IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 21ST NOVEMBER 2008 / 30TH KARTHIKA 1930 Bail Appl..No. 6834 of 2008() ----------------------------- CRIME NO.179/2008 OF KANJIRAMKULAM POLICE STATION .................... PETITIONERS : ACCUSED ------------------------------ 1. ARUN, AGED 21 YEARS S/O.RAVEENDRAN, KUZHIVILA NADUTHATTU PUTHEN VEEDU, KANNAVAVILA, NELLIMOODU P.O.,NEYYATTINKARA. 2. RAHIL @ BOOST,AGED 24 YEARS S/O.RAJENDRAN, R.S. BHAVAN PAPPANAMKONAM, PATTUVILA PO, NEYYATTINKARA. BY ADV. SRI.G.SUDHEER RESPONDENT(S): COMPLAINANT --------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 21/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. --------------------------------------------- B.A.No.6834 of 2008 --------------------------------------------- Dated this the 21st November, 2008 O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Sections 143, 147, 149, 323, 324 and 308 IPC. According to prosecution, petitioners 1 and 2 (A1 and A2) along with other accused (7 in number) assaulted the defacto complainant. This happened on 13.9.2008 at about 7.30 p.m. It is alleged that first accused stamped the defacto complainant on his neck and thereafter, A1 and A2 dragged him using a towel on his neck. A2 assaulted him using a stick. 3. Learned counsel for petitioners submitted that the allegations made are absolutely false. No incident occurred on 13.9.2008 at about 7.30 p.m. involving any of the accused. At that time, first accused in this case was in the hospital as evidenced by Annexure C medical certificate issued from the hospital. The first accused was hospitalised on 13.9.2008 at 6 p.m. and he was discharged only on the next day at 9 a.m. The first accused and his cousin were proceeded along the side of a canal bund in a motor bike, while defacto complainant and two others stopped them and they were attacked by using iron rod and sword. On the basis of a statement given by the first accused's cousin, a case was registered BA No.6834 /2008 2 against defacto complainant and others as crime no.181/08 under Sections 323, 324, 326 and 308 IPC. According to learned counsel for petitioners, except the said incident, nothing else had happened on that day. The first accused was in fact in the hospital. 4. It is also submitted that on knowing that a complaint was lodged against defacto complainant and others, a false case is registered against petitioners alleging that defacto complainant and others were assaulted at 7.30 p.m. on the same day. During the incident which occurred at 3.30 p.m., defacto complainant had fallen down and sustained injury. The motor cycle in which the first accused was travelling was damaged by the defacto complainant and others. It was pointed out that reference is made about the damage caused to the vehicle in the First Information Statement lodged in this case. 5. The defacto complainant tried to explain that it was damaged by petitioners themselves. It is also submitted by learned counsel for petitioners that defacto complainant did not sustain any serious injury though the allegations are serious in nature. Only abrasions are caused and those will not correspond to the nature of allegations made, it is submitted. 6. This petition is opposed. Learned public prosecutor submitted that the case diary reveals that an incident as alleged BA No.6834 /2008 3 had occurred and in a case of this nature, in which petitioners have assaulted the defacto complainant openly in a public place, it is not fit and proper to grant anticipatory bail. This is particularly so, since the weapon of offence is so far not recovered. 7. On hearing both sides, I find that at this stage, it is not possible to enter any finding in favour of petitioners regarding the manner in which the incident occurred solely based on the oral submissions made. However, on going through the nature of injury sustained and the allegations made, I find that for the purpose of bail, offence involved in this case can be treated as one falling under Section 324 IPC in spite of 308 IPC. This observation is made only for the purpose of bail. Petitioners shall surrender before the Investigating Officer and co-operate with investigation. Whether they surrender or not, police is at liberty to arrest them and proceed in accordance with law. The petition is dismissed. K.HEMA, JUDGE csl