IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 2ND APRIL 2008 / 13TH CHAITHRA 1930 Bail Appl..No. 2098 of 2008() ----------------------------- CRMP.556/2008 of DISTRICT COURT, KALPETTA CRIME NO.60/08 OF PADINJARETHARA POLICE STATION .................... PETITIONERS : ACCUSED ------------------------ 1. HARIS K., AGED 30 YEARS, S/O.MOIDEEN KANDIYAN HOUSE, PADINJARETHARA PO PADINJARETHARA VILLAGE, VYTHIRI TALUK WAYANAD DISTRICT. 2. M.MOHAMMED BASHEER, AGED 47 YEARS S/O.MARAKKAR MUSLIYAR, MANNARTHODI HOUSE PADINJARETHARA PO, PADINJARETHARA VILLAGE VYTHIRI TALUK, WAYANAD DISTRICT. 3. SUNNY VAREEKKAL, AGED 49 YEARS S/O.MATHEW, VAREEKKAL HOUSE, ARAMPETTA KANNU PO PADINJARETHARA VILLAGE, VYTHIRIT TALUK WAYANAD DISTRICT. 4. ANDRU KADANNOLI, AGED 51 YEARS S/O.ABDULLA, KADANNOLI HOUSE, PADINJARETHARA PO PADINJARETHARA VILLAGE, VYTHIRI TALUK WAYANAD DISTRICT. 5. AMMAD THODAN, AGED 65 YEARS, S/O.MOIDU THODAN HOUSE, PADINJARETHARA PO PADINJARETHARA VILLAGE, VYTHIRI TALUK WAYANAD DISTRICT. 6. MAMMOOTTY KALATHIL, AGED 43 YEARS S/O.MOIDU HAJI, KALATHIL HOUSE, PADINJARETHARA PO PADINJARETHARA VILLAGE, VYTHIRI TALUK WAYANAD DISTRICT. 7. P.K.RASHEED ALIAS CHINNAN, S/O.KUNHAMMAD AGED 43 YEARS, PALLIKKANDY HOUSE ARAMPETTA KUNNU PO., PADINJARETHARA VILLAGE VYTHIRI TALUK, WAYANAD DISTRICT. 8. TAITUS K.V., S/O.ANTONY, AGED 36 YEARS KARANIRAPPIL HOUSE, PADINJARETHARA PO PADINJARETHARA VILLAGE, VYTHIRI TALUK WAYANAD DISTRICT. Bail Appl..No. 2098 of 2008 - 2 - 9. SHIBU, S/O.GOPALAKRISHNAN, AGED 32 YEARS SABA SADAN, PO: KAVUMMANNAM, VYTHIRI TALUK WAYANAD DISTRICT. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, KOCHI. 2. THE STATION HOUSE OFFICER PADINJARETHARA POLICE STATION, WAYANAD DIST. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ B.A.No.2098 of 2008 ------------------------------------- Dated this the 2nd day of April, 2008 ORDER Application for anticipatory bail. Petitioners are accused 1 to 9. The learned Public Prosecutor at the outset submits that the 5th accused has now been deleted from the array of accused. The petition need hence be considered only in so far as the other accused are concerned, submits the learned Public Prosecutor. 2. The petitioners face allegations in a crime registered alleging offences punishable, inter alia, under Sections 353, 332 and 308 r/w 149 I.P.C. These are the non bailable offences alleged against the petitioners. The alleged incident occurred on 16.03.08. That was the date on which the election to a Co- operative Society at Padinjarethara was scheduled to be conducted. Police and the petitioners have different versions to advance as to how the incident took pace. According to the police, there was a procession by the U.D.F activists. All the petitioners are U.D.F activists. That procession was followed by the procession/demonstration of the L.D.F. According to the police, subsequently the U.D.F procession came again and it was thereafter that the incident in this case occurred, where the petitioners allegedly turned their ire against the police also. Stones were pelted B.A.No.2098 of 2008 2 against the police resulting in injuries to 4 police personnels. Wound certificates are available in the case diary and the nature of the injury suffered by the 4 police personnel has been read over to me from the wound certificates that are available in the case diary. F.I statement is lodged by the Dy.Superintendent of Police in charge of the police force at the scene. Investigation is in progress. The petitioners apprehend imminent arrest. 3. The learned counsel for the petitioners submits that the allegations are fanciful and untrue. What really happened was that there was an attempt to impersonate and cast a false vote by a person belonging to the L.D.F. He was standing in the queue in his attempt to cast such false vote. He had about 23 identification cards of various voters in his possession. Persons belonging to the U.D.F had raised objections against the attempt of such person to cast votes. There was a consequent dispute and altercation. The election had to be discontinued. Solely with the purpose of vexing and harassing the petitioners, at the instance of the L.D.F supporters, the police have raised totally false allegations against the petitioners. The petitioners may be granted anticipatory bail. There is no justification whatsoever in including the allegations of non bailable offences punishable B.A.No.2098 of 2008 3 under Sections 353, 332 and 308 r/w 149 I.P.C. The petitioners are important political activists. One of them was a candidate himself in the election. A Writ Petition in relation to the conduct of the said election is pending before this Court. In these circumstances, petitioners may be granted anticipatory bail, it is prayed. 4. The learned Public Prosecutor opposes the application. The political differences notwithstanding, the attempt to assault the police must be frowned upon. After discussions at the Bar, the learned Public Prosecutor fairly concedes that it may not at the moment be possible to assert that an offence under Section 308 I.P.C has been committed. On a consideration of the totality of circumstances and considering the nature of injuries which are seen recorded in the wound certificate that stand taken by the learned Public Prosecutor does appear to me to be absolutely fair and reasonable. But the learned Public Prosecutor opposes the application in so far as the offences under Section 353 and 332 I.P.C are concerned. Law must frown upon the attempt made to assault the police, who are only discharging their public duty. It is indisputable now that the policemen had suffered injuries. The fact that L.D.F supporters have not been arrayed as accused is B.A.No.2098 of 2008 4 itself no valid reason or justification for the petitioners to claim anticipatory bail. There are no circumstances available in this case which can justify or warrant the invocation of the extraordinary equitable discretion under Section 438 Cr.P.C, submits the learned Public Prosecutor. 5. Having considered all the relevant inputs, I find merit in the opposition by the learned Public Prosecutor. I am unable to perceive any features in this case which can justify or warrant the invocation of the extraordinary equitable discretion under Section 438 Cr.P.C. But I record the fair submission of the learned Public Prosecutor that the allegations under Section 308 I.P.C may not lie and observe that if the petitioners surrender before the Investigating Officer or the learned Magistrate and apply for regular bail, the learned Magistrate must consider such application on merits, in accordance with law and expeditiously, eschewing the allegations under Section 308 I.P.C raised against the petitioners. 6. With the above observations, this bail application is dismissed. (R.BASANT, JUDGE) rtr/-