IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 Bail Appl..No. 7142 of 2008() ----------------------------- CRIME NO.830/08 OF THE KASARAGOD POLICE STATION PETITIONERS/ ACCUSED NOS. 1 TO 3: ---------------------------------------------------- 1. RAJIV T.V, S/O.KUNHIKANNAN, AGED 24 YRS, CHITHRA NIVAS, P.O.UDMA. 2. ASHISH.D, S/O.DAMODARAN, AGED 26 YEARS, "PRASADAM", BATTAMPARA, P.O.R.D.NAGAR, KASARAGOD. 3. VINEESH, S/O.K.VIJAYAN, AGED 23 YEARS, NEAR CPCRI COMPOUND, KASARAGOD. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA THROUGH THE SUB INSPECTOR OF POLICE, KASARAGOD POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI.M.S.BREEZE ADV. SRI.T.K.KUNHABDULLA & SRI.GEORGE MECHERIL FOR DE FACTO COMPLAINANT THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 12/12/2008, ALONG WITH B.A.NO. 7313/08, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.Nos. 7142 & 7313 of 2008 ----------------------------------------- Dated this the 12th December, 2008 O R D E R These petitions are for anticipatory bail. 2. The alleged offences are under Sections 143, 147, 148, 452, 324 and 307 read with 149 of the Indian Penal Code. According to prosecution, petitioners (accused 2, 1, 6, 4 and 5 respectively), along with other four accused, formed into an unlawful assembly and armed with deadly weapons like iron rod, stick etc. assaulted de facto complainant and six others and all sustained injuries. 3. Learned counsel for petitioners, learned Public Prosecutor, learned counsel appearing for de facto complainant were heard. According to petitioners, they are falsely implicated in the offences. Several twists have been made to the actual incident and petitioners are brought into the array of accused at a subsequent stage. The incident allegedly occurred in a bar hotel, where de facto complainant was working as an employee. Petitioners had gone to the bar and there was some quarrel regarding the quality and quantity of the liquor supplied and they were assaulted by de facto complainant and others, using weapons. BA.Nos.7142 & 7313 of 2008] 2 4. Since petitioners belong to reputed families and second accused is a Manager of the HDFC Bank, they were embarrassed to report the matter to the police or go to the doctor, though they sustained injuries in the incident. It is unlikely that petitioners would go to the bar hotel with weapons like iron rod etc. However, later, a complaint was lodged on the next day of the incident at 1 PM by de facto complainant falsely alleging that petitioners committed house trespass into the residential quarter of de facto complainant, where the other employees were also residing etc. 5. Under the influence of the owner of the bar hotel, the police included offence under Sections 308 ( later altered to Section 307) and 452 IPC with a view to harass petitioners, it is submitted. If the incident had taken place in the bar, offence under Sections 452 and 308 or 307 will not be attracted and therefore, the place of occurrence is deliberately shifted to the quarter, it is submitted. At the time of offence, de facto complainant and others did not know the names of the persons who assaulted them. Learned counsel for petitioners has referred to the allegations made in the wound certificate issued to four injured persons including de facto complainant wherein it is specifically stated that the injuries were sustained in an assault by unknown many people with iron rod etc. at the hotel premises at 11 PM. BA.Nos.7142 & 7313 of 2008] 3 6. Subsequently, the names of petitioners were somehow gathered and they are falsely implicated as accused in a crime stating that an incident occurred at a different venue under different circumstance. Hence, petitioners may be granted anticipatory bail, it is submitted. It is also also submitted that if anticipatory bail is not granted, petitioners will be arrested and harassed with the help of police, it is submitted. 7. These petitions are opposed. Learned counsel for de facto complainant was also heard. It was submitted that the accused persons came in two cars to the official quarters, where employees of the bar hotel were residing and they assaulted the de facto complainant and others in a brutal manner and they sustained serious injuries. De facto complainant was referred to Kasturba Medical College, because of the seriousness of the injuries. A reference was made to second accused in the FIR itself. Even though his name was not stated, his father's name and address were mentioned. It is not a fit case to grant bail, it is submitted. Learned counsel for de facto complainant submitted that the petitioners were offended, since objection was raised when they were found smoking inside the bar and therefore, they came to the quarters and attacked the employees of the bar. BA.Nos.7142 & 7313 of 2008] 4 8. After hearing both sides, I perused the case diary. I find from the records that the earliest allegations made regarding the incident was that it occurred in the hotel premises. Admittedly, the hotel premises are at a distance of one-and-a-half kilometer from the quarter, where the present incident allegedly occurred. The injuries sustained are lacerated wounds. The person, who was referred to another hospital also had only lacerated injury and he was conscious at the time of examination by doctor. It is also seen that none of the names of accused was referred to in the First Information Statement nor to the doctor while they were at the hospital at 1 AM, within two hours of the incident. 9. On hearing both sides and on considering the nature of allegations made, I am satisfied that it is not a fit case to grant anticipatory bail. However, taking into consideration the various facts referred above, I think, for the purpose of bail, offences involved can be treated as one falling under Sections 448 and 324 IPC, instead of Sections 452 and 307 IPC. The crime was registered as early as on 11.11.2008. Hence, the following order is passed: Petitioners shall surrender before the investigating officer within twelve days from today and co-operate with the investigation, in which event, the offences BA.Nos.7142 & 7313 of 2008] 5 included in the case will be treated as under Sections 448 and 324 IPC, instead of Sections 452 and 307 IPC for the purpose of bail. It is made clear that the observation regarding the nature of offences is made only for the purpose of granting bail and not for trial. With this observation, these petitions are dismissed. K.HEMA, JUDGE vgs.