IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 4383 of 2007()
1. VIVEK JOY, S/O K.K.JOY,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.DILEEP P.PILLAI
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :20/07/2007
O R D E R
R. BASANT, J.
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B.A. NO. 4383 OF 2007
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Dated this the 20th day of July, 2007
ORDER
The petitioner faces allegations, inter alia, under Sec.376
of the IPC. He is alleged to have kidnapped a girl aged about
15 years and committed rape on her. A crime was registered.
Investigation is in progress. The petitioner apprehends
imminent arrest.
2. The learned counsel for the petitioner submits that
the petitioner is absolutely innocent. It is prayed that
directions under Sec.438 of the Cr.P.C. may be issued in favour
of the petitioner.
3. The learned Public Prosecutor opposes the application.
The crime was registered as early as on 3/10/06. The
petitioner had applied for anticipatory bail before the learned
Sessions Judge and by order dated 28/4/07, the learned
B.A. NO. 4383 OF 2007 -: 2 :-
Sessions Judge had allowed the said petition subject to
conditions. The petitioner has not complied with the said
directions. Suppressing the fact that the learned Sessions
Judge, Alappuzha, had passed an order of anticipatory bail dated
28/4/07 in Crl.M.P.No.1162/07, this application for anticipatory
bail has been filed before this Court, it is submitted. In these
circumstances, the extraordinary equitable discretion under
Sec.438 of the Cr.P.C. may not be invoked in favour of such a
petitioner, submits the learned Public Prosecutor.
4. Without going into details, I am satisfied that the
petitioner has not come to this Court with sufficiently clean
hands to justify the prayer for invocation of the extraordinary
equitable discretion. The learned counsel submits that the
counsel was unaware of the earlier application filed by the
petitioner. But it is difficult for me to assume that the petitioner
did not know about the same. This bail application has been
filed with a specific assertion in the petition that no earlier
application had been moved before any court.
5. I am, in these circumstances, satisfied that the
petitioner is not entitled to invoke the discretion under Sec.438
of the Cr.P.C. He must now resort to the ordinary and normal
procedure of surrendering before the Investigating Officer or
B.A. NO. 4383 OF 2007 -: 3 :-
the learned Magistrate having jurisdiction and then seek regular
bail in the ordinary course.
6. In the result, this bail application is dismissed; but with
the observation that if the petitioner surrenders before the
learned Magistrate and seeks 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.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy//
P.S. to Judge