IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 Bail Appl..No. 6899 of 2008() ----------------------------- CRIME NO. 372/2008 OF KATTAKKADA POLICE STATION PETITIONER (S): ACCUSED 1 TO 5: -------------------- 1. ANUS.I., S/O.IBRAHIM KUNJU ANUS MANZIL, PEEZHUMOODU, POOVACHAL PO., THIRUVANANTHAPURAM. 2. ABDUL JALEEL, S/O.ABDUL RASHEED SHEHAMA MANZIL, CHAKKIPARA, PUNALAL PO., THIRUVANANTHAPURAM. 3. SUDHEEER.R., S/O.RASHEED, VAVARAKONAM THADATHRIKATHU VEEDU POOVACHAL PO., THIRUVANANTHAPURAM. 4. ASHKAR.M., S/O.MYTHEEN KANNU, HASEENA MANZIL, EARUTHAVOOR, RASSELPURAM, BALARAMAPURAM, THIRUVANANTHAPURAM. 5. AL-AMEEN.S., S/O.SHAMSUDEEN, HASEENA MANZIL, THUNDUVILA, KILLI,, KOLLODE PO., THIRUVANANTHAPURAM. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S): --------------- STATE OF KERALA, THROUGH THE SUB INSPECTOR OF POLICE, KATTAKKADA POLICE STATION REP. BY THE PUBLIC PROSECUTOR, KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SRI K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 28/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A. No. 6899 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of November,2008 O R D E R Petition for anticipatory bail. 2. The alleged offences are under sections 143, 147, 148, 452, 323 and 324 read with section 149 IPC. According to prosecution, on 5-10-2008 at about 11 p.m. petitioners who are accused 1 to 5 formed themselves in to an unlawful assembly, armed with weapon like iron rod, committed house trespass into the residential house of de facto complainant and assaulted de facto complainant and inmates of the house. De facto complainant, his mother and brother were injured. 3. Learned counsel for petitioners submitted that the only non bailable offence is under section 452 IPC. The said offence is included deliberately with a view to see that petitioners are arrested and detained. Learned counsel for petitioners also submitted that when petitioners were going by the side of de facto complainant's house, de facto complainant who was infuriated by failure in the election came towards petitioners and had a quarrel and petitioners were assaulted by de facto complainant. On hearing the cry, de facto complainant's mother also came running, but no incident as alleged had taken place inside the house. It is also submitted that though iron rod was BA 6899/08 -2- allegedly used, the injury sustained does not correspond to the nature of weapon used, it is submitted. Petitioners were successful in the election for the first time and therefore, the opposite side was offended by this and hence, the incident occurred. For all these reasons, it is submitted that this is a false case and hence, anticipatory bail may be granted to petitioners. 4. This petition is opposed. Learned Public Prosecutor submitted that there is a clear allegation that incident occurred inside the house of de facto complainant. The time of offence is at 11 p.m. It is also pointed out that three inmates of the house were injured, apart from de facto complainant. All of them were assaulted by accused. The 1st accused used iron rod and others used hands and legs. It cannot be said that no incident has occurred at all. Petitioners are required for interrogation and recovery of weapon. It is not a fit case to grant anticipatory bail, it is submitted. 5. On hearing both sides, considering the rival contentions, I am not able to conclude at this stage that no offence was committed. In the nature of allegations made, there is a house trespass into the house of de facto complainant and de facto complainant and three persons in the house were assaulted by BA 6899/08 -3- using weapon. They were injured and hospitalized also. Considering the nature of allegations and the nature of investigation required, I am satisfied that it is not a fit case to grant anticipatory bail. 6. It is needless to say that consideration for grant of anticipatory bail is different from consideration for grant of bail under section 437 Cr.P.C. Dismissal of a petition for anticipatory bail itself may not be a ground for refusal of bail under section 437 Cr.P.C. Petitioners shall surrender before the Magistrate Court concerned or before the Investigating Officer and co-operate with the investigation without any delay. Whether they surrender or not police is at liberty to arrest them and proceed in accordance with law. With this direction, this petition is dismissed. K.HEMA, JUDGE. mn.