IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 Bail Appl..No. 7410 of 2008 ----------------------------- (CRIME NO.517/2008 OF NEYYATTINKARA POLICE STATION) PETITIONERS/ACCUSED Nos.1,2, 4, 6 & 8: ---------------------------------------------- 1. SHIBUKUMAR AGED 29 YEARS, S/O.SASIDHARAN NAIR, SHIBU BHAVAN, NARANGATRTHALA VEEDU, PAZHINJIKUZHI, PERUMBAZHUTHOOR P.O., NEYYATTINKARA TALUK. 2. SURESH KUMAR, AGED 29 YEARS, S/O. SAHADEVAN,KOKKOTTUKONAM KULATHINKARAPUTHEN VEEDU MULLARAVILA, PERUMBAZHATHOOR P.O.NEYYATTINKARA TALUK. 3. PRASANTHA, AGED 22 YEARS, S/O.KRISHNAMMA PARAYAMVILAKATHU PUTHEN VEEDU, PAZHINJIKUZHI, PERUMBAZHUTHOOR P.O. NEYYATTINKARA TALUK. 4. LALI @ SHAJI AGED 32 YEARS, S/O.MADHAVA PANICKER, M.S.SADANAM, PAZHINJIKUZHI, PERUMBAZHUTHOOR P.O. NEYYATTINKARA TALUK. 5. SAJIKUMAR @ KUTTAN, AGED 24 YEARS, S/O.SASIDHARAN, POTTAVILAKATH VEEDU, PAZHINJIKUZHI, PERUMBAZHUTHOOR P.O. NEYYATTINKARA TALUK. BY ADV. SRI.R.GOPAN RESPONDENTS: COMPLAINANTS ----------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. CIRCLE INSPECTOR OF POLICE, NEYYATTINKARA POLICE STATION, THIRUVANANTHAPURAM DISTRICT. BY PUBLIC PROSECUTOR, SRI. M.S. BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 08/01/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A. No. 7410 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of January, 2009 O R D E R This is a petition for anticipatory bail. 2. The alleged offences are under Sections 147, 148, 149, 324 & 308 IPC. According to prosecution, the petitioners accused Nos.1, 2, 4, 6 and 8 along with other accused formed into an unlawful assembly, armed with weapons like stick, steel road etc., and,assaulted the defacto complainant and another and inflicted injuries on them, on 13.09.08. 3. Learned counsel for petitioners submitted that there is a counter case and it is registered as Crime No.518/08. First accused sustained serious injuries as evidenced by the wound certificate, in which it is noted that there is a suspected fracture. A person having sustained such injuries will not be able to assault the defacto complainant as alleged in the first information statement, it is submitted. 4. The allegations in the FIR are found to be not BA No. 7410/08 -:2:- correct by the police itself, as per a subsequent report and allegations are made that the third accused had assaulted the defacto complainant, but it is found that, the 3rd accused had not committed any such act. Therefore, the petitioners may be granted anticipatory bail, it is submitted. 5. This petition is strongly opposed. Learned Public Prosecutor submitted that it cannot be said that no incident occurred, as alleged by the prosecution. The defacto complainant and another person were attacked by petitioners and others and sword and stick were used. The defacto complainant had sustained incised injuries on his body. The weapons are to be recovered and the petitioners’ interrogation is necessary for the said purpose. There is a counter attack also and a case was also registered by the police. But, this is not a fit case for granting anticipatory bail, it is submitted by learned Public Prosecutor. 5. On hearing both sides and considering the facts and circumstances of the case and the submissions made by the learned counsel for the petitioners, I am satisfied that the BA No. 7410/08 -:3:- mere existence of a counter case will not be sufficient to hold at this stage that the alleged incident has not taken place. The defacto complainant and another had sustained injuries and the petitioners have no explanation for such injuries. The weapons are to be recovered and the petitioners’ interrogation will be required for that purpose. Thus, considering the nature of investigation, I am satisfied that it is not a fit case to grant anticipatory bail, for the mere reason that a counter case is registered. The incident occurred as early as on 30.09.08 and the petitioners are not available for arrest. Hence, petitioners are directed to surrender before the investigating officer and co-operate with the investigation. Whether they surrender or not, the police are at liberty to arrest them and proceed in accordance with law. The petition is dismissed. K. HEMA, JUDGE ttb BA No. 7410/08 -:4:-