IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 7TH APRIL 2008 / 18TH CHAITHRA 1930 Bail Appl..No. 1971 of 2008() ----------------------------- CRIME NO.66/08 OF KUMALY POLICE STATION PETITIONERS ---------------------------- 1. BINOY,S/O.CHACKO, EENTHANACHALIL, AANAVILASOM P.O.,IDUKKI DIST. 2. BEENY CHACKO,S/O.CHACKO, EENTHANACHALIL, AANAVILASOM P.O.,IDUKKI DIST. 3. DEVASYA JOSEPH @ KUTTICHAN, S/O.JOSEPH, VADAKKEDATH, ANNAVILASOM P.O. IDUKKI DIST. 4. XAVIER THOMAS, S/O.THOMAS,CHERUKUNNEL AANAVILASOM P.O., IDUKKI DIST. 5. BABU,S/O. JOSEPH, PARAPURATH, AANAVILASOM P.O., IDUKKI DIST 6. MATHEW JOSEPH @ TOMY,S/O.JOSEPH, PANTHAMAKKAL, AANAVILASOM P.O., IDUKKI DIST. 7. KUNJUMON,S/O.GOPALAN VANDANMAKKAL, AANAVILASOM P.O. IDUKKI DIST. BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) RESPONDENTS: ------------- STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI. JAI GEORGE. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No.1971 of 2008 ------------------------------------------------- Dated this the 7th day of April, 2008 ORDER Second application for anticipatory bail filed by the petitioners who are the surviving 7 accused persons in a crime which was registered alleging offences punishable, inter alia, under Secs.452 and 326 read with Sec.149 of the IPC. In the F.I.R. lodged by the victim/injured, 12 named persons and 8 unidentified persons were alleged to have taken part in the occurrence. The 12 named persons came to this Court with an application for anticipatory bail. By order dated 7/3/08 in B.A.No.1381/08 the application for anticipatory bail of all the 12 named accused persons was dismissed. It was observed that the petitioners must surrender before the learned Magistrate and then seek regular bail in the normal and ordinary course. 2. None of them did so to surrender and seek regular B.A. No.1971 of 2008 -: 2 :- bail. In the course of investigation, a report has been submitted by the Investigating Officer under which 5 named accused persons have been dropped from the array of accused. The report submitted by the Investigating Officer shows that the investigation conducted after the F.I.R. is revealed that those 5 named accused persons were not involved in the occurrence and that the statement that there were 8 other unnamed accused who had also taken part in the occurrence is not true. The petitioners have now come before this Court again with a renewed prayer for anticipatory bail. The learned counsel for the petitioners submits that the course adopted by the Investigating Officer subsequent to the dismissal of the earlier bail application is sufficient change of circumstance to persuade this Court to consider the petitioners' application for anticipatory bail afresh. The learned counsel for the petitioners, in these circumstances, prays that the petitioners may be granted anticipatory bail. 3. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that the application for anticipatory of the petitioners having already been dismissed once and the said order having not been challenged so far, the renewed prayer of the petitioners for anticipatory bail is not B.A. No.1971 of 2008 -: 3 :- justified. The learned Public Prosecutor submits that no change of circumstance to justify a fresh different consideration of the anticipatory bail application of the petitioners does at all exist. The learned Public Prosecutor submits that a proper investigation has already been conducted. Those who are found to be not involved in the occurrence have already been deleted from the array of accused. Investigation confirms the complicity of the petitioners herein. The offences alleged are all triable by a Magistrate of the First Class. The petitioners may be directed to surrender before the learned Magistrate and seek regular bail in the ordinary course. 4. Having considered all the relevant inputs, I do find mere fact that the investigation had revealed that 5 of those 12 named and 8 unnamed persons have no culpable involvement is no reason by itself to jump to the conclusion that the petitioners herein do not also have any culpable involvement. The crux of the allegation is that the accused persons came as members of an unlawful assembly armed with weapons (coffee sticks) and unleashed an attack on the de facto complainant after trespassing into the premises and assaulted them with such coffee sticks causing injuries including grievous hurt to the victim. The fact that the complainant had made a mistake about B.A. No.1971 of 2008 -: 4 :- the identity of the accused persons or had made allegations which are not sustainable against some others is, according to me, certainly not a sufficient reason at this stage to grant anticipatory bail to the petitioners. I repeat that the petitioners must surrender before the Investigating Officer or the learned Magistrate having jurisdiction and then seek regular bail in the usual course. 5. In the result, this bail application is dismissed; but with the observation that if the petitioners surrender before the Investigating Officer or the learned Magistrate and seek 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. 6. The learned counsel for the petitioners submits that there is no Prosecutor attached to that court now. In these circumstances, I direct that if such submission be factually correct, prior notice can be given to the Investigating Officer. (R. BASANT, JUDGE) Nan/ B.A. No.1971 of 2008 -: 5 :-