IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 23RD JUNE 2008 / 2ND ASHADHA 1930 Bail Appl..No. 3837 of 2008() ----------------------------- CMC.493/2008 of D.C. & SESSIONS COURT,KOZHIKODE CRIME NO.32/08 OF THE KUNNAMANGALAM POLICE STATION PETITIONERS/ACCUSED ------------------------------------ 1. NOUFAL, S/O.UMMER, AGED 20 YEARS, KUVVA PUNNATHIL HOUSE, CHELAVOOR AMSOM DESOM, KOZHIKODE TALUK. 2. RAHIM.K.P., S/O.KOYASSAN, AGED 24 YEARS, KATTYATHIPARAMBA, CHELAVOOR AMSOM DESOM, KOZHIKODE TALUK. 3. MUNEER.A.P., S/O.USMAN, AGED 23 YEARS, PARAPPOYIL HOUSE, CHELAVOOR AMSOM DESOM, KOZHIKODE TALUK. 4. SHAJEER.K.P., S/O.KOYA, AGED 20 YEARS, THALIPARAMBIL HOUSE, CHELAVOOR AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENTS: COMPLAINANT & STATE -------------------------------- 1. SUB INSPECTOR OF POLICE, KUNNAMANGALAM POLICE STATION, KUNNAMANGALAM, KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No.3837 of 2008 ----------------------------------------- Dated this the 23rd day of June, 2008 O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Sections 143, 147, 452 and 427 read with 149 of Indian Penal Code. Petitioners and others went to a restaurant. They formed themselves into an unlawful assembly and destroyed articles kept in the shop and committed mischief, causing a loss of Rs.30,000/-. 3. Learned counsel for petitioners submitted that the only non bailable offence is under Section 452 of the Indian Penal Code, but going by the provision, it may not be attracted. Section 442 IPC defines 'house-trespass'. As per the said provision, tent or vessel used as human dwelling or any building used as a place for worship or as a place for the custody of property is said to commit house- trespass. According to learned counsel for petitioners, a restaurant is not a place used for human dwelling or a place for worship or a place for the custody of property. Therefore, offence under Section 452 IPC will not be attracted. Though various properties are kept in the restaurant, it cannot be termed to be a place for custody of property. BA.3837/08 2 4. Learned Public Prosecutor pointed out that in continuation of this incident, another incident of similar nature occurred in the same premises and hence, this petition is opposed. 5. On hearing both sides, it appears that strictly speaking, house trespass may not be attracted, since a restaurant cannot be said to be a place for custody of the property in the strict sense. It is submitted that the petitioners are prepared to surrender before the trial court. 6. Hence, it is made clear that if any bail application is filed by petitioner in the case it shall be disposed of, on the premise that offence under Section 452 is not attracted in this case. This petition is disposed of accordingly. K.HEMA, JUDGE vgs.