IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 Bail Appl..No. 3771 of 2009() ------------------------------------------ (CRIME NO.243 OF 2009 OF KULATHUPUZHA POLICE STATION,KOLLAM) PETITIONER/ACCUSED: -------------------------------------- 1. SUNUPRASAD, S/O.MURALEEDHARAN, AGED 23 YEARS, BIJU VILASOM, KUMARAMKARIKAM, PATHANAPURAM TALUK, KOLLAM DISTRICT. 2. RAJEEV., S/O.GOPALAKRISHNAN, AGED 24, REMYA VILASOM, KUMARAMKARI, KULATHUPUZHA, PATHANAPURAM TALUK, KOLLAM DISTRICT. 3. SHAFI, S/O.SALAHUDEEN, OLH NO.27, KALLUVETTAMKUZHY, KUMARAMKARIKAM, KULATHUPUZHA, PATHANAPURAM TALUK, KOLLAM DISTRICT. 4. SAJAD, S/O.ABDULLAH, AGED 23 YEARS, THADATHARIKATHU PUTHEN VEEDU, KUMARAMKARIKAM, KULATHUPUZHA, PATHANAPURAM TALUK, KOLLAM DISTRICT. 5. SHALOO ALIAS RAJMOHAN, S/O.MOHAN, AGED 24 YEARS, THADATHIL PUTHEN VEEDU, KUMARAMKARIKAM, KULATHUPUZHA, PATHANAPURAM TALUK, KOLLAM DISTRICT. BY ADV. MR.R.SURAJ KUMAR RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, KULATHUPUZHA. R1 & R2 BY PUBLIC PROSECUTOR MR. TEKCHAND THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ B.A.NO. 3771 OF 2009 ------------------------------------------ Dated 25th August 2009 O R D E R This petition is filed under Section 438 of Code of Criminal Procedure for anticipatory bail. Petitioners are accused in crime No.243/2009 of Kulathupuzha police station registered for the offences under Sections 143, 147, 148, 323, 324, 308, 120B read with Section 149 of Indian Penal Code. 2. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Learned Public Prosecutor made available the case diary. Argument of the learned counsel appearing for petitioners is that in the FI statement no offence under Section 308 of Indian Penal Code is attracted and wound certificate does not disclose any grievous injury so as to attract an offence under Section 308 of Indian Penal Code and in such circumstances, petitioners may be granted anticipatory bail and second respondent be directed to release the petitioners on bail in the event of his arrest. BA 3771/09 2 Learned Public Prosecutor submitted that case was originally investigated as against ten accused and on the basis of investigation, only petitioners are the accused and from the details collected at the time of investigation, offence under Section 308 of Indian Penal Code is also attracted and custodial interrogation of the petitioners is necessary and therefore anticipatory bail may not be granted. 4. On going through the case diary, I cannot agree with the submission of the learned counsel that ingredients of the offence is not attracted. Case is only at the investigation stage and it is not necessary or proper to give an opinion whether ingredients of the offence is satisfied or not. But on the materials available in the case diary, it is not a fit case to exercise the extra ordinary jurisdiction under Section 438 of Code of Criminal Procedure to grant anticipatory bail. Petitioners are entitled to surrender and apply for regular bail. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.