IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 7546 of 2008()
1. JOY MATHEW, AGED 66 YEARS,
... Petitioner
2. SHAJI SEBASTIAN, AGED 40 YEARS,
Vs
1. STATE OF KERALA, REPRESENTED BY PUBLIC
... Respondent
For Petitioner :SRI.BECHU KURIAN THOMAS
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :28/01/2009
O R D E R
K.HEMA, J.
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B.A.No. 7546 of 2008
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Dated this the 28th January, 2009
O R D E R
This petition is for anticipatory bail.
2. The alleged offences are under Sections 342, 326, 308
read with 34 of the Indian Penal Code. According to
prosecution, petitioners (accused 1 and 2), in furtherance of
common intention, assaulted de facto complainant and another
and inflicted injuries, including fracture.
3. Learned counsel for petitioners submitted that first
petitioner has three sons and a daughter and he is aged 66
years. Second petitioner is the son. First petitioner intended to
convey certain properties to second petitioner, which was
objected to by his wife and two other sons. There was a fight
on this issue for a considerably long period and petitioners
were harassed by them. On the date of occurrence, first
petitioner was present in a shed in the coconut garden while
his son along with goondas came to the place and tried to
attack first petitioner. In exercise of self defence, he waved
iron crowbar and escaped from the scene. He was also
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assaulted by the persons, who came there and a complaint was
lodged by him.
4. This petition is opposed. Learned Public Prosecutor
submitted that de facto complainant and another have
sustained serious injuries, including fracture and scull exposed
lacerated wound by the use of iron rod and they were also
admitted in the hospital. Those persons are not even related to
petitioners. The weapon is not recovered. A counter case is
registered under Sections 324, 323 and 506 Part-I of the
Indian Penal Code. Petitioners have protested against the
persons, who had come to pluck the coconut trees from the
property and hence, the incident occurred.
5. On hearing both sides and on going through the case
diary, I find that the injured sustained considerable injuries
with an iron rod. The doctor also noted iron rod marks, but
admittedly, petitioner did not sustain any serious injury,
though he is allegedly assaulted by the injured in this case.
Learned counsel for petitioners submitted that the doctor
manipulated the records at the instance of first petitioner’s
son, who is closely acquainted with him. However, at this
stage, it may not be possible for me to make any such
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conclusions especially in an application for anticipatory bail.
Considering the nature of allegations made and the nature of
investigation required, I do not think that it is a fit case to
grant anticipatory bail.
6. However, if petitioners surrender before the
Magistrate Court concerned and file application under Section
437 Cr.P.C, they will be at liberty to raise all these
contentions, in which event, the learned Magistrate shall
consider the same and dispose of the petition on merit,
untrammelled by any of the observations made by this Court in
this order. It is made clear that rejection of anticipatory bail
application may not by itself be a ground to reject application
for bail under Section 437 Cr.P.C.
Petitioners are directed to surrender
before the investigating officer and co-operate
with the investigation. Whether they surrender
or not, police is at liberty to arrest them and
proceed in accordance with law.
With this direction, petition is dismissed.
K.HEMA, JUDGE
vgs.