IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 Bail Appl..No. 118 of 2008() ---------------------------- CRIME NO.302/07 OF PIRAVAM POLICE STATION .................... PETITIONER/ACCUSED ----------------------------------- THANKACHAN, S/O.NARAYANAN, KUDILIL (HOUSE) PIRAVAM, MUVATTUPUZHA, ERNAKULAM. BY ADV. SRI.G.JANARDHANA KURUP (SR.) SRI.K.S.ARUN KUMAR SRI.JOHN K.GEORGE RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA, 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 16/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No. 118 OF 2008 ------------------------------------------------- Dated this the 16th day of January, 2008 ORDER Application for anticipatory bail. The petitioner is the 1st accused and he faces allegations for offences punishable under Sec.302 read with Sec.34 of the IPC. The crux of the allegations against the petitioner is that he had picked up a quarrel with the deceased when they were standing in a queue in front of a liquor sale out let. The deceased had gone away from the scene of the crime in an autorikshaw along with his friends/witnesses. The allegation is that the petitioner went after the deceased on his motor-cycle along with another. When the autorikshaw was stopped, the petitioner assaulted the victim. He was hit with hands. He was pushed and thrown to the tarred portion of the road. He fell and his head hit the tarred portion. He suffered a fracture. He became B.A. No. 118 OF 2008 -: 2 :- motionless. He was taken to the local hospital and then to the referral hospital. At those places, the allegation was only that the victim, who had consumed alcohol, had fallen on the ground. But later, an allegation was raised that the injury was suffered when he was assaulted by the petitioner. The alleged incident took place on 25/11/07. The head injury suffered is the cause of death identified in the post-mortem certificate. Investigation is in progress. Even though originally the petitioner as well as the other who had travelled along with him were arrayed as accused, that person has now been deleted from the array of accused. The petitioner alone continues in the array now. The petitioner apprehends imminent arrest. 2. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. Even accepting the entire allegations, the precise overt act committed by the petitioner is slapping the deceased on his face and pushing him on to the tarred portion of the road. In any view of the matter, no allegation graver than the one punishable under Sec.323 of the IPC can be validly raised against the petitioner. Several precedents are relied on. The petitioner may not be compelled to endure the trauma of arrest and detention. He may be granted anticipatory bail, it is prayed. B.A. No. 118 OF 2008 -: 3 :- 3. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that sufficient allegations have been raised and materials collected by now to justify the allegation under Sec.302 of the IPC against the petitioner. The allegations clearly show that the petitioner had gone after the deceased to chase him. The allegations further reveal that the petitioner had assaulted the victim. He was slapped on the face. He was forcibly pushed on to a rough surface. It is idle to assume at this stage and from the materials presently available that the petitioner did not have the requisite contumacious and culpable state of mind. At any rate, this is not a fit case where the extraordinary equitable discretion under Sec.438 of the Cr.P.C. can or ought to be invoked in favour of the petitioner. The petitioner may be directed to seek regular bail after surrendering before the learned Magistrate. At that stage totally a different consideration will weigh with the court in the matter of granting of regular bail. 4. Having considered all the relevant inputs, I find merit in the opposition by the learned Public Prosecutor. Powers under Sec.438 of the Cr.P.C. can be invoked only sparingly and in exceptional cases that too in aid of justice. When the powers of arrest which the State and its officials have under law are about B.A. No. 118 OF 2008 -: 4 :- to be exercised with malicious or oblique motive, certainly the extraordinary discretion under Sec.482 of the Cr.P.C. can be invoked. But having considered all the relevant inputs, I am unable to perceive any features in this case which can justify or warrant the invocation of the extraordinary equitable discretion under Sec.438 of the Cr.P.C. The petitioner, I agree with the learned Public Prosecutor, must resort to the ordinary and normal course of appearing before the Investigating Officer or the learned Magistrate having jurisdiction and then seek regular bail in the usual course. 5. In the result, this bail application is dismissed; but with the observation that if the petitioner surrenders before the Investigating Officer or the learned Magistrate and seeks 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. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge B.A. No. 118 OF 2008 -: 5 :-