ANIBEN Vs. KRISHNANKUTTY

JUDGEMENT

(1.) Petition under Sections 439(2) and 482 of the Code of Criminal procedure. Petitioners are the injured in Crime No. 487 of 2011 of the Putheneruz Police Station for offences under Sections 143, 147, 148, 324, 308 and 427 r/w Section 149 of the Indian Penal Code. They would seek an order to quash Annexure H order whereby the First Additional Sessions Judge, Ernakulam, in Crl. M.C. No. 2093 of 2011, granted pre-arrest bail to respondents 1 to 4 who are accused 1 and 3 to 5 in the above case. The plea of the petitioners is that despite the serious nature of the crime including attempt to commit culpable homicide and without considering the objection raised by the prosecution, the Additional Sessions Judge granted pre-arrest bail. Going by the First Information Statement contained in Annexure-A, I find that the allegation against the accused are that at about 10.30 p.m. on 14.1.2011, the accused formed themselves into an unlawful assembly and being members of unlawful assembly, they were armed with deadly weapons like iron rod, pick axe etc., committed rioting and assaulted the petitioners by beating with iron road and hacking with pick axe at head and neck in furtherance of the common object of the unlawful assembly and attempted to commit culpable homicide and in that attempt the petitioners sustained grievous hurt. The accused also committed mischief against a car by damaging it. Going by the First Information Statement, I find there are very serious allegations against respondents 1 to 4. Annexure D, the certificate of the Neuro Surgeon would show that the 3rd petitioner, who is aged 76 years, sustained left parietal and interhemispheric traumatic subarachnoid hemorrhage which is an injury of grievous nature.

(2.) Going by Annexure H order, I find that the Sessions Judge had not at all considered the serious nature of the offence alleged. Even the objection raised by the prosecution was not considered. Neither the antecedents of the accused nor the chance of they fleeing from justice was considered. For a correct appraisal, I find that it would be relevant to read Section 438 of the Code of Criminal Procedure, which is extracted below:

(3.) The apex Court in Kalyan Chandra Sarkar v. Rajesh Ranjan, 2004 7 SCC 528at Para 11, has held as follows: