Bail Appl. No. 2236 of 2019 (Crime No. 631/2019, Ernakulam Central Police Station, Ernakulam)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY ,THE 04TH DAY OF APRIL 2019 / 14TH CHAITHRA, 1941** ## **Bail Appl..No. 2236 of 2019** ## **CRIME NO. 631/2019 OF Ernakulam Central Police Station , Ernakulam** ## **PETITIONER/S:** |**1**|**K.N.PRABHAKARAN NAIR, AGED 76 YEARS**| |---|---| ||**S/O. K.V.NARAYANA PILLAI,RESIDING AT 30/902,**| ||**MOUNTAIN ROAD, THAIKOODAM, VYTILA, KOCHI-0682 019**| |**2**|**ADV. JOHN P.SEBASTAIN, AGED 59 YEARS**| ||**RESIDING AT CHACKOLAS HABITAT, WILLINGTON ENCLAVE,**| ||**THEVARA, ERNAKULAM-682 013**| |**3**|**THOMAS.J.CHERUKARA, AGED 58 YEARS**| ||**RESIDING AT A7C,WILLINGTON ENCLAVE, THEVARA,**| ||**ERNAKULAM-682 013**| |**4**|**IMA THOMAS, AGED 54 YEARS**| ||**W/O. THOMAS.J.CHERUKARA, RESIDING AT**| ||**A7C,WILLINGTON ENCLAVE, THEVARA, ERNAKULAM-682 013**| ||**BY ADVS.**| ||**SMT.DEEPTHI S.MENON**| ||**SMT.ANUROOPA JAYADEVAN**| ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031**| |**2**|**ADDL.R2 DR.DIANA ALEXANDER.**| ||**HOUSE NO.121, UNNICHIRA, KOCHI-682033.**| **IS IMPLEADED AS PER ORDER DATED 26.3.2019 IN CRL.MA NO.1/2019 IN BA-2236/2019.** ## **OTHER PRESENT:** **SRI.AMJAD ALI, PUBLIC PROSECUTOR FOR R1, DR.DIANA ALEXANDER(PARTY IN PERSON) R2** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ::2:: **Bail Appl.No.2236 of 2019** ## **ALEXANDER THOMAS, J** . ----------------------------- B.A.No.2236 Of 2019 --------------------------------Dated this the 4[th] day of April, 2019. ## **O R D E R** The 4 petitioners herein are the 4 accused (accused Nos.1 to 4) in Crime No.631/2019 of Ernakulam Central Police Station, which has been registered for offences punishable under Secs.354, 294(b) & 506 r/w Sec.34 of the I.P.C. The said crime has been registered on 19.3.2019 on the basis of Anx-1 FI statement furnished by the 2[nd] respondent-lady defacto complainant. The contents of FI statement has given in column No.12 of FIR reads as follows: “ആവലലാതതികലാരതിയുടടെ ഉടെമസ്ഥതയതിലുള്ള വസ്തു സസംബന്ധമലായ വവ്യവഹലാരസം നതിലവതിലതിരതിടക ടെതി വവ്യവഹലാരസസംബന്ധമലായ കകേസതിടന്റെ വതിചലാരണ 20/03/2019 തതീയതതി നടെക്കുന്നതതിനലാൽ ടെതി വവ്യവഹലാരസം ഒത് **ത** ു തീർപതിൽ എതതിക്കുന്നതതിനലായതി 19/03/2019 തതീയതതി 16.00 മണതികക്ക് ഷൺമുഖസം കറലാഡതിലുള്ള കവ കഗേറക്ക് കഹലാട്ടലതിൽ ആവലലാതതികലാരതിടയ വതിളതിച്ചുവരുതതി ടെതി വസ്തു സസംബന്ധമലായ കകേസതിടന്റെ വതിചലാരണ ദതിവസസം കകേലാടെതതിയതിൽ ഹലാജരലാകേലാടത ഇരതികണസം എന്നക്ക് പറയുകേയുസം ആയതതിനു ആവലലാതതികലാരതി വതിസ്സമ്മതസം പ്രകേടെതിപതിച്ചതതിടന തുടെർന്നക്ക് ആവലലാതതികലാരതിടയ ടകേലാല്ലുടമന്നക്ക് ഭതീഷണതിടപടുത്തുകേയുസം ആവലലാതതികലാരതിയുടടെ സതീതത്വടത അപമലാനതികണടമന്ന ഉകദ്ദേശകതലാടുസം കേരുതകലലാടുസം കൂടെതി പ്രതതികേളതിൽ ഒരലാൾ മലാറതിടെതതിൽ കേയറതിപതിടെതിക് **ക** ു യുസം അറപസം ടവറുപസം ഉളവലാക്കുന്ന അസഭവ്യ വലാക് **ക** ു ൾ പറഞ കേലാരവ്യസം.” ## 2. It appears that the lady defacto complainant's father has let out his property at Vyttila in Ernakulam on lease to a ::3:: **Bail Appl.No.2236 of 2019** company of which the 1[st] applicant's son is the Director, for running a restaurant by the said company concerned. It appears that that the lessor had issued notice for determining the lease and there are disputes between the parties as to the rental arrears and the consequential refund of the security deposit that was given by the lessee to the lessor as per the lease agreement. The gist of the allegations in the abovesaid complaint is that on 19.3.2019 the lady defacto complainant was asked by the 1[st] applicant to reach Taj Gateway Hotel, Ernakulam, to sort out the lease arrangement between the parents of the complainant and the son of the 1[st] applicant and the 1[st] applicant in the company of applicants 2 to 4 had reached Taj Coffee Shop and they had discussion for about 3 ½ hours and it is alleged that the applicants asked the defacto complainant to pay Rs.2 Lakhs, which was given as security deposit for the premises which was leased out to the son of the 1[st] applicant and it was further alleged that she was asked not to appear in O.S.No.242/2019, which was filed by her and pending before the civil court concerned, which was posted to 20.3.2019. It is further alleged that the 3[rd] petitioner, with whom the defacto complainant had no connection, has also used abusive words and ::4:: **Bail Appl.No.2236 of 2019** it is further alleged that he snatched her mobile phone from her and hit her breast with his hands and pushed her away and the 2[nd] applicant had also used force on her and used abusive words. The applicants 3 & 4 herein have been described in the FI statement as persons identifiable. It is on the basis of the abovesaid FI statement that the abovesaid crime has been registered as stated hereinabove. Whereas the applicants' have