IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 8TH APRIL 2008 / 19TH CHAITHRA 1930 Bail Appl..No. 2163 of 2008() ----------------------------- CRIME NO. 49/08 OF BEYP0RE POLICE STATION .................... PETITIONER/ACCUSED NO.3. ----------------------------------------- JAMSHIDH C., S/O.AHAMMEDKOYA, AGED 32 YR CHEKKINTAKATHU HOUSE, BEYP0RE AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.SUNNY MATHEW RESPONDENTS: ------------- STATE OF KERALA THROUGH THE SUB INSPECTOR OF POLICE, BEYPORE POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKUKAM. BY PUBLIC PROSECUTOR SRI. JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 2163 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of April, 2008 O R D E R Application for anticipatory bail. The petitioner faces allegations in a crime registered alleging offences punishable, inter alia, under Sections 452 and 308 I.P.C. Altogether there are three accused persons. Accused 1 and 2 were arrested and they have already been granted regular bail as per order dt. 4.4.2008 in B.A. 2158 of 2008. 2. The crux of the allegations is that the miscreants trespassed into the house of the defacto complainant and indulged in acts of violence against the defacto complainant and her sons. No serious injury has been suffered by any of the alleged victims admittedly. It is in these circumstances that the co-accused were granted regular bail as per the order referred above. 3. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. False allegations are being B.A.No. 2163 of 2008 2 raised against him. The inclusion of the allegation under Section 308 I.P.C. must expose to this court the want of bonafides on the part of the defacto complainant as also the police in the matter of investigation. Even if the entire allegations were accepted, there is not a semblance of data to attract culpability under Section 308 I.P.C. The said section has been included with malafide intention to ensure that the accused persons were in custody for as long a period as possible. The learned counsel in these circumstances submits that at any rate allegation under Section 308 I.P.C. is not justified at all. 4. The learned Prosecutor opposes the application. He submits that even if it be assumed that allegation under Section 308 I.P.C. is exaggerated and not sustainable, it remains that the petitioner has to face the allegation under Section 452 I.P.C., in support of which allegation adequate data is available. In these circumstances the learned Prosecutor submits that the State has no objection in the application for regular bail to be filed by the petitioner being considered by the courts below ignoring the allegation under Section 308 I.P.C. B.A.No. 2163 of 2008 3 5. The case diary has been placed before me. I have perused the same. Having considered all the relevant inputs, I find the stand taken by the learned Prosecutor to be absolutely justified. Though I am not satisfied that directions under Section 438 Cr.P.C. can or need be issued in favour of the petitioner, appropriate direction can be issued regarding consideration of the application for regular bail to be submitted by the petitioner. 6. This application is accordingly dismissed. But it is observed that if the petitioner surrenders before the Investigating Officer or the learned Magistrate within a period of ten days from this date and applies for bail, the learned Magistrate must consider such application on merits, in accordance with law and expeditiously eschewing and ignoring the allegation under Section 308 I.P.C. (R. BASANT) Judge tm