 of the IPC. Investigation is in progress. The petitioner apprehends imminent arrest. One of the co-accused had come to this Court claiming anticipatory bail and by order dated 15/2/08 in B.A.No.877/08 the said application was rejected. Altogether, there are 5 accused persons. Except A1 and A5, all others have been arrested, submits the learned Public Prosecutor. 2. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. Even if the entire allegations were accepted, the alleged conspiracy could only have been to effect seizure of the vehicle and it could not, at any rate, have been to murder the owner of the vehicle who may intervene and resist the attempt of seizure. 3. I find no merit in this contention at all. Evidently and obviously the agreement between the accused must have been to forcibly take possession of the vehicle ignoring and over coming the resistance which can reasonably be expected to come from persons entitled to resist. The fact that such conspiracy has not been referred to in detail in the F.I.R. or the fact that in the B.A. No. 1763 of 2008 -: 3 :- remand report of some of the accused such conspiracy in detail has not been narrated is too inadequate a reason to come to a conclusion that those who engaged the miscreants did not contemplate the consequences of resistance and the attempt to over come resistance. In any view of the matter, I am not persuaded to agree that there are any circumstances available in this case which can justify or warrant the invocation of the extraordinary equitable discretion under Sec.438 of the Cr.P.C. This, I agree with the learned Public Prosecutor, is a fit case where the petitioner must appear before the Investigating Officer or the learned Magistrate having jurisdiction and then seek regular bail in the normal and ordinary course. 4. In the result, this bail application is dismissed; but with the observation that if the petitioner surrenders before the Investigating Officer or the learned Magistrate and seeks bail, after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass appropriate orders on merits and expeditiously. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge