IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 Bail Appl..No. 5188 of 2008() ----------------------------- (CRIME NO.436/08 OF PAYYANNUR POLICE) PETITIONERS/ACCUSED: -------------------- 1. SHAJAHAN, AGED 28, S/O. ASSAINAR, VADAKKUMBAD.P.O, RAMANTHALI. 2. JABBAR.M.C, AGED 28, S/O. MUHAMMEDALI, VADAKKUMBAD.P.O, RAMANTHALI, KANNUR. 3. K.K. ISMAIL, AGED 27, S/O. ABDULLA, VADAKKUMPAD.P.O, RAMANTHALI, KANNUR. 4. O.K. SASI, AGED 34, S/O. APPUKUTTAN, VADAKKUMPAD.P.O, RAMANTHALI. 5. DHANRAJ, AGED 33, S/O. BALAKRISHNAN, KUNNARU, P.O. KARANTHAD, KANNUR. 6. SAJI, AGED 22, S/O. BHARATHAN, KUNNARU, P.O. KARANTHAD. 7. SHYJU, AGED 28, S/O. KOTTAN, KUNNARU, P.O. KARANTHAD, KANNUR. BY ADV. SRI.M.V.AMARESAN RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PAYYANNUR POLICE, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. M.S. BREEZ. THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 30/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. --------------------------------------------------- Bail Appl.No. 5188 of 2008 --------------------------------------------------- Dated this the 31st day of October, 2008. ORDER Petition for anticipatory bail. The alleged offences are under Sections 143, 147, 148, 323, 324, 307 read with section 149 IPC. According to prosecution, seven named persons and 12 others formed into an unlawful assembly and assaulted de facto complainant with intention to commit murder and he sustained fracture etc. 3. Learned counsel for petitioners submitted that petitioners are absolutely innocent of the allegations made. As per the intimation sent by the doctor to the police, which is Annexure I, it is prepared at 9.45 p.m. and the incident is at 7 p.m. But, in the intimation, it is recorded that the assault was by “unknown persons”. It is only in the F.I.R. which is registered at 11.15 p.m. on the same day that the name of 7 accused are mentioned. They are implicated falsely on a second thought., it is submitted. Even then, the name of the 6th petitioner (A5) is [B.A.No.5188/08] 2 not in the FIR. There is no case that A5 used any weapon. In the above circumstances, petitioners may be granted anticipatory bail, it is submitted. 4. This petition is strongly opposed. Learned Public Prosecutor submitted that petitioners 1 to 3, 6 and 7 are implicated as accused in the crime. Petitioners 1 to 3 are A1 to A3 and petitioner no.6 is A5 and petitioner no.7 is A4 in the crime. Petitioner no.4 is deleted from the array of accused, since it is reveled in investigation that he is not involved. Petitioner no.5 is only suspected and investigation is being conducted into his involvement in the crime. It is submitted that in the F.I.R. itself some of the names are mentioned and an investigation is conducted into the involvement of all the accused, named and unnamed. No accused is arrested so far, though the incident occurred as early as on 22.7.2008, about three months back. It is also submitted that serious injuries are sustained by de facto complainant. He had fracture and amputation of a finger. It is also submitted that though A1, A2 and A4 used sword stick, A3, A5 and A7 used sticks. 5. Learned Public Prosecutor submitted that though in the FIR no allegation is made that A5 (petitioner no.6) had used [B.A.No.5188/08] 3 weapon, in the investigation, it is revealed that he has used a stick. It is also submitted that though the name of petitioner no.4 was mentioned in the FIS, on investigation it was found that he was not involved. Though the name of petitioner no.6 is not mentioned in the FIS he is implicated as A5, since it is revealed that he has beaten the de facto complainant using a stick. Therefore, on the facts of this case, it is not a fit case to grant anticipatory bail, it is submitted. Petitioners are required for interrogation and if anticipatory bail is granted, it will adversely affect the investigation, it is submitted. 6. On hearing both sides, taking into consideration the nature of allegations made against accused who are involved in the crime it is not a fit case to grant anticipatory bail to them. A1 to A4 and A5 & A7 have allegedly used weapons for the offence and their interrogation is necessary for an effecting recovery of weapon allegedly used. Though in the intimation it is recorded that the accused are “unknown”, in the F.I.R. their names are stated. It is needless to say that during investigation the persons who are actually involved can be ascertained. An investigation is being carried on regrading involvement of those who are named in the FIR and also not named. Taking into consideration the [B.A.No.5188/08] 4 nature of investigation required, nature of allegations made I am least inclined to grant anticipatory bail to the accused who are involved in this case. 7. Anticipatory bail cannot be granted to A4 also since his name is deleted from the array of accused. Petitioner no.5 is suspected to be involved in the offence and investigation is continued against him also. Anticipatory bail cannot be granted to him also. The incident occurred as early as on 22.7.2008 and the investigation is at a standstill since, nobody is arrested so far and therefore the following direction is issued: 1) The request for anticipatory bail by all the petitioners are rejected. 2) Petitioners 1 to 3, 6 and 7 shall surrender before the investigating officer within 7 days from today and co-operate with the investigation. 3) Whether they surrender or not, the police is at liberty to arrest them. With these directions, this petition is dismissed. K. HEMA, JUDGE. Krs.