IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 26TH MARCH 2008 / 6TH CHAITHRA 1930 Bail Appl..No. 1789 of 2008() ----------------------------- CRIME NO.104/08 OF THE KUNNICODU POLICE STATION PETITIONER/ACCUSED NO.2 ---------------------------------------- M.NAZARUDHEEN @ NAZAR, AGED 44, S/O.MOIDEEN KUNJU, VALUTHUNDIYIL VEEDU, KUNNICODU, KOLLAM. BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.PRAVEEN K. JOY RESPONDENTS: COMPLAINANT & STATE -------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, KUNNICODU POLICE STATION. BY PUBLIC PROSECUTOR SRI. JAI GEORGE. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No. 1789 of 2008 ------------------------------------------------- Dated this the 26th day of March, 2008 ORDER Application for anticipatory bail. The petitioner is the 2nd accused in a crime registered alleging offences punishable under Secs.308 and 324 read with Sec.34 of the IPC. Altogether, there are 4 accused persons. The crux of the allegations is that, on account of prior animosity, the de facto complainant was chased and attacked by the accused persons. The petitioner allegedly drove his car and stopped it in such a way as to block the progress of the car of the de facto complainant. The accused persons went to the de facto complainant. He was allegedly attacked. Injury proper was inflicted on him by the 1st accused. But the petitioner was also present along with the 1st accused and had allegedly participated in the occurrence. The alleged incident took place B.A. No. 1789 of 2008 -: 2 :- on 2/3/08. Investigation is in progress. The petitioner apprehends imminent arrest. 2. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. One of the accused – A4, has already been granted anticipatory bail by another Bench of this Court as per the order dated 17/3/08 in B.A.No.1682/08. The learned counsel for the petitioner submits that the petitioner did not share any common intention with the accused who is alleged to have inflicted the injury on the de facto complainant. He is related to the parties and he was only trying to avoid any untoward incident. In these circumstances, it is prayed that the petitioner may be granted anticipatory bail. 3. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that while it is true that the 4th accused has been granted anticipatory bail, the order passed reveals that it was not brought to the notice of the learned Judge that the offence under Sec.308 of the IPC is also alleged against the accused persons. The learned Public Prosecutor has placed before me the Case Diary for my perusal. I have perused the same. The Case Diary reveals the specific allegations against the petitioner. The petitioner is alleged to be the one who had blocked the further progress of the car of the B.A. No. 1789 of 2008 -: 3 :- de facto complainant to facilitate assault by all the accused. It is, of course, true that it was not the petitioner who wielded the dangerous weapon and inflicted the serious injury on the de facto complainant. The wound certificate has also been placed before me. A fairly serious injury has been inflicted on the victim. The learned Public Prosecutor contends that, in these circumstances, there is absolutely nothing to show that the petitioner did not share the common intention to attack and cause serious injury to the de facto complainant. In any view of the matter, there is absolutely no circumstance in this case which can justify or warrant the invocation of the extraordinary equitable discretion under Sec.438 of the Cr.P.C., submits the learned Public Prosecutor. 4. Having considered all the relevant inputs and having carefully perused the Case Diary as also the previous order of the anticipatory bail granted to the 4th accused, I find merit in the opposition by the learned Public Prosecutor. I am not persuaded to agree that there are any features in this case that 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 resort to the ordinary and normal course of B.A. No. 1789 of 2008 -: 4 :- appearing 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 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. (R. BASANT, JUDGE) Nan/