IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 25TH MARCH 2008 / 5TH CHAITHRA 1930 Bail Appl..No. 1801 of 2008() ----------------------------- CRIME NO. 49/08 OF IRIKKUR POLICE STATION .................... PETITIONERS/2ND & 3RD ACCUSED:- ------------------------------------------------ SHIHABDHEEN P.K., S/O.MOIDEEN, AGED 18 YEARS, RESIDING AT POOVATTARAKATH, KUNNUMPURATH, PATTANNUR AMSOM, AYIPPUZHA DESOM. BY ADV. SRI.C.K.SREEJITH RESPONDENTS: ------------- 1. STATE OF KERALA, REP.BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE S.H.O., IRIKKUR POLICE STATION, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 1801 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of March, 2008 O R D E R Application for anticipatory bail. The petitioners are accused 2 and 3. They along with the first accused face allegations of having committed the offence punishable under Section 377 r/w. 34 I.P.C. The victim is a 11 year old school going child. When he was returning after attending a function, he was allegedly taken to an isolated place by all the three accused persons. While the first accused indulged in unnatural carnal intercourse with the young boy, accused 2 and 3 allegedly stood guard and ensured that no other person came to know of the incident. Crime has been registered. Investigation is in progress. In the F.I.R. The accused persons have not been specifically named. In the course of investigation their identity was ascertained. The first accused has already been granted anticipatory bail on the ground that he is a juvenile. The petitioners apprehend imminent arrest. B.A.No. 1801 of 2008 2 2. The learned counsel for the petitioners submits that the petitioners are innocent. Even going by the allegations, the petitioners have not indulged in any specific overt act of carnal intercourse against the victim. They are not named in the F.I.R. The first accused has already been granted anticipatory bail. There is also a submission that the matter has been settled between the parties. It is in these circumstances prayed that anticipatory bail may be granted to the petitioners. 3. The learned Prosecutor opposes the application. In the facts and circumstances of the case there is absolutely no justification for the prayer for invocation of the extra ordinary equitable discretion under Section 438 Cr.P.C. in favour of the petitioners. The mere fact that the first accused, a juvenile, had been granted anticipatory bail is no reason for the petitioners to claim anticipatory bail. The nature of the offence may be taken into consideration. The petitioners may be directed to surrender before the Investigator or the learned Magistrate having jurisdiction and then seek regular bail in the ordinary course, submits the learned Prosecutor. B.A.No. 1801 of 2008 3 4. The case diary has been placed before me. I have perused the same. Having considered all the relevant inputs, I find merit in the opposition by the learned Prosecutor. I agree with the learned Prosecutor that this is a fit case where the petitioners 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. 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 must proceed to pass orders on merits, in accordance with law and expeditiously. (R. BASANT) Judge tm