IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 Bail Appl..No. 7492 of 2008() -------------------------------------- CRMP.1929/2008 of DISTRICT COURT, PATHANAMTHITTA CRIME NO.517/2008 OF THE KEEZHVAYPUR POLICE STATION .................... PETITIONER(S): ACCUSED NOS.1 & 2: -------------------------------------- 1. PRAMOD.B, AGED 28 YEARS, S/O.BALASUNDARAN PILLAI, KAIPATTA THEKKETHIL, MALLAPPALLY WEST P.O., MALLAPPALLY. 2. JOBY CHACKO AGED 24 YEARS, S/O.BABU CHACKO, OORIYAKUNNATHU, MALLAPPALLY WEST P.O., MALLAPPALLY. BY ADVS. MR.C.S.MANU MR.S.K.PREMRAJ RESPONDENT(S): COMPLAINANT AND STATE: --------------------------- STATE OF KERALA REPRESENTED BY SI OF POLICE, KEEZHVAYPUR POLICE STATION NOTICE TO WHOM MAY BE SENT ON THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.C.M.KAMMAPPU THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 10/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No. 7492 of 2008 ----------------------------------------- Dated this the 10th January, 2009 O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Sections 294(b), 452, 323, 324 and 308 read with 34 of the Indian Penal Code. According to prosecution, petitioners (accused 1 and 2), in furtherance of common intention, committed house trespass into a petrol bunk and assaulted de facto complainant, abused in obscene language etc. and inflicted a fracture on the nasal bone. Iron rod was used for the offence. The incident occurred on 16.10.2008. 3. Learned counsel for petitioners submitted that offence under Section 452 IPC will not be attracted because the place of occurrence is a petrol bunk and no preparation for the offence was committed, since even as per the allegations in the First Information Statement, the offences were committed since the de facto complainant refused to fill petrol. It cannot be expected that such an incident would happen and that petitioners were making preparations for commission of offence BA.7492/08 2 by arming themselves with iron rod etc. Learned counsel for petitioners submitted that offence under Section 308 IPC also will not be attracted. Therefore, anticipatory bail may be granted, it is submitted. 4. This petition is opposed. Learned Public Prosecutor submitted that the offence is under Section 452 IPC. Petitioners have assaulted de facto complainant using iron rod and caused fracture to the nasal bone and weapon is to be recovered. Learned Public Prosecutor submitted that offence under Section 326 IPC is also attracted in this case. Therefore, it is not a fit case to grant anticipatory bail, it is submitted. 5. On hearing both sides, considering the nature of allegations made and the nature of investigation required, which includes the recovery of the weapon used for the offence, I am satisfied that petitioners' interrogation will be required and this is not a fit case to grant anticipatory bail. If anticipatory bail is granted, it will adversely affect the investigation and hence, I am not inclined to grant anticipatory bail. The question whether offence under Section 452 IPC or 308 IPC etc. is attracted, can BA.7492/08 3 be considered at the time of filing petition under Section 437 Cr.P.C. Hence, I am not making any observation in respect of the said contentions. Having entered into a petrol bunk and acted in the manner alleged using an iron rod inflicting fracture of the nasal bone, petitions do not deserve for anticipatory bail. But, considerations for granting bail under Section 437 Cr.P.C are different from considerations for grant of anticipatory bail. Hence, the following order is passed: (1) Petitioners shall surrender before the investigating officer forth with and co- operate with the investigation. Whether they surrenders or not, police is at liberty to arrest them and proceed in accordance with law. (2) No further application for anticipatory bail by petitioners in this crime will be entertained by this Court. Petition is dismissed. K.HEMA, JUDGE vgs.