a different version that it was the defacto complainant who had requested them for discussion and the Hotel was arranged as a common venue and the 2[nd] petitioner is the lawyer/Advocate concerned, who had drafted the lease agreement which was executed in 2009 and the 4[th] applicant was requested by the 1[st] applicant to be present as she is a lady so that the discussion between the defacto complainant and the 1[st] applicant could take place in the presence of another lady. That the 3[rd] applicant is the husband of the 4[th] applicant and he had gone there as per the request of the 4[th ] applicant, being family friends of the 1[st] applicant. That the defacto complainant was not at all agreeable to the very suggestion put forward by the 1[st] applicant and that later she was screaming and shouting at the applicants ::5:: **Bail Appl.No.2236 of 2019** and the applicants were forced to leave from the place of discussion and she gone after them and taken photos and the 3[rd] applicant prevented from taking photos and left the place immediately. It is further pointed out that there is specific averments in the FI statement is that “ _this man snatched my phone from my hand and while doing so hit my breast with his hands and pushed away_ ” and that on this basis, it is urged by the applicants that there is no allegations under Sec.354 of the I.P.C and even according to the defacto complainant, the 1[st] applicant has left the place and Anx-8 is the draft note prepared by the defacto complainant regarding the discussion held on 19.3.2019, and it is thereafter, the lady defacto complainant had gone the Central Police Station, Ernakulam and lodged the complaint. 3. When the matter had come up for admission before this Court on 26.3.2019, this Court had made a query to the learned Senior Counsel appearing for the applicants/accused as to whether there is any scope for mediated settlement as it appeared to this Court that the impugned crime has originated on the basis of property dispute between the parties. The learned Senior Counsel submitted that he would pursue his parties to come to the ::6:: **Bail Appl.No.2236 of 2019** mediation table and it is on that basis that this Court had then directed the counsel for the applicants to ensure that formal application is filed to implead the lady defacto complainant in the present proceedings so as to ascertain whether she is willing to undergo the process of mediation through the Mediation Centre attached to this Court. Notice was issued to the 2[nd] respondentlady defacto complainant, who appeared personally before this Court on 2.4.2019 and today (4.4.2019). The 2[nd] respondent stated that she has not appeared through any counsel and she will personally appear and make submissions and sought time to file written submissions and the said written submissions have also been filed. The 2[nd] respondent has stated that she is not in any manner interested for any further discussions or mediatory efforts with the applicants and that they have indulged in violence and they have used abusive words as disclosed in the FI statement, etc. 4. All materials provided by both sides have been perused by this Court in detail. Both sides have been heard in extenso. The learned Prosecutor was also heard. As regards the lady defacto complainant's submission before this Court that the alleged incidents are captured in the CCTV visuals maintained in the Hotel (which is ::7:: **Bail Appl.No.2236 of 2019** a Four Star Hotel), the learned Prosecutor submitted that steps in that regard will have to be duly completed by the Police for retrieval of such materials, etc. 5. After hearing all the parties concerned, this Court is inclined to direct that the accused should immediately surrender before the Investigating Officer for interrogation purposes and thereafter if they are arrested, then they should be released on bail but subject to stringent conditions and also to ensure that they do not in any manner intimidate or influence the lady defacto complainant or other witnesses in this case, etc. 6. The learned Senior Counsel appearing for the applicants would submit that the 1[st] applicant is a NRI businessman, who is conducting his business in Sharjah and he has come down to India mainly to negotiate with the lady defacto complainant as his son found it difficult to have effective negotiation with her, etc., and that this Court may pass necessary directions to ensure that the request of the 1[st] petitioner to travel abroad could be considered by the Investigating Officer concerned. 