IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 8TH APRIL 2008 / 19TH CHAITHRA 1930 Bail Appl..No. 1419 of 2008() ----------------------------- CR.NO. 686/06 OF KOTTIYAM POLICE STATION PETITIONER: ---------------------------- ABDUL MANAF @ MANAF, PUNNAVILA VEEDU, VELICHIKALA P.O., PALLIMON,KOLLAM BY ADV. SRI.R.KRISHNA RAJ RESPONDENTS: ------------- SUB INSPECTOR OF POLICE, KOTTIYAM, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 1419 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of April, 2008 O R D E R This is the third application for anticipatory bail filed by the petitioner, who faces allegations as the 4th accused in a crime registered alleging offences punishable, inter alia, under Sections 376 and 354 I.P.C. In both the earlier applications, B.A.Nos. 6958 and 7726 of 2006, another Bench of this Court had taken the view that the petitioner is not entitled for anticipatory bail. 2. The crux of the allegations in that crime is that accused 1 to 3 had allegedly had sexual intercourse with the victim/ defacto complainant, who is a girl below the age of consent. Thereafter, it is alleged that the first accused, along with the petitioner, took the girl to a school building, where the first accused again had sexual intercourse with her allegedly without her consent. The petitioner and another co-accused allegedly attempted to commit rape on the victim. She cried aloud. They could not therefore proceed further to complete the act of sexual B.A.No. 1419 of 2008 2 intercourse. But it is alleged that they had touched the private parts of the victim and had proceeded on an attempt to commit rape on her, which did not eventually succeed. Facts have been referred to in detail in the orders in the applications referred above. 3. At that point of time, the petitioner, along with the co- accused, came to this Court and filed a writ petition, WPC 2694 of 2007. That petition was eventually dismissed for non-prosecution. There was no representation for the petitioners. That writ petition was filed to quash the proceedings in the crime registered against the petitioner. There is a noting in that case that there was a submission in the course of that proceedings by the learned Prosecutor that the petitioner herein is required to be arrested only for the alleged bailable offence punishable under Section 354 I.P.C. Thereafter, when the matter came up for hearing, there was no representation for the petitioners and the petition was dismissed for default. 4. The petitioner has now come to this Court again with a fresh renewed request for grant of anticipatory bail. The learned counsel for B.A.No. 1419 of 2008 3 the petitioner submits that the dismissal of the two earlier applications is not of any relevance as there is substantial change in circumstance consequent to the representation made by the learned Prosecutor when WPC 2694 of 2007 came up for consideration on 9.4.2007. The learned Prosecutor having stated in that proceedings that the petitioner is required to be arrested only for the bailable offence punishable under Section 354 I.P.C., the petitioner is now entitled for grant of anticipatory bail, submits the counsel. He further contends that the petitioner is not named in the F.I.R. and the F.I.R. is significantly silent about any culpable conduct on the part of the petitioner. The learned counsel further points out that the allegations cannot reveal the involvement of the petitioner for the offence of rape committed by accused 1 to 3 nor is there any specific allegation of attempt to commit rape by the petitioner herein. In these circumstances, notwithstanding the dismissal of the two earlier applications for anticipatory bail, the petitioner may be granted anticipatory bail in the changed circumstance. There is a further submission that the defacto B.A.No. 1419 of 2008 4 complainant has no case now that there was any attempt on the part of the petitioner to do any culpable act against her. She shall swear to an affidavit to confirm that fact. Sufficient time has been granted. No such affidavit is seen filed also. 5. The learned Prosecutor opposes the application. He submits that no decision was ever taken as per the case diary that the petitioner need face only the allegation under Section 354 I.P.C. and does not have to face the allegation of attempt to commit rape as also vicarious liability for the offence of rape committed by the first accused when the victim was taken to the place of the incident by all the three accused persons. In these circumstances the learned prosecutor submits that it may not be reckoned that there is any change of circumstance as to justify a fresh different consideration of the application for anticipatory bail. 6. I have considered all the relevant inputs. The previous orders and the case diary have been placed before me. Having considered all the relevant inputs, I am persuaded to agree that there is B.A.No. 1419 of 2008 5 merit in the opposition by the learned Prosecutor. The erroneous submission made in the course of the pendency of WPC 2694 of 2007 notwithstanding, there is nothing to show that the Investigator has taken a decision that the petitioner is not bound to answer the charge under Section 376 I.P.C. More detailed consideration of the facts of the case or more detailed discussion on the acceptability of the allegations or the credibility of the data collected is not necessary at this stage. Suffice it to say that I am unable to perceive any features in this case, which would justify the invocation of the extra ordinary equitable discretion under Section 438 Cr.P.C. in favour of the petitioner. This, I am satisfied, is a fit case where the petitioner must resort to the ordinary and normal procedure of appearing before the Investigator or the learned Magistrate having jurisdiction and then seek regular bail in the usual course. 7. This application is dismissed. All the contentions which the petitioner can urge in support of his plea for grant of regular bail can still be raised by him before the learned Magistrate, notwithstanding B.A.No. 1419 of 2008 6 the dismissal of his applications for anticipatory bail. It is trite and I need not repeat that the quality of consideration of application for anticipatory bail and regular bail are totally different and the courts must consider all the contentions which the petitioner want to raise at the stage of grant of regular bail. (R. BASANT) Judge tm