IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 12TH NOVEMBER 2008 / 21ST KARTHIKA 1930 Bail Appl..No. 6890 of 2008() ----------------------------- CRIME NO. 157/2006 OF PIRAVOM POLICE STATION PETITIONER/1ST ACCUSED: ------------------------------ RATHEESH, S/O.,RAMANAN OCHUKUZHIYIL VEEDU, THOTTAPPADY KARA, EDAKKATTUVAYAL VILLAGE. BY ADV. SRI.KURIAN JOSEPH (ARAKKUNNAM) RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA , ERNAKULAM, COCHIN 682 031, REPRESENTING THE CIRCLE INSPECTOR OF POLICE, PIRAVOM POLICE STATION (INVESTIGATING OFFICER IN CRIME NO.157/2006 OF PIRAVOM POLICE STATION) BY P.P. SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 12/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A. No. 6890 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of November,2008 O R D E R Petition for anticipatory bail. 2. The alleged offences are under sections 143, 147, 148, 447, 427, 342, 452, 308, 506(II) read with section 149 IPC. According to prosecution, petitioner (A11) along with others formed themselves in to an unlawful assembly and committed house trespass, wrongfully restrained de facto complainant, assaulted him and inflicted injuries on him and others. They also committed mischief in the house. 3. Learned counsel for petitioner submitted that petitioner is absolutely innocent of the allegations made. Witnesses in this case including de facto complainant gave evidence before the trial court, when the co-accused was tried in S.C. No.212/2008 against prosecution. They did not implicate petitioner or any other person in the offence and hence, co- accused were acquitted. Petitioner could not appear before the court during committal proceedings, as he was working abroad, as evidenced by Annexure-A3 details in the passport. It is also submitted that summons was not received by petitioner and hence, he could not appear before the court during committal BA 6890/08 -2- proceedings. He had no intention to abscond but if he surrenders, he will be remanded, it is submitted. 4. Learned Public Prosecutor submitted that the case against petitioner was split up and the other accused were tried and acquitted. Petitioner was absconding and he was not available for trial and hence, non bailable warrant was issued against him. It is not a fit case to grant anticipatory bail, it is submitted. 5. On hearing both sides, and ongoing through documents produced, it is clear that witnesses turned hostile to prosecution, while examined in S.C. no.212/2008. They also stated that the parties settled the issues between them. In such circumstances, facts remain that the prosecution could not prove the case against accused. In case the trial is again conducted, it may be likely that this case also may end in acquittal. But, that possibility cannot be made a ground to grant anticipatory bail. As per the settled legal position, even charge against absconding accused cannot be quashed under section 482 Cr.P.C. and therefore, I am not satisfied that this is a fit case to invoke power under section 438 Cr.P.C. to grant anticipatory bail. 6. However, I make it clear that consideration for grant of BA 6890/08 -3- anticipatory bail is different from the consideration for granting bail under section 437 and 439 Cr.P.C. The fact that anticipatory bail is dismissed alone cannot be made a ground to dismiss the bail application filed under section 437 Cr.P.C. Hence, petitioner is at liberty to raise all the contentions which are raised in this petition before the trial court in a petition under section 437 Cr.P.C. 7. It is clear that the crime was registered as early as in 2006 and the trial against petitioner could not be concluded, since he was not available. Therefore, petitioner is directed to surrender before the Magistrate court concerned without any delay and co-operate with the trial. Whether he surrenders or not, police is at liberty to execute the non-bailable warrant issued by the lower court at any time and proceed in accordance with law. With this direction, this petition is dismissed. K.HEMA, JUDGE. mn.