IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 Bail Appl..No. 6452 of 2008() ----------------------------- CRIME NO. 226/2008 OF KODANCHERY POLICE STATION PETITIONER (S): ACCUSED NOS.1 TO 9: --------------------------------------- 1. MOOSA,S/O.USSAIN, AGED 75 YEARS, KUDUKKIL HOUSE, KUDUKKILUMMARAM, KOODATHAI, KOZHIKODE DISTRICT. 2. SAINUL ABIDEEN, S/O.MOOSA, KUDUKKIL HOUSE, KUDUKKILUMMARAM, KOODATHAI, KOZHIKODE DISTRICT. 3. NADHIR, S/O.MOOSA, KUDUKKIL HOUSE, KUDUKKILUMMARAM, KOODATHAI, KOZHIKODE DISTRICT. 4. RAHIM, S/O.MOOSA, KUDUKKIL HOUSE, KUDUKKILUMMARAM, KOODATHAI, KOZHIKODE DISTRICT. 5. ASHRAF, S/O.KOYAMU HAJI, KUDUKKIL HOUSE, KUDUKKILUMMARAM, KOODATHAI, KOZHIKODE DISTRICT. 6. SAMARUDHEEN, S/O.MOHAMMED, KUDUKKIL HOUSE, KUDUKKILUMMARAM, KOODATHAI, KOZHIKODE DISTRICT. 7. MOHANAN, S/O.CHATHUKUTTY, KAYYELIIKUNNU HOUSE, KUDUKKILUMMARAM, KOODATHAI, KOZHIKODE DISTRICT. 8. MANAF, S/O.MOIDEEN, ARATTUKUNNU HOUSE, KUDUKKILUMMARAM, KOODATHAI, KOZHIKODE DISTRICT. 9. ASHIQUE, S/O.ASHRAF, CHAKKITTAKANDI HOUSE, KUDUKKILUMMARAM, KOODATHAI, KOZHIKODE DISTRICT. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S): COMPLAINANT; --------------------------- STATE OF KERALA, THROUGH THE SUB INSPECTOR OF POLICE, KODANCHERY POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 13/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A. No. 6452 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of November,2008 O R D E R Petition for anticipatory bail. 2. The alleged offences are under sections 143, 147, 148, 323, 324, 427, 452, 308 read with section 149 IPC. According to prosecution, on 5-10-2008 at about 8.30 p.m. while de facto complainant was sitting in the house, 25 persons, including petitioners, committed house trespass and committed rioting in prosecution of common objection and assaulted de facto complainant, his wife and daughter by using weapons like sword, iron rod, etc. and committed the various offences. 3. Learned counsel for petitioners submitted that this is an absolutely false case registered against petitioners. It is also submitted that de facto complainant is involved in several criminal cases and he is a member of C.P.I.(M) and hence false case has been registered against petitioners without any basis. This is done with a view to see that Crime No. 627/2008 registered against de facto complainant and others is withdrawn by petitioners. In that case the allegation is that de facto complainant and others assaulted 2nd petitioner and others on 21- 8-2008 and a crime was registered under various sections, including offence under section 308 IPC, on the basis of a BA 6452/08 -2- statement given by 2nd petitioner herein. 4. The local leaders of the party intervened and insisted that the said case has to be withdrawn by petitioners, but they were not prepared, since the atrocity committed was not pardonable. As a retaliation to the resistance by petitioners, the present crime was registered, in which even an old man aged 75 years, whose vision is impaired was also implicated as the first accused, it is submitted. He allegedly trespassed into the house of de facto complainant and committed the offences along with his sons and others. 5. Learned counsel for petitioners also submitted that though offence under section 308 IPC is alleged in this case, the injuries sustained are minor in nature. Even if the allegations are accepted, if nine persons make a group-attack with so many weapons on de facto complainant and others, it is unlikely that the victims will escape, with such minor injuries, it is submitted. The absence of injury itself, according to petitioners, indicates that the allegations made are not correct. Learned counsel for petitioners also submitted that witnesses in this case are not even the neighbours of de facto complainant but they are accused in crime no.627/2008 and they are deliberately made to speak falsehood BA 6452/08 -3- against petitioners. 6. This petition is opposed. Learned Public Prosecutor brought to my notice that the nature of injuries sustained by three persons in the attack, which include two women also, will clearly indicate that there was an incident. It is not correct to say that absolutely false allegations are made. The incident occurred on 5- 10-2008 and the injured were in the hospital by 11 p.m. with bleeding injuries. De facto complainant sustained linear incised wound on the middle finger and various other injuries likely multiple abrasions on various parts of the body, tenderness over scalp etc. His wife and daughter who is aged only nine years also sustained various injuries on their body including bleeding from the gums. De facto complainant's wife had also sustained injuries. They were all in the hospital. Accused 5 and 6 assaulted the wife of de facto complainant, 7th accused assaulted de facto complainant's daughter, accused 2 and 3 used weapons like sword, iron rod and attacked de facto complainant. The injuries themselves speak about the incident and hence, this is not a fit case to grant anticipatory bail, it is submitted. 7. On hearing both sides, in the absence of any evidence, it is difficult at this stage presume the absolute falsity of the BA 6452/08 -4- allegations. In the nature of the allegations made, I do not find it fit to grant anticipatory bail. 8. However, it is made clear that considerations for grant of anticipatory bail are different from the considerations for granting bail under section 437 and 439 Cr.P.C. The refusal to grant anticipatory bail, cannot under all circumstances be made a ground for rejecting bail application. In fit cases, benefit of proviso to section 437 Cr.P.C. will be available to accused, but such benefit cannot be extended while invoking provision under section 438 Cr.P.C. The crime was registered as early as on 5-10-2008 and the petitioner was not available for investigation. Hence, petitioners are directed to surrender before the Magistrate court concerned or before the Investigating Officer without any delay and co- operate with the investigation. Whether they surrender or not, there will be no bar for arrest them and proceed in accordance with law. With this direction, this petition is dismissed. K.HEMA, JUDGE. mn.