IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 27TH NOVEMBER 2008 / 6TH AGRAHAYANA 1930 Bail Appl..No. 6918 of 2008(B) -------------------------------------- CRMP.4288/2008 of SESSIONS COURT,THODUPUZHA CRIME NO.1046/08 OF THODUPUZHA POLICE STATION .................... PETITIONER/3RD ACCUSED : ---------------------------------- SHAIRAJ.E.A. S/O. ATHEM, AGED 21 YEARS, EXAMANAPETTAMALAYIL HOUSE, EAST MARADI PO, MUVATTUPUZHA TALUK. BY ADV. SRI.C.A.MAJEED RESPONDENT/COMPLAINANT : ------------------------------------ STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, THODUPUZHA. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ------------------------------ B.A. No.6918 OF 2008 ------------------------------ Dated this the 27th day of November, 2008 O R D E R This petition is for anticipatory bail. 2. According to prosecution, on 15.08.2008 at 11.30 a.m. the defacto complainant, who is a police constable, and along with another police constable went for execution for a non bailable warrant issued by the Magistrate court, Aluva. They went to a tea shop and made enquiries to the shop-keeper about the first accused who was sought to be arrested. The shop-keeper himself was the accused and when defacto complainant made an attempt to arrest the first accused, several accused came to the spot and rescued the first accused and none of them could be arrested from the spot. Therefore a complaint was lodged by defacto complainant before the police and the crime is registered against 16 persons. Petitioner is the third accused in the crime 3. Learned counsel for petitioner submitted that the incident did not occur, as alleged. On the date of occurrence, the police constables had trespassed into the Mosque by B.A.6918 of 2008 2 wearing chappels and without washing their legs which offended the devotees who had come for the Friday prayers and therefore they raised some objection to this. There was some incident there and the Mosque committee filed a private complaint against the defacto complainant and 2 other persons before the Chief Judicial Magistrate Court, which was forwarded under section 156(3) and a crime was registered under Sections 295, 295A, 296 and 34 of I.P.C. against the defacto complainant. This complaint is lodged only as a counter blast to the said case, it is submitted. The petitioner is absolutely innocent of the allegations made and the petitioner is only related to the first accused and hence he was made an accused in this case, it is submitted. 4. This petition is opposed. Learned Public Prosecutor submitted that the incident occurred in the tea shop and not in the Mosque. The allegation that some mischief was committed in the mosque and the police constables attached to the Kalamassery police had gone there to arrest a person etc. are not correct. While defacto complainant and another went to execute a non bailable warrant issued against first accused, other accused prevented them from arresting the first B.A.6918 of 2008 3 accused. The place of occurrence is not the mosque. But it is the premises of first accused's shop. The incident alleged to have occurred at the mosque occurred only one hour after the incident in this case, as evidenced by the details of the copy of the private complainant, Annexure I. It is not a fit case to grant anticipatory bail, it is submitted. On hearing both sides and going through Annexure I complaint which is filed by the Secretary of the Mosque committee, it appears that as per the allegations in the complaint the incident in the mosque was committed at 12.30 p.m. But in the present complaint, the incident happened in the shop of the first accused at 11.30 a.m. In such circumstances, Annexure 1 complaint is of no help to petitioner, at this stage in the absence of evidence. Considering the nature of allegations made, I am satisfied that it is not a fit case to grant anticipatory bail. The petition is dismissed. K.HEMA, JUDGE pac