IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 7428 of 2008()
1. SALIM KUMAR C.K. AGED 42,S/O.KUMARAN,
... Petitioner
2. SAJU AGED 32, S/O.PAPPACHAN, MOONJELY
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. SUB INSPEPCTOR OF POLICE,
For Petitioner :SRI.JAISON JOSEPH
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :05/02/2009
O R D E R
K. HEMA, J.
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Bail Appl. No. 7428 of 2008
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Dated this the 5th day of February, 2009.
ORDER
Petition for anticipatory bail.
2. The alleged offences are under Sections 143, 147,
148, 341, 323, 324, 427, r/w section 149 of IPC and Sections 25
and 27 of the Arms Act. According to prosecution, petitioners (A1
and A2) along with others formed into unlawful assembly and
assaulted de facto complainant and others and committed
various offences.
3. Learned counsel for petitioners submitted that de
facto complainant was engaged in taking soil from the property
owned by one Chandrasekaran, illegally. This was objected to by
the people of the locality and some people had gone to him and
explained that it should not be done. De facto complainant and
his henchmen came there and assaulted them and there was
some push and pull and an incident occurred. A counter case was
also registered and the F.I.R is Annexure A-2. Offences include
one under Section 326 IPC also. In this crime, originally offence
under the Arms Act were included and those were later deleted
and offence under section 326 is now included. Learned counsel
for petitioners also submitted that in the counter case, the
accused were granted anticipatory bail. Petitioners may be
granted anticipatory bail, it is submitted.
4. Learned Public Prosecutor submitted that there is
specific allegation that weapons were used for the offence and a
fracture was also caused . In the nature of the allegations, it is not
[B.A.No.7428/08] 2
fit case to grant anticipatory bail, it is submitted.
5. On hearing both sides, I am satisfied that mere
existence of a counter case may not be sufficient to invoke the
provision under Section 438 Cr.P.C., especially since groups
have clashed each others. Petitioners are at liberty to surrender
before the magistrate court concerned and apply for bail under
Section 437 Cr.P.C., in which event, the application shall be
disposed of on merit considering all the contentions raised
untrammelled by any of the observations made in this case.
It is made clear that the observations made in this
order are for the purpose of considering whether anticipatory bail
can be granted or not. Considerations for grant of anticipatory
bail and bail under Section 437 Cr.P.C. are different. The mere
fact that anticipatory bail is refused cannot by itself be made a
ground to refuse bail under Section 437 of Cr.P.C.
In the above circumstances, the following order is passed:
1) Petitioners shall surrender before the investigating
officer or the Magistrate court concerned without
any delay and in case bail application is filed, it
shall be disposed of on merit in the light of the
observations made in this order, expeditiously.
2) No further application for anticipatory bail by the
petitioners in this crime will be entertained by this
Court hereafter.
Petition is dismissed.
K. HEMA, JUDGE.
Krs.