IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 Bail Appl..No. 7546 of 2008() ----------------------------- CRMP.2253/2008 of ADDL.SESSN.COURT (ADHOC-II)KASARAGODE CRIME NO.201/08 OF ADHUR POLICE STATION, KASARGODE PETTITIONERS/ACCUSED 1 & 2 ---------------------------------------------- 1. JOY MATHEW, AGED 66 YEARS, S/O.LATE MATHEW MUTHUMEKUZHIYIL, PANNADUKKAM RIVER VIEW ESTATE, MULIYAR VILLAGE, KASARAGOD TALUK. 2. SHAJI SEBASTIAN, AGED 40 YEARS, S/O.JOY MATHEW, R/AT PANNADUKKAM, MULIYAR VILLAGE, KASARAGOD TALUK. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. (THROUGH SUB INSPECTOR OF POLICE, ADHUR POLICE STATION, KASARGODE). PUBLIC PROSECUTOR SHRI.M.S.BREEZE THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 28/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No. 7546 of 2008 ----------------------------------------- Dated this the 28th January, 2009 O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Sections 342, 326, 308 read with 34 of the Indian Penal Code. According to prosecution, petitioners (accused 1 and 2), in furtherance of common intention, assaulted de facto complainant and another and inflicted injuries, including fracture. 3. Learned counsel for petitioners submitted that first petitioner has three sons and a daughter and he is aged 66 years. Second petitioner is the son. First petitioner intended to convey certain properties to second petitioner, which was objected to by his wife and two other sons. There was a fight on this issue for a considerably long period and petitioners were harassed by them. On the date of occurrence, first petitioner was present in a shed in the coconut garden while his son along with goondas came to the place and tried to attack first petitioner. In exercise of self defence, he waved iron crowbar and escaped from the scene. He was also BA.7546/08 2 assaulted by the persons, who came there and a complaint was lodged by him. 4. This petition is opposed. Learned Public Prosecutor submitted that de facto complainant and another have sustained serious injuries, including fracture and scull exposed lacerated wound by the use of iron rod and they were also admitted in the hospital. Those persons are not even related to petitioners. The weapon is not recovered. A counter case is registered under Sections 324, 323 and 506 Part-I of the Indian Penal Code. Petitioners have protested against the persons, who had come to pluck the coconut trees from the property and hence, the incident occurred. 5. On hearing both sides and on going through the case diary, I find that the injured sustained considerable injuries with an iron rod. The doctor also noted iron rod marks, but admittedly, petitioner did not sustain any serious injury, though he is allegedly assaulted by the injured in this case. Learned counsel for petitioners submitted that the doctor manipulated the records at the instance of first petitioner's son, who is closely acquainted with him. However, at this stage, it may not be possible for me to make any such BA.7546/08 3 conclusions especially in an application for anticipatory bail. Considering the nature of allegations made and the nature of investigation required, I do not think that it is a fit case to grant anticipatory bail. 6. However, if petitioners surrender before the Magistrate Court concerned and file application under Section 437 Cr.P.C, they will be at liberty to raise all these contentions, in which event, the learned Magistrate shall consider the same and dispose of the petition on merit, untrammelled by any of the observations made by this Court in this order. It is made clear that rejection of anticipatory bail application may not by itself be a ground to reject application for bail under Section 437 Cr.P.C. Petitioners are directed to surrender before the investigating officer and co-operate with the investigation. Whether they surrender or not, police is at liberty to arrest them and proceed in accordance with law. With this direction, petition is dismissed. K.HEMA, JUDGE vgs.