IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 5TH SEPTEMBER 2008 / 14TH BHADRA 1930 Bail Appl..No. 5548 of 2008() ----------------------------- CRIME NO.686/06 OF KOTTIAYAM POLICE STATION PETITIONER --------------------------- ABDUL MANAF @ MANAF PUNNAVILA VEEDU, VELICHIKALA P.O., PALLIMON, KOLLAM. BY ADV. SRI.R.KRISHNA RAJ RESPONDENTS: RESPONDENT ----------------------- SUB INSPECTOR OF POLICE, KOTTIYAM, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SHRI.M.S.BREEZE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No. 5548 of 2008 ----------------------------------------- Dated this the 5th September, 2008 O R D E R This petition is for anticipatory bail. 2. This is the fourth application for anticipatory bail filed in respect of an offence allegedly committed in the year 2006, two years back. The alleged incident occurred on 30.10.2006 and a crime was registered under Sections 376 and 354 of Indian Penal Code as Crime No.686/06 of Kottiyam Police Station. Petitioner is the fourth accused in the crime. He has alleged to have sexually harassed the de facto complainant. Though petitioner allegedly committed the offence in the year 2006, he could not be arrested even now. In the earlier application for anticipatory bail, this Court on 28.2.2007 in B.A.No.7726 of 2008 (another Bench) observed as follows: “I am not inclined to grant anticipatory bail to the petitioners. There is no reason why the petitioners should not surrender before the Magistrate concerned and seek regular bail. Accordingly, if the petitioners surrender before the Magistrate concerned and filed an application for regular bail within two weeks from today, the same shall be considered and disposed of preferably on the same date on which it is filed after examining the contentions of the petitioners” BA.5548/08 2 3. In another order dated 8.4.2008 in B.A.No.1419 of 2008, yet another Bench of this Court considered the rival contentions at length and held as follows: “........More detailed consideration of the facts of the case or more detailed discussion the acceptability of the allegations or the credibility of the data collected is not necessary at this stage. Suffice it to say that 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 petitioner. 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 usual course. 7. This application is dismissed. All the contentions which the petitioner can urge in support of his plea for grant of regular bail can still be raised by him before the learned Magistrate, notwithstanding the dismissal of his applications for anticipatory bail. It is trite and I need not repeat that the quality of consideration of application for anticipatory bail and regular bail are totally different and the courts must consider all the contentions which the petitioner want to raise at the stage of grant of regular bail.” 4. There are two more orders by this Court in the other anticipatory bail applications filed by petitioner. In spite of the observations made that the petitioner may resort to the ordinary and normal procedure for bail, the petitioner has not chosen to do so, despite lapse of more than sufficient time. He has not surrendered before the court, though the first order was passed more then one-and-a-half year back. Section 438 Cr.P.C provides BA.5548/08 3 for a discretionary remedy and it can be exercised only if the court “thinks fit” to invoke the same. On the facts and circumstances of the case, I do not think it fit to grant anticipatory bail to the petitioner who has been evading the proceedings initiated against him for a long period of about two years, that too, without acting in accordance with the observations passed by different Benches of this Court in the same matter. I also make it clear that anticipatory bail application , if any, filed by petitioner will not be entertained by this Court, hereafter. 5. Petitioner is directed to surrender before the investigating officer within seven days from today and if he is arrested, he shall be produced before the Magistrate Court in accordance with law and thereafter, the learned Magistrate shall dispose of the application for bail, if any, filed, on merit, after considerations of the rival contentions. Petition is disposed of as above. K.HEMA, JUDGE vgs.