IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 8TH JULY 2010 / 17TH ASHADHA 1932 Bail Appl..No. 4038 of 2010() ----------------------------- (CRIME NO.581/2010 OF SAKTHIKULANGARA POLICE STATION, KOLLAM) PETITIONERS/A1 & A2 --------------------------------------- 1. PRADEEP, S/O.SIMON, AGED 20 YEARS, PULINCHICKAL PADINJATTATHIL, SAKTHIKULANGARA VILLAGE, MARUTHADY P.O., KOLLAM DISTRICT. 2. BIJU XAVIER, S/O.XAVIER, KANNIMELCHERY, SAKTHIKULANGARA VILLAGE, MARUTHADY P.O., KOLLAM DISTRICT. BY ADV. SRI.N.SUNIL JOSEPH RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. REPRESENTING THE SUB INSPECTOR OF POLICE, SAKTHIKULANGARA POLICE STATION, KOLLAM DISTRICT. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 08/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J ----------------------- B.A No.4038 OF 2010 -------------------------------- Dated this the 8th day of July 2010 ORDER This petition is for anticipatory bail. 2. The alleged offences are under Sections 452, 324, 323 r/w 34 of of IPC. According to prosecution, accused numbers 1 to 3, in furtherance of their common intention trespassed into the house of de facto complainant and assaulted her and her husband using stone and thereby committed the above offences. 3. Learned counsel for petitioner submitted that the incident happened in the courtyard of the house. Therefore, offence under Section 452 IPC will not lie. It is also submitted that it is only thereafter, that the petitioners went inside the house as per the prosecution case and therefore, offence under Section 452 IPC will not be attracted. De facto complainant's husband had misbehaved towards second accused's wife while she was pregnant and there was some altercation. Apart from this, nothing else had happened. No injury was caused to de facto complainant's husband. It is also pointed out that prosecution has no case that any weapon was used while injured were attacked from inside the house. 4. Learned Public Prosecutor opposed this petition and submitted that it is not correct to say that the incident did not B.A No.4038 OF 2010 2 happen inside the house. Incident started from the courtyard and de facto complainant and her husband were assaulted by accused from inside the house also. Both de facto complainant as well as her husband sustained injuries as revealed from the wound certificate. They had contusions and incised wounds and abrasion. De facto complainant had sustained an incised wound on the Occipital region of the scalp. This is not a fit case to grant anticipatory bail, 5. On hearing both sides, on going through the FIS and taking into consideration the submissions made by the learned counsel for petitioner in respect of offence under Section 452 of IPC, I find that he has a strong and arguable case regarding involvement of Section 452 IPC. But, considering serious nature of the allegations made, I find that this is not a fit case to grant anticipatory bail. In the above circumstance, the the following order is passed. (1) Petitioner shall surrender before the Investigating Officer within seven days from today. (2) On such surrender, offence involved in this case will be treated as one under Section 451 of IPC instead of Section 452 of IPC. Petition is disposed of accordingly. K.HEMA vdv JUDGE