IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 Bail Appl..No. 6528 of 2008() ----------------------------- CRIME NO. 456/2008 OF THE KOTTIYAM POLICE STATION PETITIONER(S): ACCUSED --------------------------- SUNIL KUMAR, S/O. PUSHPADARAN, MELEVILA VEEDU, KOTTIYAM.P.O, MAYYANAD VILLAGE, KOLLAM. BY ADV. SRI.C.RAJENDRAN RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESEMNTED BY THE SUB INSPECTOR OF POLICE, KOTTIYAM POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 14/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A. No. 6528 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of November,2008 O R D E R Petition for anticipatory bail. 2. According to prosecution, petitioner (A4) along with other accused formed themselves in to an unlawful assembly, armed with deadly weapons, restrained de facto complainant and assaulted him and caused injuries and committed culpable homicide. 3. Learned counsel for petitioner submitted that petitioner is the 4th accused and there is no allegation that he assaulted de facto complainant. He has not used any weapon. He has not used his hands also for assaulting. Other accused had used weapons, but petitioner is absolutely innocence of the allegations made. He is physically very weak and he is incapable of committing offence as alleged. It is also submitted that offence under section 308 IPC will not be attracted. Petitioner had gone to the place of occurrence for getting his share of the profit from the prawn farm. 4. This petition is opposed. Learned Public Prosecutor submitted that it is not correct to say that petitioner has no role in the offence. He was a member of unlawful assembly. He had gone to the de facto complainant along with accused 1 and 2 who were armed with sword and iron rod. Using these weapons both of them had assaulted de facto complainant. The 3rd accused had also beaten him BA 6528/08 -2- and 4th accused wrongfully restrained him. Petitioner wrongfully restrained de facto complainant and others have assaulted him. It is not a fit case to grant anticipatory bail, it is submitted. 5. On hearing both sides, considering the nature of allegations made, I do not think it fit to grant anticipatory bail in an offence of this nature. Whether an offence under section 308 IPC is attracted or not can be considered at the time of hearing petition if any filed under section 437 Cr.P.C. I am leaving open that question. The incident occurred on 3-6-2008 and petitioner was not available interrogation. 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 him and proceed in accordance with law. With this direction, this petition is dismissed. K.HEMA, JUDGE. mn.