IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 Bail Appl..No. 7061 of 2008() ----------------------------- CRIME NO. 462 OF 2008 OF OCHIRA POLICE STATION PETITIONERS/ACCUSED 1,2,3,4,5,:- -------------------------------------------------- 1. ANISH, S/O. VASUMATHI, AGED 22, POOVISSERY KIZHAKKATHIL PRAYAR, THEKKUMURI, CLAPPANA VILLAGE. 2. PRASAD,S/O. PRASANTHAN,AGED 22, POOVISSERY KIZHAKKATHIL PRAYAR, THEKKUMURI, CLAPPANA VILLAGE. 3. KIRAN, S/O. KANAKACHANDRAN, AGED 20 MEENATHERIL KIZHAKKATHIL, PRAYAR, THEKKUMURI, CLAPPANA VILLAGE. 4. SHARATH, S/O. SASIDHARAN, AGED 19, RAMAPURATHU VEEDU, PRAYAR, THEKKUMURI, CLAPPANA VILLAGE. 5. SHYAM, S/O. SASIDHARAN, AGED 20, RAMAPURATHU VEEDU, PRAYAR, THEKKUMURI, CLAPPANA VILLAGE. BY ADV. SRI.GEO PAUL RESPONDENT/COMPLAINANT: -------------------------------------------- ASSISTANT SUB INSPECTOR OF POLICE OCHIRA POLICE STATION, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.S.SIVA KUMAR. THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 19/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J ================== B.A.No. 7061 of 2008 ================== Dated this the 19th day of November, 2008. O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Sections 143, 147, 148, 306, 308 read with 149 of the Indian Penal Code. According to prosecution, defacto complainant and few persons were traveling in a car followed by some other in another car. After some time, the car which was following was found missing. Defacto complainant stopped the car and made enquiry, while it was found that the said car was blocked by petitioners and others. When defacto complainant intervened injury was caused to him using stone etc. Since it is alleged that the injured refused to pay donation to the sports club. He lost tooth and sustained various other injuries. 3. Learned Counsel for the petitioners submitted that there was a proposal to celebrate Onam festival in a sports club. Petitioners and other office bearers had approached the defacto complainant, requesting to make donations. But he refused to give money. The defacto complainant is an ex-service man and B.A.No. 7061 of 2008 -2- he is an alcoholic and under the influence of alcohol he would have sustained some injuries by falling. But it is not correct to say that the petitioners have assaulted him with intent on commit culpable homicide. It was also pointed out that as per Annexure A3 wound certificate, which was issued first in point of time, from the hospital no loss of tooth was noted by the doctor. It is also pointed out that as per the allegations made to the doctor, use of stone is not mentioned. 4. The injuries sustained are of contusions over chest and upper limbs which are unlikely to be caused by hitting with stones, it is submitted. Therefore offences under Section 326 and 308 IPC are not involved, it is submitted. Petitioners are youngsters at the age of 19-22 years. If they are detained in custody, they will suffer irecoverable injuries and loss, it is submitted. 5. This petition is opposed. Learned Public Prosecutor submitted that the defacto complainant was examined and treated in the same hospital. Discharge card and also another certificate are available in the case diary, which whould show that the defacto complainant had sustained loss of tooth. 6. It is submitted that the omission to mention the loss of B.A.No. 7061 of 2008 -3- tooth may only be a inadvertent omission from the part of the doctor, especially since at that time of first examination, the doctor had referred the patient to the Medical College Hospital, as seen from the wound certificate itself. 7. The accused have used stoned and attacked the defacto complainant, demanding money for donation and this fact is stated in the First Information statement itself. The loss of tooth is also mentioned therein. The First Information statement is given on the next day of the incident and defacto complainant was examined by the doctor as per Annexure A3 on the same day within 1½ hours, it is submitted. 8. On hearing both sides, I find that no special circumstances are made out for this court to invoke the extra ordinary jurisdiction under Section 438 of Code of Criminal Procedure. Considering the nature of the allegation made and the nature of the investigation required, I am not inclined to grant anticipatory bail. However, on considering the rival contentions and on perusal of the records I find that the petitioners have a strong and arguable case regarding the involvement of stone and also loss of tooth and also offence under Section 326 and 308 I.P.C. which can be established only B.A.No. 7061 of 2008 -4- at the time of evidence. In such circumstances, it is made clear that for the purpose of bail, offences involved can be treated as one falling under Section 325 I.P.C. instead of those under Sections 326 and 308 of I.P.C. It is made clear that this observation is made only for the purpose of bail. Crime is registered as early as on 15.9.2008 and the petitioners were not available for investigation. I am satisfied that the petitioners have not co-operated with investigation as well. 9. Hence, petitioners are directed to surrender before the Investigating Officer without delay and co- operate with the investigation. Whether they surrender or not, police is at liberty to arrest them and proceed against them, in accordance with law. With this direction, this petition is dismissed. K.HEMA, JUDGE rhs