IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 7142 of 2008()
1. RAJIV T.V, S/O.KUNHIKANNAN, AGED 24 YRS,
... Petitioner
2. ASHISH.D, S/O.DAMODARAN, AGED 26 YEARS,
3. VINEESH, S/O.K.VIJAYAN, AGED 23 YEARS,
Vs
1. STATE OF KERALA THROUGH THE SUB
... Respondent
For Petitioner :SRI.SUNNY MATHEW
For Respondent :SRI.T.K.KUNHABDULLA
The Hon'ble MRS. Justice K.HEMA
Dated :12/12/2008
O R D E R
K.HEMA, J.
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B.A.Nos. 7142 & 7313 of 2008
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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.