This is an application for anticipatory bail filed by the second accused in Crime No.138/2012 of Konni Police Station under Section 438 of the Code of Criminal Procedure (hereinafter referred as 'the Code'). 2. The case of the prosecution in nutshell was that the petitioner along with the first accused had promised to obtain passport for the defacto complainant and collected amount and later produced the passport with photo of another person and they have not returned the amount as well and and thereby they have committed the offence punishable under Section 420 read with Section 34 of the Indian Penal Code.
3. The counsel for the petitioner submitted that the petitioner has not committed any offence and he is innocent of the same and he has been falsely implicated in the case. In fact, the alleged transaction had taken place in the year 1999. No action has been taken by the petitioner till 2012. Investigation is almost over. Custody of the petitioner is not required any more in connection with the investigation. So he had prayed for allowing the application.
4. On the other hand, the application was opposed by the Public Prosecutor on the ground that the petitioner has moved application for anticipatory bail before this Court and the same was dismissed by this Court and he had neither surrendered before court nor before the investigating officer.
5. It is admitted that on the basis of the statement given by the defacto complainant, the above crime was registered by the Konni police against the petitioner and the first accused alleging the offence punishable under Section 420 read with Section 34 of the Indian Penal Code. None of the accused were arrested in the case so far. The petitioner in this case had moved this Court for anticipatory bail as B.A.No.1377/2012 and this Court by Annexure A1 order dismissed the application. In spite of that, the petitioner has not either surrendered before court or before the investigating officer. It is thereafter that he had now come with the application for anticipatory bail. Investigation is still in progress. None of the accused persons were arrested in this case so far. The petitioner has not surrendered before the court below or before the investigating officer in spite of the fact that his earlier application for anticipatory bail has been dismissed by this Court as early as on 8.3.2012. The attitude of the accused not surrendering before the court or the investigating officer in spite of dismissal of his application for anticipatory bail and coming with application later for similar relief on the ground that his custody is required in connection with investigation cannot be encouraged. So,under the circumstances, this Court feels that it is not a fit case to grant anticipatory bail to the petitioner invoking the power under Section 438 of the Code of Criminal Procedure. The petitioner can very well surrender before the Magistrate court concerned and move for regular bail. So the petitioner is not entitled to get anticipatory bail. His application is liable to be rejected.
In the result, the application is rejected. If the petitioner surrenders before the Judicial First Class Magistrate Court-II, Pathanamthitta and moves for regular bail, then the learned Magistrate is directed to consider and dispose of the bail application after hearing the Assistant Public Prosecutor of that court in accordance with law as far as possible on the date of filing the application itself.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl /true copy/ P.S to Judge