IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 Bail Appl..No. 7459 of 2008() ---------------------------------------- CRIME NO.291.2008 OF BALARAMAPURAM POLICE STATION. .................... PETITIONER(S)/A6 --------------------------------- SIVARUDRAN, AGED 20 YEARS, S/O.MADHAVAN, PLANKALAVILA VEEDU, KODINADA, PALLICHAL DESOM, PALLICHAL VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.SHAJIN S.HAMEED RESPONDENT(S): ------------------------- THE SUB INSPECTOR OF POLICE, BALARAMAPURAM POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ------------------------------ B.A. No.7459 OF 2008 ------------------------------ Dated this the 14th day of January, 2009 O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Sections 143, 147, 148, 149, 452, 427, 324 of IPC and Section 27 of Arms Act. According to prosecution, petitioner (sixth accused) along with 5 others formed into an unlawful assembly and committed house trespass into the house of the defacto complainant, damaged household articles, assaulted defacto complainant, his brother and wife. They used sword for the commission of the offence. 3. Learned counsel for petitioner submitted that petitioner is absolutely innocent of the allegations made. He is working in Chennai. Even at the time of occurrence, he was in Chennai. It is also submitted that petitioner has no reason to make any attack on the defacto complainant or any persons in the house. No motive is alleged against petitioner to commit such offence. It is also pointed out that in the F.I. Statement, name of the petitioner is not mentioned. The name of one B.A.No.7459 of 2008 2 Shine is mentioned in the F.I. Statement but his name was subsequently deleted. Thereafter, on investigation, the defacto complainant who is a worker in the ruling political party gave certain names to police and falsely implicated petitioner etc. Therefore, anticipatory bail may be granted, it is submitted. 4. This petition is opposed. Learned Public Prosecutor submitted that it is true that the defacto complainant himself did not know for what purpose the attack was made. During the investigation, it is revealed that petitioner was involved in the offence and he had committed certain overt acts also. There is nothing in evidence to support plea of alibi. It cannot be said that there is an omission in the F.I. Statement relating to involvement of accused. The defacto complainant mentioned that certain identifiable persons have committed the offences and the details of those persons were revealed in investigation. The recovery of the weapon has not been effected. On hearing both sides, considering the nature of allegations made and the nature of investigation to be conducted, I find that it is not a fit case to grant anticipatory B.A.No.7459 of 2008 3 bail. This is especially so, since there is no materials to support the plea of alibi. There are only bare assertions that he was not available in Kerala at the time of occurrence. The mere omission in the F.I.R. may not be sufficient at this stage to invoke provision under Section 438 Cr.P.C. to grant anticipatory bail. The incident occurred on 07.07.2008 and petitioner is required for investigation. Hence, petitioner is directed to surrender before the Investigating Officer or the Magistrate court concerned and co-operate with the investigation. Whether he surrenders or not, police is at liberty to arrest him and proceed in accordance with law. The petition is dismissed. K.HEMA, JUDGE pac