High Court of KeralaSingle Judge2023-12-07Anticipatory bail granted to all petitioners su...

Bail Applications in Crime No. 326/2022, Kollengode Police Station, Palakkad: Hamsa; Musthafa; Asiya; Saidalavi; Jameela v. State of Kerala

Case / Petition Number:BA Nos. 3813/2023; 5992/2023; 6819/2023 (connected to Crime No. 326/2022, Kollengode PS, Palakkad)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Mohammed Nias C.P.
Judgment Date: 2023-12-07
Court Decision / Holding: Anticipatory bail granted to the petitioners with conditions: surrender before IO within a week; production of bonds Rs. 25,000 with two solvent sureties; cooperation with investigation; no witness intimidation; no commission of any offence while on bail; no travel abroad without court permission. The court also clarifies that police may investigate and recover information even while petitioners are on bail, citing the Apex Court's decision in Sushila Aggarwal and others v. State (NCT of Delhi) and another. Bench: Single Judge (Mohammed Nias C.P.). Final disposition: Bail granted subject to stated conditions.
Final Disposition: Anticipatory bail granted to all petitioners subject to conditions; police may investigate as required under bail.

Parties to the Case

Appellants / Petitioners

Hamsa
Musthafa
Asiya
Saidalavi
Jameela

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam
Station House Officer, Kollengode Police Station, Kollengode, Palakkad
Abdul Basheer, S/O Mathari Chekku, Parambath House, Thirurangadi, Mooniyur Post, Malappuram

Legal Representation & Advocates

Counsels for Petitioners

• Praveen K. Joy
• E.S. Saneej
• M.P. Unnikrishnan
• N. Abhilash
• Deepu Rajagopal
• Ardra Anil
• Anupama Nair
• Abisha E.R
• Albin Varghese
• Fathima Shalu S.
• Anupama Nair

Counsels for Respondents

• Suseel M. Menon
• M.C. Ashi
• T.V. Neema (SR PP)

Case Synopsis & Summary

These bail petitions arise from Crime No. 326/2022 of Kollengode Police Station (Palakkad), registered for offences including sections 406, 417, 418, 419, 420, 423, 424, 463, 464, 465, 468, 470, 471, 474, 484 and 120B read with section 34 IPC. The petitioners — Hamsa (BA 3813/2023), Musthafa (BA 5992/2023), and Asiya, Saidalavi and Jameela (BA 6819/2023) — seek anticipatory bail in the wake of allegations that they conspired to alienate the defacto complainant’s property through a forged power of attorney and sale deed. The civil suit OS No. 121/2021 before the Sub Court, Palakkad, concerns the same property; the alleged power of attorney was executed on 08.10.2006, coinciding with the complainant’s passport renewal at the Jeddah Consulate, and the sale deed was executed in 2012. Petitioners argue that the sale proceeds were paid to the complainant and reflected in tax returns, and that the civil dispute has been pending for years; they contend custodial interrogation is unnecessary given the long gap and ongoing civil litigation. Prosecution counters that forgery is involved and that custodial interrogation is required for a thorough investigation. The court, after considering rival submissions, grants anticipatory bail to all petitioners subject to conditions (surrender within a week, bonds and sureties, cooperation, no witness intimidation, no leaving India, etc.) and clarifies police power to investigate even on bail per a cited Apex Court principle. The decision balances investigation need with liberty, and orders compliance with bail conditions.

Provisions of Law Cited

IPC 406IPC 417IPC 418IPC 419IPC 420IPC 423IPC 424IPC 463IPC 464IPC 465IPC 468IPC 470IPC 471IPC 474IPC 484IPC 120B r/w 34 IPC

Legal Doctrines & Maxims

Sushila Aggarwal and others v. State (NCT of Delhi) and another, 2021 (1) KHC 663 — principle that police may investigate even when the accused is on bail
Anticipatory bail doctrine

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submit that (i) a civil suit OS No. 121/2021 is already pending in the Palakkad Sub Court over the same property; (ii) the power of attorney was executed on 08.10.2006 when the complainant’s passport was renewed in Jeddah, and the sale deed was executed in 2012; (iii) the sale consideration was paid to the complainant and reflected in tax returns; (iv) the forgery occurred long ago, and the civil dispute is ongoing; (v) custodial interrogation is not necessary in view of the civil proceedings and the elapsed time. Respondents contend that forgery is alleged, a fake power of attorney was produced, and detailed investigation, including custodial interrogation, is required to uncover truth and prevent interference with witnesses.

