IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 Bail Appl..No. 7146 of 2008() ----------------------------- CRIME NO.1350/2008 OF PALARIVATTOM POLICE STATION, ERNAKULAM .................... PETITIONER/ACCUSED NO.1 ------------------------------------------- JOJI, S/O.GEORGE, AGED 27, POLAYIL HOUSE, BTS CROSS ROAD, MAMANGALAM, EDAPPALLY P.O., ERNAKULAM. BY ADV. SRI.K.R.VINOD RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. --------------------------------------------- B.A.No.7146 of 2008 --------------------------------------------- Dated this the 1st December, 2008 O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Sections 323, 324 and 308 and 34 of IPC. According to prosecution, petitioner (A1) along with five others, in furtherance of common intention, assaulted the defacto complainant and others. Defacto complainant and three other persons sustained injuries and they were hospitalised. The incident occurred on the road. 3. Learned counsel for petitioner submitted that petitioner, who is a plumbing contractor, had taken up the work of the defacto complainant and defacto complainant owed some money to him on account of this work. But, the money was not paid and thereafter, defacto complainant asked the petitioner to go to his house to settle the matter. Accordingly, petitioner went to his house and in the course of the settlement talk, some scuffle occurred but, the incident did not occur as alleged. 4. An injury is stated to have been sustained by defacto complainant on the shoulder by use of a knife and as per the BA No. 7146 /2008 2 allegations, if it had hit the chest, he would have died and therefore, offence under Section 308 IPC is included. It is submitted that at the maximum, this is a case falling under Section 324 IPC and not under Section 308 IPC. Section 308 IPC is included only with a view to harass petitioner, it is submitted. Petitioner has no criminal antecedents and hence, anticipatory bail may be granted, it is submitted. 4. Learned public prosecutor submitted that knife and iron block were used for the offence and four persons were injured in the incident and they were examined by the doctor as evidenced by the wound certificate available in the case diary. Defacto complainant sustained an injury on the left shoulder which required four stitches. The other injured had also sustained injuries. The incident happened on the road in front of defacto complainant's house. Learned public prosecutor also submitted that weapon allegedly used for the offence is to be recovered. This 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 to BA No. 7146 /2008 3 the petitioner. However, I make it clear that considerations for granting anticipatory bail are different from considerations for granting bail under Section 437 Crl.P.C. It is needless to say that the dismissal of an anticipatory bail application also may not by itself be a ground to refuse bail under Section 437 Crl.P.C. Petitioner is at liberty to take up all the contentions regarding offence under 308 IPC before the Magistrate Court in a petition filed under Section 437 Crl.P.C. and it is left to the Magistrate Court to consider the merit of the contentions raised, for the purpose of bail. Petitioner shall surrender before the Investigating Officer or the Magistrate Court concerned and co- operate with investigation without any delay. With this observation, petition is dismissed. K.HEMA, JUDGE csl