IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 14TH FEBRUARY 2008 / 25TH MAGHA 1929 Bail Appl..No. 835 of 2008() ---------------------------- CRIME NO.457 OF 2007 OF VANCHIYOOR POLICE STATION : PETITIONER/ACCUSED 2: -------------------------------------- SIVAJI, S/O. SIVARAJAN PILLAI, T.C.27/1771, PADIPPURA VEEDU, KUNNUMPURAM, VANCHIYOOR, THIRUVANANTHAPURAM. BY ADV. SRI.A.RAJASIMHAN RESPONDENTS: COMPLAINANT: ------------------------- SUB INSPECTOR OF POLICE, VANCHIYOOR POLICE STATION, REPRSENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ B.A.No.835 of 2008 ------------------------------------- Dated this the 14th day of February, 2008 ORDER Application for anticipatory bail. Petitioner is the 2nd accused. He faces indictment in a prosecution for offences punishable, inter alia, under Sections 457 and 392 I.P.C. The crux of the allegations is that the petitioner along with co-accused (1st accused) trespassed into the shop room of the defacto complainant and allegedly under threat demanded money. When that was not paid, they, using force and ignoring the objection of the defacto complainant, allegedly took away 5 leather belts kept for sale in the premises. 2. Investigation is complete. Final report has already been filed. Cognizance has taken by the learned Magistrate. Coercive processes have been issued by the learned Magistrate against the petitioner. The petitioner apprehends imminent arrest. 3. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. He has nothing to do with the crime in question. False and vexatious allegations are now being B.A.No.835 of 2008 2 raised against the petitioner. In the F.I.R, the specific allegation is against one Sajith, arrayed as the 2nd accused. In the course of investigation, falsely the petitioner has been brought in the array of accused. The petitioner filed an application for anticipatory bail in a crime registered under Section 354 I.P.C and which was also registered before the Vanchiyur Police Station as Crime No.456 of 2007. The learned counsel for the petitioner, in these circumstances, prays that the petitioner may be granted anticipatory bail. 4. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that the available indications convincingly point to the complicity of the petitioner. The petitioner is the person referred to by the defacto complainant though his name has been erroneously referred to as Sajith and not Sivaji @ Sarat, which now the prosecution alleges is his real name. 5. The petitioner was not arrested in the course of investigation. There is no specific identification of the petitioner by the defacto complainant or any witness done so far. But the learned Public Prosecutor submits that there can be no semblance of doubt about the complicity of the petitioner. Both from the B.A.No.835 of 2008 3 confession statement of the 1st accused as well as the statement of the victim, it is evident that the petitioner was the person involved in the commission of the crime and that the reference to the name Sajith made in the F.I statement is only erroneous and cannot deliver any advantage to the petitioner, submits the learned Public Prosecutor. 6. I have considered all the relevant inputs. I shall not embark on any detailed discussion about the acceptability of the defence set up by the petitioner. Suffice it to say that I am not persuaded to agree that at the present stage, direction under Section 438 Cr.P.C can or ought to be issued in favour of the petitioner. 7. After the decision in Bharat Chaudhary v. State of Bihar [A.I.R 2003 S.C 4662], it is well settled that powers under Section 438 Cr.P.C can be invoked even in favour of an accused who apprehends arrest in execution of a non bailable warrant issued in a pending proceedings. But even for that, sufficient and satisfactory reasons must be shown to exist to justify the invocation of the extraordinary equitable discretion under Section 438 Cr.P.C. I do not find any such reasons in this case. B.A.No.835 of 2008 4 8. It is for the petitioner to appear before the learned Magistrate and explain to the learned Magistrate the circumstances under which he could not earlier appear before the learned Magistrate. I have no reason to assume that the learned Magistrate would not consider such application on merits, in accordance with law and expeditiously. Every court must do the same. No special or specific direction appears to be necessary. Sufficient general directions have already been issued in Alice George v. The Deputy Superintendent of Police [2003(1) KLT 339]. 9. This application is, in these circumstances, dismissed, but with the specific observation 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 appropriate orders on merits and expeditiously - on the date of surrender itself. (R.BASANT, JUDGE) rtr/-