Contentions of Respondents

The prosecution argues there is forgery and that custodial interrogation may be needed for a full investigation. It emphasizes the potential for witness interference and the necessity of investigating forged documents, including the power of attorney and fingerprint discrepancies.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sushila Aggarwal and others v. State (NCT of Delhi) and another	2021 (1) KHC 663	Positive	Cited to justify police power to continue investigation even when the accused is on bail, aligning with the court’s reasoning.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. THURSDAY, THE 7[TH] DAY OF DECEMBER 2023 / 16TH AGRAHAYANA, 1945 BAIL APPL. NO. 3813 OF 2023** **CRIME NO.326/2022 OF KOLLENGODE POLICE STATION, PALAKKAD** ## **PETITIONER/ACCUSED:** HAMSA, AGED 60 YEARS S/O MATHARI CHEKKU HAJI, MATHARI HOUSE, ALINCHUVADU, MOONNIYUR POST, ALAPPURAM DISTRICT, PIN - 676311 BY ADVS. PRAVEEN K. JOY E.S.SANEEJ T.A.JOY M.P.UNNIKRISHNAN N.ABHILASH DEEPU RAJAGOPAL ARDRA ANIL ABISHA.E.R ALBIN VARGHESE FATHIMA SHALU S. ANUPAMA NAIR ## **RESPONDENT/COMPLAINANT & STATE:** 1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 STATION HOUSE OFFICER, KOLLENGODE POLICE STATION, KOLLENGODE, PALAKKAD, PIN - 678506 *3 ABDUL BASHEER, S/O MATHARI CHEKKU, PARAMBATH HOUSE, -2- BA Nos.5745, 8646, 9195 & 9735 of 2023 THIRURANGADI, MOONIYUR POST, MALAPURAM - 676311 ( IS IMPLEADED AS ADDL.R3 AS PER ORDER IN 24.05.2023 INCRL.M.A1/2023) BY ADVS. SUSEEL M.MENON SRI.M.C.ASHI, PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.12.2023, ALONG WITH Bail Appl..5992/2023, 6819/2023, THE COURT ON 7.12.2023 DELIVERED THE FOLLOWING: -3- BA Nos.5745, 8646, 9195 & 9735 of 2023 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **THURSDAY, THE 7[TH] DAY OF DECEMBER 2023 / 16TH AGRAHAYANA, 1945 BAIL APPL. NO. 5992 OF 2023** **CRIME NO.326/2022 OF KOLLENGODE POLICE STATION, PALAKKAD** ## **PETITIONER/ACCUSED NO.3:** MUSTHAFA, AGED 63 YEARS S/O MATHARI CHEKKU,PARAMBATH VEEDU, TIRURANGADI TALUK, MOONIYOOR SOUTH P.O MALAPPURAM, PIN - 676311 BY ADVS. PRAVEEN K. JOY E.S.SANEEJ M.P.UNNIKRISHNAN N.ABHILASH ARDRA ANIL ABISHA.E.R FATHIMA SHALU S. ALBIN VARGHESE ANUPAMA NAIR ## **RESPONDENT/COMPLAINANT & STATE :** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031 SRI.M.C.ASHI, PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.12.2023, ALONG WITH Bail Appl..3813/2023 AND CONNECTED CASES, THE COURT ON 07.12.2023 DELIVERED THE FOLLOWING: -4- BA Nos.5745, 8646, 9195 & 9735 of 2023 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **THURSDAY, THE 7[TH] DAY OF DECEMBER 2023 / 16TH AGRAHAYANA, 1945 BAIL APPL. NO. 6819 OF 2023** **CRIME NO.326/2022 OF KOLLENGODE POLICE STATION, PALAKKAD** ## **PETITIONER/ACCUSED:** 1 ASIYA, AGED 57 YEARS W/O HAMSA, MATHARI HOUSE, ALINCHUVADU MOONNIYUR POST, MALAPPURAM, PIN - 676311 2 SAIDALAVI, AGED 39 YEARS S/O ALAVIKUTTI VAKKATHODI, MOONIYOOR TIRURANGADI, MALAPPURAM, PIN - 676311 3 JAMEELA, AGED 34 