IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 835 of 2008()
1. SIVAJI, S/O. SIVARAJAN PILLAI,
... Petitioner
Vs
1. SUB INSPECTOR OF POLICE,
... Respondent
For Petitioner :SRI.A.RAJASIMHAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :14/02/2008
O R D E R
R.BASANT, J
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B.A.No.835 of 2008
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Dated this the 14th day of February, 2008
ORDER
Application for anticipatory bail. Petitioner is the 2nd
accused. He faces indictment in a prosecution for offences
punishable, inter alia, under Sections 457 and 392 I.P.C. The crux
of the allegations is that the petitioner along with co-accused (1st
accused) trespassed into the shop room of the defacto
complainant and allegedly under threat demanded money. When
that was not paid, they, using force and ignoring the objection of
the defacto complainant, allegedly took away 5 leather belts kept
for sale in the premises.
2. Investigation is complete. Final report has already
been filed. Cognizance has taken by the learned Magistrate.
Coercive processes have been issued by the learned Magistrate
against the petitioner. The petitioner apprehends imminent
arrest.
3. The learned counsel for the petitioner submits that the
petitioner is absolutely innocent. He has nothing to do with the
crime in question. False and vexatious allegations are now being
B.A.No.835 of 2008 2
raised against the petitioner. In the F.I.R, the specific allegation is
against one Sajith, arrayed as the 2nd accused. In the course of
investigation, falsely the petitioner has been brought in the array
of accused. The petitioner filed an application for anticipatory bail
in a crime registered under Section 354 I.P.C and which was also
registered before the Vanchiyur Police Station as Crime No.456 of
2007. The learned counsel for the petitioner, in these
circumstances, prays that the petitioner may be granted
anticipatory bail.
4. The learned Public Prosecutor opposes the application.
The learned Public Prosecutor submits that the available
indications convincingly point to the complicity of the petitioner.
The petitioner is the person referred to by the defacto
complainant though his name has been erroneously referred to as
Sajith and not Sivaji @ Sarat, which now the prosecution alleges is
his real name.
5. The petitioner was not arrested in the course of
investigation. There is no specific identification of the petitioner
by the defacto complainant or any witness done so far. But the
learned Public Prosecutor submits that there can be no semblance
of doubt about the complicity of the petitioner. Both from the
B.A.No.835 of 2008 3
confession statement of the 1st accused as well as the statement
of the victim, it is evident that the petitioner was the person
involved in the commission of the crime and that the reference to
the name Sajith made in the F.I statement is only erroneous and
cannot deliver any advantage to the petitioner, submits the
learned Public Prosecutor.
6. I have considered all the relevant inputs. I shall not
embark on any detailed discussion about the acceptability of the
defence set up by the petitioner. Suffice it to say that I am not
persuaded to agree that at the present stage, direction under
Section 438 Cr.P.C can or ought to be issued in favour of the
petitioner.
7. After the decision in Bharat Chaudhary v. State of
Bihar [A.I.R 2003 S.C 4662], it is well settled that powers under
Section 438 Cr.P.C can be invoked even in favour of an accused
who apprehends arrest in execution of a non bailable warrant
issued in a pending proceedings. But even for that, sufficient and
satisfactory reasons must be shown to exist to justify the
invocation of the extraordinary equitable discretion under Section
438 Cr.P.C. I do not find any such reasons in this case.
B.A.No.835 of 2008 4
8. It is for the petitioner to appear before the learned
Magistrate and explain to the learned Magistrate the
circumstances under which he could not earlier appear before the
learned Magistrate. I have no reason to assume that the learned
Magistrate would not consider such application on merits, in
accordance with law and expeditiously. Every court must do the
same. No special or specific direction appears to be necessary.
Sufficient general directions have already been issued in Alice
George v. The Deputy Superintendent of Police [2003(1)
KLT 339].
9. This application is, in these circumstances, dismissed,
but with the specific observation 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 appropriate orders on
merits and expeditiously – on the date of surrender itself.
(R.BASANT, JUDGE)
rtr/-