IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 11TH JANUARY 2008 / 21ST POUSHA 1929 Bail Appl..No. 143 of 2008() ---------------------------- CRMP.5232/2007 of DISTRICT COURT, THODUPUZHA CP.131/2007 of J.M.F.C.,NEDUMKANDOM CR.NO.163/07 OF SHANTHANPARA POLICE STATION. .................... PETITIONER --------------------- SASEENDRAN, S/O. KARUNAKARAN, KARIKILAPARAMBIL HOUSE, BISON VALLEY P.O., MUTTUKADU, IDUKKI DISTRICT. BY ADV. SRI.P.K.SOYUZ RESPONDENTS: ------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. (CR.NO.163 OF 2007 OF SHANTHANPARA POLICE STATION). BY PUBLIC PROSECUTOR SRI. JAI GEORGE. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No. 143 OF 2008 ------------------------------------------------- Dated this the 11th day of January, 2008 ORDER Application for anticipatory bail. The petitioner is the 2nd accused. He faces indictment in a prosecution initiated for offences punishable, inter alia, under Sec.308 of the IPC. Though an omnibus allegation under Sec.308 of the IPC is raised, the learned counsel for the petitioner points out that even accepting the entire allegations, there can be no allegation under Sec.308 of the IPC against the petitioner. The learned counsel for the petitioner has taken me through the allegations in the F.I.R. in which the precise role assigned to the petitioner is that prior to the real incident of assault in this case, the petitioner had showered abuses on the de facto complainant. Later, the co-accused had allegedly attacked the victim at a different place. The learned counsel for the B.A. No. 143 OF 2008 -: 2 :- petitioner submits that because the allegation under Sec.308 of the IPC has been raised, the petitioner apprehends that the learned Magistrate may not consider his application for regular bail on merits bearing in mind this subtle distinction. 2. The learned Public Prosecutor was requested to take instructions. The learned Public Prosecutor submits that in the final report also the petitioner is not assigned any role in the real incident in which the offence under Sec.308 of the IPC is alleged to have been committed. The allegation against him is only about the showering of abuses at an earlier point of time, concedes the learned Public Prosecutor. 3. The learned counsel for the petitioner, in these circumstances, relies on the decision in Bharat Chaudhary and another v. State of Bihar (AIR 2003 SC 4662) and contends that notwithstanding the fact that the apprehended arrest is in execution of a non-bailable warrant issued by the learned Magistrate, the petitioner is, in the peculiar facts and circumstances of this case, entitled to grant of anticipatory bail. 4. The learned Public Prosecutor does not oppose the prayer and I am satisfied, in the facts and circumstances referred above, that the petitioner can be granted anticipatory bail. B.A. No. 143 OF 2008 -: 3 :- 5. In the result, this petition is allowed. Following directions are issued under Sec.438 of the Cr.P.C: (i) The petitioner shall appear before the learned Magistrate having jurisdiction at 11 a.m. on 21/1/08. He shall be released on regular bail on his executing a bond for Rs.25,000/- with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. (ii) If the petitioner does not appear before the learned Magistrate as directed in clause (i), directions issued above shall thereafter stand revoked and the police shall be at liberty to arrest the petitioner and deal with him in accordance with law as if these directions were not issued at all; (iii) If the petitioner were arrested prior to his surrender on 21/1/08 as directed in clause (i) above, he shall be released on his executing a bond for Rs.25,000/- without any sureties undertaking to appear before the learned Magistrate on 21/1/08. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge B.A. No. 143 OF 2008 -: 4 :-