IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 Bail Appl..No. 2547 of 2010() ----------------------------- (CRIME NO.390/2010 OF KASARAGOD POLICE STATION) PETITIONER/ACCUSED NO.1-6 --------------------------------------------- 1. MOHAMMED ALI.P.A., AGED 22 YEARS, S/O.ABDUL KHADER, PO THEKKIL KASARAGODE DISTRICT. 2. ARIF, AGED 42 YEARS, S/O. IBRAHIM HAJEE, PO BANDICHAL, KASARAGODE DISTRICT. 3. AHAMMED ALI, AGED 45 YEARS, S/O. IBRAHIM HAJEE, P.O.BANDICHAL, KASARAGODE DISTRICT. 4. SADIK, AGED 20 YEARS, S/O. ALAMPADI MUHAMMED, P.O.MUNDOL, KASARAGODE DISTRICT. 5. NIYAS, AGED 29 YEARS, S/O. ABDUL KHADER @ ANDUKKA, PUTHARIYADUKKAM, P.O.THEKKIL, KASARAGODE DISTRICT. 6. ABU, AGED 23 YEARS, S/O. ABDUL RAHIM, MAAHINABAD, PO THEKKIL, KASARAGODE DISTRICT. BY ADV. SRI.JAWAHAR JOSE RESPONDENT(S): STATE -------------------- THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 22/07/2010, ALONG WITH BA NO. 3221 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J ----------------------- B.A Nos.2547 AND 3221 OF 2010 -------------------------------- Dated this the 22nd day of July 2010 ORDER These petitions are for anticipatory bail. 2. The alleged offences are under Sections 143, 147, 148, 341, 323, 324, 308 r/w 149 of IPC. According to prosecution,about six months back, de facto complainant and one Ahemmad Ali had a quarrel and accused number 2 also got involved in the matter. Out of this enmity, second accused and various other persons, along with the said Ahemmad Ali went to the house of de facto complainant to attack him. Pursuant to this incident, on 14/04/2010 at about 10:30 a.m, petitioners (A1 to A7) formed themselves into an unlawful assembly and attacked de facto complainant by using iron rod, reaper and a soda bottle from the fish market. First accused used an iron rod, second accused used a reaper and fifth accused used a soda bottle. All the accused committed the offences stated above. 3. Learned counsel for petitioner submitted that the incident did not happen as alleged. In fact, on the previous day of the incident, de facto complainant and another person had came to the hotel run by first accused. They had brought liquor into the hotel and they started drinking liquor from the hotel. This was objected to by the partner of first accused who asked them not to consume B.A Nos.2547 and 3221 OF 2010 2 liquor in the hotel. They did not heed to the request. Then the first accused's partner telephoned first accused and informed him of the matter. First accused came to the hotel and asked de facto complainant and the other not to drink. They refused to obey and hence, liquor bottle was snatched from their hands and thrown out of the hotel. Because of this there was a quarrel and de facto complainant had enmity towards first accused. 4. On the next day of the above incident, out of the above enmity, de facto complainant and his near relatives, formed themselves into an unlawful assembly and attacked first accused when he went to the fish market in the morning to purchase fish. They were armed with weapons. Knife and soda bottle were used by de facto complainant and others to inflict injury on first accused. 5. On seeing the attack, third accused rushed to the scene to rescue first accused. Several other persons also came running to the scene. But de facto complainant and his near relatives attacked petitioners (accused numbers 1 to 7) and four of them sustained serious injuries. 6. The wound certificate relating to the accused are produced in this case. Anexure A relates to 7th accused. He sustained a very serious injury to his abdomen. He had prolapse small intestinal loop through the injury over lower part B.A Nos.2547 and 3221 OF 2010 3 of the abdomen below the umbilicus. He was referred to a hospital at Mangalore for better management. Annexure B is the discharge summary relating to 7th accused. First accused sustained penetrating injury of considerable nature. Second accused also sustained serious injuries, as revealed from Annexure A2. The wound certificate revealed that second accused had a penetrating injury over the back of lower part of the chest measuring 4x2x3 cm. He had two lacerated wound on the perital region of size 5x5 cm. He was also admitted in the hospital. Third accused also sustained lacerated injury over the back of lower part of chest measuring 4x2x3 cm. 7. But, de facto complainant, on knowing that a case will be registered against him and the other assailants, lodged a complaint against petitioners, alleging various offences including offence under Section 308 IPC. De facto complainant and other persons did not sustain any serious injury. Prosecution has not explanation for the serious injuries sustained by petitioners in the incident. In such circumstances, if the petitioners are refused anticipatory bail, it is likely that they will suffer irreparable injury and loss. 8. This petition is opposed. Learned Public Prosecutor submitted that de facto complainants sustained deformity of left forearm. He sustained a lacerated injury on the scalp, two B.A Nos.2547 and 3221 OF 2010 4 lacerated wounds near the eye brow. First and second petitioners are required for custodial interrogation and recovery of weapons (iron rod and reaper). Learned Public Prosecutor also submitted that first accused is a known gunda and he is involved in various crimes. Against 6th accused also, another crime is registered. 9. On hearing both sides and on onsidering the various facts and circumstances discussed above and going through the case diary and the documents produced with these petitions, the following facts are revealed. Petitioners sustained penetrating injuries which could be caused by a sharp weapon. According to petitioners, they were attacked by using knife by de facto complainant and others. The injury sustained by some of the accused in this case are very serious in nature and even the intestine was protruding through a wound sustained by 7th accused. 10. Though first accused is stated to be a gunda, it is the accused who sustained more serious injuries. The injuries sustained by de facto complainant and another are simple. There was only one external injury on de facto complainant which is a lacerated one measuring 3x1 cm. Other injury is deformity of lower forearm without any external injury at site. The other injuries sustained by another injured measure 2x1/2 c. B.A Nos.2547 and 3221 OF 2010 5 and 1x1/2 cm only. It is also relevant to note that de facto complainant and his associates are all near relatives. 11. According to petitioners, there was a quarrel between de facto complainant and first accused at his shop, on the previous day which was the motive for the crime. But, the case of prosecution is that this incident happened due to a quarrel which occurred and settled six months back. Analysing the various facts and circumstances on probability factor, I think that petitioners can be granted anticipatory bail failing which, it is likely that they will suffer irreparable injury and loss. At the same time, I also found that the recovery is to be effected through second accused for which his custodial interrogation will be necessary, as pointed out by learned Public Prosecutor. 12. Learned counsel for petitioner submitted that he is not pressing the application relating to first accused for personal reasons. In the above circumstances, I pass the following order: (1) Application for anticipatory bail so far as it relates to first accused is hereby dismissed as withdrawn. (2) Second accused shall surrender before the Investigating Officer within 20 days from today and co-operate with investigation. (3) Accused numbers 2 to 7 shall, in the event of B.A Nos.2547 and 3221 OF 2010 6 their arrest, be released on bail on their executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the arresting officer on the following conditions: (i) They shall report before the Investigating Officer on every Monday and Thursday between 10 a.m and 1 p.m and co-operate with investigation. (ii) They shall not influence or intimidate any witnesses or tamper with any evidence. (iii) In case petitioners are involved in any case of similar nature, bail is liable to be cancelled. (3) The above order will be in force only for a period of 30 days from today. In the mean time, whether accused numbers 2 to 7 are arrested or not, they shall seek regular bail from the court concerned, in accordance with law. B.A No.2547/2010 is partly allowed. B.A No.3221/2010 is allowed. K.HEMA JUDGE vdv