IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 11TH NOVEMBER 2008 / 20TH KARTHIKA 1930 Bail Appl..No. 6790 of 2008() ----------------------------- CRIME NO.413/08 OF CHINGAVANAM POLICE STATION PETITIONER ------------------------------ 1. (A2) SIBIN JOSEPH @ SIBIN ,AGED 21 YEARS S/O.JOSEPH GEORGE, VENGASSERIL HOUSE PAKKIL, NATTAKAM, KOTTAYAM. 2. (A3) SREENATH AGED 23 YEARS S/O. VIJAYANATHAN NAIR, KURUPPAMPARAMBIL POOVATHURUTH, KOTTAYAM. 3. (A4) ROSHEN ROY AGED 22 YEARS S/O.ROY, MADUKKAMOOTTIL HOUSE POOVATHURUTH, KOTTAYAM. BY ADV. SRI.K.JAISHANKAR SMT.K.M.SHISHA RESPONDENT(S): --------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.AMJAD ALI THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 11/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No. 6790 of 2008 ----------------------------------------- Dated this the 11th November, 2008 O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Sections 143, 147, 148, 149, 447, 427 and 308 of the Indian Penal Code. According to prosecution, on 3.10.2008 in the midnight, petitioners (accused 2 to 4) and others formed into an unlawful assembly and assaulted de facto complainant by beating with iron rods etc. The incident happened in the courtyard of the house of de facto complainant. 3. Learned counsel for petitioners submitted that there was only a tussle between de facto complainant and accused. Second accused sustained injury and though he went to the doctor, he did not mention or implicate de facto complainant, they being friends. But de facto complainant went to the police station and lodged a complaint, though he did not sustain any serious injuries and hence, he may be granted anticipatory bail, it is submitted. 4. Learned Public Prosecutor opposed this bail application and stated that iron rods were used for committing the offence and de facto complainant sustained injuries also, though those are abrasions. But the incident happened in the midnight from the courtyard of the house of de facto complainant. BA.6790/08 2 5. On hearing both sides, it would appear that there was some incident between accused and de facto complainant and both sides got injured. The incident happened in the courtyard of the house of de facto complainant. Iron rods were used for the offence and those are to be recovered, for which petitioner's presence would be required by the police. Taking into consideration the nature of allegations made, I do not find that it is a fit case to grant bail. No special circumstances exist to invoke provision under Section 438 Cr.P.C. 6. However, after hearing both sides, I find that the offence involved in this case can be treated as one falling under Section 324, instead of 308 IPC, for the purpose of bail, by the police or the court concerned. Petitioners shall surrender before the Magistrate Court concerned or the police and co- operate with the investigation. Whether petitioners surrender or not, police is at liberty to arrest petitioner at any time, and proceed in accordance with law. With this direction and observation, petition is dismissed. K.HEMA, JUDGE vgs.