IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 Bail Appl..No. 7952 of 2008(D) ------------------------------------- CRIME NO.409/2008 OF MUSEUM POLICE STATION PETITIONERS/ACCUSED : ------------------------------ 1. RAMAN (HAN KUMAR, AGED 42,S/O.SASIDARAN PANICKER, TC.16/951,BOUND ROAD, JAGATHY, THIRUVANANTHAPURAM 2. SANJU,AGED 18 S/O.RAMAN, RESIDING AT , -DO- -DO- 3. GOPAKUMAR, AGED 30, S/O.GOPALAKRISHNAN, KUZHIVILA VEEDU, PALINATHA VILLAGE, KARATTE, KILIMANOOR. BY ADV. SRI.R.T.PRADEEP RESPONDENT/COMPLAINANT : ------------------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 21/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ------------------------------ B.A. No.7952 OF 2008 ------------------------------ Dated this the 21st day of January, 2009 O R D E R This petition is for anticipatory bail. 2. The alleged offence is under Sections 307 and 34 of I.P.C. According to prosecution, accused nos.1 to 3 in furtherance of common intention attacked defacto complainant's husband by using sword and iron rod and 2 fractures were inflicted on him in an attempt to commit murder. 3. Learned counsel for petitioners submitted that accused nos.1 and 2 are father and son. Third petitioner is the brother in law of first petitioner. The injured in this case was a menace to the family of first petitioner. He used to make obscene phone calls to first petitioner's wife and also create problems to her in various ways requesting for illicit relationship with her. The wife of first accused gave petitions before the Museum police on several occasions and the injured was warned at the police station and some petty case were also charged against him. But, he continued the illegal activities. B.A.No.7952 of 2008 2 4. On the date of occurrence, namely 02.12.2008, he came to the house of first petitioner in a fully drunken state and made physical advances to first petitioner's wife in the presence of the family members and hence, an incident happened inside the house, it is submitted. But, it is not correct to say that there was any intentional act from the side of petitioners. The incident happened only because the police did not act promptly, though complaints were made to prevent illegal acts of the injured. It is also submitted that first petitioner's wife gave a complaint to the police in respect of the incident, as Annexure I. Hence, petitioners may be granted anticipatory bail, it is submitted. 5. This petition is opposed. Learned Public Prosecutor submitted that as per the allegations in the F.I. Statement, the wife of the injured stated that the injured and first petitioner's wife were having illicit relationship and hence, petitioners had waited for the injured to come and he was assaulted. The weapons are to be recovered and the injured sustained 2 fractures. Hence, it is not a fit case to grant anticipatory bail, it is submitted. B.A.No.7952 of 2008 3 6. Learned Public Prosecutor pointed out that Annexure I was given about 20 days after the incident in this case and no value can be attached to the same. He also pointed out that the scene of occurrence on the road is close to the house of first petitioner and blood was also seen there, as per Scene Mahazar. On hearing both sides, considering the serious nature of the allegations made and the nature of investigation required, I do not think that it is a fit case to grant anticipatory bail. However, petitioners will be at liberty to take up the same contentions before the Magistrate court while filing an application for bail under Section 437 Cr.P.C. Considerations for grant of bail and anticipatory bail are different and none of the observations made in this order shall stand in the way in the learned Magistrate in disposing of the application for bail, untrammelled by any of the observations herein on merit. i) Petitioners shall surrender before the Investigating Officer without any delay and co-operate with the investigation. Whether they surrender or not, police is at liberty to B.A.No.7952 of 2008 4 arrest them and proceed in accordance with law. ii) If the petitioners move an application for bail under Section 437 Cr.P.C., the learned Magistrate shall dispose of the bail application without any delay on merit untrammelled by any of the observations made herein. The petition is disposed of accordingly. K.HEMA, JUDGE pac