IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 Bail Appl..No. 72 of 2009(B) ---------------------------------- CRIME NO.432/2008 OF KOTTAKKAL POLICE STATION .................... PETITIONERS/ACCUSED NOS.5 TO 10 : ----------------------------------------------- 1. HASSAN HAJI, S/O. AHAMMEDKUTTY PULIKKAL HOUSE, KUTTIPURAM KOTTAKKAL, MALAPPURAM DISTRICT. 2. MOIDU, S/O.AHAMMEDKUTTY HAJI PULIKKAL HOUSE, KUTTIPURAM KOTTAKKAL, MALAPPURAM DISTRICT. 3. MUHAMMED FAZIL, S/O. MOOSA PULIKKAL HOUSE, PADINJAKKARA, KOTTAKKAL, MALAPPURAM DISTRICT. 4. AHAMMEDKUTTY @ KUNHU S/O.MOIDU, PULIKKAL HOUSE, KUTTIPURAM, KOTTAKKAL, MALAPPURAM DISTRICT. 5. MUHAMMED SHAMEEN, S/O.AHAMMEDKUTTY PULIKKAL HOUSE, PADINJAKKARA KOTTAKKAL, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR SRI.P.A.RAJESH SMT.M.T.SHEEBA SRI.K.RAKESH Bail Appl..No. 72 of 2009(B) RESPONDENT/STATE : --------------------------- THE STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE KOTTAKKAL POLICE STATIO-THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, KOCHI-31. PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 15/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. --------------------------- B.A. No.72 OF 2009 --------------------------- Dated this the 15th day of January, 2009 O R D E R This petition is for anticipatory bail. 2. Petitioners are accused nos.5 to 9 in the crime. They had filed an application for anticipatory bail earlier and their prayer was rejected as per order dated 24.11.2008 in B.A.No.5934 of 2008. This petition is filed to point out certain special circumstances, to persuade the court to consider those facts and pass appropriate orders taking into consideration those facts. 3. According to prosecution, petitioners along with other accused in furtherance of common intention wrongfully restrained defacto complainant and various others, criminally intimidated them and assaulted them, with intention to commit murder. Defacto complainant and various other persons were injured, by stabbing with knives and beating with stick. Crime no.432/2008 was registered under the said sections. The incident occurred on 29.08.2008 at the premises of a mosque. B.A.No.72 of 2009 2 4. Learned counsel for petitioners submitted that accused in this case were assaulted by defacto complainant and others and two persons died on the same day. Both of them are brothers. One of their brothers lodged a complaint and based on it, Crime no.431/2008 was registered under sections 143, 147, 148, 341, 324, 302 read with Section 149 IPC against defacto complainant and various others. Knives etc. were used for the offence. It was also submitted that the persons who are shown as accused 1 and 2 in this case died on the same day. In such circumstances, this case is foisted against petitioners as a counter blast, it is submitted. 5. It is submitted by learned counsel for petitioners that almost all male members of the family were in the hospital and the result of an incident, two of them died also. First petitioner (fifth accused) and sixth accused are aged 72 and 70 years respectively. Seventh accused is an Engineering student aged only 21 years. Ninth accused is a lawyer, who has enrolled very recently, who is aged only 23 years. Eighth accused is the son of fifth accused and he is also a youngster. If all of them are refused anticipatory bail, they will be remanded to B.A.No.72 of 2009 3 custody, in which case, the injury which they may suffer will be irreparable, it is submitted. 6. According to learned counsel for petitioners though 2 persons died from the petitioners family, and the entire family members of the deceased sustained serious injuries in the incident, because of the influence of the opposite side, defacto complainant's name which was included in the array of accused in the main case was deleted, despite the specific allegation made against him. Fourth accused in the crime, who is aged 85 years almost died, and he had to undergo 2 surgeries which he sustained at the hands of the accused in the counter case. 7. It is also submitted that petitioners are prepared to surrender before the Investigating Officer or the Magistrate court concerned and co-operate with investigation. It is also submitted that offence under Section 307 of I.P.C. strictly speaking will not comply petitioners, since no overt acts which will attract offence under Section 307 of I.P.C. are committed by petitioners, even as per the prosecution case, it is submitted. If these facts are considered, all other offences are B.A.No.72 of 2009 4 bailable. It is pointed out that as per the settled legal position, learned Magistrate is empowered to grant bail, though even a sessions offence under Section 307 of I.P.C. is involved. 8. This petition is opposed. Learned Public Prosecutor submitted that the contentions raised by petitioners were considered by this court elaborately in the earlier application and it was found that petitioners are not entitled for anticipatory bail. Therefore, those facts need not be considered again, it is submitted. On the facts of this case, it is not a fit case to grant anticipatory bail, it is submitted. On hearing both sides, I find that there is no reason at this stage to come to take a view different from my earlier view regarding the entitlement for anticipatory bail by petitioners. In a case of this nature, I am reluctant to grant anticipatory bail. Petitioners are bound to surrender before the Investigating Officer within 10 days from today and shall co-operate with the investigation. Thereafter, if petitioners are arrested and produced before the Magistrate court, if any bail application is filed, those shall be disposed of without any delay as expeditiously as possible, taking into consideration all B.A.No.72 of 2009 5 the contentions raised by petitioners, on merit. The age of petitioners, their physical state and the circumstances of the accused and various other facts and circumstances also will be relevant while considering the bail application under section 437 Cr.P.C. Needless to say, considerations for grant of anticipatory bail and grant of bail are different. The learned Magistrate shall also consider the contention whether section 307 of IPC will be attracted against petitioners. It is made clear that none of the observations made in this order shall in any manner prejudice the contentions raised by petitioners. The petition is disposed of. K.HEMA, JUDGE pac