7. After having heard both sides, the following orders and directions are passed: ::8:: **Bail Appl.No.2236 of 2019** _(i) The applicants will personally appear before the Investigating officer in relation to Crime No.631/2019 of Central Police Station, Ernakulam for interrogation purposes, without any further delay. Since there are 4 applicants, it may not be possible for the Investigating Officer to complete the interrogation of all the 4 applicants on the same day. If he finds it difficult in having interrogation of all the 4 applicants on the same day, the interrogation may be done on different days. In that regard if the applicants depute an authorised representative/counsel before the Investigating Officer, who will immediately inform as to the day and time on which each of the applicants should appear before him for interrogation purposes. The said process should be endeavoured to be completed by the Investigating Officer without much delay, preferably within period of 10 days to 2 weeks from the date notified for receiving a certified copy of this order._ _(ii) Accordingly, the applicants will fully co-operate with the Investigating Officer in the interrogation process. After completing the interrogation process of each of the applicants, in case the Investigating Officer arrest them, then they shall be released on bail on their separately executing bonds for Rs.50,000/(Rupees Fifty Thousand only) each and on their separately furnishing 2 solvent sureties for the like sum each to the satisfaction of the Investigating Officer. In that eventuality the Investigating Officer shall release the applicants on the following conditions:_ - _(i) The applicants shall not involve in any criminal offences of similar nature._ - _(ii) The applicants shall fully co-operate with the investigation._ - _(iii) The applicants shall report before the Investigating Officer as and when required in that connection._ - _(iv) The applicants shall not influence witnesses or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ _(iii) The applicants shall not intimidate the defacto complainant and her family members or any other witnesses including the staff of the Hotel in which the alleged incidents have taken place. The applicants shall not in any manner go near or visit the residence of the lady defacto complainant or her family members until the conclusion of the trial. However, to leave open a window of opportunity to both sides for any negotiated settlement, it is ordered that if any of the parties are so inclined it will be open to them to move either the civil court where the civil suit is pending or the present criminal court for seeking permission for mediatory efforts and if both sides are agreeable, then the court concerned may refer the parties for mediation except in that_ ::9:: **Bail Appl.No.2236 of 2019** _eventuality the applicants shall not in any manner visit or go nearby the residence/workplace of the defacto complainant and her family members, etc._ _(iv) The Investigating Officer will depute a Police Constable, preferably a Woman Police Constable, once in a week for three months at the residence of the lady defacto complainant and her family members to ascertain whether they are in any manner subjected to threat or intimidation by the accused persons or anyone under them, etc., and if any concrete objective materials are so disclosed, it is for the Investigating Officer concerned to deal with such situation in accordance with law. If the 2[nd] respondent lady defacto complainant wants any special Police Aid, it will be open to her to make such request before the City Police Commissioner, Kochi, who will deal with the said request in accordance with law._ _(v) If any of the applicants including the 1[st] applicant want to travel abroad, they can do so only after getting permission from the learned jurisdictional Magistrate Court, who is dealing with the present crime No.631/2019 and in such eventuality, it is for the applicants to make such applications in that regard, upon which the learned Magistrate concerned will ascertain the views of the Investigating Officer through the Prosecutor concerned and then after hearing the learned counsel for the applicants concerned and the Prosecutor appearing for the State will consider such request and then pass appropriate orders in the light of the well settled legal principles laid down by this Court in_ _**Asok Kumar v. State of Kerala** , reported in 2009 (2) KLT 712,_ _**Mohammed Rafeek v. Union of India,** . reported in 2011(3) KLT 117, etc._ If there is any violation of the abovesaid conditions by the petitioner, then the jurisdictional court concerned stand hereby empowered, to consider the plea for cancellation of bail at the appropriate time. With these observations and directions, the above Bail Application stands allowed. **Sd/ALEXANDER THOMAS, Judge.** bkn/-