IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 11TH JANUARY 2008 / 21ST POUSHA 1929 Bail Appl..No. 7732 of 2007() ----------------------------- CRIME NO. 308/07 OF MELATTOOR POLICE STATION PETITIONER/ACCUSED: ------------------------------------ 1. JAYAN, S/O. AYYAPPAN, AMBALAKUNNATH HOUSE, EDAPATTA, PULIYAKKODE, MALAPPURAM DISTRICT. 2. MUHAMMEDALI, S/O. MAMMADU, CHERIKALLAN HOUSE, PATHIRIKKODE, PULIYAKKODE, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENTS: STATE: ------------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, MELATTOOR POLICE STATION - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 7732 of 2007 - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of January, 2008 O R D E R Application for anticipatory bail. The petitioners are accused 1 and 2 and they face allegations of having committed the offence punishable under Section 379 I.P.C. The crux of the allegations is that on 10.8.2007 from the car of the defacto complainant parked near the house of his brother-in-law, car speakers and a mobile phone were thieved. When the theft was detected, frantic enquiries were made to identify the persons, who may have committed the theft. The needle of suspicion is pointed at the petitioner herein. It is alleged that the suspicion was actuated, inter alia, by the circumstance that two slippers of the first accused were found near the scene of the crime. This allegedly led the defacto complainant and his friends to the first accused. The first accused was allegedly questioned and he agreed that he had given the stolen articles to the second accused, who will return the same. But the promise was not kept. The B.A.No. 7732 of 2007 2 articles were not returned. It is in these circumstances that the defacto complainant had filed this complaint before the learned Magistrate on 19.11.2007. The same was referred to the police under Section 156(3) Cr.P.C. Investigation is in progress. The petitioners apprehend imminent arrest. 2. The learned counsel for the petitioners submits that the allegations are totally unjustified. It is idle to assume that the presence of the slippers near the scene of the crime could have deflected the needle of suspicion to the first accused. The counsel asserts that there was no admission or statement on the part of the first accused that he had handed over the articles to the second accused and that the first accused shall get the same from the second accused to return to the defacto complainant. 3. The learned counsel further submits that totally false allegations have been raised. An earlier complaint according to the complainant has been allegedly filed before the police. The police do not stand by that version. It is submitted that subsequent to 10.8.2007 two other crimes were registered at the same police station. On 23.9.2007 a crime alleging an B.A.No. 7732 of 2007 3 offence under Section 324 I.P.C. has been registered as Crime No.240 or 2007, where the defacto complainant is one Kumaran, brother of the first accused. In that crime, admittedly there is no reference to the theft on 10.8.2007 or the subsequent events. In that crime, the third accused is the son of the defacto complainant herein, submits the counsel. The next crime is Crime No.294 of 2007 registered on 6.11.2007 for offences punishable, inter alia, under Section 323 I.P.C. and Section 3 of the SC/ST (Prevention of Atrocities) Act. The first accused is the defacto complainant therein. The allegation relates to an incident that had taken place on 12.8.2007 and the allegation is that the first accused was assaulted by the defacto complainant and his son on the allegation that the first accused had committed theft of the very same articles which were lost on 10.8.2007. The learned counsel for the petitioners in these circumstances prays that anticipatory bail may be granted to the petitioners herein. 4. The learned Prosecutor opposes the application. He submits that the delay in filing the complaint cannot deliver any advantage to the petitioners, in the facts and circumstances of this case. Admittedly the incident had taken place on 10.8.2007 and the complaint before the B.A.No. 7732 of 2007 4 Magistrate was filed only on 19.11.2007. But the averments in the F.I. statement in Crime no.294 of 2007 relate to an incident on 12.8.2007, which clearly show that the theft had taken place and the needle of suspicion was directed against the first accused even on 12.8.2007. 5. I shall carefully avoid any detailed discussion on merit about the acceptability of the allegations raised or the credibility of the data collected. Suffice it to say that the petitioners deserve to be interrogated for resolution of the mystery in the crime. On an anxious consideration of all the relevant inputs, I am unable to find any circumstance justifying or warranting the invocation of the extra ordinary equitable discretion under section 438 Cr.P.C. in favour of the petitioners. This, I agree with the learned Prosecutor, is a fit case where the petitioners must be directed to appear before the Investigator or the learned Magistrate having jurisdiction and then seek regular bail in the ordinary course. 5. This application is accordingly dismissed. I may however hasten to observe that if the petitioners appear before the learned Magistrate and apply for bail after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate B.A.No. 7732 of 2007 5 must proceed to pass orders on merits, in accordance with law and expeditiously. (R. BASANT) Judge tm