IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 27TH FEBRUARY 2008 / 8TH PHALGUNA 1929 Bail Appl..No. 1021 of 2008() ----------------------------- CRIME NO. 693/07 OF ERNAKULAM TOWN SOUTH POLICE STATION .................... PETITIONER/ 5TH ACCUSED ----------------------------------- P.R.RAJESH, S/O. RADHAKRISHNAN, PUTHIYAPARAMBIL HOUSE, THAZHAVARAM, KUREEKKAD PO., ERNAKULAM. BY ADV. SRI.K.R.VINOD RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. THE SUB INSPECTOR OF POLICE, ERNAKULAM TOWN SOUTH POLICE STATION. BY PUBLIC PROSECUTOR SRI. JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 1021 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of February, 2008 O R D E R Application for anticipatory bail. The petitioner is the 5th accused. Altogether there are five accused persons. A1 to 4 have already been arrested and their confession statements have been recorded. The crux of the allegations is that on account of prior animosity the accused persons, five in number, chased the victim/ defacto complainant, an autorikshaw driver, who was proceeding along the road driving the autorikshaw. A car intercepted the autorikshaw. The accused persons came out of the car and unleashed a brutal attack on the victim. He ran for his life. The miscreants allegedly chased him. Multiple injuries with dangerous weapons were inflicted on the victim. The F.I.R. was registered promptly. In the F.I.R. only the first accused is named. It wasstated that the other accused can be identified. In the course of investigation it has been revealed to the police that the petitioner is one of the accused persons. He has been arrayed as B.A.No. 1021 of 2008 2 5th accused. Investigation is in progress. The petitioner apprehends imminent arrest. 2. The learned counsel for the petitioner submits that the petitioner is innocent. He is so closely known to the defacto complainant. If as a matter of fact he has any contumacious role to play in the crime, it is very unlikely, nay impossible that the defacto complainant would have omitted to note the presence of the petitioner or omitted to name the petitioner as an accused in the F.I.R. The very fact that the petitioner has not been named in the F.I.R. is assurance for the fact that the petitioner was not available at the scene. In these circumstances the petitioner may not be compelled to endure the undeserved trauma of arrest and detention. To drive home the point that the petitioner and the defacto complainant are closely known to each other, the learned counsel points out that they have been co- accused in another crime and that there has been an earlier crime, where the defacto complainant is alleged to have attacked the petitioner herein. 3. The learned Prosecutor opposes the application. He submits that all the available indications clearly point to the complicity of the petitioner. It is true that the petitioner has not been named in the B.A.No. 1021 of 2008 3 F.I.R. It is also true that a plain looking of the facts may generate dissatisfaction, but the facts remain that further investigation has revealed the complicity of the petitioner beyond doubt. There is no reason to doubt the involvement of the petitioner. The information collected from the co-accused confirms the complicity of the petitioner. If the victim in his then state of mind at the time of the occurrence has failed to perceive the identity of one of the five miscreants correctly or he has omitted to narrate the involvement of the petitioner specifically in the F.I.R., those cannot be reckoned as sufficient circumstances to invoke the extra ordinary equitable discretion under Section 438 Cr.P.C. in favour of the petitioner. The learned Prosecutor submits that the petitioner has a questionable record of criminal antecedents. He may be directed to surrender before the Investigating Officer and co- operate for the expeditious completion of the investigation, submits the learned Prosecutor. 4. The learned counsel for the petitioner submits that the petitioner may be directed to surrender before the learned Magistrate and not before the police. 5. Having considered all the relevant inputs, I find merit in the opposition by the learned Prosecutor. I am unable to find any features B.A.No. 1021 of 2008 4 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 ordinary course. The option is for the petitioner to surrender before the Magistrate or the Investigating Officer. 5. 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