IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 13TH FEBRUARY 2008 / 24TH MAGHA 1929 Bail Appl..No. 634 of 2008() ---------------------------- CRIME NO. 19/08 OF ADHUR POLICE STATION PETITIONER : ACCUSED: ------------------------- IBRAHIM, S/O.MUHAMMED, AGED 25 YEARS, GRAMARADUKKAM, ADHUR, MULLERIYA, KASARAGOD. BY ADV. SRI.SOJAN MICHEAL RESPONDENTS: COMPLAINANT: ------------------------- STATE OF KERALA 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 13/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 634 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of February, 2008 O R D E R Application for anticipatory bail. Petitioner is the sole accused. He faces allegations under Section 326 I.P.C. The dispute regarding the affairs of a mosque and an earlier attack on the petitioner by the defacto complainant is the alleged motive. Wooden stick is the weapon alleged used. Loss of tooth is the injury suffered. There is a counter case also, wherein the petitioner is the defacto complainant/ injured. That counter case is registered under Sections 323 and 341 I.P.C. 2. The learned counsel for the petitioner submits that the petitioner is innocent. He is the victim of aggression and not the aggressor. False allegations are now being raised against him. The tooth allegedly lost is not genuine, but is an artificial one, urges the counsel. 3. The learned Prosecutor opposes the application. He submits that the available indications clearly show that the attack B.A.No. 634 of 2008 2 was with a dangerous weapon and that the victim had suffered a grievous injury. The tooth that was lost was genuine. It is true that a counter case has been registered. Allegations and counter allegations have been raised. It is too early to jump to the conclusion that the petitioner was not the aggressor and was the victim of aggression. There are no circumstances justifying or warranting invocation of the discretion under Section 438 Cr.P.C. in favour of the petitioner, submits the learned 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 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 B.A.No. 634 of 2008 3 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) Judge tm