IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 24TH MARCH 2008 / 4TH CHAITHRA 1930 Bail Appl..No. 1814 of 2008() ----------------------------- CRLMP.434/2008 of D.C. & SESSIONS COURT,KOLLAM CRIME NO.141/08 OF KOLLAM EAST POLICE STATION .................... PETITIONER : 4TH ACCUSED ---------------------------- SHERIN, S/O.SALEEM, AGED 21 YEARS BADSHA MANZIL, P.K.NAGAR, VADAKKEVILA VILLAGE KOLLAM. BY ADV. SRI.DILEEP P.PILLAI RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No. 1814 of 2008 ------------------------------------------------- Dated this the 24th day of March, 2008 ORDER Application for anticipatory bail. The petitioner is the 3rd accused (not the 4th accused as shown in the petition). Altogether there are only 3 accused persons. The crux of the allegations is that the accused persons assaulted two Police Constables who had reached the scene of the crime on getting prior discreet information of some untoward incidents that were taking place in the locality. The two Police Constables had suffered injuries. Three persons are named in the F.I.R. The petitioner is the 3rd accused. Investigation is in progress. The 1st accused has already been arrested and enlarged on bail. 2. According to the petitioner, he is absolutely innocent. He points out that his name is `Sherin'; whereas the person B.A. No. 1814 of 2008 -: 2 :- shown as the 3rd accused in the F.I.R. is one 'Sherif'. The petitioner further apprehends physical harm and torture if he were to go into police custody except through court. In these circumstances, the petitioner prays that anticipatory bail may be granted to him. 3. The learned Public Prosecutor opposes the application. The innocuous incongruity in the description in the name of the 3rd accused is of no avail as all the circumstances clearly point to the fact that the petitioner is the person referred to as the 3rd accused in the F.I.R. There is no merit in the apprehension of physical torture . If so, the petitioner may be directed to surrender before the learned Magistrate and seek regular bail. In any event, there are no circumstances justifying or warranting the invocation of the extraordinary equitable discretion under Sec.438 of the Cr.P.C., submits the learned Public Prosecutor. 4. The learned counsel for the petitioner submits that in any event the petitioner may be given the option of surrendering before the learned Magistrate without the threat/risk of going into the police custody except through the Magistrate. 5. Having considered all the relevant circumstances, I do not find any justification in the prayer for grant of anticipatory bail. However, I am satisfied that appropriate directions can be B.A. No. 1814 of 2008 -: 3 :- issued under Sec.438 of the Cr.P.C. to allay the apprehension of the petitioner of physical harm and torture if he were to be arrested by police – the de facto complainant/injured being Police Constables themselves. 6. In the result, this petition is allowed in part. Following directions are issued under Sec.438 of the Cr.P.C: (i) The petitioner shall appear before the learned Magistrate having jurisdiction at 11 a.m. on 31/3/08. (ii) The petitioner may apply for regular bail after giving sufficient prior notice to the Prosecutor in charge of the case. The prosecution shall also be at liberty to seek appropriate directions/orders from the learned Magistrate. The learned Magistrate must pass appropriate orders expeditiously on such application for bail to be filed by the petitioner and the application, if any, filed by the Police. (iii) The petitioner shall abide by such directions as may be issued by the learned Magistrate on such application. (iv) If the petitioner does 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 petitioner and deal with him in accordance with law as if these directions were not issued at all; B.A. No. 1814 of 2008 -: 4 :- (v) If the petitioner were arrested prior to his surrender on 31/3/08 as directed in clause (i) above, he shall be released on his executing a bond for Rs.25,000/- without any sureties undertaking to appear before the learned Magistrate on 31/3/08. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge