IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 28TH JANUARY 2008 / 8TH MAGHA 1929 Bail Appl..No. 482 of 2008() ---------------------------- CRIME NO.10/08 OF NEYYATTINKARA POLICE STATION : PETITIONERS/ACCUSED (A1 AND A2) ------------------------------------------------ 1. SIVAKUMAR @ SIVAN, AGED 35, S/O.SUKUMARAN, UTHRADAM, CHARALPATTA, MARYAMUTTOM P.O., 2. BIJU, S/O.MANIAN, AGED 28, KIZHAKKEPHAKOM PUTHENVEEDU, MARAYAMUTTOM, MARAYAMUTTOM P.O. BY ADV. SRI.R.T.PRADEEP RESPONDENTS: ------------- THE STATE OF KERALA, REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZER THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- B.A.No.482 of 2008 ---------------------------------------- Dated this the 28th day of January 2008 O R D E R Application for anticipatory bail. The petitioners - uncle and nephew face allegations in a crime registered under Section 326 I.P.C. 2. The petitioners are accused 1 and 2. Altogether there are three accused persons. The petitioners are named in the F.I.S. Third accused is not named in the F.I.S. The crux of the allegations against the petitioners is that on account of animosity arising from the attack on the father of the second accused by the de facto complainant on the previous day and also on the same day, the petitioners armed with wooden sticks unleashed an attack on the de facto complainant, a neighbour of the petitioners. He suffered serious and grievous injuries including fracture of the tibia. The incident took place on 03/01/2008. Promptly the de facto complainant was taken to the doctor on the same day. The alleged cause was narrated to the doctor, though the miscreants have not been named in such statement given to the doctor. The police reached the de facto complainant and recorded his statement on 06/01/2008. In such B.A.No.482/08 2 statement the detailed allegations are raised against the two petitioners, and an unidentified third person. Investigation is in progress. The petitioners apprehend imminent arrest. 3. The learned counsel for the petitioners submits that the petitioners are innocent. Father of the second accused was mercilessly attacked twice by the second accused. Those alleged incidents had taken place on the previous day and at 6 p.m on 3/1/2008. The de facto complainant herein must also have suffered injuries in the said incident; but a false allegation is being raised against the petitioners. In any view of the matter, the petitioners may be granted anticipatory bail now, it is prayed. 4. The learned Public Prosecutor opposes the application vehemently. The learned Public Prosecutor points out that there are no circumstances whatsoever to assume that the petitioners are not guilty. The incidents in which the second petitioner's father had suffered injuries occurred much prior to the incident in this case and even as per the allegation in the F.I statement, it is because of such an earlier incident that the present incident took place. In any view of the matter, the petitioners do not deserve to be granted anticipatory bail. They may be directed to B.A.No.482/08 3 surrender before the investigating officer or the learned Magistrate having jurisdiction and then seek regular bail in the ordinary course, submits the learned Public Prosecutor. 5. 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 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 petitioner must appear before the investigating officer or the learned Magistrate having jurisdiction and then seek regular bail in the normal and ordinary course. 6. In the result, this petition is dismissed. Needless to say, if the petitioners surrender before the investigating officer or the learned Magistrate and apply for 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, in accordance with law and expeditiously. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge B.A.No.482/08 4 B.A.No.482/08 5 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007