IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 6TH MARCH 2008 / 16TH PHALGUNA 1929 Bail Appl..No. 1038 of 2008() ----------------------------- CRIME NO. 171/08 OF PERUMBAVOOR POLICE STATION .................... PETITIONERS : ACCUSED ------------------------ 1. DAS @ SIYAD CHALILPARAMBIL HOUSE NEAR K.S.R.T.C,PERUMBAVOOR. 2. SENTHIL KUMAR SHANDHI NIVAS, ALLAPRA P.O. PERUMBAVOOR. 3. VISHNU,VISHNU NIVAS, KADUVAL P.O., PERUMBAVOOR. BY ADV. SRI.GIGIMON ISSAC RESPONDENTS: ------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 1038 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of March, 2008 O R D E R Application for anticipatory bail. The petitioners are accused 1 to 3. Three named persons (the petitioners) and 30 identifiable others are arrayed as accused in the crime. The crime has been registered. Investigation is in progress. The petitioners apprehend imminent arrest. 2. The incident took place in a local temple on 27.1.2008. The defacto complainant, who had gone to that temple, had allegedly taken one 'pappadam' from the basket and there was some dispute with respect to such conduct of the defacto complainant. The petitioners and others allegedly assaulted the defacto complainant and his friend. They were removed to the local government hospital. While two of them were undergoing treatment as inpatient, the petitioners and some others came to the hospital and wanted the defacto complainant to go out to pursue a settlement. When the two injured persons and a friend B.A.No. 1038 of 2008 2 of theirs, who was also present in the hospital, along with them went out of the hospital to pursue efforts for settlement, they were allegedly assaulted again. They suffered injuries. They were afraid of continuing in the same hospital and therefore they had gone to another hospital to continue the treatment. 3. The learned counsel for the petitioners submits that the petitioners are innocent. No incident as alleged had at all taken place. Totally false and vexatious allegations are being raised. In respect of the earlier incident at the temple, the petitioners were not the aggressors, but were really victims of aggression. According to the petitioners they are functionaries of the temple and they were assaulted at the temple by the defacto complainant. The Temple committee has also filed a complaint, it is submitted. The petitioners had also gone to the hospital for treatment. In any view of the matter, the allegations presently raised are totally unsustainable. It is prayed that directions under Section 438 Cr.P.C. may be issued in favour of the petitioners. B.A.No. 1038 of 2008 3 4. The learned Prosecutor opposes the application. He has placed before me the case diary. The learned Prosecutor contends that the circumstances clinchingly reveal that the petitioners had committed the contumacious and culpable act of assault on the defacto complainant and others and they were admitted in the hospital. The learned Prosecutor submits that the petitioners may be directed to surrender before the Investigating Officer or the learned Magistrate and then seek regular bail in the usual course. 5. Having considered all the relevant inputs, I am unable to perceive any features in this case, which would justify the invocation of the extra ordinary equitable discretion under section 438 Cr.P.C. in favour of the petitioners. This I agree with the learned Prosecutor, is a fit case where the petitioners 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 usual course. 5. This application is accordingly dismissed. I may however hasten to observe that if the petitioners appear before the learned B.A.No. 1038 of 2008 4 Magistrate and apply 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