IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 Bail Appl..No. 238 of 2008() ---------------------------- CRIME NO. 271/06 OF KURAVILANGAD POLICE STATION CRMP.2840/2007 of ADDL.DISTRICT COURT,KOTTAYAM .................... PETITIONER/ACCUSED NO.5 ---------------------------------------- K.P.JOHN @ JOHNY, S/O.PATHROSE, AGED 45, KANNAPADAVIL (THOTTIYIL HOUSE), KOODAPALAM KARA, VELLILAPPALLY VILLAGE. BY ADV. SRI.S.NIRMAL KUMAR RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA, REPRESENTED BY S.I. OF POLICE, KURAVILANGAD POLICE STATION (CRIME NO.271/2006), REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 238 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of January, 2008 O R D E R Application for anticipatory bail. The petitioner is the 5th accused. He faces allegations in a crime registered alleging offences punishable, inter alia, under Sections 452 and 308 I.P.C. The crux of the allegations against the accused in that F.I.R. is that they - two identifiable persons - trespassed into a toddy shop, where the defacto complainant is an employee and unleashed an attack on him with dangerous weapons, resulting in injuries to him. The defacto complainant had no clue of the identity of the assailants or as to why he was attacked by them. The alleged incident took place on 13.12.2006. The defacto complainant was hospitalised. On the basis of the F.I. statement recorded when he was in the hospital, crime was registered on 15.12.2006. Investigation was conducted. Investigation by the local Sub Inspectors did not yield any tangible result. Investigation was hence taken over by superior official, the B.A.No. 238 of 2008 2 Circle Inspector. He conducted a thorough and detailed investigation, in the course of which, he came to know that the 5th accused had entertained animosity against the defacto complainant, that he had engaged the first accused to retaliate against the defacto complainant and the first accused in turn had engaged accused 2 to 4, who had carried out the operation. Two of the three miscreants had entered the toddy shop while the other did not enter the shop. Accused 2 to 4 have already been arrested. Their statements have been recorded. The culpable involvement of the 5th accused was confirmed by the materials collected. He has not been arrested yet. He apprehends imminent arrest. 2. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. The alleged motive is too slender and feeble to justify the alleged attack. The allegations raised in the F.I. statement are not consistent with the present version that accused 2 to 4 had attacked the victim. The counsel also points out that the case of the prosecution narrated in the order of the learned Sessions Judge does not tally with the case put forward by the learned Prosecutor now. B.A.No. 238 of 2008 3 3. The learned Prosecutor opposes the application. He submits that he is advancing the case of the police on the basis of the details available in the case diary. There is nothing to assume that the first accused had actually taken part in the operation and inflicted any injury on the defacto complainant. Such innocuous misstatement in the order passed by the learned Sessions Judge may not be reckoned as vital or crucial while considering this application, submits the Prosecutor. The investigation has revealed that the unknown miscreants had come along with another to the scene of the crime and that one of them was waiting outside. Only two had entered the shop and attacked the defacto complainant. In these circumstances the fact that accused 2 to 4 have been arrayed as miscreants engaged by the first accused is not inconsistent with the allegations in the F.I. statement, submits the Prosecutor. 4. Having considered all the relevant inputs, I find merit in the opposition by the learned Prosecutor. I am unable to find any features in this case, which would justify the invocation of the extra ordinary equitable discretion under section 438 Cr.P.C. in favour of the B.A.No. 238 of 2008 4 petitioner. In a case like this, where the actual assailants have no motive whatsoever against the victim, it will be improper for the court to draw any crucial adverse inference against the prosecution for the inadequacies in the F.I. statement. The totality of circumstances do convince me that the Investigators must be given opportunity to interrogate the petitioner. This I am satisfied is a fit case where the petitioner must resort to the ordinary and normal procedure of appearing before the Investigator or the learned Magistrate having jurisdiction and then seek regular bail in the ordinary course. 5. This application is accordingly dismissed. I may however hasten to observe that if the petitioner appears before the learned Magistrate and applies for bail after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass orders on merits, in accordance with law and expeditiously. (R. BASANT) tm Judge B.A.No. 238 of 2008 5