IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 14TH FEBRUARY 2008 / 25TH MAGHA 1929 Bail Appl..No. 856 of 2008() ---------------------------- CRIME NO. 13/08 OF VYTHIRI POLICE STATION CRMP.237/2008 of DISTRICT COURT, KALPETTA .................... PETITIONER/ACCUSED ----------------------------------- JOSEPH, AGED 49 YEARS, S/O. THOMAS, RESIDING AT MOOLAN HOUSE, OLIVUMALA CHUNDALE POST AND VILLAGE, VYTHIRI TALUK. BY ADV. SRI.V.V.SURENDRAN RESPONDENTS: STATE AND COMPLAINANT ---------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. STATION HOUSE OFFICER, VYTHIRI POLICE STATION, WAYANAD. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 856 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of February, 2008 O R D E R Application for anticipatory bail. The petitioner is the sole accused in a crime registered for offences punishable under Sections 341 and 326 I.P.C. The crux of the allegations is that the defacto complainant and his wife went to the house of the petitioner, who is the brother of the defacto complainant, to demand the original document relating to his property to enable him to pledge the same and raise money. The accused refused to part with the original document. He allegedly pushed down the defacto complainant. He further beat the defacto complainant with a coffee stick. The defacto complainant suffered injuries, including a fracture. He was rushed to the doctor, who had seen him at 11 a.m. The petitioner is named in the wound certificate. F.I. statement was recorded when the victim was in the hospital. That statement is seen recorded only on 21.1.2008. Investigation is in progress. The petitioner has not been arrested so far. B.A.No. 856 of 2008 2 2. The learned counsel for the petitioner submits that the petitioner is innocent. His brother has some psychiatric problems. Some persons inimical towards the petitioner must have prevailed upon the defacto complainant to raise false allegations against the petitioner. The allegations have been raised belatedly. In these circumstances anticipatory bail may be granted to the petitioner, prays the learned counsel. 3. The learned Prosecutor opposes the application. He submits that there are no circumstances justifying or warranting invocation of the discretion under Section 438 Cr.P.C. in favour of the petitioner. Though the police had gone to the defacto complainant to record the statement belatedly, that cannot militate against the acceptability of the F.I. statement now. More over, to the doctor who examined the victim, he had made a prompt statement about the alleged cause specifying that the petitioner herein was the one who allegedly inflicted the injury. 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 B.A.No. 856 of 2008 3 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 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