BA.4563 & 4834 of 2023

BA.4563 & 4834 of 2023 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. ``` ``` TUESDAY, THE 14[TH] DAY OF NOVEMBER 2023 / 23RD KARTHIKA, 1945 BAIL APPL. NO. 4563 OF 2023 ``` ``` CRIME NO.659/2023 OF ADOOR POLICE STATION, PATHANAMTHITTA ``` ## **`PETITIONERS/ACCUSED 2 AND 5:`** ``` 1R. SHANMUGHAN, AGED 57 YEARS S/O RAGHAVAN,SHANMUGHAS" KADMBANAD NORTH P.O, ADOOR TALUK, PATHANMATHITTA, PIN - 691552 2T.N. GOPALAKRISHNAN, AGED 68 YEARS S/O NARAYANA NAIR,PRAVATHEKKATHIL VEETTIL, PERINGANAD VILLAGE, THEKKUMMURI, PERINGANAND, ADOOR TALUK, PATHANMATHITTA, PIN - 691551 BY ADVS. V.JOHN SEBASTIAN RALPH VISHNU CHANDRAN RALPH RETI JOHN APPU BABU SHIFNA MUHAMMED SHUKKUR GIRIDHAR KRISHNA KUMAR VISHNUMAYA M.B. GEETHU T.A. APOORVA RAMKUMAR ``` ## **`RESPONDENTS/STATE & DE FACTO COMPLAINANT:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031 ``` BA.4563 & 4834 of 2023 2 ``` 2STATION HOUSE OFFICER, ADOOR POLICE STATION, ADOOR, PATHANAMTHITTA, PIN - 691523 ``` ``` 3SAJEEV R, S/O RASAVKUTTY RAWTHER, PARAVILLA THEKATHIL, PAYANALLUR P.O., AADHIKATUKULANGARA, PALAMEL VILLAGE, KAYAMKULAM, ALAPPUZHA- 690523, IMPLEADED AS ADDL. R3 AS PER ORDER DTD 23/8/2023 IN CRL. M.A 2/2023) ``` ``` BY PUBLIC PROSECUTOR SRI.P.G.MANU(MAMMALASSERY) P.V.ANOOP PHIJO PRADEESH PHILIP A.MUJEEB REHUMAN BIJITHA B. BOSE ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 9.11.2023, ALONG WITH Bail Appl..4834/2023, THE COURT ON 14.11.2023 DELIVERED THE FOLLOWING: ``` BA.4563 & 4834 of 2023 3 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. ``` ``` TUESDAY, THE 14[TH] DAY OF NOVEMBER 2023 / 23RD KARTHIKA, 1945 BAIL APPL. NO. 4834 OF 2023 ``` ``` CRIME NO.659/2023 OF ADOOR POLICE STATION, PATHANAMTHITTA PETITIONERS/ACCUSED 3 AND 54 ``` ``` 1SHAMSUDHEEN, AGED 53 YEARS S/O RASAVUKUTTY RAVUTHAR, KALLUVILLATHEKKEL, PAYYANELLOR MURI, PALAMEL VILLAGE, MAVELIKARA, ALAPPUZHA, PIN - 690504 2SUKU, AGED 51 YEARS S/O. KUTTAPPAN, SHALU BHAVAN, PANAYIL MURI, PALEMEL VILLAGE, MAVELIKARA, ALAPPUZHA, PIN - 690504 BY ADVS. V.JOHN SEBASTIAN RALPH VISHNU CHANDRAN SHIFNA MUHAMMED SHUKKUR VISHNUMAYA M.B. APOORVA RAMKUMAR RALPH RETI JOHN APPU BABU GIRIDHAR KRISHNA KUMAR GEETHU T.A. ``` ## **`RESPONDENTS/STATE & DE FACTO COMPLAINANT:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2STATION HOUSE OFFICER, ``` BA.4563 & 4834 of 2023 4 ``` ADOOR POLICE STATION, ADOOR, PATHANAMTHITTA, PIN - 691523 3SAJEEV R, S/O. RASAVKUTTY RAWTHER, PARAVILLA THEKATHIL, PAYANALLUR P.O., AADHIKATUKULANGARA, PALAMEL VILLAGE, KAYAMKULAM, ALAPPUZHA (IMPLEADED AS ADDL. R3 AS PER ORDER DTD 23/8/2023 IN CRL. M.A 2/2023) BY ADVS. BY PUBLIC PROSECUTOR SRI.P.G.MANU(MAMMALASSERY) V.JOHN SEBASTIAN RALPH ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.11.2023, ALONG WITH Bail Appl..4563/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` BA.4563 & 4834 of 2023 5 ## **MOHAMMED NIAS C.P., J** **............................................................** ## **B.A.Nos.4563 and 4834 of 2023** ............................................................. Dated this the 14[th] day of November, 2023 ## **O R D E R** These applications are filed by the petitioners under Section 438 of the Code of Criminal Procedure, 1973, seeking pre-arrest bail. 2. B.A.No. 4834/2023 is filed by accused Nos.3 and 4 and B.A.No.4563/2023 is filed by accused Nos.2 and 5 in crime No.659/2023 of Adoor police station, Pathanamthitta. The offences alleged are under Sections 416, 418, 420, 463, 464, 465, 466, 468, 470, 471 r/w 34 of the Indian Penal Code. 3. In B.A.No.4563/2023, the petitioners, a lawyer and his clerk, are being unnecessarily dragged into a criminal prosecution in a dispute between siblings in connection with their business-related financial matters. The first petitioner has been a practising lawyer in Pathanamthitta for the past three decades and the second petitioner is his clerk who