IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 5537 of 2007()
1. MUHAMMEDALI C.M.,
... Petitioner
Vs
1. C.I. OF POLICE, VADAKARA POLICE STATION.
... Respondent
2. STATE REP.BY PUBLIC PROSECUTOR,
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :13/09/2007
O R D E R
R. BASANT, J.
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B.A.No. 5537 of 2007
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Dated this the 13th day of September, 2007
O R D E R
Application for anticipatory bail. The petitioner is the second
accused. He faces allegations, inter alia, under the provisions of the
Immoral Traffic Prevention Act and Section 323 I.P.C. The crux of
the allegations is that a helpless woman, whose husband was detained
in prison and was finding it difficult to make both ends meet was
persuaded to accompany the accused persons to a lodge for the
purpose of sexual intercourse for consideration. The first one
closeted along with the woman, had sexual intercourse twice, but
sneaked out of the room without giving any payment. Then came the
next. He also wanted to have sexual intercourse. She resisted. She
insisted that there could be no intercourse on credit. Payment had
to be made, it was insisted. At this point, the said person, with an
intention to subject her to sexual intercourse, is alleged to have
assaulted her. The petitioner is allegedly the first person who went
into the room. The crime has been registered. Investigation is in
progress. Two other accused, who have already been arrested, have
been granted regular bail, it is submitted. The petitioner apprehends
imminent arrest.
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2. The learned counsel for the petitioner submits that the allegations
are totally false. The petitioner does not deserve to suffer the trauma of
arrest and incarceration on the basis of the statement of a woman, who on
her own showing, does not have very acceptable credentials. Anticipatory
bail may, in these circumstances, be granted to the petitioner, it is prayed.
The learned counsel further submits that, at any rate, the sections of offence
shown are not proper and the petitioner does not deserve to be detained for
those allegations.
3. The learned Prosecutor opposes the application. The learned
Prosecutor submits that there are no features to justify the invocation of
the discretion under Section 438 Cr.P.C. in this case. This is a fit case
where the petitioner must resort to the ordinary and normal procedure of
appearing before the Investigator or the learned Magistrate and then seek
regular bail in the ordinary course.
4. I find merit in the opposition by the learned Prosecutor. I am not
embarking on a detailed discussion as to whether the sections of offences
shown are correct or not. I look at the nature of the allegations. In the
nature of the contentions, the case diary was directed to be placed before
me. I have gone through the case diary. In the nature of the allegations
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raised, I am not certainly persuaded to agree that the extra ordinary
equitable discretion under Section 438 Cr.P.C. can or ought to be invoked
in favour of the petitioner. The nature, quality and contours of the
jurisdiction must be alertly borne in mind. Such extra ordinary jurisdiction
cannot be invoked as a matter of course. The conscience of the court must
be satisfied that it is necessary in the interests of justice to invoke such
discretion. I am not at all satisfied that this is a fit case where such
discretion can be invoked in favour of the petitioner.
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
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