IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 Bail Appl..No. 6352 of 2008() ----------------------------- CRIME NO. 449/2008 OF MUKKOM POLICE STATION PETITIONERS/ACCUSED:- ------------------------------ 1. SASIKUMAR,S/O.GOVINDAN KURINJATH VEEDU, NOW RESIDING AT PARAPPURAM HOUSE KUNNAMANGALAM P.O.,KOZHIKODE. 2. RAMESHAN,S/O. CHANDRAN KUTTALIL VEEDU, VELLIPARAMBU, KUTTIKKATTOOR AMSOM VELLIPARAMBU DESOM, KOZHIKODE. 3. CHANDRAN, S/O.VELU, THUMBAKUNNATH VEEDU, NOW RESIDING AT KODAKANDATHIL VEEDU,KUNNAMANGALAM P.O.,KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): --------------- 1. SUB INSPECTOR OF POLICE MUKKOM POLICE STATION, MUKKOM, KOZHIKODE. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 06/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A. No. 6352 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of November,2008 O R D E R Petition for anticipatory bail. 2. The alleged offences are under sections 452, 427, 506 (i), 294(b), 298 read with section 34 IPC. Petitioners (A1 to A3) in furtherance of common intention committed house trespass into the house of de facto complainant and committed mischief in the house, criminally intimidated her and also abused her in filthy language, since she gave shelter to 1st accused's wife. De facto complainant is the aunt of 1st accused's wife. 3. Learned counsel for petitioner submitted that no incident, as alleged, has taken place. In fact, de facto complainant and few others trespassed into the house of 1st accused on 13-9-2008 at 5 p.m. and they took away 1st accused's children who were in his custody. The 1st accused was also assaulted as evidenced by Annexure-B and complaint was lodged, but police did not register a crime and hence a private complaint was filed before the Magistrate Court on 30-9-2008, copy is produced as Annexure-A. On the very next day, a complaint was filed by de facto complainant alleging the present allegations and the crime was registered against petitioners, it is submitted. BA 6352/08 -2- 4. This petition is opposed. Learned Public Prosecutor submitted that considering the nature of allegations, it is not a fit case to grant anticipatory bail. The scene mahazar would show that some damages were caused to the articles in the house of de facto complainant. (Learned counsel for petitioner submitted that this had happened in the house of the 1st accused also) 5. On hearing both sides, it appears from the submissions made that two incidents happened, one at 5 p.m. and another at 6.30 p.m. on the same day and parties were taking law into their hands. In such circumstances, I am not inclined to grant anticipatory bail to petitioners. Petitioners have not shown any special circumstances for this Court to invoke section 438 Cr.P.C. The relief under section 438 Cr.P.C. is not expected to be extended in every case where there is apprehension of arrest on accusation of commission of non-bailable offence. The court has to distinguish between right and wrong and exercise discretion only in fit cases, anticipatory bail can be granted. Incident occurred as early as on 13-9-2008 and petitioners were not available for investigation. Hence, petitioners are directed to surrender before the Magistrate court concerned or before BA 6352/08 -3- the Investigating Officer without any further delay and co-operate with the investigation. Whether they surrender before the police or not, police is at liberty to arrest petitioners at any time. With this direction, this petition is dismissed. K.HEMA, JUDGE. mn.