IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 Bail Appl..No. 7620 of 2008(F) ----------------------------------------- (CRIME NO. 469/2008 OF BAKEL POLICE STATION) ............ PETITIONERS/ ACCUSED: ------------------------------------- 1. M.A.ASHRAFF, S/O.ABDULLA , AGED 35 YEARS, MUKKUMOTH, P.O.BARU. 2. A,HASSAN 22 YEARS, S/O.ABDULLA KUNHI, MUKKUMOTH P.O., BARU. 3. A.HUSSAIN, AGED 22 YEARS, MUKKUMOTH, P.O.BARU. BY ADV. MR.S.RAJEEV. RESPONDENT: ---------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, (CRIME NO.469/2008 OF BAKEL POLICE STATION.) BY PUBLIC PROSECUTOR MR. M.S. BREEZ. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18/02/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. K.HEMA, J. ---------------------------------- B.A. No.7620 OF 2008 ---------------------------------- Dated this the 18th day of February, 2009 O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Sections 143, 147, 148, 448, 324, 326, 308 read with 149 of I.P.C. According to prosecution, petitioners (accused nos.1 to 3) along with other accused committed the various offences by assaulting the defacto complainant using iron rod. Fracture was caused to both forearm. 3. Learned counsel for petitioners submitted that petitioners have not committed offence under Section 308 I.P.C. The said offence is included only with a view to harass petitioners. Petitioners request that they may be granted anticipatory bail. 4. This petition is opposed. Learned Public Prosecutor submitted that not only offence under Section 308 I.P.C., but offence under Section 326 I.P.C. is also involved in this case. It is also submitted that iron rod was used for commission of the offence and compound fracture was caused to both forearm of B.A.No.7620 of 2008 2 the defacto complainant. However, no other injuries are noted in the wound certificate, it is submitted. On hearing both sides, I am satisfied that considering the serious nature of the allegations made, this is not a fit case to grant anticipatory bail. This is specially so, since the recovery of the weapon is also to be effected for which, custodial interrogation of petitioners will be required. However, for the purpose of bail, I am of the view that offence under Section 308 I.P.C. can be treated as excluded considering the nature of the injuries sustained etc. The crime is registered as early as on 21.10.2008 and petitioners are bound to surrender. Hence, the following order is passed :- i) Petitioners shall surrender before the investigating officer forthwith and co-operate with the investigation. Whether they surrender or not, police is at liberty to arrest them and proceed in accordance with law. In the event of arrest, offence under Section 308 I.P.C. will be treated as excluded for the purpose of bail. B.A.No.7620 of 2008 3 ii) No further application for anticipatory bail by petitioners in this crime will be entertained by this court. The petition is dismissed. K.HEMA, JUDGE pac