IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 Bail Appl..No. 7969 of 2008() ----------------------------- CRIME NO. 491/2008 OF VANCHIYOOR POLICE STATION PETITIONERS/ACCUSED. --------------------------------------- 1. S.M.SARIN, AGED 25, S/O.LATE A.M.SALIM, TC 37/223, PADMAVILASAM ROAD, FORT P.O., THIRUVANANTHAPURAM. 2. SAJIN SM, AGED 29,S/O. LATE A.M.SALIM, TC 37/223, PADMAVILASAM ROAD, FORT P.O., THIRUVANANTHAPURAM. 3. M.SHYNE, AGED 29, S/O. LATE A.M.SALIM, TC 37/223, PADMAVILASAM ROAD, FORT P.O., THIRUVANANTHAPURAM. 4. M.SABIN, AGED 25, S/O. LATE A.M.SALIM, TC 37/223, PADMAVILASAM ROAD, FORT P.O., THIRUVANANTHAPURAM. BY ADV. SRI.P.K.VARGHESE SRI.K.S.ARUN KUMAR SRI.E.C.BINEESH SRI.P.VIJAYA BHANU SRI.P.K.VARGHESE SRI.K.S.ARUN KUMAR RESPONDENT(S): --------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SRI K.S.SIVAKUMAR SRI.A.MOHAMMED FOR DE FACTO COMPLAINANT THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 17/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= B.A. No. 7969 of 2008 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 17th day of February, 2009 O R D E R Petition for anticipatory bail. 2. The alleged offences are under sections 143, 147, 148, 149, 341, 294(b), 323, 324, 326 and 427 read with section 149 IPC. According to prosecution, on 15-12-2008 at about 10.30 p.m. petitioners (A1 to A4) along with other accused formed themselves into an unlawful assembly armed with deadly weapons committed rioting and wrongfully restrained de facto complainant, abused him in filthy language, attacked him by beating with hands and also with cricket bat and inflicted injuries, including fracture to the leg. 3. Learned counsel for petitioners submitted that petitioners are brothers who are aged 21 to 29 years. The 1st accused is a literature student, 2nd accused is a Marking Executive in Bangalore, 3rd accused is a Plus Two student and 4th accused is a glass merchant. Their father died 23 years ago and their mother was residing in the house, which was allotted to them by grandfather. Father's brother was attempting to evict the mother and family members illegally and on 15-2-2008 when the mother was alone in the house, after a bypass surgery taking rest, father's brother who is de facto complainant went to the BA 7969/08 -2- house with gundas and assaulted her and also molested her and attempted to evict her forcibly from the house and in respect of the incident a complaint was given to the police. 4. According to petitioners, the gundas who were employed by de facto complainant could not carry out the work entrusted to them and hence they were not given money, as promised by the de facto complainant. Therefore, they assaulted de facto complainant and broke his leg on the same night. On 16-12-2008 and 17-12-2008, again, attempts were made by de facto complainant to unlawfully evict petitioners and the mother from the property. Criminal complaints were filed and crime was registered and one of the accused in those crimes is a notorious gunda by name “Kuppichil Ani”. 5. It is also submitted that de facto complainant is in the habit of creating false evidence by manipulating and distorting facts and in order to establish that de facto complainant is in possession of the property, he even filed a writ petition for police protection, contending that de facto complainant is in possession of the disputed house. The said application was disposed of, on being convinced that petitioners are in possession. Similarly de facto complainant has filed this false complaint also by misusing the injuries sustained by him at the hands of gundas. This is BA 7969/08 -3- done with a view to harass petitioners and also to see that in their absence, their mother could be evicted from the house illegally. If anticipatory bail is refused, it will result in irreparable loss and injury and hence, anticipatory bail may be granted, it is submitted. 6. Learned counsel for petitioners also submitted that petitioners are prepared to surrender before the Investigating Officer and co-operate with the investigation. Petitioners are innocent of the allegations made. 7. Learned Public Prosecutor submitted that petitioners are required for recovery of weapons used and also for interrogation. De facto complainant sustained grievous hurt and communited fracture on the leg and he was hospitalized in Kerala Institute of Medical Sciences, Anamukham. 8. On hearing both sides, on going through the case diary and wound certificate in which many relevant facts such as alleged cause of injuries etc. are absent , and the fact that as per the said wound certificate, the admission to hospital is only on the next day of incident, and on appreciation of various facts and circumstances of the case, I am of the view that if anticipatory bail is refused, it will result in miscarriage of justice, since petitioners appear to have a strong defence to put forward, BA 7969/08 -4- which can be established only during trial. 8. Hence, the following order is passed:- (1) Petitioners shall surrender before the Magistrate Court concerned within seven days from today and they shall be released on bail, on their executing a bond for Rs. 25,000/- each with two solvent sureties each, for the like amount, to the satisfaction of the learned Magistrate, on the following conditions:- i) Petitioners shall report before the Investigating Officer within four days from the date of release on bail and co- operate with the investigation. ii) Petitioners shall not intimidate or influence any witness or tamper with evidence or commit any offence while on bail. This petition is allowed. K.HEMA, JUDGE. mn.