IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 Bail Appl..No. 1414 of 2008() ----------------------------- CRIME NO. 24/08 OF PALLITHOTTAM POLICE STATION PETITIONERS/A2,3,5 & 6 ----------------- 1. NIXON, KADAPPURAM PURAMBOKKU MOOTHAKKARA, KOLLAM. 2. VELLIMON ALEXANDER KADAPPURAM PURAMBOKKU, MOOTHAKKARA, KOLLAM. 3. RAJU, S/O.MICHEL, KARUNAMBARAM KADAPPURAM PURAMBOKKU, MOOTHAKKARA, KOLLAM. 4. SILVESTER, KADAPPURAM PURAMBOKKU MOOTHAKKARA, KOLLAM. BY ADV. SRI.JOHNSON GOMEZ RESPONDENTS: ------------- THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM THROUGH THE SUB INSPECTOR OF POLICE PALLITHOTTAM POLICE STATION. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 1414 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of March, 2008 O R D E R Application for anticipatory bail. The petitioners are accused 2, 3, 7 and 6 respectively in a crime registered alleging commission of offences punishable, inter alia, under Sections 332 r/w. 149 I.P.C. The crux of the allegations against the petitioners is that they, along with others, were members of an unlawful assembly of persons, which assembly in prosecution of their common object allegedly assaulted a police constable on duty. According to the petitioners they are innocent. The incident took place on 7.2.2008. Crime has been registered. The petitioners apprehend that they may be subjected to torture if they were arrested by the police and kept in custody. They are willing to surrender before the learned Magistrate. Subject to appropriate conditions, anticipatory bail may be granted to the petitioners, it is prayed. B.A.No. 1414 of 2008 2 2. The learned Prosecutor opposes the application. He submits that the petitioners can surrender before the learned Magistrate and seek regular bail. At any rate, there are no circumstances justifying or warranting the invocation of the extra ordinary equitable discretion under Section 438 Cr.P.C. in favour of the petitioners, submits the Prosecutor. 3. Having considered all the circumstances, I am satisfied that though it is not necessary to issue the normal directions under Section 438 Cr.P.C., considering the apprehension aired by the petitioners that they may be assaulted and tortured by the police if they were arrested, I am satisfied that the petitioners can be given opportunity to surrender before the learned Magistrate. The learned Magistrate will decide what further steps are to be taken. 4. In the result: (1) This application is allowed. (2) The following directions are issued under Section 438 Cr.P.C. B.A.No. 1414 of 2008 3 (a) The petitioners shall surrender before the learned Magistrate on 14.3.2008 at 11 a.m. They can file applications for bail after giving sufficient prior notice to the Prosecutor in charge of the case. The learned Magistrate must consider the rival contentions and prayers and pass appropriate orders. (b) If the petitioners do not appear before the learned Magistrate as directed in clause (1) above, these directions shall lapse on 14.3.2008 and the police shall be at liberty thereafter to arrest the petitioners and deal with them in accordance with law. (c) If the petitioners were arrested prior to their surrender on 14.3.2008 as directed in clause (1) above, they shall be released on bail on their executing bonds for Rs.25,000/- each without any surety undertaking to appear before the learned Magistrate on 14.3.2008. (R. BASANT) Judge tm