IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 15TH DECEMBER 2008 / 24TH AGRAHAYANA 1930 Bail Appl..No. 6878 of 2008() ----------------------------- CRIME NO.231/2008 OF KUMARAKAM POLICE STATION PETITIONER/ACCUSED 2 AND 3: ------------------------------ 1. AJIMONE K.M.,AGED 35 YEARS S/O MANI, KARIPPARAN HOUSE,CHENGALAM,KOTTAYAM. 2. VKISWANATHAN V @ ASOKAN, AGED 32 YEARS S/O.VENKITACHALAM,THUNDATHIL HOUSE, THIRUNAKKARA KOTTAYAM. BY ADV. SRI.JOY GEORGE SMT.PRAICY JOSEPH RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE KUMARAKAM POLICE STATION, KOTTAYAM. PUBLIC PROSECUTOR SHRI.M.S.BREEZE THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 15/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No.6878 of 2008 ----------------------------------------- Dated this the 15th December, 2008 O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Sections 452, 308, 324 and 323 read with 34 of the Indian Penal Code. According to prosecution, petitioners (accused 2 and 3) along with other four accused, in furtherance of a common intention committed house trespass into the house of de facto complainant and assaulted him by using iron rod, iron pipe etc. and de facto complainant sustained injuries. Petitioners are accused 2 and 3. 3. Learned counsel for petitioners submitted that actually second petitioner and others were assaulted by de facto complainant and three others, using weapons like sword and iron pipe and they sustained fracture, as evidenced by Annexures A2 and A3. Second petitioner sustained incised wound on the forehead and first accused sustained compound fracture and also multiple incised wounds. He also underwent a surgery. It is not correct to say that the incident happened BA 6878/08 2 inside the house. But petitioner and others were travelling in two motorcycles and when they reached in front of the house of de facto complainant, they were actually attacked by de facto complainant and others. In the course of the incident, de facto complainant would also have sustained some injuries, but those are only minor injuries. 4. The wound certificate relating to de facto complainant would reveal that he had not made any allegation that the incident happened inside his house. He stated to doctor that there was an assault at “Chengalam”. The injuries sustained by de facto complainant are two lacerated wounds and abrasions and contusions. It is also pointed out that petitioners were in the hospital, but police did not register any crime in respect of the incident in which petitioner sustained injuries. Since a crime was registered on the basis of a complaint lodged by de facto complainant, petitioners could not go to the police station and lodge complaint also, fearing arrest. 5. However, during the pendency of this petition, as per the direction of this Court, petitioner surrendered before the BA 6878/08 3 police and gave a statement and a crime was also registered as Crime No.287/2008 under Sections 324, 326 and 308 IPC. It is also submitted that the injuries in this case are minor, and on the facts offences under section 452 and 308 IPC are not involved. In such circumstances, petitioners may be granted anticipatory bail, it is submitted, failing which they may be harassed on arrest and detention by the police, it is submitted. If petitioners are arrested and detained on these allegations, it will result in great injustice, it is submitted. 6. Learned Public Prosecutor submitted that two crimes are registered on the basis of a statement given by de facto complainant as well as one of the petitioners herein. Both sides sustained injuries also. It is a matter of investigation whether the right of exercise of self defence can be extended to petitioners or not. At the same time, petitioners are required for the purpose of recovery of weapons used. Therefore, it may not be proper to grant anticipatory bail, it is submitted. It is also submitted that second petitioner is not arrayed as accused in this case and he is only a suspect. BA 6878/08 4 7. On hearing both sides, I am satisfied that 1st petitioner would be required for recovery of weapon, the arrest and interrogation. Except first accused, no other accused is arrested so far in this case. However, on considering the various facts submitted by learned counsel for petitioners, I find that for the purpose of bail, offences under sections 452 and 308 IPC which are included in this case have to be treated as under Sections 448 and 324 IPC. As far as 2nd petitioner is concerned, in case he is arrested on accusation presently made, he will also have to surrender before police and co-operate with investigation. 8. The crime was registered as early as on 27.9.2008 and petitioners were not available for arrest and interrogation. Hence, the following order is passed: i) First petitioner is directed to surrender before the investigating officer and co-operate with the investigation. Once he surrenders, offences involved in this case will be treated as under Sections 448 and 324 IPC, instead of one under Sections 452 and 308 IPC. BA 6878/08 5 ii) In case second petitioner is arrested on the basis of the present allegations made in this case, he shall be dealt, by police with treating offences involved as under Sections 324 and 448 IPC. iii) It is made clear that the offences will be so treated, only for purpose of bail. With this direction, petition is disposed of. K.HEMA, JUDGE vgs.