IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 12TH FEBRUARY 2008 / 23RD MAGHA 1929 Bail Appl..No. 529 of 2008() ---------------------------- CRIME NO.882/07 OF NEDUMANGAD POLICE STATION PETITIONER : ACCUSED: ------------------------- SHAILAJ, S/O.SHOUKATHALI, CHIRAYIL VEEDU, KOLLAMKAVU, PAZHAKUTTY P.O., NEDUMANGAD, THIRUVANANTHAPURAM. BY ADV. SRI.K.ABDUL JAWAD SRI.A.RAHIM RESPONDENTS: COMPLAINANT: ------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, NEDUMANGAD POLICE STATION, NEDUMANGAD, THIRUVANANTHAPURAM. BY PUBLIC PROSECUTOR SRI.JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ B.A.No.529 of 2008 ------------------------------------- Dated this the 12th day of February, 2008 ORDER Application for anticipatory bail. Petitioner is at present the sole accused in a crime registered alleging offences punishable under Section 308 I.P.C and Section 27 of the Arms Act. Originally there was one more accused arrayed. But in the course of investigation it is revealed that the said person was not an offender and only happened to rush to the scene to rescue the victim. The victim has 3 incised wounds. Sword was the weapon allegedly used by the petitioner for the commission of the crime. The petitioner is named in the F.I.R. The alleged incident took place on 11.12.07. 2. The learned counsel for the petitioner submits that the petitioner is innocent. The allegation under Section 308 I.P.C is raised with vexatious intent. The petitioner is not the aggressor but only the victim of aggression. A counter case has already been registered by the police in respect of the same incident. There is no justification for inclusion of the allegations under Section 308 I.P.C. Such allegations are raised only to vex and harass the petitioner. It is prayed that the petitioner may, in these circumstances, be granted anticipatory bail. B.A.No.529 of 2008 2 3. The learned Public Prosecutor concedes that a counter case has been filed. Such counter case has been registered long later on the basis of a private complaint filed on 25.01.08. The petitioner has suffered insignificant injuries in the course of the same incident and had gone to the doctor on the date of the incident itself. In any view of the matter, this is not a fit case where the discretion under Section 438 can or ought to be invoked in favour of the petitioner. The petitioner may be directed to surrender before the Investigating Officer or the learned Magistrate having jurisdiction and then seek regular bail, submits the learned Public Prosecutor. 4. Having considered all the available inputs, I do not find any features in this case which can justify or warrant the invocation of the extraordinary equitable discretion under Section 438 Cr.P.C. This, I agree with the learned Public Prosecutor , is a fit case where the petitioner must appear before the Investigating Officer or the learned Magistrate having jurisdiction and then seek regular bail. 5. This application is, in these circumstances, dismissed, but I may hasten to observe that if the petitioner surrenders before the Investigating Officer or the learned Magistrate and B.A.No.529 of 2008 3 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. (R.BASANT, JUDGE) rtr/-