IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 29TH FEBRUARY 2008 / 10TH PHALGUNA 1929 Bail Appl..No. 1219 of 2008() ----------------------------- CRIME NO.716/07 OF PEROORKADA POLICE STATION .................... PETITIONERS/ACCUSED ------------------------------------ 1. SANTHOSH, S/O.THULASIDHARAN, ASOKA BHAVAN, MUKKOLA, KALLAYAM, THIRUVANANTHAPURAM. 2. BIJU, S/O.VISWAMBARAN, KIDANGAL VEEDU, MUKKOLA, KALLAYAM, THIRUVANANTHAPURAM. BY ADV. SRI.D.AJITHKUMAR SMT.LALIZA.T.Y. RESPONDENTS: COMPLAINANT ------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, PEROORKADA. BY PUBLIC PROSECUTOR SRI.JAI GEORGE. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No.1219 of 2008 ------------------------------------------------- Dated this the 29th day of February, 2008 ORDER Application for anticipatory bail. The petitioners are accused 1 and 2. In the F.I.R. which was registered under Secs.452 and 326 of the IPC, three accused persons are named. In the course of later investigation, allegations against the 3rd accused are not revealed and, in these circumstances, the 3rd accused has been deleted from the array of accused. Investigation is in progress. The petitioners face imminent arrest. 2. The learned counsel for the petitioners submits that the petitioners are absolutely innocent. They have not committed any offence. The alleged incident in this case had taken place on 28/12/07. According to the petitioner, there was an earlier incident on 26/12/07. The petitioners, who are B.A. No.1219 of 2008 -: 2 :- the driver and owner of a vehicle, had gone to a place near the house of the de facto complainant and their vehicle was parked. Objections were raised against the parking of the vehicle and an altercation occurred on 26/12/07. No incident, as alleged, had at all taken place on 28/12/07. The allegations are totally false and manufactured because of the animosity arising out of the earlier incident which allegedly had taken place on 26/12/07. The learned counsel for the petitioners, in these circumstances, prays that the petitioners may be granted anticipatory bail. The petitioners had complained about the incident to the police as also to the Women Commission. But no action has been taken. 3. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that the available indications are clinching and show that an incident had taken place on 28/12/07 as alleged by the de facto complainant. Sufficient materials have been collected in the course of investigation in support of that incident. It is significant that the accused has no competing alternative case about any incident that had taken place on 28/12/07. Regarding the alleged earlier incident on 26/12/07, the police have not received any B.A. No.1219 of 2008 -: 3 :- complaint. At any rate, it is unnecessary to mix up the alleged earlier incident on 26/12/08 with the incident in the present case on 28/12/07. The victim has suffered serious injuries including a fracture of the zyzomatic arch as confirmed in the C.T. Scan report. At any rate, there are no circumstances justifying or warranting the invocation of the extraordinary jurisdiction under Sec.438 of the Cr.P.C. The petitioners may be directed to resort to the ordinary and normal course, submits the learned Public Prosecutor. 4. I have considered all the relevant inputs. I am not persuaded to agree that there are any features in this case that 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 an eminently fit case where the petitioners must be directed to resort to the normal and usual course of appearing before the Investigating Officer or the learned Magistrate having jurisdiction and then seek regular bail. 5. In the result, this bail application is dismissed; but with B.A. No.1219 of 2008 -: 4 :- the observation that if the petitioner surrenders before the Investigating Officer or the learned Magistrate and seeks 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. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge