IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 Bail Appl..No. 6356 of 2008() ----------------------------- CRIME NO. 214/2008 OF KOODAL POLICE STATION PETITIONER (S): ACCUSED --------------------------- VIJAYAN, AGED 55 YEARS, S/O. KESAVAN, RESIDING AT `AJEESH BHAVAN', THIDI, NIRATHUPARA.P.O, KOODAL VILLAGE, ADOOR TALUK. BY ADV. SRI.S.MUHAMMED HANEEFF SRI.R.KRISHNAKUMAR (CHERTHALA) RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REP. BY DEPUTY SUPERINTENDERNT OF POLICE, ADOOR (CRIME NO. 214/2008 OF KOODAL POLICE STATION REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM) PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 20/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A. No. 6356 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of November,2008 O R D E R Petition for anticipatory bail. 2. According to prosecution, on 12-8-2008 at about 7 p.m. when de facto complainant along with his brother's son went to house of petitioner, since petitioner had beaten up de facto complainant's nephew. Petitioner poured acid on the face of de facto complainant and he sustained grievous hurt. The alleged offences are under sections 323, 326 IPC. 3. Learned counsel for petitioner submitted that the incident did not occur as alleged. On the same day, at same time de facto complainant, his nephew and a group of people (25 persons in total) trespassed into the compound of de facto complainant, and five of them trespassed into the house and assaulted de facto complainant using chopper. Learned counsel for petitioner also submitted that while five persons attacked petitioner and his wife, others who were standing outside pelted stones at the house and also damaged the vehicle parked in the compound by pelting stones. His wife was also injured in the incident. They were hospitalized on the same day, it is submitted. BA 6356/08 -2- 4. De facto complainant and others had come to the house to question petitioner since he allegedly assaulted de facto complainant's nephew. Petitioner was hospitalized with lacerated wound on the scalp, on the ring finger and also contusion in chest. His wife was hospitalized for a period of nine days from 12-8-2008 to 21-8-2008 and thereafter, from 22nd October to 24th October consequent to the injury sustained in the incident. It is submitted that on the basis of statement given by petitioner, Crime no.215/2008 was registered against de facto complainant and four others and 20 other identifiable persons for offences under sections 143, 147, 148, 452, 323, 324 427 IPC. It is also submitted that offence under section 326 IPC will not be attracted, considering the nature of injury sustained. In such circumstances, anticipatory bail may be granted, it is submitted. 5. This petition is opposed. Learned Public Prosecutor submitted that this is a case where acid was poured on the face of de facto complainant and his eye was affected. There was an injury to the eye and hence section 326 IPC was included. Petitioner has no justification in pouring acid on the face of de facto complainant and cause such grievous hurt to him. Even if there is house trespass by de facto complainant, it is submitted BA 6356/08 -3- that in the nature of allegations made, it is not proper to grant anticipatory bail. Learned Public Prosecutor pointed out that in the counter case Crime no.215/2008 petitioner has no case that he had poured acid in exercise of self defence. 6. On hearing both sides, I find that this is a case where acid was allegedly poured on the face of de facto complainant and he sustained injury on his face. However, as per the case diary, there is nothing to indicate that there was deprivation of sight, which would be necessary to constitute offence under section 326 IPC. It is to be noted that originally the crime was registered under sections 307, 323, 326 and section 3(1)(x) of Scheduled castes and Scheduled Tribes (Prevention of Atrocities) Act. Section 307 IPC and section 3(1)(x) of Scheduled castes and Scheduled Tribes (Prevention of Atrocities) Act were deleted. Considering the nature of allegations made, I am not inclined to grant anticipatory bail. However, offence involved in this case can be treated as one falling under section 324 IPC instead of section 326 IPC for the purpose of bail. It is made clear that these observations are made only for the purpose of bail. Petitioner is directed to surrender before the Investigating Officer without any delay and co-operate BA 6356/08 -4- with the investigation. Whether he surrenders or not, police is at liberty to arrest him and proceed in accordance with law. With this direction, this petition is dismissed. K.HEMA, JUDGE. mn.