This is an application filed by accused 5,4, 7 and 1 in Crime No.869/2014 of Gandhinagar police station for anticipatory bail under Section 438 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). 2. The case of the prosecution in nutshell was that on 20.7.2014 at about 9.30 p.m the accused persons formed themselves into an unlawful assembly with the common object of committing culpable homicide, since the defacto complainant had asked for an amount of Rs.3,000/- borrowed from him, inflicted injury on him and thereby all of them have committed the offences punishable under Sections 143, 147, 148, 447, 294(b), 323, 324 and 308 read with Section 149 of the Indian penal Code.
3. The counsel for the petitioners submitted that even if the entire allegations are accepted, there is no offence under Section 308 of the Indian Penal Code is attracted. The injuries are minor in nature.
4. The application was opposed by the Public Prosecutor on the ground that investigation is not over.
5. Heard both sides and perused the case diary file.
6. It is seen from the records that the above case was registered on the basis of the statement given by the defacto complainant against seven named accused persons alleging commission of the above said offences. The allegation was that since the defacto complainant did not pay the amount of Rs.3,000/- borrowed, the incident had happened. It is seen from the statement given by the defacto complainant that the accused have broken the bottles and attempted to inflict injury on vital parts and since he moved, that fell on his ear and caused injury. It is seen from the wound certificate that the defacto complainant sustained lacerated wound (L) ear 5x1 cm pinna avulsed in upper ¾ tenderness (L) shoulder and injury over left pinna. So it cannot be said that it is a simple injury as submitted by the counsel for the petitioners. Further, the injured is aged 65 years and seven persons have gone to his house and attacked him. So, under the circumstances, this court feels that it is not a fit case to invoke the extra ordinary power under Section 438 of the Code of Criminal Procedure to grant pre-arrest bail to the petitioners as it will affect the progress of the investigation. So the petitioners are not entitled to get anticipatory bail and the application is liable to be dismissed.
In the result, the application is dismissed. If the petitioners surrender before the investigating officer for interrogation and if he feels that the petitioners' arrest is required, then record their arrest and produce them before the concerned Magistrate court without delay and on such production, if the petitioners file an application for regular bail, then the learned Magistrate is directed to consider and dispose of the bail application strictly in accordance with law, if possible on the same day itself after hearing the Assistant Public Prosecutor of that court.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl /true copy/ P.S to Judge