IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 31ST JANUARY 2008 / 11TH MAGHA 1929 Bail Appl..No. 557 of 2008() ---------------------------- CRIME NO.343/07 OF ARYANADU POLICE STATION. .................... PETITIONERS/ACCUSED 1 TO 4 ------------------------------------------- 1. VIJESH V.L., AGED 26 YEARS, S/O. VINCENT D., VIVEK BHAVAN, ARUVIKONAM, CHAIKULAM, VEERANAKAVU P.O., THIRUVANANTHAPURAM. 2. KUNJUMON V.J., AGED 21 YEARS, S/O. VIJAYAN, MYLAMOOTIL VEEDU, THOLOOR, KOONTHANI, ARYANADU, THIRUVANANTHAPURAM. 3. RATHEESH, AGED 24 YEARS, S/O. STEPHEN, KOONTHANI, KUZHIVILA VEEDU, THOLOOR, ARYANAD TALUK, THIRUVANANTHAPURAM. 4. RATHEEP, AGED 23 YEARS, S/O. STEPHEN, KOONTHANI, KUZHIVILA VEEDU, THOLOOR, ARYANAD TALUK, THIRUVANANTHAPURAM. BY ADV. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.SABU SREEDHARAN SRI.RAJAN VELLOTH RESPONDENTS: STATE ------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.JAI GEORGE. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No. 557 OF 2008 ------------------------------------------------- Dated this the 31st day of January, 2008 ORDER Application for anticipatory bail. The petitioners are accused 1 to 4. Altogether, there are 6 accused persons. Petitioners 1 to 4 are named in the F.I.R. The alleged incident took place on 15/12/07. The petitioners face allegations in a crime registered for offences punishable, inter alia, under Secs.452 and 308 of the IPC and Sec.27 of the Arms Act. There are three victims. Two of them have suffered external injuries. The crux of the allegations is that when the de facto complainant had placed stones to prevent any damage or destruction to his agricultural property by the vehicles entering into that land, the petitioners raised objections against the same and on account of that animosity, later on that day the accused persons trespassed into the house of the de facto complainant and indulged in wanton acts of mischief B.A. No. 557 OF 2008 -: 2 :- armed with dangerous weapons. The incident took place on 15/12/07. Investigation is in progress. The petitioners apprehend imminent arrest. 2. The learned counsel for the petitioners submits that the petitioners are absolutely innocent. The allegation under Sec.308 of the IPC has been included with the transparent intention to vex and harass the petitioners and to ensure that they are not able to claim regular bail from the learned Magistrate, submits the learned counsel for the petitioners. 3. The learned Public Prosecutor opposes the application. He submits that, at any rate, there are no circumstances justifying or warranting the invocation of the extraordinary equitable discretion under Sec.438 of the Cr.P.C. Even without Sec.308 of the IPC, there are other non-bailable offences alleged against the petitioners, it is submitted. 4. Called upon to explain the nature of the circumstances under which the allegation under Sec.308 of the IPC has been raised against the petitioners, the learned Public Prosecutor has taken through the nature of the allegations and the nature of the injuries suffered. I am satisfied, in these circumstances, that a direction can be issued that the learned Magistrate, when he considers the application for regular bail, must consider the B.A. No. 557 OF 2008 -: 3 :- same ignoring and eschewing the allegation under Sec.308 of the IPC. This petition can succeed only to above extent. 5. In the result, this bail application is dismissed; but with the observation that if the petitioners surrender before the learned Magistrate and seek 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 and expeditiously – eschewing and ignoring the allegations raised under Sec.308 of the IPC. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge