Petitioners herein are accused numbers 1 and 2 in Crime No.909 of 2014 of Thekkumbhagom Police Station, Kollam district registered for offences under Sections 447, 294(b), 324, 326, 354 and 34 of Indian Penal Code. There are two other accused, accused numbers 3 and 4, who have already been granted anticipatory bail by this Court as per Annexure 12 order dated 21.08.2014. Apprehending arrest in the above crime they along with the other accused had preferred an earlier bail application, which resulted in Annexure 12 order in which anticipatory bail was refused to the petitioners herein (accused numbers 1 and 2) and the prayer for anticipatory bail was allowed in favour of accused numbers 3 and 4. Anticipatory bail was refused to the petitioners by Annexure 12 order by this Court on the ground that it appeared from the materials that they had inflicted injuries on the de facto complainant and other witnesses by using weapon and therefore it is not proper to grant anticipatory bail to them. On finding that there was no allegation on usage of weapon as against the other two accused (accused numbers 3 and 4) anticipatory bail was granted as per Annexure 12 order. 2. The gist of the prosecution allegation is that the petitioners herein and the other accused due to animosity towards the de facto complainant, who is a lady, and her brother in connection with a dispute relating to a pathway at about 6:45 p.m on 25.07.2014 when the de facto complainant and other witnesses questioned the accused who were found interfering with the fence/pathway, the first accused had inflicted a blow on the head of the sister of the de facto complainant by using the handle of a spade and when the de facto complainant interfered to save her brother the second accused kicked on her abdomen and abused her. It is also alleged that the second accused inflicted blow on the sister of the de facto complainant using spade. The allegations against accused numbers 3 and 4 are that they restrained the de facto complainant by putting her hands across on her back and thus, according to the prosecution, the petitioners herein and the other two accused have committed the aforementioned offences under the Indian Penal Code.
3. Heard the learned counsel for the petitioners and the learned Public Prosecutor
4. Sri.V.Philip Mathews, learned counsel for the petitioners, would submit that the petitioners have suffered wound as evident from Annexure 9. It is also the submission of Sri.V.Philip Mathews that previously there was a crime registered against the de facto complainant as evident from Annexure 4 F.I.R which is seen registered on 18.07.2014 and it is thereafter the persent incident is alleged to have happened on 25.07.2014.
5. As per the prosecution case, as borne out by the statements of the de facto complainant, the petitioners herein have inflicted injuries on the de facto complainant and her sister by using weapons whereas the other two accused had not used any weapons.
6. Learned Public Prosecutor would submit that the nature of the alleged wound mentioned in Annexure 9 is regarding tenderness on the left upper chest whereas the de facto complainant and her sister suffered fracture due to the aforementioned actions of the petitioners. The Public Prosecutor would also submit on instructions that the recovery of weapon has not been effected and the investigation has not been completed and that the custodial interrogation of the petitioners herein is required.
7. On assessing the totality of the facts and circumstances of this case, this Court is inclined to hold that as the two petitioners herein have used weapons and have allegedly caused fracture to the de facto complainant, this is not a fit case where the discretion of this court can be exercised for granting anticipatory bail. This Court is not bound by the findings in Annexure 12 order, but, on an assessment and valuation of the facts and circumstances of the case, this Court is inclined to fully concur with the view taken by this Court earlier as per Annexure 12 order that as the two petitioners herein have used weapons, it is not a fit case for grant of anticipatory bail. There has not been any change in circumstances compared to the situation that prevailed on 21.08.2014 when Annexure 12 order was passed.
Accordingly, this Court is not inclined to invoke discretion conferred under Section 438 of the Code of Criminal Procedure for consideration of anticipatory bail in this case. Faced with this situation, Sri.V.Philip Mathews would submit that the two petitioners herein would surrender before the jurisdictional Magistrate concerned and apply for regular bail in which case this Court may direct the learned Magistrate to consider and grant the said application. The petitioners would submit that such a direction is required in the facts and circumstances of this case. It is for the petitioners to invoke the appropriate remedy and this Court cannot presume that the learned Magistrate would unreasonably or unfairly exercise his discretion. Therefore, it is for the petitioners to invoke their appropriate remedy in accordance with law.
With the above observations, this application for anticipatory bail is closed.
Sd/-
ALEXANDER THOMAS, JUDGE.
Vdv //True copy// P.A to Judge