IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 Bail Appl..No. 1487 of 2008() ----------------------------- CRIME NO. 103/08 OF MAVELIKKARA POLICE STATION PETITIONERS/ACCUSED ----------------------------------- 1. (A1) ANI, KATTATTU VEEDU, MATTOM VADAKKU MURI, KANNAMANGALAM VILLAGE, MAVELIKKARA TALUK. 2. (A2) MONI, KATTATTU VEEDU, MATTOM VADAKKU MURI, KANNAMANGALAM VILLAGE, MAVELIKKARA TALUK. 3. (A3) SHAJI, KATTATTU VEEDU, MATTOM VADAKKU MURI, KANNAMANGALAM VILLAGE, MAVELIKKARA TALUK. BY ADV. SRI.K.JAYARAJ RESPONDENTS: COMPLAINANT ------------------------ KERALA STATE REPRESENTED BY SUB INSPECTOR OF POLICE, MAVELIKKARA, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 1487 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of March, 2008 O R D E R Application for anticipatory bail. The petitioners are accused 1 and 2. Altogether there were three accused persons arrayed originally. 560 litres of wash and 20 litres of arrack were allegedly found in the possession of the accused persons on 18.2.2008. All the three could not be apprehended. They took to their heels. Their names were ascertained from the local persons. Investigation is in progress. The petitioners apprehend imminent arrest. 2. According to the petitioners they are absolutely innocent. Their names have been brought on the array of accused without any valid reason. It is prayed that direction under Section 438 Cr.P.C. may be issued in favour of the petitioners to save them from the vexatious arrest and detention. The learned counsel submits that the third accused, who was named in the contemporaneous document was not even available in B.A.No. 1487 of 2008 2 India at the relevant time and the Investigators after realising the folly have now deleted the third accused from the array of accused. As against the petitioners also such careless allegations have been raised and they have been forced to face the trauma of arrest and detention. 3. The learned Prosecutor opposes the application. He submits that while it is true that an error has been committed by the witnesses in respect of the identification of the third accused, that by itself cannot deliver any advantage to the petitioners. There is nothing to show that the police have any animus against the petitioners to falsely implicate them, submits the learned Prosecutor. 4. Having considered all the relevant inputs, I find merit in the opposition by the learned Prosecutor. The mere fact that such an error has been committed in respect of the third accused is not a reason to concede to the petitioners the right to claim anticipatory bail. 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 petitioners. This, I agree with the Prosecutor, is a fit case where the petitioners must resort to the ordinary and B.A.No. 1487 of 2008 3 normal procedure of appearing before the Investigator or the learned Magistrate having jurisdiction and then seek regular bail in the usual course. 5. This application is accordingly dismissed. I may however hasten to observe that if the petitioners appear before the learned Magistrate and apply 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