IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 9TH APRIL 2008 / 20TH CHAITHRA 1930 Bail Appl..No. 2209 of 2008() ----------------------------- CRIME NO.85 OF 2008 OF VIZHINJAM POLICE STATION .................... : PETITONER:-ACCUSED ----------------------------------- THOMAS KUMAR @ KUMAR, AGED 43, S/O.LEON,USHA NIVAS, KOTTAPPURAM, VIZHINJAM VILLAGE. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENTS: ------------- THE STATE OF KERALA, REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ B.A.No.2209 of 2008 ------------------------------------- Dated this the 9th day of April, 2008 ORDER Application for anticipatory bail. Petitioner is the sole accused in a crime registered alleging offences punishable under Sections 452, 308 and 427 I.P.C. The victim is none other than the direct sister of the petitioner herein. There are property dispute between them. The petitioner is alleged to have gone to the scene of the crime and trespassed into the residential building of the defacto complainant. She was allegedly attacked with a dangerous blunt object resulting in serious injuries including fracture. Crime has been registered. The learned Public Prosecutor submits that report incorporating the allegation under Section 326 I.P.C has not been filed so far. It is being filed, submits the learned Public Prosecutor. 2. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. In any view of the matter, the petitioner does not deserve arrest and incarceration on the allegation that he has committed the offence punishable under Section 308 I.P.C. Inclusion of that offence in the allegation is not justified at all, submits the learned counsel for the petitioner. B.A.No.2209 of 2008 2 3. The learned Public Prosecutor submits that though a formal report incorporating the allegation under Section 326 I.P.C has not been filed so far, it may be taken as filed and the necessary application shall be filed forthwith before the learned Magistrate. The learned Public Prosecutor, after discussions at the Bar and after taking note of the nature of injuries suffered, accepts that at the moment the allegation under Section 308 I.P.C may not be justified. The learned Public Prosecutor submits that the petitioner may be directed to surrender before the learned Magistrate or the Investigating Officer and seek regular bail. While considering such application for regular bail, the learned Magistrate may be directed to reckon the section of offences as the ones under Sections 326 and 452 I.P.C. 4. 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 extraordinary equitable discretion under Section 438 Cr.P.C. But I am satisfied that the petitioner can be directed to surrender before the Investigating Officer or the learned Magistrate having jurisdiction and then seek regular bail and directions can be issued regarding the manner of consideration of such application for regular bail by the learned Magistrate. B.A.No.2209 of 2008 3 5. This application is, in these circumstances, dismissed, but I may hasten to observe that if the 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. The learned Magistrate shall reckon the allegations as having been raised under Section 326 and 452 I.P.C. The allegation under Section 308 I.P.C shall be eschewed by the learned Magistrate while considering such application for regular bail. (R.BASANT, JUDGE) rtr/-