IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 11TH FEBRUARY 2009 / 22ND MAGHA 1930 Bail Appl..No. 7301 of 2008(E) ------------------------------------- CRIME NO.399/2008 OF KOOTHATTUKULAM POLICE STATION .................... PETITIONERS/ACCUSED : ------------------------------ 1. DAYES P.VARGHESE, AGED 32 YEARS, S/O.ABRAHAM VARGHESE, PARAYIL PEEDIKAYIL, KIZHAKKOMBU.P.O, KOOTHATTUKULAM. 2. DENNIS P.VARGHESE, AGED 30 YEARS, S/O.ABRAHAM VARGHESE, PARAYIL PEEDIKAYIL, KIZHAKKOMBU.P.O, KOOTHATTUKULAM. 3. BIJUMON.E.S, AGED 30 YEARS, S/O.SUKUMARAN, EDASSERYKUNNEL, KIZHAKKOMBU.P.O, KOOTHATTUKULAM. 4. VIJU.E.K, AGED 30 YEARS, S/O.KUNJUPPAN, EDATHINAL HOUSE, KIZHAKKOMBU.P.O, KOOTHATTUKULAM. BY ADV. SRI.S.RAJEEV RESPONDENT : ----------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.399 OF 2008 OF KOOTHATTUKULAM (CRIME NO.399 OF 2008 OF KOOTHATTUKULAM POLICE STATION) PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 11/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ---------------------------------- B.A. No.7301 OF 2008 ---------------------------------- Dated this the 11th day of February, 2009 O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Sections 341, 323, 326 read with 34 of I.P.C. According to prosecution, petitioners (accused nos.1 to 4) in furtherance of common intention wrongfully restrained defacto complainant and assaulted him and he sustained fracture. The offence was committed when the defacto complainant was riding a motor cycle. 3. Learned counsel for petitioners submitted that on 12.10.2008, defacto complainant and others trespassed into a church and assaulted petitioners and others. In respect of this, a crime was registered as crime No.388/08. To compromise the said crime, a false complaint is lodged against petitioners, taking advantage of the injuries sustained by the defacto complainant in a motor accident, it is submitted. The defacto complainant fell down from the motor bike and sustained injuries. To the doctor, he did not mention the names of the assailants, even though petitioners are known to him. It is also submitted that only against first petitioner, there is an allegation of using weapon B.A.No.7301 of 2008 2 and the others have only assaulted with hands. Therefore, at least the other accused may be granted anticipatory bail. 4. This petition is strongly opposed. Learned Public Prosecutor submitted that the incident occurred on 16.10.2008 at about 9.15 p.m. and on the very next day, the F.I.Statement was given and all the accused were implicated and the defacto complainant specifically mentioned the names of two petitioners and stated that he was attacked by the petitioners and two others while he was coming in a motor bike. Iron rod was used for assaulting the defacto complainant. The very same allegation was made even at the hospital when he examined on the same day at 9.50 p.m., though names were not mentioned. There is nothing in the case diary to show that the defacto complainant was involved in a motor accident. The allegation was that he was assaulted and the injury was sustained in an assault. Iron rod is to be recovered. On hearing both sides and on going through the case diary, I could not come across with any materials, which would indicate that there was a motor accident. As per the allegations in the F.I.Statement, the assailants have come in motor cycles and first B.A.No.7301 of 2008 3 accused used an iron rod and all others also assaulted him. The accused committed the offences in furtherance of common intention. In a case of this nature, it is not proper to grant anticipatory bail. No special circumstance is made out to invoke provision under Section 438 Cr.P.C. Hence, I am not inclined to grant anticipatory bail, especially since the recovery of the weapon is to be effected. The crime is registered on 17.10.2008 and petitioners are required for interrogation and investigation. Hence, the following order is passed : i) Petitioners shall surrender before the investigating officer forthwith and co-operate with the investigation. Whether they surrenders or not, police is at liberty to arrest them and proceed in accordance with law. ii) No further application for anticipatory bail by petitioners in this crime by this court will be entertained. The petition is dismissed. K.HEMA, JUDGE pac