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. 2188 of 2008(S) ------------------------------ CRIME NO.177/08 OF THE ALAPPUZHA SOUTH POLICE STATION PETITIONER : 1ST ACCUSED AND SUSPECTED ACCUSED -------------------------------------------------- 1. SHIBI M.K., S/O.MUHAMMED KASIM AGED 29 YEARS, ANZARI MANZIL, CIVIL STATION WARD ALAPPUZHA. 2. SHIBU M.K., S/O.MUHAMMED KASIM AGED 32 YEARS, ANZARI MANZIL, CIVIL STATION WARD ALAPPUZHA. BY ADV. SRI.G.PRIYADARSAN THAMPI RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE ALAPPUZHA SOUTH POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY P.P. SRI. S.U. NAZAR. 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. 2188 of 2008 ------------------------------------------------- Dated this the 9th day of April, 2008 ORDER Application for anticipatory bail. The petitioners are accused 1 and 2. Altogether, there are 2 accused persons. Accused No.1 is named in the F.I.R. A2 is the brother of A1, though not named in the F.I.R., it is made clear that the 2nd accused is the brother of A1. 2. The alleged incident took place on 25/3/08. Enraged by the conduct of the de facto complainant – Councillor of a local body, who had played a dominant role in making out a pathway through the property of the petitioners, the petitioners allegedly trespassed into the shop room of the de fact complainant after making sufficient prior preparations and allegedly indulged in wanton acts of mischief and violence. The petitioners face allegations for offences punishable, inter B.A. No. 2188 of 2008 -: 2 :- alia, under Sec.452 of the IPC – that is the only non-bailable offence alleged against the petitioners. 3. The learned counsel for the petitioners submits that the petitioners are absolutely innocent. It is submitted that the petitioners had only gone to the shop room of the de facto complainant to give expression to their legitimate protest against the high handed action of the de facto complainant. There, they had not indulged in any wanton acts of mischief or violence. These allegations are totally false, it is submitted. 4. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that the scene mahazar bears tell tale evidence of the acts of mischief and violence indulged in by the petitioners. In any view of the matter, the petitioners are not entitled to the invocation of the extra ordinary equitable discretion under Sec.438 of the Cr.P.C., submits the learned Public Prosecutor. 5. Having considered all the relevant inputs, I find merit in the opposition by the learned Public Prosecutor. I am unable to perceive any features in this case which would justify or warrant the invocation of the extraordinary equitable discretion under Sec.438 of the Cr.P.C. This, I agree with the learned Public Prosecutor, is a fit case where the petitioners must resort to the B.A. No. 2188 of 2008 -: 3 :- ordinary and normal course of appearing before the Investigating Officer or the learned Magistrate having jurisdiction and then seek regular bail. 6. The learned counsel for the petitioners finally submits that the de facto complainant is a very influential person. He had great influence with the police. The petitioners apprehend that if they are arrested by the police and they are forced to go into police custody, except through court, if necessary, they will be exposed to the risk of physical harm and torture at the hands of the police. 7. The learned Public Prosecutor submits that the said apprehension is without any basis. The State has no objection if this Court directs the petitioners to surrender before the learned Magistrate leaving open the option of the Investigator to apply for the custody of the petitioners, if necessary. 8. I am satisfied that the petitioners are not entitled for grant of anticipatory bail; but I am satisfied that the petitioners can be given the option to surrender before the learned Magistrate and seek regular bail subject, of course, to the right of the police to apply for custody of the petitioners, if necessary, before the learned Magistrate. 9. This petition is, in these circumstances, allowed in part. B.A. No. 2188 of 2008 -: 4 :- Following directions are issued: (i) The petitioners shall appear before the learned Magistrate at 11 a.m. on 17/4/08. The petitioners can apply for bail after so surrendering and giving sufficient prior notice to the Prosecutor-in-charge of the case. The Investigator can also make necessary application for custody etc. The learned Magistrate shall consider all such applications and pass appropriate orders on merits expeditiously. (ii) If the petitioners do not appear before the learned Magistrate as directed in clause (i), directions issued above shall thereafter stand revoked and the police shall be at liberty to arrest the petitioners and deal with them in accordance with law as if these directions were not issued at all. (iv) If the petitioners were arrested prior to their surrender on 17/4/08 as directed in clause (i) above, they shall be released on their executing bonds for Rs.25,000/- each without any sureties undertaking to appear before the learned Magistrate on 17/4/08. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge B.A. No. 2188 of 2008 -: 5 :-