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. 902 of 2008() ---------------------------- CRIME NO.470/07 OF VALIYATHURA POLICE STATION .................... : PETITIONER/ACCUSED 1 ----------------------------------- SHANAVAS, S/O. SALAHUDEEN KANNAMKARAKUNNUPURATHY VEEDU PULIMOODU, THOLICODU, THOLICODE.P.O. NEDUMANGAD BY ADV. SRI.A.RAJASIMHAN RESPONDENTS: ------------- SUB INSPECTOR OF POLICE VALIYATHURA 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.902 of 2008 ------------------------------------- Dated this the 27th day of February, 2008 ORDER Application for anticipatory bail. Petitioner is the 1st accused. Altogether there are 3 accused persons. They face allegations in a crime registered under Section 379 r/w 34 I.P.C. The crux of the allegations is that the defacto complainant, a young boy, aged about 16 years, who, after the death of his father is now obliged to be in charge of an amusement park run by his father till his death, was allegedly attacked and the mobile phone which he was carrying was taken away by force from his possession by 3 miscreants who had come to the amusement park. The victim made a hue and cry. The miscreants ran away with the mobile phone which was thieved. Accused 2 and 3 were subsequently arrested. While the miscreants were escaping in the motorcycle it had a punctured tyre. They were forced to discontinue the journey. They handed over the vehicle to a mechanic to rectify the mistake. They promised to return immediately. They did not return. Doubts were raised about the B.A.No.902 of 2008 2 complicity of such persons. Police was informed. When they came to take the vehicle again on the next morning, they were detained. The police was informed. The police came to the scene and questioned them. It was revealed that the 2 arrested miscreants, along with the petitioner, had committed the alleged offence. The petitioner has been brought on the array as the 1st accused. The other 2 accused, as stated, have already been arrested. The interrogation of the co-accused reveals that the petitioner has the thieved mobile phone with him. The same has not been traced. 2. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. He was not present at the scene of the crime at all. The other accused have animosity against the petitioner. They must have given the name of the petitioner to the police because of such animosity. The petitioner does not deserve to endure the trauma of arrest and detention. He may be granted anticipatory bail, it is prayed. 3. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that all the available indications convincingly point to the complicity of the B.A.No.902 of 2008 3 petitioner. Investigation is not complete at all. The recovery of the stolen article/mobile phone must be attempted. The petitioner has to be interrogated. He has got to be identified by the persons who had witnessed the occurrence. In any view of the matter, there is absolutely no need to doubt or suspect the alleged involvement of the petitioner in the crime in question. The investigators may not be denied the opportunity to interrogate the petitioner in custody and attempt to collect vital clues. There are no features at all which can justify or warrant the invocation of the extraordinary equitable discretion under Section 438 Cr.P.C, submits the learned Public Prosecutor. 4. The case diary has been placed before me. Having considered all the relevant inputs, I find merit in the opposition by the learned Public Prosecutor. I agree with the learned Public Prosecutor that it is for the petitioner to appear before the learned Magistrate having jurisdiction or the Investigating Officer and then seek regular bail. I am unable to find any features in this case which can justify or warrant the invocation B.A.No.902 of 2008 4 of the extraordinary equitable discretion under Section 438 Cr.P.C. This, I agree with the learned Public Prosecutor, is a fit case where the petitioner must appear before the Investigating Officer or the learned Magistrate having jurisdiction and then seek regular bail. 5. This application is, in these circumstances, dismissed, but I may hasten to observe that if the petitioner surrenders 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 appropriate orders on merits and expeditiously. (R.BASANT, JUDGE) rtr/-