IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 7TH NOVEMBER 2008 / 16TH KARTHIKA 1930 Bail Appl..No. 6677 of 2008() ----------------------------- CRIME NO. 106/2008 OF NEYYAR DAM POLICE STATION PETITIONER/5TH ACCUSED ------------------------------------------ AFZAL @ UNNI, AGED 24, S/O.NAKULAN, DARUL HUDHA, MANKUDI, KOTTOOR P.O MANNOORKKARA VILLAGE, KOKKUDI MURI. BY ADV. SRI.R.T.PRADEEP RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 07/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A. No. 6677 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of November,2008 O R D E R Petition for anticipatory bail. 2. The alleged offences are under sections 143, 147, 148, 149, 324 and 308 149 IPC and section 27 of the Arms Act. According to prosecution, petitioner (A5) along with other accused formed themselves into an unlawful assembly and assaulted de facto complainant by using weapon like sword, etc. and inflicted injuries on him. 3. Learned counsel for petitioner submitted that there is no allegation that petitioner used any weapon for the assault. No specific overt act is alleged against him. Accused 1 to 4 were arrested and they were released on bail. Weapon was also recovered. Petitioner is only aged 24 years and hence he may be granted anticipatory bail, it is submitted. 4. This petition is opposed. Learned Public Prosecutor submitted that petitioner is the person who allegedly handed over sword to 2nd accused, who used the sword against de facto complainant. De facto complainant sustained injuries, including lacerated wound behind his neck. On the facts of the case, it is not a fit case to grant anticipatory bail, it is submitted, particularly, since case diary reveals that it is a motivated attack. BA 6677/08 -2- 5. On hearing both sides, I am satisfied that on consideration of the nature of allegations made, this is not a fit case to grant anticipatory bail. Petitioner may take recourse to his ordinary remedy available as per law. Petitioner is at liberty to raise the same contentions while moving petition under section 437 or 437 Cr.P.C. It is needless to say that consideration of granting bail under section 437 or 439 Cr.P.C. are different from the consideration of granting or refusing anticipatory bail. Incident occurred as early as on 10-6-2008 and petitioner was not available for arrest and the investigation in a stand still. Hence, petitioner is directed to surrender before the Magistrate court concerned or before the Investigating Officer without any delay and co-operate with the investigation. Whether he surrenders or not, police is at liberty to arrest petitioner at any time and proceed in accordance with law. With this direction, this petition is dismissed. K.HEMA, JUDGE. mn.