IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 24TH NOVEMBER 2008 / 3RD AGRAHAYANA 1930 Bail Appl..No. 7008 of 2008() ----------------------------- CRIME NO. 431/2008 OF KOTTAKKAL POLICE STATION PETITIONER (S): ACCUSED: ---------------------------- 1. MOHAMMED HAJI, S/O.MOIDU, AMARAYIL HOUSE, P.O.KUTTIPPURAM, VIA.KOTTAKKAL, MALAPPURAM DISTRICT. 2. A.BEERAN, S/O.ALAVI HAJI, AMARAYIL HOUSE, P.O.KUTTIPPURAM, VIA. KOTTAKKAL, MALAPPURAM DISTRICT. 3. P.P.ABDUL RASHEED, S/O.MAMMU HAJI, PALLIPPURAM HOUSE, KOTTAKKAL AMSOM, KUTTIPPURAM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT(S): COMPLAINANT AND STATE: --------------------------------------------- 1. THE SUB INSPECTOR OF POLICE, KOTTAKKAL POLICE STATION. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, HIGH COURT BUILDINGS, HIGH COURT ROAD, ERNAKULAM, COCHIN-682031. BY PUBLIC PROSECUTOR SRI SRI.M.S.BREEZ FOR R1 & 2: SRI.BABU S. NAIR FOR DE FACTO COMPLAINANT THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 24/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A. No. 7008 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of November,2008 O R D E R Petition for anticipatory bail. 2. The alleged offences are under sections 431, 323, 324, 506, 307 read with section 34 IPC. According to prosecution, there was a dispute between two groups regarding the presidentship of the mosque committee. On the crucial day there was a quarrel between them in the mosque on this, and following the quarrel, petitioners along with other accused attacked de facto complainant and others using knives, iron rod, stick, etc. De facto complainant's two brothers were murdered. Four other persons were injured in the incident. 3. Petitioners are accused 8, 12 and 11 respectively in the crime. Learned counsel for petitioners submitted that a counter case was registered as Crime no.432/2008, on the basis of a complaint lodged by 2nd accused in this case (who was subsequently deleted from the array of accused) against de facto complainant and others, for assaulting petitioners and others. Many of the accused in this case were injured at the hands of de facto complainant and others. Though a crime was registered as Crime no.432/2008 (which includes offence under section 307 IPC also) against de facto complainant and others, they were not BA 7008/08 -2- arrested so far by the police. It is also pointed out that the injured in this case are the aggressors, since some weapons were found in the car in which they were travelling. A crime was also registered in respect of seizure of such weapons from the car under section 435 IPC. It is also submitted that most of the accused in this case are in custody and hence, if petitioners surrender, they will also be remanded to custody. Hence, anticipatory bail may not be granted, it is submitted. 4. This petition is opposed. Learned Public Prosecutor submitted that this is a case where petitioners along with other accused assaulted de facto complainant and various other persons using dangerous weapons and de facto complainant's two brothers died on the same day, consequent to the injuries sustained. There are materials in the case diary to indicate that all the petitioners are involved in the commission of offence. Different weapons were used by them and those are to be recovered. All the accused in this case are not so far arrested and if anticipatory bail is granted, it will adversely affect the investigation, it is submitted. Learned Public Prosecutor also pointed out that Crime no.432/2008 was registered against de facto complainant and others in this case. But on the materials BA 7008/08 -3- now available, it may not be possible to conclude at this stage that petitioners were acting in exercise of defence. It is also not possible to conclude that de facto complainant and others were the actual aggressors. 5. On hearing both sides, I find that mere existence of a counter case is not a ground to grant anticipatory bail. Petitioners have not made out any special circumstances to invoke provision under section 438 Cr.P.C. Considering the seriousness of the allegations made and the nature of investigation required, I find that it is not a fit case to grant anticipatory bail. Petitioners are directed to surrender before the Investigating Officer without any delay and co- operate with the investigation. Whether they surrender or not, police is at liberty to arrest them and proceed in accordance with law. With this direction, this petition is dismissed. K.HEMA, JUDGE. mn.