YEARS W/O AMIN AHAMED, MATHARI HOUSE, ALINCHUVADU MOONNIYUR POST, MALAPPURAM, PIN - 676311 BY ADVS. PRAVEEN K. JOY E.S.SANEEJ M.P.UNNIKRISHNAN N.ABHILASH DEEPU RAJAGOPAL ARDRA ANIL ANUPAMA NAIR ABISHA.E.R ALBIN VARGHESE FATHIMA SHALU S. ## **RESPONDENT/COMPLAIANNT & STAE:** 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, **==> picture [15 x 10] intentionally omitted <==** BA Nos.5745, 8646, 9195 & 9735 of 2023 HIGH COURT OF KERALA, PIN - 682031 *2 ABDUL BASHEER, S/O MATHARI CHEKKU, PARAMBATH HOUSE, THIRURANGADI, MOONIYUR POST, MALAPURAM - 676311 (IS IMPLEADED AS ADDL. R2 AS PER ORDER DATED 13/9/2023 IN 1/2023) BY ADVS. SUSEEL M.MENON J.VISHNU SMT.T.V.NEEMA, SR.PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.12.2023, ALONG WITH Bail Appl..3813/2023 AND CONNECTED CASES, THE COURT ON 07.12.2023 DELIVERED THE FOLLOWING: -6- BA Nos.5745, 8646, 9195 & 9735 of 2023 ## **MOHAMMED NIAS C.P., J.** **- - - - - - - - - - - - - - - - - - - - -** B.A.Nos. 3813, 5992 & 6819 of 2023 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 7[th] day of December, 2023 ## **O R D E R** Apprehending arrest in Crime No.326 of 2022 of Kollengode West Police Station, Palakkad District, registered for offences punishable under Sections 406, 417, 418, 419, 420, 423, 424, 463, 464, 465, 468, 470, 471, 474, 484 and 120B r/w section 34 of the IPC, A1 has filed BA No.3813/2023, A3 has filed BA No.5992/2023, A2, A4 and A5 have filed BA No.6819/2023 seeking prearrest bail. 2. The prosecution allegation is that accused Nos.1 to 7 conspired together and had caused the alienation of the property of the defacto complainant using a power of attorney allegedly granted in favour of A1. It is alleged that it was the share of the complainant's property that was sold to A4 and A5 under the power of attorney which the complainant alleged was forged. Based on the allegation, the crime was registered as Crime No.326/2023 of Kollengode police station under Sections 406, 417, 418, 419, -7- BA Nos.5745, 8646, 9195 & 9735 of 2023 420, 423, 424, 463, 464, 465, 468, 470, 471, 474, 484 and 120B of IPC. 3. Learned counsel for the petitioners submits that a civil suit is already pending concerning the property in question as OS No.121/2021 before the Sub Court, Palakkad, which was instituted on 13.8.2021. The alleged power of attorney was executed on 8.10.2006, the day on which the passport of the complainant was renewed at the Jeddah Consulate, Saudi Arabia. The alleged sale deed was executed in the year 2012 and the suit was filed only in the year 2021 and the complaint is only made in the year 2022. He also submitted that the consideration received from the sale was given to the complainant and the same is reflected in the tax returns filed by the petitioners. 4. Learned counsel for the defacto complainant opposing the bail applications submits that in the document in question, the fingerprint has been forged. A fake power of attorney was produced as genuine before the registrar's office and during that relevant time, the complainant was abroad. It is submitted that a detailed investigation is required including custodial interrogation for revealing the truth. 