The court emphasized the need for thorough evaluation of serious accusations and the discretion involved in pre-arrest bail applications based on prima facie evidence.

ORDER

Apprehending arrest in connection with Crime No.707 of 2021 of Kilikolloor police station registered for the offences punishable under Sections 143 , 146, 147, 148, 341, 323, 324, 308 and 149 of the IPC , the petitioners have preferred this application under Section 438 of the Code of Criminal Procedure .

2. The case as revealed from the prosecution records is that on

18.7.2021 at about 10 pm while the defacto complainant and his friends were proceeding in their bike to the house of a relative , the accused intercepted the vehicle and wrongfully confined them after forming an unlawful assembly armed with deadly weapons and attacked them with the intention to commit culpable homicide not amounting to murder and thereby caused fatal injuries to him including fracture. His friends also sustained injuries in the attack by them.Thereby the accused have committed the aforesaid offences.

3. Smt.Priya Shanavas, the learned counsel appearing for the petitioners submitted that they are absolutely innocent and the allegation that they have attacked the defacto complainant and his friends with deadly weapons with the intention to commit culpable homicide not amounting to murder are absolutely false and baseless. In fact, the defacto complainant and his men have trespassed into the residential house of the sister of the 1st petitioner/1st accused and attacked her and outraged her modesty. They have not even spared her minor child. For the illegal activities committed by them Crime No.706 of 2021 was registered by the very same police and in order to save them from that case, they were falsely implicated in this case. In fact no offence as alleged against them have been committed by them .It is also pointed out that the essential ingredients to attract an offence under Sec.308 has not been made out in this case.

4. On the other hand, the learned Public Prosecutor produced the wound certificate of the defacto complainant and his friends who sustained injuries in the attack by these petitioners. According to the learned Public Prosecutor specific overtact is there against all these petitioners as they have together attacked the defacto complainant and his friends with deadly weapons such as sword, iron rod and chopper and the weapons used by them to cause injuries have to be recovered.

5. Heard the rival contentions raised by both sides.

6. The alleged incident was at about 10.00 p.m and the place of occurrence is also the public road. The allegation raised against this petitioner is that they have intercepted the motor cycle driven by the defacto and his friends and attacked them with deadly weapons such as sword, iron rod and chopper . The definite allegation is that they have voluntarily caused hurt to them after wrongfully restraining them. The wound certificate available on record would indicate that the Al-Ameen the friend of the defacto complainant had sustained grievous injuries though the other two had sustained only minor injuries. The CT scan of brain and facial bone inter alia indicates that he had sustained the following injuries:

1) minimally displaced fracture involving right nasal process of maxilla.

2) minimally displaced fracture involving the floor and medial wall of right orbit.

3) Mucosal thickening is noted in right maxillary sinus.

He was suggested follow up treatment also.

7. So prima facie it appears that Al-Ameen the friend of the defecto complainant had sustained fatal injuries in the attack by the petitioners. According to the learned counsel for the petitioners as no injury has been sustained to the vital part of his body, no offence under Section 308 IPC is attracted in this case. Whether the elements to attract an offence under IPC is there or not is a matter to be decided at the time of trial. Since the application is one for pre- arrest bail alone, the question to be looked into is whether there is a prima facie case and whether the petitioners are entitled for pre- arrest bail as prayed for. The CT Scan repo