IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 Bail Appl..No. 7152 of 2008() ----------------------------- CRIME NO.590/2008 OF PATHANAPURAM POLICE STATION PETITIONERS/ACCUSED NO. 1 & 2 ------------------------------------------------- 1. K.VISWAMBHARAN, S/O.KUTTAN, SREE THANKATHIL, CHEMPANARUVI, PIRAVANTHOOR VILLAGE, PATHANAPURAM TALUK. 2. S.MADHU, S/O.SOMAN, MADHU BHAVANAM, CHEMPANARUVI, PIRAVANTHOOR VILLAGE, PATHANAPURAM TALUK. BY ADV. SRI.MANOJ RAMASWAMY RESPONDENT(S): COMPLAINANTS --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, PATHANAPURAM POLICE STATION, PATHANAPURAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 26/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. --------------------------------------------- B.A.No.7152 of 2008 --------------------------------------------- Dated this the 26th November, 2008 O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Sections 341, 427, 323 and 34 IPC and Section 3(2)(e) of the Prevention of Damage to Public Property Act. According to prosecution, a K.S.R.T.C. bus had a mechanical defect on its way to its destination and petitioners who were travelling in the bus were infuriated by this and they assaulted defacto complainant who was the driver and also caused damage to the bus. The incident happened on 15.9.2008 at 11.30 p.m. 3. Learned counsel for petitioners submitted that the bus stopped at a remote place in the night and some passengers were to go out of the bus which included women also, but the driver of the bus went to a nearby stream and started taking water and consuming liquor. The petitioners and others raised objection to this conduct. Hence, a false complaint is lodged against petitioners. It is also submitted that no damage was caused to the bus, as evidenced by Annexure A4, which is the BA No.7152/2008 2 information supplied by the Assistant Transport Officer under the Right to Information Act. It is seen from the said document that some repair was done due to an accident and the expenses was only Rs.750/- and therefore, it is not correct to say that any incident as alleged in this case had happened, it is submitted. 4. It is also submitted by learned counsel for petitioners that a complaint was given to the Assistant Transport Officer by Bahujan Samaj Party in which it is clearly mentioned that the driver of the bus had acted in the manner alleged against petitioners. Therefore, anticipatory bail may be granted to the petitioners, it is submitted. 5. This petition is opposed. Learned public prosecutor submitted that there are sufficient materials in the case diary to show that the bus driver was assaulted and the bus was damaged since the bus stopped due to mechanical failure for the bus. It is also submitted that as per the mahazar, the damage on the door of the bus, seat etc. were noted. It is not correct to say that there was no damage. It is also submitted that earlier application for anticipatory bail was dismissed as per order dated 22.10.2008 in B.A.No.6291/2008 and there is no change of circumstance and hence, the petition may be dismissed. BA No.7152/2008 3 6. On hearing both sides, I find that all the contentions raised were considered by this Court as per the earlier order. I do not find any change of circumstance to come to a different finding. At this stage, it is not possible to make a positive conclusion that no damage was caused in the incident or that the damage was caused in an accident, as contended. Considering the nature of allegations made, I am not satisfied that this is a fit case to grant anticipatory bail. The incident happened as early as on 15.9.2008 and petitioners have not surrendered before the court or before the police and co-operate with investigation. Petitioners are therefore directed to surrender before the Investigating Officer and co-operate with investigation. Whether they surrender or not police is at liberty to arrest them at any time and proceed in accordance with law. The petition is dismissed. K.HEMA, JUDGE csl