is arrayed as the fifth accused. The crime was registered based on a private complaint lodged by the de facto complainant that was forwarded to police for investigation by the Judicial First Class Magistrate Court-I, Adoor. The crux of the allegation is that the complainant is the registered owner of a tipper lorry bearing number BA.4563 & 4834 of 2023 6 KL-62-8790, which was involved in a case alleging illegal sand transportation. The said vehicle was kept in the premises of Adoor police station and the same was released to the first accused in the present crime, without the knowledge of the complainant, who according to the complainant, is an unknown person. 4. In BA 4834/2023, the first petitioner is the brother of the de facto complainant and the instant case is a criminal prosecution in a dispute between the siblings in connection with their business-related financial matters. According to the petitioners in BA 4834/2023, it is the de facto complainant who himself came to the court on 30.6.2022 and took the release of the vehicle with the third accused and the second accused as the sureties and the Magistrate and the staff of the court have verified the identity cards of all the concerned and only after that the vehicle is released to the de facto complainant. The vehicle is still in the custody of the de facto complainant and the same is driven by the fifth accused who is an employee of the de facto complainant. Later there arose a dispute between the siblings in connection with the business affairs. 5. The learned counsel for the petitioners argued that the very complaint itself is nothing but an offshoot of a sibling rivalry and that a Senior Lawyer and his clerk are unnecessarily roped in. He submits that the complaint was filed nearly one year after the alleged incident itself shows that the same was filed without any bonafides. BA.4563 & 4834 of 2023 7 6. The learned Prosecutor and the learned counsel for the defacto complainant opposed the grant of anticipatory bail. 7. The learned counsel for the de facto complainant submitted that he came to know that his vehicle was seized by the police and later released to the first petitioner only on 20.7.2022 and therefore the delay has been satisfactorily explained. 8. Having heard the rival submissions, I notice that the de facto complainant alleged that he knew about the seizure of the vehicle by the police and released to the first petitioner only on 20.7.2022 and further alleges that it was without his knowledge that the vehicle was released under Section 457 of the Cr.P.C. on 30.6.2022. In this case, it is to be noticed that the vehicle in question was seized on 30.5.2022 and the de facto complainant himself had filed CMP No.1106/2022 on 31.5.2022 before the Judicial First Class Magistrate Court, Adoor, under Section 457 Cr.P.C. for release of the vehicle. The said application was not pressed and dismissed as withdrawn on 06.06.2022, clearly proving, that the allegation that he came to know about the seizure of the vehicle only on 20.7.2022 is wrong and misleading. It is also to be noticed that the present complaint was filed only on 27.4.2023. The certified copy of the petition in Crl. M.P.No.1106/2022 has been produced by the petitioner as Annexure-A4, the certified copy of the documents filed along with the said CMP is produced as Annexure-A5, the certified copy of the vakalath of the de facto complainant executed on 31.5.2022 is produced as Annexure-A6, the certified copy of the memo withdrawing the application BA.4563 & 4834 of 2023 8 dated 6.6.2022 is produced as Annexure-A7 and the true copy of the extract from CMP Register maintained by the Judicial First Class Magistrate Court, Adoor dated 31.5.2022 is produced as Annexure-A8. Under such circumstances, it is crystal clear that the allegations now made, that he came to know about the seizure and release