IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 31ST JULY 2008 / 9TH SRAVANA 1930 Bail Appl..No. 4625 of 2008(A) ------------------------------ CRIME NO.107/08 OF VELLARIKUND POLICE STATION PETITIONER/ACCUSED ----------------------------------- 1. SUNIL, S/O THANKACHAN, ADUKKALAMPADY, WEST ELERI VILLAGE, HOSDURG TALUK. 2. V.VIJESH, S/O KRISHNAN, MULLANVALAPPIL, PUNNAKKUNNU P.O., HOSDURG TALUK. 3. M.BABU, S/O NARAYANAN, KARAVATTU HOUSE, NATTAKKALLU, HOSDURG TALUK. 4. UNNIKRISHNAN, S/O VISHWANATHAN NAIR, NATTAKKALLU, PALAKKAL HOUSE, WEST ELERI VILLAGE. 5. VINOD, S/O VELAYUDHAN, NATTAKKALLU WEST, ELERI VILLAGE. 6. AJESH, S/O T.R.MOHANAN, THANNIPARA VEEDU, CHEERKAYAM, WEST ELERI VILLAGE. 7. ARUN, S/O T.R.MOHANAN, THANNIPPARA VEEDU, CHERKAYAM, WEST ELERI VILLAGE. 8. KITTAKAYAM UNNIKRISHNAN, S/O GOVINDAN, MADIYAN VEETTIL, CHEERKAYAM WEST ELERI. BY ADV. SRI.M.THAMBAN SRI.K.RAJEEVAN SMT.T.SUDHAMANI RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No. 4625 of 2008 ----------------------------------------- Dated this the 31st July, 2008 O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Sections 143, 147, 148, 323, 324 and 308 read with 149 of Indian Penal Code. According to prosecution, on 3.7.2008 at about 1 pm, the petitioners and others attempted to destroy CPI(M) flag, near a bus stop. The de facto complainant and others objected to the same and the petitioners and others assaulted them with iron rod and the de facto complainant sustained injury on his head. 2. Petitioners are accused 1 to 5, 7, 8 and 11 in the crime. According to learned counsel for petitioners, the accused in this case are BJP workers. While they were hoisting BJP flag near a bus waiting shed, petitioners 2, 3, 5 and 7 and others were attacked by the de facto complainant and other CPI(M) activists. The 5th accused in this case sustained an injury on the head. Iron rods were also used in the offence. On the basis of a statement given by the fifth accused (7th petitioner), a crime was registered as Crime No.108/2008 against the de facto complainant and others. However, it was pointed out that the petitioners being BJP workers, offence under Section 308 IPC was not included, with a deliberate 2 view to help the CPI(M) workers. But in this case where BJP workers are involved offence under Section 308 IPC was included. It is apprehended that the petitioners will be harassed if they are arrested in connection with this crime, since Section 308 IPC is deliberately included. It is submitted that in the crime registered against the CPI(M) workers, on the statement given by the fifth accused, offence under Section 308 IPC was not included, though both the parties sustained the same type of injury and same nature of overt acts are committed. Learned counsel for petitioners also submitted that the persons who are granted bail in this case were detained in judicial custody before bail was granted. 3. This petition is opposed. Learned Public Prosecutor submitted that two of the accused in this case are granted regular bail. Therefore, the petitioners may be directed to seek their remedy before the committal court, it is submitted. 4. On hearing both sides, and on perusal of the documents produced along with this petition, it is clear that an incident happened and both sides allegedly committed certain over acts which are almost similar in nature and a person from each side sustain an injury. The injured sustained by both was similar in nature. The weapon is also similar. But in one case, offence under 3 Section 308 IPC was not included whereas in the other offence under Section 308 IPC was included. Therefore, as the petitioners would put it, there may be some ulterior motive for doing so. But, on an analysis of the facts, it can be seen that two groups of people went to a clash, used weapons and inflicted injury on each other. So, it may not be proper to invoke the extraordinary power under Section 438 Cr.P.C. At the same time, the injury which is likely to be caused to petitioners by a deliberate inclusion of offence under Section 308 IPC is to be prevented. Hence, in the interest of justice, I find that the following observations can be made: As far as this case is concerned, while bail application is moved by the accused in this case, it has to be treated as if offence under Section 308 IPC was not included. The petitioners may hence approach the lower court for appropriate relief. This petition is disposed of as above. K.HEMA, JUDGE vgs.