5. The Learned Public Prosecutor also submits that there is an allegation of forgery that might require custodial interrogation. -8- BA Nos.5745, 8646, 9195 & 9735 of 2023 6. Having considered the rival submissions, a few facts deserve to be noticed. The alleged power of attorney was created in the year 2006 on a day when the passport of the defacto complainant was renewed at the consulate in Jeddah. The power of attorney is also seen created on the same day from there. That apart, the defacto complainant has not taken any steps till the year 2022 to question the transaction. Of course, he has a contention that he came to know about the transaction only when the written statement was filed by the petitioners herein in the suit filed for partition. Since the transaction in question is under consideration before the civil court, the parties are close relatives, and the alleged forgery of the power of attorney happened in the year 2006, the crime was registered only in the year 2022, under such circumstances, I do not think that a custodial interrogation of the petitioners is necessary. Accordingly, I am inclined to grant anticipatory bail to the petitioners ensuring proper co-operation on their part. Accordingly, these applications are allowed subject to the 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 their 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 separate bonds for Rs.25,000/- (Rupees twenty-five thousand only) each by the petitioners and by two solvent BA Nos.5745, 8646, 9195 & 9735 of 2023 -9- sureties each for the like sum to the satisfaction of the jurisdictional court. (iii) The petitioners shall cooperate with the investigation and shall make themselves available for interrogation and investigation 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) The petitioners shall not leave India without the prior permission of the jurisdictional Court. It is made clear that it is within the power of police to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners, even when the petitioners are on bail as per the judgment of the Apex Court in **Sushila Aggarwal and others v. State ( NCT of Delhi) and another [2021 (1) KHC 663]** . Sd/- **MOHAMMED NIAS C.P.** **JUDGE** dlk 6.12.23 -10- BA Nos.5745, 8646, 9195 & 9735 of 2023 ## **APPENDIX OF BAIL APPL. 5992/2023** PETITIONER'S ANNEXURES |Annexure|1|TRUE COPY OF THE FIR IN CRIME NO.326/2022 OF| |---|---|---| |||KOLLENGODE POLICE STATION, PALAKKAD DATED| |||09.06.2022| |Annexure|2|TRUE COPY OF THE SALE DEED WITH NO.3944/2012| |||OF SRO, KOLENGODE DATED 13.12.2012| |Annexure|3|TRUE COPY OF THE MEDICAL SUMMARY OF MEITRA| |||HOSPITAL DATED 01.05.2023| |Annexure|4|TRUE COPY OF THE OUTPATIENT RECORD OF JIPMER| |||HOSPITAL, PUDHUCHERRY DATED 28.07.2022| |Annexure|5|TRUE COPY OF THE PLAINT IS OS NO.121/2021 OF| |||SUB