IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 21ST JANUARY 2008 / 1ST MAGHA 1929 Bail Appl..No. 314 of 2008() ---------------------------- CRIME NO.1060/07 OF THODUPUZHA POLICE STATION PETITIONER : ACCUSED ----------------- SANTHOSH, AGED 34 YEARS, S/O.KRISHNAN, RESIDING AT POOVATHUNGAL HOUSE, OLAMATTOM KARA, THODUPUZHA. BY ADV. SRI.K.DIVAKARAN NAIR RESPONDENTS: ------------- SUB INSPECTOR OF POLICE, THODUPUZHA POLICE STATION, IDUKKI DISTRICT (CRIME NO.1060/07) REPRESENTED BY DIRECTOR OF PROSECUTION, HIGH COURT ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- B.A.No.314 of 2008 ---------------------------------------- Dated this the 21st day of January 2008 O R D E R Application for anticipatory bail. The petitioner is the first accused. He, along with three others, had allegedly picked up a quarrel with the de facto complainant, who, after closing his shop was going to the shop of his brother at about 10.30 p.m on 11/12/2007. The de facto complainant allegedly saw one of the persons vomiting in front of the shop of his brother. He took objections to this conduct and wanted him to move away. This was objected by the petitioners. The de facto complainant was assaulted. He was forcibly taken to a vehicle. The vehicle sped away. The de facto complainant was allegedly assaulted inside the vehicle. The petitioner is named in the F.I.R. Three unnamed persons also were along with the first accused, it is alleged. Those three have subsequently surrendered and they have been enlarged on bail. The named petitioner has not so far surrendered. Investigation is in progress. The petitioner apprehends imminent arrest. 2. Though allegations of abduction - that the de facto complainant being forcibly dragged into the vehicle and the B.A.No.314/08 2 vehicle speeding away are mentioned in the F.I statement, it is seen that the police did not make the specific allegation under Section 365 I.P.C in the F.I.R. Later that allegation was raised. 3. According to the learned counsel for the petitioner, allegations are totally false. The allegations are so improbable. Just to ensure vexation, fanciful allegations are raised. There was no initial allegation under Section 365 I.P.C. The belated inclusion of the said allegation also reveals lack of bona fides. In any view of the matter, the petitioner does not deserve to suffer the trauma of arrest and incarceration. He may be granted anticipatory bail, it is prayed. 4. The learned Public Prosecutor opposes the application. The learned Public Prosecutor points out that it is not as though there was no foundation for allegation under Section 365 I.P.C in the F.I.S. The reading of the F.I statement clearly shows that the allegations do constitute an offence under Section 365 I.P.C also. The mere fact that the official who had registered the crime omitted to incorporate Section 365 I.P.C in the F.I.R is no reason to throw overboard the case of the prosecution. In any view of the matter, the petitioner does not deserve invocation of the extraordinary equitable discretion under Section 438 Cr.P.C. He may be directed to surrender before the investigating officer or the learned Magistrate having jurisdiction and then seek regular bail, submits the learned Public Prosecutor. B.A.No.314/08 3 5. Having considered all the relevant inputs - I have been taken through the specific averments in the F.I statement revealing the offence punishable under Section 365 I.P.C, I am satisfied that there is merit in the opposition by the learned Public Prosecutor. The mere omission of the official to include Section 365 I.P.C in the F.I.R cannot, according to me, deliver any advantage to the petitioner. I shall not embark on a detailed discussion on merits about the acceptability of the allegations raised or the credibility of the data collected. Suffice it to say that I do not find anything to jump to the conclusion that the allegations are improbable or are raised with vexatious intent only. This, I agree with the learned Public Prosecutor, is a fit case where the petitioners must appear before the investigating officer or the learned Magistrate having jurisdiction and then seek regular bail in the normal and ordinary course. 6. In the result, this petition is dismissed. Needless to say, if the petitioners surrender before the investigating officer or 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 appropriate orders on merits, in accordance with law and expeditiously. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge B.A.No.314/08 4 B.A.No.314/08 5 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007