The petitioner, who is the first accused in Crime No.144 of 2009 of Balaramapuram Police Station, has filed this application seeking anticipatory bail under S.438 of the Code of Criminal Procedure. The offences alleged against the petitioner and the other accused persons are under Ss.341, 324, 326 and 307 read with S.34 of the Indian Penal Code.

2. The prosecution case is that on 24.3.2009 at about 7.30 p.m., while the de facto complainant was returning from the ration shop, the accused persons attacked him with a chopper and iron rod. The de facto complainant sustained injuries. He was admitted in the hospital. The treatment certificate shows that the de facto complainant sustained open fracture on the right patella and other injuries. The de facto complainant was subjected to a surgery. He was discharged from the hospital on 3.4.2009.

3. Learned counsel for the petitioner submitted that S.326 of the Indian Penal Code would not be attracted, even if all the allegations levelled against the accused are found to be true. The counsel submitted that at best, those allegations would attract S.325 of the Indian Penal Code, which is a bailable offence. It is also submitted that, in the facts and circumstances of the case, S.307 is also not attracted.

4. Though normally it is not necessary to arrive at a finding on the merits of the case, while disposing of an application for bail or an application for anticipatory bail. I have no other option but to arrive at a finding on the contentions raised by the petitioner, since the learned counsel for the petitioner persistently contended that the offence under S.326 would not be attracted on the facts alleged and that only a bailable offence under S.325 would be attracted.

5. For the sake of convenience, S.326 of the Indian Penal Code is extracted below:

"326. Voluntarily causing grievous hurt by dangerous weapons or means:-Whoever, except in the case provided for by S.335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

The contention of the counsel for the petitioner is that to attract S.326, not only that grievous hurt should be caused and a weapon of the kind mentioned in the section is used, but the injuries sustained by the victim should be such that those injuries are likely to cause death. He submitted that the expression "is likely to cause death" occurring in S.326 relates to the grievous hurt and the injuries sustained by the victim and not to the weapon, namely, instrument for shooting, stabbing or cutting or other instrument mentioned in the section. In other words, according to the counsel, even if a weapon of the kind mentioned in S.326 is used for committing an offence and thereby grievous hurt is caused, to attract S.326, the injuries caused should be such as is likely to cause death. I am not inclined to accept this contention. The fallacy of the contention raised by the petitioner would be clear from a reading of S.324 of the Indian Penal Code. S.324 reads as follows:

"324. Voluntarily causing hurt by dangerous weapons or means:- Whoever, except in the case provided for by S.334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of