IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 12TH MARCH 2008 / 22ND PHALGUNA 1929 Bail Appl..No. 1471 of 2008() ----------------------------- CRIME NO. 102/08 OF ANJALUMMOOD POLICE STATION APPLICANT/ACCUSED ---------------------------------- RAJESH.K., KOYIPURATHEU VEEDU, KADAVOOR, PERINAD P.O., KOLLAM. BY ADV. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN 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 12/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 1471 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of March, 2008 O R D E R Application for anticipatory bail. The petitioner is the first accused in a crime registered alleging offences punishable, inter alia, under sections 452 and 394 I.P.C. The alleged incident took place on 25.2.2008. The petitioner is named as the first accused in the crime. The crux of the allegations is that the accused persons, four in number - two named and two not named - trespassed into the premises of the defacto complainant and using force took away the mobile phone from the possession of the defacto complainant. The complaint was promptly registered on the same day within one hour. Investigation is in progress. The petitioner apprehends imminent arrest. 2. According to the petitioner he is absolutely innocent. Allegations have been falsely raised against him. The defacto complainant has no grievance now against the petitioner. Eventhough in the F.I. statement the defacto complainant is B.A.No. 1471 of 2008 2 shown to have raised allegations against the petitioner, he did not really have any allegation against the petitioner now and the police have for their own purpose included the name of the petitioner as the first accused. This in short is the contentions raised. 3. The learned counsel for the petitioner submits that the mobile phone which was allegedly thieved has been recovered and the same is in the possession of the police now. The defacto complainant had recovered it from his own premises and he had produced it before the police, submits the counsel 4. The learned Prosecutor opposes the application. He submits that the police have not recovered the thieved mobile phone so far. The defacto complainant has not apprised the Investigating Officer that he has got the mobile phone from his own premises. He can appear before the Investigating Officer and give statement to that effect, in which event that circumstance shall also be taken into account and necessary action taken in the matter. It is not necessary to allow the petitioner to arm himself with an order of anticipatory bail at this stage, submits the learned Prosecutor. B.A.No. 1471 of 2008 3 5. I find merit in the opposition by the learned Prosecutor. I am not persuaded to agree that this is a fit case where discretion under section 438 Cr.P.C. can or ought to be invoked in favour of the petitioner. If the petitioner and the defacto complainant have a case that the matter has been settled and he has no grievance against the petitioner, certainly a statement to that effect can be made before the Investigating Officer, who shall take into consideration all the relevant aspects and do the needful in the matter. 6. This application is accordingly dismissed. I may however hasten to observe that if the petitioner appears before the learned Magistrate and applies for bail after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass orders on merits, in accordance with law and expeditiously. (R. BASANT) Judge tm