IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 Bail Appl..No. 7033 of 2008() ----------------------------- CRMP.2339/2008 of ADDL.SESSN.COURT (ADHOC-II)KASARAGODE CRIME NO.401/08 OF BEKAL POLICE STATION PETITIONERS -------------------- 1. FAROOKH K. AGED 35 YEARS, S/O. KUTTAMOO, RESIDING AT AMINA MANZIL, KEEZHOOR, KALNAD VILLAGE, P.O. CHANRAGIRI, KASARAGOD. 2. ARAFATH, AGED 24 YEARS, -DO- 3. AMINA, AGED 55 YEARS, W/O. -DO- 4. NAJEERABAI, AGED 28 YEARS, W/O. UMMER, JUMA MASJID ROAD, -DO- BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENT(S): STATE -------------------- STATE OF KERALA, REP. BY THE STATION HOUSE OFFICER, BEKAL POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 06/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No.7033 of 2008 ----------------------------------------- Dated this the 6th January, 2009 O R D E R This petition is for anticipatory bail. 2. According to prosecution, a crime was registered against petitioners under Sections 341, 324, 506 and 34 of the Indian Penal Code, on the allegation that they, in furtherance of a common intention, wrongfully restrained de facto complainant and assaulted him, criminally intimidated him etc. 3. Learned counsel for petitioners submitted that a report is filed to include offence under Section 326 IPC and hence, petitioners apprehend arrest in a non-bailable offence and in case they are arrested, they will be remanded. It is submitted that no fracture or grievous hurt is caused to de facto complainant, but offence under Section 326 IPC was included with a view to harass petitioners. Petitioners have disputed involvement of a grievous hurt and the police is only depending upon a vague statement made by the doctor in the wound certificate. In such circumstances, anticipatory bail may be granted, it is submitted. BA.7033/08 2 4. Learned Public Prosecutor submitted that the only dispute is with respect to the grievous hurt. The investigating officer received a telephone call from first accused stating that de facto complainant did not sustain any grievous hurt and therefore, after perusing the wound certificate, a direction was issued to de facto complainant to appear before the medical board. Attempts were made twice to get him examined by the medical board. De facto complainant did not co-operate and hence, he could not be examined by the medical board. It is submitted that as per the wound certificate, the doctor has noted that there is “grievous injury”. Learned Public Prosecutor also submitted that recovery of weapon is already effected. Accused 3 and 4 are found to be not involved in the offence and hence, they are deleted from the array of accused. 5. On hearing both sides and on perusing the case diary, I find that as per the wound certificate, there are three injuries which are abrasions and lacerated wound. According to doctor, there is a “grievous injury”. Grievous injury is not defined in the Indian Penal Code. De facto complainant has BA.7033/08 3 allegedly not reported before the medical board. In such circumstances, I find that the offence included in this case can be treated as one falling under Section 324, instead of Section 326 IPC for the purpose of bail. It is made clear that this observation will apply only to bail proceedings. Crime is registered as early as on 17.9.2008 and petitioners have not surrendered before the police or the Magistrate Court. The investigation is in a stand still. The recovery is already effected. In the above circumstances, following order is passed: (1) Petitioners 1 and 2 are directed to surrender before the Magistrate Court concerned within seven days from today. On their surrender, if any bail application is filed, the Magistrate shall dispose of the same in accordance with law, but treating the offence involved as one under Section 324 IPC instead of under Section 326 IPC for the purpose of bail. BA.7033/08 4 (2) The prayer for bail by accused 3 and 4 is rejected, since they are deleted from the array of accused. Petition is partly allowed. K.HEMA, JUDGE vgs.