IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN SATURDAY, THE 3RD DECEMBER 2011 / 12TH AGRAHAYANA 1933 Bail Appl..No. 8961 of 2011() ----------------------------- CRIME NO. 221/2011 OF PERUVANNMUZHI POLICE STATION, KOZHIKODE DISTRICT .......................................... PETITIONERS/ACCUSED NO. 1 TO 5 --------------------------------------------------- 1. BINU MATHEW, AGED 38 YEARS S/O. MATHEW VAZHEKADAVATH, CHEMBANODA PO, KOYILANDY TALUK. 2. BINOY MATHEW, AGED 35 YEARS S/O. MATHEW VAZHEKADAVATH, CHEMBANODA PO KOYILANDY TALUK. 3. JAMES JOSEPH, AGED 42 YEARS OLAVAKKUNNEL, CHEMBANODA PO, KOYILANDY TALUK. 4. GEORGE JOSEPH, AGED 45 YEARS, OLAVAKKUNNEL, CHEMBANODA P.O., KOYILANDY TALUK 5. JOBY THOMAS, AGED 31 YEARS S/O.THOMAS,OLAVAKKUNNEL, CHEMBANODA PO, KOYILANDY TALUK. BY ADVS. SRI. M. ASOKAN SRI. DEVAPRASANTH. P. J. RESPONDENT/COMPLAINANT ------------------------------------------- STATE OF KERALA REPRESENTED BY SI OF POLICE, PERUVANNMUZHI POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682 031. BY PUBLIC PROSECUTOR SRI. NOUSHAD THOTTATHIL THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PN P.S.GOPINATHAN, J ---------------------------------- B.A.No.8961 of 2011 ------------------------------------ Dated this the 3rd day of December, 2011. ORDER Petition under Section 438 of the Code of Criminal Procedure. Petitioners are accused 1 to 5 in Crime No.221/2011 of Peruvannamuzhi Police Station, for offences punishable under Sections 143, 147, 148, 332, 353, 308, 225(B) and 506(ii) r/w 149 of I.P.C. Apprehending arrest, detention and torture at the hands of the Investigating Officer, petitioners moved Crl.M.C.No.1358/2011 before the Sessions Judge, Kozhikode, seeking an order directing the respondent to release the petitioner on bail in the event of arrest with a plea that they are innocent of the allegations. The learned Sessions Judge, by Annexure II order, dismissed the petition. Now seeking the same relief, this petition is filed. 2. Having heard either side and going by the order of the learned Sessions Judge, I find that the case was registered on sufficient materials. The learned counsel appearing for the petitioners refering to the First Information Report in Crime No. 224/2011 submitted that the forest officials trespassed into the house of the second petitioner at night and attempted to molest his wife and hearing the cry of the wife of the second petitioner, neighbours gathered and nothing as alleged in the First Information Statement had occurred. On the other hand, the learned Govt. Pleader submitted that the second petitioner is involved in O.R.No.9/2011 of Peruvannamuzhi Forest Range and that he was B.A.No.8961 of 2011 2 arrested by the forest officials and that the petitioners formed themselves into an unlawful assembly and armed with deadly weapons, obstructed the forest officials and rescued the second petitioner. There is no material on record to come to the conclusion that the forest officials were any way motivated against the petitioners. The learned counsel for the petitioners submitted that the petitioners have got no allegation against the Investigating Officer. 3. In the above circumstance, I find little material in the apprehension of the petitioners that they would be tortured by the Investigating Officer. Having due regard to the nature of the offence alleged, though the petitioners have got different version, I find that this is not a fit case to invoke jurisdiction under Section 438 of the Code of the Criminal Procedure. In the result, this petition is disposed of with direction to the petitioners to surrender before the Investigating Officer, who after interrogation and recovery, if any, shall produce the petitioners before the Magistrate concerned, so as to enable them to apply for regular bail, which the learned Magistrate shall dispose of on merits, as far as possible on the same day, provided due notice is given to the Assistant Public Prosecutor. P.S.GOPINATHAN, JUDGE su