IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 8TH APRIL 2010 / 18TH CHAITHRA 1932 Bail Appl..No. 2043 of 2010() --------------------------------- CRIME NO. 425/2009 OF BEKAL POLICE STATION, KASARGOD DISTRICT ........................... PETITIONER/ACCUSED NO.6: ----------------------------------- RAGESH B.K., S/O.BALAKRISHNAN K.V., AGED 24 YEARS, RESIDING AT VEDITHIRAKKAL, PALAKKUNNU, POST BEKAL, KASARAGOD DISTRICT. BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENT/COMPLAINANT/STATE: -------------------------------------------- THE STATION HOUSE OFFICER, BEKAL POLICE STATION, KASARAGOD DISTRICT REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SRI. V. TEKCHAND PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 08/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. ------------------------ B.A. No. 2043 of 2010 ------------------------------------ Dated this the 8th day of April, 2010 O R D E R Petitioner, Ragesh.B.K., who claims that he is not an accused in Crime No.425/2009 of Bekal Police Station, apprehends arrest as if he is accused No.6 in the case. Therefore, he has filed this application for anticipatory bail. 2. The offences alleged against the accused persons are under Sections 143, 147, 148, 452, 324, 308 and 427 read with Section 149 of the Indian Penal Code. 3. After completing the investigation, charge sheet was filed on 30.01.2010. The matter is now pending as C.P. No. 22/2010 on the file of the Court of the Judicial Magistrate of the First Class-II, Hosdurg. The petitioner apprehends arrest in execution of the non bailable warrant issued by the Court against accused No.6. The case of the petitioner is stated in paragraph 3 of the Bail Application, which reads as follows: “Petitioner submits that he is totally innocent of the allegation. He is wrongly and falsely implicated in the crime. He is not involved in the offence. It is understood B.A. No. 2043 of 2010 2 that another person by name Ragesh was implicated as 6th accused and when he was about to be apprehended, he absconded. Petitioner was not apprehended by the police. With a view to protect the person who was named in the F.I.R as real accused, police now seeks to arrest the petitioner with a new story that petitioner is the accused person. Petitioner submits that the case of mistaken identity now sought to be established by the police is done deliberately. Petitioner cannot be fastened with the criminal liability as per the whims and fancies of the investigating officer. “ 4. If a person is arrested as if he is an accused in the case and if really he is not the accused, the person who is arrested and brought before the Court is not without any remedy. He can submit before the Court concerned that he is not the person who was supposed to be arrested. 5. In Vineeth Somarajan @ Ambadi Vs. State of Kerala [2009 (3) KHC 471] it was held that in cases where non bailable warrant is issued by a court, the proper remedy of the accused is to approach that court which issued the warrant and to apply for B.A. No. 2043 of 2010 3 recalling the warrant and for the grant of bail. It was also observed in Vineeth Somarajan's case that when such an application for bail is filed, the same has to be considered in the light of the principles laid down in Biju Vs. State of Kerala [2007 (2) K.L.T. 280]. Reserving the right of the petitioner to move for regular bail, or in the alternative to contend before the learned Magistrate that the petitioner is not the person who is supposed to be arrested, this Bail Application is closed. K.T. SANKARAN, JUDGE ln