Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN MONDAY,THE 22ND DAY OF JULY 2013 31ST ASHADHA, 1935 Bail Appl..No. 4815 of 2013 () ------------------------------- CRIME NO. 376/2013 OF KALIYAR POLICE STATION , IDUKKI DISTRICT -------------------------------------- PETITIONERS/ACCUSED : ------------------------------------------ 1. TOMY, AGED 5 YEARS, S/O.JOSEPH, ARAYATHINAL HOUSE, MURIKKASSERY KARA, IDUKKI DISTRICT.
2. BABY, AGED 4 YEARS,S/O.VARKEY, PUTHUPARAMBIL HOUSE, KALIYAR KARA, VANNAPPURAM VILLAGE, IDUKKI DISTRICT. BY ADV. SRI.C.S.AJITH PRAKASH RESPONDENTS : ----------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
2. STATION HOUSE OFFICER, KALIYAR POLICE STATION. R1 & R2 BY PUBLIC PROSECUTOR SMT. R.REMA THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22-07-2013, ALONG WITH BA.NO. 4941/2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts S.S.SATHEESACHANDRAN, J.
------------------------------------------ B.A.No.4815 & 4941 OF 201.() -------------------------------------------- Dated this the 22nd day of July, 2013 ORDER
~~~~~~~ The above applications have been filed by the accused, three in number, in Crime No.376 of 2013 of Kaliyar Police Station registered for offences punishable under Sections 452, 294(b), 324, 341, 308 and 427 read with 34 of Indian Penal Code. B.A.No.4815 of 2013 is filed by two petitioners together (A1 and A2), and B.A.No.4941 of 2013 by another (A3) in the crime. All of them seek pre-arrest bail under Section 438 of the Code of Criminal Procedure (for short 'the Code').
2. Allegation is that the accused persons, all of them together, pursuant to their common intention, committed criminal trespass upon the shop of de facto complainant and assaulted him and also his father, with one among the accused striking them with an iron rod, a lethal weapon. When the injured after the assault on them proceeded to hospital in a vehicle, the accused persons are alleged to have damaged that vehicle also. Crime registered over the occurrence is now under investigation. B.A.Nos.4815 & 4941/201”
3. Learned counsel for petitioners submits that another crime has been registered as Crime No.375 of 2013 over the assault on the first accused in the crime by de facto complainant and others. The first accused, in fact, was a victim and he was assaulted brutally by de facto complainant and others after dragging him into their shop room and keeping him under wrongful restraint, pulling down the shutters of that shop, is the submission of counsel. Injuries sustained by first accused, are also referred to by counsel to contend that the crime registered against him and other accused are totally false. Petitioner in B.A.No.4941 of 2013 (A3 in the crime) is a student and, he has been falsely implicated in the crime, at a later stage, is the submission of counsel.
4. Applications are opposed by learned Public Prosecutor contending that the materials gathered by investigating agency disclose complicity of all petitioners in the grave offences imputed against them.
5. Case diaries in both crimes have been produced for my perusal. After looking into the case diaries with reference to submissions made by counsel on both sides, I find, there is B.A.Nos.4815 & 4941/2013 3 enough room to suspect complicity of petitioners in B.A.No.4815 of 2013 (A1 and A2) in the grave offences alleged in the crime and this is not a fit case where the above petitioners can be extended the discretionary relief of pre-arrest bail. So far as the petitioner in B.A.No.4941 of 2013, after going through the statement of de facto complainant, one of the injured, and circumstances surrounding the case, including that the above petitioner is a student, I find he can be extended the relief of anticipatory bail. I do take note that A1 and A2 are named in the statement given by de facto complainant with a version that in the assault one more person identifiable by sight was involved. That person identifiable by sight, if we go by his version pulled him down with the other accused. That alone is the overtact imputed against that person to be identified, is also taken note to extend the discretionary relief in favour of the third accused, petitioner in B.A.No.4941 of 2013, but, with direction to him to co-operate with the investigation of the crime.
6. Learned counsel for petitioners, at this stage, requested for an opportunity to accused Nos. 1 and 2 to surrender before the investigating officer, fixing date and time to B.A.Nos.4815 & 4941/2013 4 do so by an Order of this Court. Considering the request made while declining pre-arrest bail to them the following directions are issued: In case petitioners in B.A.No.4815 of 2013 (A1 and A2 in the crime) appear before the investigating officer at 10 a.m. on 26.7.2013, after their interrogation and in the event of their arrest in the crime, they shall be produced before the Magistrate without delay. On such production application for bail, if any, moved by them with advance notice to Assistant Public Prosecutor also, shall be considered by the Magistrate, expeditiously, and disposed on its merits in accordance with law. Petitioner in B.A.No.4941 of 2013 (A3 in the crime) is granted anticipatory bail with direction to him to report before the investigating officer at 10 a.m. on 26.7.2013. On his appearance as directed, after his interrogation, in the event of his arrest in the crime, he is directed to be released on bail on his executing bond for Rs.10,000/- with one solvent surety. The above petitioner shall report before the investigating officer as and when directed till the investigation over the crime is completed. B.A.Nos.4815 & 4941/2013 5 In default of petitioner (A3) to appear before the investigating officer at the time and date fixed as above, this order shall cease to have any effect. Petitions are disposed of as above. sd/- S.S.SATHEESACHANDRAN JUDGE ps/22/7 //True copy// PA to Judge