COURT, PALAKKAD DATED 11.08.2021| |Annexure|6|TRUE COPY OF THE IA NO.2035/2021 IN OS| |||NO.121/2021 OF SUB COURT, PALAKKAD| -11- BA Nos.5745, 8646, 9195 & 9735 of 2023 ## **APPENDIX OF BAIL APPL. 6819/2023** |PETITIONERS ANNEXURES|| |---|---| |Annexure 1|TRUE COPY OF THE FIR IN CRIME NO.326/2022 OF| ||KOLLENGODE POLICE STATION, PALAKKAD DATED| ||09.06.2022| |Annexure 2|TRUE COPY OF THE SALE DEED WITH NO.3944/2012| ||OF SRO, KOLENGODE DATED 13.12.2012| |Annexure 3|TRUE COPY OF THE POWER OF ATTORNEY DATED| ||08.10.2006| |Annexure 4|TRUE COPY OF THE PLAINT IS OS NO.121/2021 OF| ||SUB COURT, PALAKKAD DATED 11.08.2021| |Annexure 5|TRUE COPY OF THE IA NO.2035/2021 IN OS| ||NO.121/2021 OF SUB COURT, PALAKKAD DATED| ||07.12.2021| -12- BA Nos.5745, 8646, 9195 & 9735 of 2023 ## **APPENDIX OF BAIL APPL. 3813/2023** PETITIONER'S ANNEXURES Annexure 1 TRUE COPY OF THE WRITTEN STATEMENT IN O.S. NO.121/2021 DATED NIL ON THE FILE OF PRINCIPAL SUB COURT, PALAKKAD RESPONDENTS ANNEXURES Annexure R3(a) The copy of the FIR numbered 326/2022 of Kollengode Police Station dated 09.06.2022 Annexure R3(b) The copy of the sale deed numbered 3944/2012 dated 13.12.2012 of Kollengode S.R.O. PETITIONER'S ANNEXURES Annexure 2 TRUE COPY OF THE I.A. NO.1262/2023 IN O.S. NO.121/2021 ON THE FILE OF THE COURT OF THE SUB JUDGE (PRINCIPAL), PALAKKAD DATED 17.6.2023 RESPONDENT'S ANNEXURES Annexure R3(C) CERTIFIED COPY OF IA 1252 OF 2023 FILED BY THE BAIL APPLICANT BEFORE THE HON'BLE ADDITIONAL SUBORDINATE JUDGE AT PALAKKAD PETITIONER'S ANNEXURES Annexure 3 TRUE COPY OF THE FIR IN CRIME NO.326/2022 OF KOLLENGODE POLICE STATION, PALAKKAD DATED 09.06.2022 Annexure 4 TRUE COPY OF THE PLAINT IS OS NO.121/2021 OF SUB COURT, PALAKKAD DATED 11.08.2021 Annexure 5 TRUE COPY OF THE IA NO.2035/2021 IN OS NO.121/2021 OF SUB COURT, PALAKKAD DATED 07.12.2021 Annexure 6 TRUE COPY OF RELEVANT PAGES OF PASSPORT OF -13- BA Nos.5745, 8646, 9195 & 9735 of 2023 THE 3RD RESPONDENT |Annexure|7|TRUE COPY OF THE NO DUES CERTIFICATE DATED| |---|---|---| |||20.07.2021 ISSUED BY THE HDFC BANK| |Annexure|8|TRUE COPY OF THE POSSESSION CERTIFICATE DATED| |||28.04.2015 ISSUED BY VILLAGE OFFICER| |Annexure|9|TRUE COPY OF THE TAX RECEIPT DATED 12.06.2012| |||ISSUED BY MUTHALAMADA I VILLAGE| |Annexure|10|TRUE COPY OF THE TAX RECEIPT DATED 28.04.2015| |||ISSUED BY MUTHALAMADA I VILLAGE| |Annexure|11|TRUE COPY OF THE ENCUMBRANCE CERTIFICATE| |||DATED 29.04.2015| |Annexure|12|TRUE COPY OF THE SANITARY CERTIFICATE DATED| |||15.03.2021 ISSUED BY HEALTH INSPECTOR,| |||MUTHALAMADA| |Annexure|13|TRUE COPY OF THE POWER OF ATTORNEY DATED| |||08.10.2006| |Annexure|14|TRUE COPY OF THE INCOME TAX ASSESSMENT ORDER| |||DATED 20.01.2016 ISSUED BY INCOME TAX| |||DEPARTMENT| |Annexure|15|TRUE COPY OF THE PLAINT IN OS NO. 179/2023| |||DATED 14.09.2023 BEFORE SUB COURT, PALAKKAD| |||WITHOUT DOCUMENTS| |Annexure|16|TRUE COPY OF CMP NO. 1821/2022 DATED| |||16.05.2022 BEFORE JUDICIAL FIRST CLASS| |||MAGISTRATE COURT, CHITTOOR WITHOUT DOCUMENTS|