IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 5TH FEBRUARY 2009 / 16TH MAGHA 1930 Bail Appl..No. 7428 of 2008() ----------------------------------------- (CRIME NO.360 OF 2008 OF KALADY POLICE STATION) PETITIONERS/ACCUSED NOS. 1 AND 2: ------------------------------------------------------------ 1. SALIM KUMAR C.K., AGED 42,S/O.KUMARAN, CHERUPPILLY HOUSE, PARAPPURAM, KIZHAKKUMBHAGAM VILLAGE. 2. SAJU, AGED 32, S/O.PAPPACHAN, MOONJELY HOUSE, KANJOOR P.O. KIZHAKKUMBHAGAM VILLAGE. BY ADV. MR.JAISON JOSEPH RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPEPCTOR OF POLICE, KALADY POLICE STATION. R1 & R2 BY PUBLIC PROSECUTOR MR. M.S. BREEZ THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss K. HEMA, J. --------------------------------------------------- Bail Appl. No. 7428 of 2008 --------------------------------------------------- Dated this the 5th day of February, 2009. ORDER Petition for anticipatory bail. 2. The alleged offences are under Sections 143, 147, 148, 341, 323, 324, 427, r/w section 149 of IPC and Sections 25 and 27 of the Arms Act. According to prosecution, petitioners (A1 and A2) along with others formed into unlawful assembly and assaulted de facto complainant and others and committed various offences. 3. Learned counsel for petitioners submitted that de facto complainant was engaged in taking soil from the property owned by one Chandrasekaran, illegally. This was objected to by the people of the locality and some people had gone to him and explained that it should not be done. De facto complainant and his henchmen came there and assaulted them and there was some push and pull and an incident occurred. A counter case was also registered and the F.I.R is Annexure A-2. Offences include one under Section 326 IPC also. In this crime, originally offence under the Arms Act were included and those were later deleted and offence under section 326 is now included. Learned counsel for petitioners also submitted that in the counter case, the accused were granted anticipatory bail. Petitioners may be granted anticipatory bail, it is submitted. 4. Learned Public Prosecutor submitted that there is specific allegation that weapons were used for the offence and a fracture was also caused . In the nature of the allegations, it is not [B.A.No.7428/08] 2 fit case to grant anticipatory bail, it is submitted. 5. On hearing both sides, I am satisfied that mere existence of a counter case may not be sufficient to invoke the provision under Section 438 Cr.P.C., especially since groups have clashed each others. Petitioners are at liberty to surrender before the magistrate court concerned and apply for bail under Section 437 Cr.P.C., in which event, the application shall be disposed of on merit considering all the contentions raised untrammelled by any of the observations made in this case. It is made clear that the observations made in this order are for the purpose of considering whether anticipatory bail can be granted or not. Considerations for grant of anticipatory bail and bail under Section 437 Cr.P.C. are different. The mere fact that anticipatory bail is refused cannot by itself be made a ground to refuse bail under Section 437 of Cr.P.C. In the above circumstances, the following order is passed: 1) Petitioners shall surrender before the investigating officer or the Magistrate court concerned without any delay and in case bail application is filed, it shall be disposed of on merit in the light of the observations made in this order, expeditiously. 2) No further application for anticipatory bail by the petitioners in this crime will be entertained by this Court hereafter. Petition is dismissed. K. HEMA, JUDGE. Krs.