ORDER :

1. Application for anticipatory bail.

2. The petitioners are the 1st and 2nd accused in Crime No. 354 of 2022 of Neyyar Dam Police Station alleging offences punishable under Sections 55(a), 55D, 58 & 56(b) of the Abkari Act.

3. The prosecution allegation is that the accused having some vengeance towards the de-facto complainant, with an intention to cause bodily harm to the de-facto complainant, on 18.06.2022 at about 05.45 PM, the 1st accused telephoned the de-facto complainant and asked him to come near Kottoor telephone exchange and the 2nd accused gave a hit on the right-hand side of the hip from the back of the de-facto complainant who was urinating in the public place, threatening him by asking whether the de- facto complainant would repeat the same. At that point the 1st accused using the tail of the knife caused swelling and black spot in the left eye of the de-facto complainant and the de-facto complainant's right hand palm was injured when he tried to defend the attack of the 1st accused. The de-facto complainant also fell down causing bleeding in his nose and when the people who watched the incident when tried to keep away the accused, the 1st accused hit at the de-facto complainant's mouth with his wrist and the de-facto complainant was also hit on his right cheeks when the de-facto complainant's brother questioned the act of the accused by saying that they will do it again.

4. After registration of FIR the accused had moved a bail application before the Judicial Magistrate of the First Class at Kattakada for bail and the bail was granted to the accused. Subsequently, the police filed a petition under Section 437(5) of the Criminal Procedure Code for cancellation of the bail granted to the accused. The contentions of the police was that originally the crime was registered under section 323, 324 r/w 34 of the Indian penal Code. Subsequently, an offence under Section 326 was added pursuant to an additional statement given by the informant subsequent to the order of the court below allowing bail to the accused. Further, it was contended that for the purpose of investigation it is necessary to get a police custody since recovery of the weapon is pending. After hearing the petition and objection, the court below cancelled the bail granted to the accused by virtue of order dated 01.07.2022. It is submitted that the petitioner has not been arrested yet and the petitioner apprehends arrest any time.

5. It is also submitted that the injuries caused are not serious in nature and does not attract any offence punishable under Section 326. Additional offence is appended only to harass the petitioners herein. All the weapons can be recovered avoiding an arrest and investigation can be carried out with full cooperation of the accused.

6. In fact, the de-facto complainant itself is a habitual offender involved in several crimes and he has criminal antecedents. The petitioners would co operate with the investigation and further custodial interrogation is unnecessary.

7. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

8. Learned public prosecutor opposed the application for bail mainly contending that earlier only bailable offences were charged and therefore the petitioner was released on bail as per Annexure 3 order and later on investigation, non bailable offences were added. Learned Public Prosecutor further submitted that the weapon used in the alleged crime is to be recovered and therefore custodial interrogation of the petitioners is necessary and that if the petitioners are released, there is every chance to threaten the witnesses.

9. Learned Amicus curiae, Adv. M.T. Suresh would submit that going by the various decisions of the Apex Court including Bharat Chowdhary v. State of Bihar, (2003) 8 SCC 77, Section 438 CrPC should be read and interpreted in the light of Article 21 of the Constitution of India and the court has the necessary power to grant anticipatory bail in non- bailable offence