IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 7969 of 2008()
1. S.M.SARIN, AGED 25, S/O.LATE A.M.SALIM,
... Petitioner
2. SAJIN SM, AGED 29,S/O. LATE A.M.SALIM,
3. M.SHYNE, AGED 29,
4. M.SABIN, AGED 25,
Vs
1. STATE OF KERALA REPRESENTED BY THE
... Respondent
For Petitioner :SRI.P.K.VARGHESE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :17/02/2009
O R D E R
K. HEMA, J.
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B.A. No. 7969 of 2008
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Dated this the 17thday of February, 2009
O R D E R
Petition for anticipatory bail.
2. The alleged offences are under sections 143, 147, 148,
149, 341, 294(b), 323, 324, 326 and 427 read with section 149
IPC. According to prosecution, on 15-12-2008 at about 10.30
p.m. petitioners (A1 to A4) along with other accused formed
themselves into an unlawful assembly armed with deadly
weapons committed rioting and wrongfully restrained de facto
complainant, abused him in filthy language, attacked him by
beating with hands and also with cricket bat and inflicted
injuries, including fracture to the leg.
3. Learned counsel for petitioners submitted that
petitioners are brothers who are aged 21 to 29 years. The 1st
accused is a literature student, 2nd accused is a Marking
Executive in Bangalore, 3rd accused is a Plus Two student and
4th accused is a glass merchant. Their father died 23 years ago
and their mother was residing in the house, which was allotted
to them by grandfather. Father’s brother was attempting to evict
the mother and family members illegally and on 15-2-2008 when
the mother was alone in the house, after a bypass surgery taking
rest, father’s brother who is de facto complainant went to the
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house with gundas and assaulted her and also molested her and
attempted to evict her forcibly from the house and in respect of
the incident a complaint was given to the police.
4. According to petitioners, the gundas who were
employed by de facto complainant could not carry out the work
entrusted to them and hence they were not given money, as
promised by the de facto complainant. Therefore, they assaulted
de facto complainant and broke his leg on the same night. On
16-12-2008 and 17-12-2008, again, attempts were made by de
facto complainant to unlawfully evict petitioners and the mother
from the property. Criminal complaints were filed and crime was
registered and one of the accused in those crimes is a notorious
gunda by name “Kuppichil Ani”.
5. It is also submitted that de facto complainant is in the
habit of creating false evidence by manipulating and distorting
facts and in order to establish that de facto complainant is in
possession of the property, he even filed a writ petition for police
protection, contending that de facto complainant is in possession
of the disputed house. The said application was disposed of, on
being convinced that petitioners are in possession. Similarly de
facto complainant has filed this false complaint also by misusing
the injuries sustained by him at the hands of gundas. This is
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done with a view to harass petitioners and also to see that in
their absence, their mother could be evicted from the house
illegally. If anticipatory bail is refused, it will result in
irreparable loss and injury and hence, anticipatory bail may be
granted, it is submitted.
6. Learned counsel for petitioners also submitted that
petitioners are prepared to surrender before the Investigating
Officer and co-operate with the investigation. Petitioners are
innocent of the allegations made.
7. Learned Public Prosecutor submitted that petitioners
are required for recovery of weapons used and also for
interrogation. De facto complainant sustained grievous hurt and
communited fracture on the leg and he was hospitalized in
Kerala Institute of Medical Sciences, Anamukham.
8. On hearing both sides, on going through the case diary
and wound certificate in which many relevant facts such as
alleged cause of injuries etc. are absent , and the fact that as per
the said wound certificate, the admission to hospital is only on
the next day of incident, and on appreciation of various facts
and circumstances of the case, I am of the view that if
anticipatory bail is refused, it will result in miscarriage of justice,
since petitioners appear to have a strong defence to put forward,
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which can be established only during trial.
8. Hence, the following order is passed:-
(1) Petitioners shall surrender before the
Magistrate Court concerned within seven days
from today and they shall be released on bail,
on their executing a bond for Rs. 25,000/- each
with two solvent sureties each, for the like
amount, to the satisfaction of the learned
Magistrate, on the following conditions:-
i) Petitioners shall report before the
Investigating Officer within four days
from the date of release on bail and co-
operate with the investigation.
ii) Petitioners shall not intimidate or
influence any witness or tamper with
evidence or commit any offence while
on bail.
This petition is allowed.
K.HEMA, JUDGE.
mn.