BAIL APPL No. 6413 of 2008 · Kerala High Court

K. HEMA, J.--------------------------------------------------- Bail Appl. No. 6413 of 2008 ---------------------------------------------------Dated this the 28th day of October, 2008. ORDER Petition for anticipatory bail.

The alleged offences are under Sections 353, 354, 323and 34 of IPC. According to prosecution, de facto complainant, who is the Unit-in-Charge of Thriveni Super Market, was returning after the inaugural function of the Thriveni Super Market. He was proceeding to his office while the jeep in which he was travelling met with an accident. The vehicle, which was driven by the 2nd accused, hit against the jeep and there was an altercation and de factocomplainant was assaulted. One of the officials, who was a lady, was pulled out of the jeep by her hand. De facto complainant sustained injury and a crime was registered on the basis of a complaint made by the de facto complainant. Investigation is being conducted into the offences under Sections 354, 323, 353 and 34 of IPC.

Learned counsel for petitioners (A2 to A5) submitted that the only offence which is non-bailable in this case is offence under section 353 IPC. But the said offence will not be attracted in this case, since de facto complainant cannot be said to be a public servant, as contemplated by section 353 IPC. He is only an employee of Consumerfed, which is a co-operative department and it is not agovernment department. It is also submitted that there was no intention to deter any public servant from discharging his official duties, but there was only a motor accident and thereafter there was an altercation between petitioners and de facto complainant and [B.A.No.6413/08]2others because of the incident. The intention is not to deter any public servant from discharging his official duties as required under Section 353 IPC.

This petition is opposed. Learned Public Prosecutorsubmitted that de facto complainant is the Unit-in -Charge of Triveni Super Market and he is a public servant. It is also submitted that the de facto complainant cannot take charge of his office on time because of the petitioners' act. He was also assaulted and he sustained abrasion and offence under Section323 of IPC is also included. A lady employee was also present in the vehicle and offence under Section 354 IPC was also committed. Therefore, it is not a fit case to grant anticipatory bail, it is submitted.

On hearing both sides, it appears that petitioner has an arguable case regarding offence under Section 353 IPC.Therefore, for the purpose of bail, the court concerned or the police will consider the offence involved as one not under Section353 IPC. But I am satisfied that on the facts of this case, it is not afit case to grant anticipatory bail. The incident happened on10.7.2008 and petitioners are not available for interrogation and investigation. Hence, petitioners are directed to surrender before the investigating officer or the Magistrate court concerned within seven days from today and co-operate with the investigation. With this observation and direction, this petition isdismissed.K. HEMA, JUDGE.Krs.