IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 27TH FEBRUARY 2008 / 8TH PHALGUNA 1929 Bail Appl..No. 1172 of 2008() ----------------------------- CRIME NO. 31/08 OF KAKKUR POLICE STATION PETITIONER ----------------- SREENATH, S/O.SUKUMARAN NAIR 'SREENILAYAM', DAYANADATH PARAMBU P.O.PALATH, KAKKODI, KOZHIKODE. BY ADV. SMT.T.RESMI DAMODARAN RESPONDENTS: ------------- SUB INSPECTOR OF POLICE KAKKUR POLICE STATION REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 1172 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of February, 2008 O R D E R Application for anticipatory bail. The petitioner, along with three others, faces allegations in a crime registered under Section 326 r/w. 34 I.P.C. Initially the allegation under Section 326 I.P.C. was not included. But later, on realising that the victim had suffered a nasal bone fracture, the section of offence has been altered and investigation is now proceeding under Section 326 I.P.C. also. 2. The crux of the allegations is that on account of a dispute between the crew of a bus and students the victim/ defacto complainant was attacked by the accused persons, including the petitioner. A heavy object was used for infliction of the injury. The alleged incident took place on 18.1.2008. All the three co-accused have been arrested. They have been enlarged on regular bail, it is submitted. The petitioner apprehends imminent arrest. B.A.No. 1172 of 2008 2 3. The learned counsel for the petitioner relies on the circumstance that the F.I.R. initially did not show any allegation under Section 326 I.P.C. She further relies on the circumstance that the petitioner is not specified with precision as an accused in the F.I.R. She further submits that the petitioner has been threatened of arrest rather belatedly. The petitioner is a young student. He may be saved of the undeserved trauma of arrest and detention. Anticipatory bail may be granted to the petitioner, prays the learned counsel. 4. The learned Prosecutor opposes the application. He points out that non-inclusion of the allegation under Section 326 I.P.C. in the F.I.R. cannot deliver any advantage to the petitioner, as the fracture could be ascertained only after examination of the victim by the doctor. The petitioner's name is not mentioned in the F.I.R. But his details are there as S/o. Sukumaran Nair, which the petitioner is. This is clearly revealed from the allegations in the F.I.R. I am satisfied that there are no circumstances justifying or warranting invocation of the discretion under Section 438 Cr.P.C. in favour of the petitioner. This I am satisfied is a fit case where the petitioner must B.A.No. 1172 of 2008 3 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. Powers under Section 438 Cr.P.C. are to be invoked only sparingly and in exceptional cases and considerations which would weigh with the court while considering the application for anticipatory bail would be totally different than when an application for regular bail is considered. 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