IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 11TH JANUARY 2008 / 21ST POUSHA 1929 Bail Appl..No. 7961 of 2007() ----------------------------- CRIME NO.1100/06 OF KARUNAGAPALLY POLICE STATION : PETITIONER/5TH ACCUSED --------------------------------------- JESSIM M. @ CHETTANKUNJU, S/O. MOHAMMED SHARIER, MULLACKAL BUNGLOW, PADINJATTE KIZHAKKU, SOORANADU P.O., KOLLAM DISTRICT. BY ADV. SRI.V.PHILIP MATHEW RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ B.A.No.7961 of 2007 ------------------------------------- Dated this the 11th day of January, 2008 ORDER Application for anticipatory bail. Petitioner is the 5th accused in a crime registered under Section 402 I.P.C. On 05.10.06, the police party found 5 persons under suspicious circumstances. One had an iron pipe in his possession. All the accused are persons who have criminal antecedents in offences relating to robbery and dacoity. Accused 1 alone was arrested at the scene. The others took to their heels. Subsequently accused 2 and 4 have also been arrested. Investigation is not complete. Final report has not been filed. The petitioner herein admittedly does not have any criminal antecedents. Investigation is in progress. The petitioner apprehends imminent arrest. 2. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. He was not present in the company of the co-accused. Even if he were present along with them, a ready inference of culpability under Section 402 I.P.C cannot and should not be drawn, submits the learned counsel for the petitioner. 3. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that all the available B.A.No.7961 of 2007 2 circumstances definitely raise a very strong suspicion of the petitioner having committed the offence punishable under Section 402 I.P.C. The interrogation of the co-accused confirms the said apprehension. At any rate, there are no circumstances justifying the invocation of the extraordinary equitable discretion under Section 438 Cr.P.C, submits the learned Public Prosecutor . The petitioner may be directed to appear before the Investigating Officer or the learned Magistrate having jurisdiction and then seek regular bail in the ordinary course, submits the learned Public Prosecutor . 4. Having considered all the relevant inputs, I find merit in the opposition by the learned Public Prosecutor. I do not find any features in this case that can justify or warrant the invocation 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 learned Magistrate having jurisdiction or the Investigating Officer and then seek bail in the regular and usual course. 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 B.A.No.7961 of 2007 3 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/-