IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 Bail Appl..No. 7260 of 2008() ----------------------------- AGAINST THE JUDGEMENT/ORDER IN BA.2507/2008 CRIME NO.442/05 OF EZHUKON POLICE STATION .................... PETITIONER : ACCUSED ------------------------------ BIJU ABRAHAM, S/O.ABRAHAM, AGED 30 YEARS, KUZHAKKATTU VADAKKEVILA ROAD, AMBALANTHINKALA P.O., EZHUKON, KOLLAM DISTRICT. BY ADV. SRI.T.R.S.KUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. CIRCLE INSPECTOR OF POLICE, EZHUKON POLICE STATION, KOLLAM DISTRICT. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 04/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. --------------------------------------------- B.A.No.7260 of 2008 --------------------------------------------- Dated this the 4th December, 2008 O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Sections 143, 147, 148, 307, 450, 427 and 149 IPC and Section 27 of Arms Act. According to prosecution, due to previous enmity, petitioner (A1) along with 5 others committed house trespass into the house of the defacto complainant and assaulted him using weapons like sword and inflicted injuries on him and attempted to commit murder. They also committed mischief by causing damage to the house hold articles in prosecution of the common object of unlawful assembly. The incident occurred on 28.12.2005 at about 10.40 p.m. 3. Learned counsel for petitioner submitted that petitioner is absolutely innocent of the allegations made. Petitioner is former General Secretary of Kerala University union. He is an active politician. He is not involved in the offence committed, but, his name is unnecessarily dragged into the crime. The incident occurred about three years back and BA No. 7260/2008 2 petitioner is not arrested so far, since the Investigating Officer himself is aware of the innocence of the petitioner, it is submitted. Though petitioner is very much available, his arrest is not recorded so far, it is submitted. 4. Learned counsel for petitioner also submitted that the falsity of the allegations will be revealed by the nature of injuries sustained since those do not tally with the allegations made. A sword is used for the offence, but, the injuries sustained are lacerated wounds, which cannot be caused by a sword, it is submitted. It was pointed out that as per the First Information Statement, petitioner had allegedly aimed outs blows against defacto complainant on three occasions with a sword and he has evaded the cut with his hand. But, no injury is sustained on the hand, it is submitted. Therefore, petitioner may be granted anticipatory bail, it is submitted. 5. Learned public prosecutor opposed this bail application and submitted that the crime was registered as early as in December 2005, about three years back. Petitioner and another person could not be arrested so far since they were evading arrest. Petitioner is required for the purpose of BA No. 7260/2008 3 investigation and recovery of the weapon allegedly used. Since, petitioner could not be arrested, investigation could not be completed. It is also submitted that defacto complainant sustained various injuries including incised wound as revealed by the wound certificate. It is also pointed out that a fracture to the frontal bone was also sustained by the defacto complainant apart from the lacerated wound. At this stage, without examination of the doctor, it cannot be said positively that a lacerated wound cannot be sustained by the use of a weapon which is yet to be recovered from the first accused. This is not a fit case to grant anticipatory bail, it is submitted. 6. On hearing both sides, I find that considering the nature of allegations made and the nature of investigation required, it is not a fit case to grant anticipatory bail. Petitioner is bound to surrender before the Investigating Officer and co-operate with investigation, which he has not done for the past about three years. From the submissions made by petitioner himself, it also appears that the Investigating Officer is not interested in arresting the petitioner and therefore, there is no reasonable apprehension of arrest by the petitioner. A mere BA No. 7260/2008 4 allegation of apprehension of arrest may not be sufficient to invoke provision under Section 438 Crl.P.C. For this reason also, Section 438 Crl.P.C. cannot be invoked. Anticipatory bail can be granted only if there is a reasonable belief that the accused will be arrested on accusation of having committed a non bailable offence. Hence, petitioner has allegedly committed offence, but, he was not arrested for the past three years and hence, there need not be any apprehension that he will be arrested. Petitioner is directed to surrender before the Investigating Officer within three days from today and co-operate with investigation. Whether he surrenders or not, police is at liberty to arrest him and proceed in accordance with law. No other anticipatory bail application from petitioner will be entertained by this Court. With this direction, petition is dismissed. K.HEMA, JUDGE csl