IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 Bail Appl..No. 5129 of 2008() ----------------------------- CRIME NO. 85/2008 OF VIZHINJAM POLICE STATION PETITIONER/ACCUSED ----------------------------------- THOMAS KUMAR @ KUMAR, AGED 43, S/O.LEON, USHA NIVAS, KATTUPURAM, VIZHINJAM VILLAGE. BY ADV. SRI.R.GOPAN RESPONDENT: COMPLAINANT ------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A.No. 5129 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of August,2008 O R D E R Application for anticipatory bail. 2. The alleged offences are under sections 326 and 452 IPC. According to prosecution, petitioner allegedly assaulted his own sister and inflicted injuries, including a fracture. This was done because the injured refused to withdraw a civil suit filed against him. 3. Petitioner had filed an application for anticipatory bail earlier as B.A. no.2209/2008 before this Court. As per order dated 9-4-2008, the said application was dismissed by another Bench of this Court. It was held therein as follows:- “I am not satisfied that the petitioner deserves to be granted anticipatory bail. I find no features available in this case which can justify or warrant the invocation of the extra-ordinary equitable discretion under section 438 Cr.P.C.” Petitioner has again filed this application for anticipatory bail after more than four months of dismissal of the earlier application. On hearing both sides, I do not find any reason to come to a different BA 5129/08 -2- finding. Petitioner has not established that there is change in the circumstances. 4. It is also relevant to note that this Court had observed in the order in earlier application for anticipatory bail that the allegation under section 308 should be eschewed by the learned Magistrate while considering such application for regular bail and the learned Magistrate should reckon the allegations as having been raised under sections 326 and 452 IPC. It can also be seen that the Court had observed that if petitioner surrenders before the Investigating Officer or 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 appropriate orders on merits and expeditiously. Petitioner has not so far surrendered before the Investigating Officer or the learned Magistrate, though more than four months have elapsed now. For all these reasons, I find that there is absolutely no ground to invoke the discretionary jurisdiction under section 438 Cr.P.C. 5. It is pointed out the learned Public Prosecutor that recovery of weapon is so far not effected. Petitioner has not surrendered before the Investigating Officer and he has been absconding. Though the crime was registered as early as on 28-2- BA 5129/08 -3- 2008, for the past six months, petitioner was not available to the police for investigation. 6. Hence, a direction is issued to petitioner to surrender before the Investigating Officer or before the learned Magistrate within seven days from today. The application is dismissed. K. HEMA, JUDGE. mn.