IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 22ND AUGUST 2008 / 31ST SRAVANA 1930 Bail Appl..No. 5242 of 2008() ----------------------------- CRIME NO.524/2008 OF PATHANAMTHITTA POLICE STATION PETITIONERS : ACCUSED NOS. 5,9 & 10: --------------------------------------- 1. KRISHNA KUMAR ALIAS VAVA, AGED 17 YEARS S/O.JOSE, LAKSHAM VEEDU COLONY, MELEVETTIPURAM, PATHANAMTHITTA. 2. SIVAPRASAD, AGED 18 YEARS, S/O.KRISHNAN, LAKSHAM VEEDU COLONY, MELEVETTIPURAM, PATHANAMTHITTA. 3. VIPIN KUMAR, AGED 20 YEARS, S/O.VASUDEVAN, MANI MANDIRAM, VETTIPURAM MURI, PATHANAMTHITTA VILLAGE. BY ADV. SRI.K.MADHUSOODHANAN NAIR RESPONDENTS: ------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO. 524 OF 2008 OF PATHANAMTHITTA POLICE STATION) BY PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ------------------------------------------------------- Bail Application No.5242 of 2008 ------------------------------------------------------- Dated this the 22nd day of August, 2008 O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Sections 143, 147, 148 and 308 read with Section 149 IPC. According to prosecution, the first accused and 19 identifiable persons assaulted the defacto complainant using iron rod etc. Petitioners are accused nos.5, 9 and 10. They have also assaulted the defacto complainant by kicking etc. The incident happened on 2.7.2008 due to political rivalry. A crime was registered on the basis of a statement given by the injured under Sections 143, 147, 148 and 308 read with Section 149 IPC. 3. Learned counsel for the petitioners submitted that the petitioners were not named in the FIR. Their names were subsequently incorporated as per a report dated 7.7.2008 after five days of the incident. Petitioners have nothing to do with the offence and they are absolutely innocent. They are all aged 17, 18 and 20 years. They have no affiliation to any political party, it is submitted. They are students and if they are remanded, they BA No.5242/08 2 . will suffer irreparable loss. 4. This petition is strongly opposed. Learned public prosecutor submitted that this is a case where the defacto complainant was attacked by a group of twenty persons using iron rod etc. and he sustained serious injuries also. The attack was made with an intention to commit culpable homicide, but, the defacto complainant somehow escaped from death. It is true that the petitioners were not named in the FIR because the accused were not previously known to him but only identifiable by sight. During investigation, witnesses were questioned and they have implicated and identified the petitioners. On the basis of the statement given by eye witnesses, petitioners name were incorporated as per the report dated 7.7.2008 within five days of the incident. 5. It cannot be said that they are absolutely innocent of the allegations made. They have formed an unlawful assembly and committed the offence. It is also pointed out that some other accused in this crime had also filed petition for anticipatory bail before this Court and the court considered the contentions in detail and dismissed the anticipatory bail application. There is BA No.5242/08 3 . no ground to grant anticipatory bail to the petitioners who are similarly placed, it is submitted. 6. On considering the rival contentions, I find that the mere delay in arraying the petitioners as accused, may not be a ground at this stage, to presume their innocence. The investigation is still at the preliminary stage and only the 4th accused is arrested, though the incident happened on 2.7.2008. Others are all at large. It may not be proper to invoke extraordinary jurisdiction under Section 438 Crl.P.C. in a case of this nature. The petition is dismissed. K.HEMA, JUDGE csl