IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 Bail Appl..No. 3775 of 2009() ---------------------------------------- CRIME NO. 434/2009 OF PATHANAPURAM POLICE STATION .................... PETITIONERS/ACCUSED: ------------------------------------ 1. SHIJURAJ, S/O.SISUPALAN, AGED 31 YEARS, SIJU BHAVAN, CHEKOM, PIRAVANTHUR VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT. 2. BIJULAL, S/O.VASUDEVAN NAIR, AGED 39 YEARS, RESIDING AT MANGALA BHAVANAM, KAMUKUMCHERY, PIRAVANTOOR VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT. BY ADV. SRI. R. SURAJ KUMAR RESPONDENTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, PATHANAPURAM POLICE STATION. BY SRI. V.TEKCHAND PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 29/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No. 3775 of 2009 ------------------------------------ Dated this the 29th day of July, 2009 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioners are accused Nos.1 and 2 in Crime No. 434 of Pathanapuram Police Station. 2. The offences alleged against the petitioners are under Sections 452 and 324 r/w 34 of the Indian Penal Code. 3. The gist of the prosecution case is as follows: The defacto complainant owes a sum of Rs. 200/- to shiju Raj, the first accused. On account of the dispute, Shijuraj and 3 others criminally trespassed into the house of the defacto complainant on 21.06.2009 and they caused hurt to him with dangerous weapons like sword stick and a cycle pump. He was admitted in the Hospital. The injuries noted are the following: 1. Lacerated injury 15X5X5 cm on the outer aspect of right thigh. 2. Lacerated injury 10X8X8 cm on the inner aspect of left thigh. B.A.No. 3775 of 2009 2 4. The learned counsel for the petitioner submitted that on the allegation made by the prosecution, no offence under Section 452 is made out. It is submitted that Section 452 is to be distinguished from Sections 451 and 447, with reference to the definition of criminal trespass in Section 451 of the Indian Penal Code. It is not proper to consider the contentions of either side on this aspect while disposing of the Bail Application, as it may cause prejudice either to the prosecution or to the accused. Prima facie on the materials on record, I am not inclined to accept the contention of the petitioner, for the limited purpose of disposing of this Bail Application. 4. Taking into account the facts and circumstances of the case, all the aspects of the matter including the injury sustained by the defacto complainant, I do not think that the petitioners are entitled to get the discretionary relief under Section 438 of the Code of Criminal Procedure. The Bail Application is accordingly dismissed. K.T. SANKARAN, JUDGE ln