IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 Bail Appl..No. 441 of 2008() ---------------------------- CRIME NO.5 OF 2008 OF ALUVA POLICE STATION .................... PETITIONER : 1ST ACCUSED IN CRIME NO.5/2008 OF ALUVA PS: ------------------------------------------------------------ FAISAL, AGED 21 YEARS, S/O.N.U.PAREED, NEDIYERIL HOUSE, ERUMATHALA P.O., ALUVA. BY ADV. SRI.K.A.JALEEL SRI.N.K.POULOSEKUTTY RESPONDENTS: COMPLAINANT: ------------------------- THE STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, ALUVA POLICE STATION- CR.5/2008 OF ALUVA POLICE STATION) REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06/02/2008, ALONG WITH BA NO.442 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ B.A.Nos.441 and 442 of 2008 ------------------------------------- Dated this the 6th day of February, 2008 ORDER These applications by the common petitioner are for anticipatory bail in two different crimes. The first one is registered for offences punishable, inter alia, under Sections 307 and 452 I.P.C, whereas the latter one is registered for offencs punishable, inter alia, under Sections 452 and 326 I.P.C. These crimes relate to the events that took place in the same locality on the new year night when revelries were going on. There was allegedly a dispute between the petitioner and his friends on the one side and the defacto complainant on the other about playing of Hindi songs for the celebration. It is alleged that the accused persons including the petitioner attacked the defacto complainant who was standing on the veranda of a house. He suffered serious injuries though no grievous injury as such is alleged to have been suffered. Iron rod was allegedly the weapon used in the first case. 2. In the second case it is alleged that on account of the strain in the relationship, after the first incident, the accused persons including the petitioner went to the house of the defacto complainant and attacked him with a wooden stick resulting in grievous injury suffered by the victim. These two incidents took place within a span of 15 minutes. Crime has been registered. B.A.Nos.441 and 442 of 2008 2 The petitioner is named as the 1st accused in both cases. Investigation is in progress. The petitioner apprehends imminent arrest. 3. The learned counsel for the petitioner submits that in this case, at any rate, there is no merit in the allegation raised under Section 307 I.P.C. The victim has not even suffered a grievous hurt. In these circumstances inclusion of the allegation under Section 307 I.P.C is not justified. In the latter case, it is alleged that no grievous hurt has resulted and that the petitioner has been falsely implicated in both the crimes on account of political animosity. 4. The learned Public Prosecutor opposes the applications. The learned Public Prosecutor submits that in the former case the nature of the weapon used, the site of the injury and the manner in which the infliction took place must eloquently convey that the inclusion of the allegation under Section 307 I.P.C is absolutely justified. In so far as the second case is concerned, the learned Public Prosecutor points out that a grievous hurt (fracture) has been suffered by the victim and at any rate the petitioner is not entitled in either case for the invocation of the extraordinary equitable discretion under Section 438 Cr.P.C. B.A.Nos.441 and 442 of 2008 3 5. Having considered all the relevant inputs, I find merit in the opposition by the learned Public Prosecutor. I am not persuaded to agree that there are any circumstances in these cases which can justify or warrant the invocation of the extraordinary equitable discretion under Section 438 Cr.P.C. These, I agree with the learned Public Prosecutor, are fit cases where the petitioner must appear before the Investigating Officer or the learned Magistrate having jurisdiction and then seek regular bail. 6. These applications are, in these circumstances, dismissed, but I may hasten to observe that if the petitioner surrenders before the Investigating Officer or the learned Magistrate and applies for bail in both the cases 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) rtr/- B.A.Nos.441 and 442 of 2008 4 B.A.Nos.441 and 442 of 2008 5 R.BASANT, J ------------------------------------ B.A.Nos.441 and 442 of 2008 ------------------------------------- B.A.Nos.441 and 442 of 2008 6 Dated this the 25th day of January, 2008 ORDER The learned Public Prosecutor prays for time, but undertakes that the petitioner shall not be arrested till the next date of posting. Request and undertaking accepted. 2. Call on 30.01.08. (R.BASANT, JUDGE) rtr/-