IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 31ST MARCH 2008 / 11TH CHAITHRA 1930 Bail Appl..No. 1812 of 2008() ----------------------------- CRIME 34/08 OF NEYYARDAM POLICE STATION PETITIONERS/ACCUSED 1 & 2 ------------------------------------------ 1. MONI, S/O.TITUS, MARUTHAMOODEMELE PUTHEN VEEDU, AZHANKAL, KALLIKKATTU VILLAGE, MUKUNTHARA DESOM. 2. PRABESH, S/O.SASI, NILAMEL KIZHAKUMKARA CHIRAYIL PUTHEN VEEDU, KALLIKATTU VILLAGE, MUKUNTHARA DESOM. BY ADV. SRI.S.MOHAMMED AL RAFI RESPONDENTS: ------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR ADV.SRI.S.U.NAZER THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ```````````````````````````````````````````````````` B.A. No. 1812 OF 2008 B ```````````````````````````````````````````````````` Dated this the 31st day of March, 2008 O R D E R Application for anticipatory bail. Petitioners are accused Nos.1 and 2. They are both named in the FIR. The alleged incident took place on 23.2.08. The crime is registered, inter alia, for offences punishable under section 326 IPC. The de facto complainant is a police constable. The de facto complainant allegedly intervened in a dispute between two sets of persons. The petitioners, who are one set of such persons, allegedly attacked the de facto complainant with stones. He suffered injuries. He has suffered loss of two teeth. Investigation is in progress. The petitioners apprehend imminent arrest. 2. The learned counsel for the petitioners submits that the petitioners are really innocent. False and vexatious allegations are raised against the petitioners at the instance of BA.1812/08 : 2 : the de facto complainant, a police constable, who had attacked the petitioners. The petitioners had suffered injuries. The de facto complainant being a police constable their grievances are not being looked into. The petitioners apprehend physical harm and torture if they were to surrender before the police as the de facto complainant is a police constable. The petitioners pray that directions may be issued under section 438 Cr.P.C. in favour of them. The learned counsel for the petitioners prays that the petitioners may be given facility to surrender before the learned Magistrate and seek regular bail. They may not be compelled to go into police custody except through the learned Magistrate if such custody is absolutely essential, it is submitted. 3. The learned Public Prosecutor submits that the petitioners need not apprehend any physical harm. However, the State has no objection if the petitioners are given the option to surrender before the learned Magistrate and seek regular bail. The investigators may be given an opportunity to BA.1812/08 : 3 : apply to get the petitioners in custody if necessary, it is submitted. 4. Having considered all the relevant inputs, I am satisfied that though there is no necessity to issue directions under section 438 Cr.P.C., the petitioners can be given the option to appear before the Magistrate without the threat and risk of arrest and detention by the police except through court, if necessary. 5. In the result, this petition is allowed. Following directions are issued under Section 438 Cr.P.C in favour of the petitioners. i) Petitioners shall surrender before the learned Magistrate having jurisdiction at 11 a.m on 7.4.08. ii) They may apply for regular bail with prior notice to the Prosecutor in charge of the case. The learned Magistrate must consider the applications for regular bail to be filed by the petitioners and application, if any, for custody to be filed by the police and proceed to pass appropriate orders on BA.1812/08 : 4 : merits on all such applications, expeditiously. iii) The petitioners shall abide by such orders to be passed by the learned Magistrate. (iv) If the petitioners do not appear before the learned Magistrate as directed in clause (i), directions issued above shall thereafter stand revoked and the police shall be at liberty to arrest the petitioners and deal with them in accordance with law, as if these directions were not issued at all. (iv) If they were arrested prior to 7.4.08, they shall be released from custody undertaking to appear before the learned Magistrate on 7.4.08. (R.BASANT, JUDGE) aks