IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 3RD AUGUST 2007 / 12TH SRAVANA 1929 Bail Appl..No. 4698 of 2007() ----------------------------- CRIME NO. 81/06 OF PATTANAKAD POLICE STATION PETITIONER/IST ACCUSED --------------------------------------- SETHU, S/O.CHELLAPPAN, AGED 38 YEARS, CHARAPARAMBIL HOUSE, WARD NO.IV, PATTANAKKAD PANCHAYATH. BY ADV. SRI.G.PRIYADARSAN THAMPI RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA, REPRESENTING SUB INSPECTOR OF POLICE, PATTANAKAD POLICE STATION, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03/08/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 4698 of 2007 - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of August, 2007 O R D E R Application for anticipatory bail. The petitioner is the sole accused now in a crime registered under Section 392 I.P.C. The alleged incident took place on 2.4.2006 at 10.30 a.m. The incident took place in front of a bar by the side of the national high way within the jurisdiction of Pattanakkad police station. The defacto complainant, who had come out of the bar after consuming liquor, was allegedly attacked by the petitioner and his gold chain was snatched away. Two other persons have also acted in collusion with the petitioner as per the averments in the F.I. statement. Later investigation, it is submitted, revealed that the allegations against the co-accused is not correct and that they have only intervened to save the defacto complainant. That is how the petitioner continues as the sole accused. The petitioner has a past conviction under Section 381 I.P.C. also to his credit. Investigation is in progress. The petitioner has not been arrested though the alleged incident took place on 2.4.2006 and on the very same day in the F.I.R. the petitioner's name B.A.No. 4698 of 2007 2 is revealed. He now seeks directions under Section 438 Cr.P.C. in his favour. 2. The application is opposed by the learned Prosecutor. He submits that the petitioner has to be arrested and interrogated. Custodial interrogation is necessary. Attempts must be made to recover the gold chain which is allegedly lost. The petitioner and the defacto complainant had no prior acquaintance or animosity. The defacto complainant had collected the name of the petitioner from the persons, who had collected in front of the bar, where the incident took place. In these circumstances there is absolutely no necessity to invoke the extra ordinary equitable discretion under Section 438 Cr.P.C. in favour of the petitioner, submits the Prosecutor. 3. I have considered all the relevant inputs. The fact that allegations raised against the two accused persons have been found not correct by the police or the fact that the police has not arrested the petitioner so far may at worst be indications of inadequate investigation. It cannot, at any rate, confer on the petitioner any undeserved benefit or advantage. I do not in these circumstances find any features in this case which would justify the invocation of the extra ordinary equitable discretion under Section 438 B.A.No. 4698 of 2007 3 Cr.P.C. This I am satisfied is a fit case where the petitioner must 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. 5. This application is accordingly dismissed. Needless to say, if the petitioner appears 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 orders on merits, in accordance with law and expeditiously. (R. BASANT) Judge tm