only later, cannot be countenanced at all. I also find substantial force in the contention of the learned counsel for the petitioners that the complaint is maliciously instituted and a lawyer and his clerk have been unnecessarily dragged in. It is also to be seen that there is a presumption in favour of the acts committed in the exercise of the judicial or statutory powers and, going by Annexures-A4 to A8, I have no doubt in my mind that the complaint is filed without any bonafides. Under such circumstances, I do not think that the custodial interrogation is required and I am inclined to grant anticipatory bail. Accordingly, the bail applications are allowed on the following conditions:- - i. The petitioners are directed to surrender before the Investigating Officer within a week from today, and on such surrender, the Investigating Officer can interrogate the petitioners. In the event of his arrest, the Investigating officer shall produce the petitioners before the jurisdictional court on the date of surrender itself. - ii. On such production, the jurisdictional court shall release the petitioners on bail, on executing a separate bond for Rs.25,000/- (Rupees twenty-five thousand only) each by the petitioners and by two solvent sureties each for the like sum to the satisfaction of the jurisdictional court. BA.4563 & 4834 of 2023 9 - iii.The petitioners shall cooperate with the investigation and shall appear as and when the Investigating Officer directs them to do so. - iv. The petitioners shall not intimidate the witnesses or interfere with the Investigation in any manner. - v. The petitioners shall not be involved in any offence while on bail. - vi. If any of the above conditions are violated, the court concerned will be empowered to take steps for cancellation of bail as per law. Sd/- ## **MOHAMMED NIAS C.P.** **JUDGE** okb/ BA.4563 & 4834 of 2023 10 ## **`APPENDIX OF BAIL APPL. 4834/2023`** |`PETITIONER ANNEXURES`|| |---|---| |`Annexure1`|`TRUE COPY OF THE COMPLAINANT AND THE FIR IN`| ||`CRIME NO. 659/2023 OF ADOOR POLICE STATION`| |`Annexure2`|`THE TRUE COPY OF THE BOND FOR RELEASE OF THE`| ||`VEHICLE DATED 30.06.2022`| |`Annexure3`|`TRUE COPY OF THE COMPLAINT SUBMITTED BY THE`| ||`DEFACTO COMPLAINANT HEREIN ON 30.08.2022 TO`| ||`THE CHIEF MINSTER OF KERALA`| |`Annexure A4`|`TRUE COPY OF THE PETITION IN CMP NO.`| ||`1106/2022 ON THE FILES OF JUDICIAL FIRST`| ||`CLASS MAGISTRATE COURT, ADOOR`| |`Annexure A5`|`TRUE COPY OF THE DOCUMENTS FILED ALONG WITH`| ||`THE CMP (REGISTRATION AND INSURANCE`| ||`PARTICULARS`| |`Annexure A6`|`TRUE COPY OF THE VAKALATH OF SAJEEV,`| ||`EXECUTED ON 31.05.2022`| |`Annexure A7`|`TRUE COPY OF THE MEMO DATED 06.06.2022 FILED`| ||`TO WITHDRAW THE CMP`| |`Annexure A8`|`TRUE COPY OF THE EXTRACT FROM THE CMP`| ||`REGISTER OF JUDICIAL FIRST CLASS MAGISTRATE`| ||`COURT, ADOOR, DATED 31.05.2022`| BA.4563 & 4834 of 2023 11 ## **`APPENDIX OF BAIL APPL. 4563/2023`** |`PETITIONER ANNEXURES`|| |---|---| |`Annexure 1`|`TRUE COPY OF THE COMPLAINANT AND THE FIR`| ||`REGISTERED ON THE BASIS OF THE SAME`| |`Annexure2`|`THE CERTIFIED COPY OF THE BOND FOR RELEASE`| ||`OF THE VEHICLE`| |`Annexure3`|`A TRUE COPY OF THE COMPLAINT SUBMITTED BY`| ||`THE DEFACTO COMPLAINANT HEREIN ON 30.08.2022`| ||`TO THE CHIEF MINSTER OF KERALA`| |`Annexure A4`|`CERTIFIED COPY OF THE PETITION IN CRL M.P.`| ||`NO. 1106/2022 ON THE FILES OF JUDICIAL FIRST`| ||`CLASS MAGISTRATE COURT, ADOOR`| |`Annexure A5`|`CERTIFIED COPY OF THE DOCUMENTS FILED ALONG`| ||`WITH THE CMP (REGISTRATION AND INSURANCE`| ||`PARTICULARS)`| |`Annexure A6`|`CERTIFIED COPY OF THE VAKALATH OF SAJEEV,`| ||`EXECUTED ON 31.05.2022`| |`Annexure A7`|`CERTIFIED COPY OF THE MEMO DATED 06.06.2022`| ||`FILED TO WITHDRAW THE CMP`| |`Annexure A8`|`TRUE COPY OF THE EXTRACT FROM THE CMP`| ||`REGISTER OF JUDICIAL FIRST CLASS MAGISTRATE`| ||`COURT, ADOOR, DATED 31.05.2022`|