Bijoy and Indulekha v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 20TH DAY OF OCTOBER 2014/28TH ASWINA, 1936** **Bail Appl..No. 7435 of 2014** **--------------------------------------** **CRIME NO. 1106/2014 OF NEDUMANGAD POLICE STATION , THIRUVANANDAPURAM** **-------------** **PETITIONER(S)/ACCUSED 1 AND 2:** **-------------------------------------------------** **1. BIJOY, AGED 45 YEARS, S/O.SREENIVASAN, ASHADAM, ANAD P.O. NEDUAMNGAD.** **2. INDULEKHA, AGED 39 YEARS, W/O.BIJOY, ASHADAM, ANAD P.O. NEDUMANGAD.** **BY ADV. SRI.A.RAJASIMHAN** ## **RESPONDENT(S)/INVESTIGATING OFFICER:** **---------------------------------------------------------------** **STATE OF KERALA, THROUGH THE SUB INSPECTOR OF POLICE, NEDUMANGAD POLICE STATION, THIRUVANANTHAPURAM, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.DHANESH MATHEW MANJOORAN** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## ALEXANDER THOMAS, J. ================== ## B.A.No. 7435 of 2014 ================== Dated this the 20[th] day of October, 2014 O R D E R The petitioners herein are accused Nos.1 and 2 in crime No.1106/ 2014 of Nedumangad Police Station, Thiruvananthapuram for offences alleged under Sections 354(A), 386, 500 and 34 of the IPC. Annexure-A1 is the FIR, which is seen registered on 15.8.2014 on the basis of the FI statement therein lodged at the instance of the lady defacto complainant therein. The allegations are that the families of the defacto complainant and her husband as well as the 1[st] and the 2[nd] petitioners (who are also husband and wife) were quite close and later when the 1[st] petitioner made requests for sexual favours from the defacto complainant, she had refused it and due that enmity, the petitioners had tried to extort money from the defacto complainant by threatening that they have her nude photographs and that accordingly, she was compelled to give money to the 2[nd] petitioner and that the 2[nd] petitioner (lady) had also threatened the lady defacto complainant to kill the husband of B.A.7435/14 - : 2 :- the defacto complainant, etc. 2. Sri.A.Rajasimhan, the learned counsel for the petitioners would strongly urge that the entire allegations in the Annexure-A1 First Information Statement are falsely foisted on the petitioners. He would submit that It is a case where the defacto complainant and her husband tried to wriggle out of their nefarious activities and It is for this reason that they have attempted to falsely implicate the petitioners in this crime. In this regard, the petitioners would submit that the 2[nd] petitioner had submitted Annexure-A2 as early as on 14.7.2014 complaining before Women Police Cell and Police Superintendent, Thiruvananthapuram Rural district, that the abovesaid two families were close and she has stated that the lady defacto complainant herein was getting sexually very close to her husband (1[st] petitioner) and she was taking away the money and resources from the 1[st] petitioner by such sexual proximity and that the husband of the defacto complainant was also supporting her in this nefarious activity and that the brother of the defacto complainant is threatening the 2[nd] petitioner over telephone in abusive words, as the 2[nd] petitioner was taking sincere steps to break the illicit relationship between her husband and the defacto B.A.7435/14 - : 3 :- complainant, etc. Annexure A2 given on page 17 of the paper book would show that the Annexure A2 complaint dated 14.7.2014 has actually been received by the Police authorities on 14.7.2014 itself. Sri.Rajasimhan, the learned counsel for the petitioners would also submit that the Police authorities had called both the petitioners herein and the lady defacto complainant herein as well as her husband to the Police Station concerned and on being convinced that the petitioners and the lady defacto complainant herein had received quite a lot of money from the 1[st] petitioner due to the aforementioned illicit relationship between the two, the Police authorities had admonished her strongly that she must repay the money of Rs. 1 lakh to the bank account of the 2[nd] petitioner and in these circumstances, the said amount of Rs. 1 lakh has been paid by the lady defacto complainant herein to the bank account of the 2[nd] petitioner. It is long thereafter the lady defacto complainant herein has preferred the first information statement referred to in Annexure A1 as late as 15.8.2014 and alleging the above said Rs. 1 lakh paid to the enumerated bank account of the 2[nd] petitioner was forcibly paid by her to the 2[nd] petitioner due to the aforementioned extortion. Such allegations are made in Annexure A1 as late as on B.A.7435/14 - : 4 :- 15.8.2014 to wriggle out of the problems that the lady defacto complainant herein had to face consequent to Annexure A2 dated 14.7.2014, it is strongly urged by the learned counsel for the petitioners. Sri.Rajasimhan, the learned counsel for the petitioners would further urge that though there is an averment in Annexure A1 FIR that there was an alleged threat of using with goondas to kill the husband of the lady defacto complainant and that it is on this account she was forced to part with the money, such allegations are absolutely exaggerated, even going by the entire tone and tenor projected by the defacto complainant and such exaggerated allegations are made only to rope in offence under Section 386 of the IPC. The only non-bailable offence in Annexure A1 is the one under Section 386. Sri.Rajasimhan, the learned counsel for the petitioners would urge that even going by the tone and tenor projected in Annexure A1 FIR, at best, it could only be that there are some allegations of commissioning of the offence of extortion as envisaged under Section 383 of the IPC, which is an offence of lesser gravity compared to Section 386. The learned counsel for the petitioners would also submit that initially an offence under Section 392 IPC (non-bailable) was also registered in Annexure A1 FIR, but B.A.7435/14 - : 5 :- the said offence under Section 392 IPC (non-bailable) was subsequently deleted by the investigating officer, in the aforementioned crime. 3. The learned Public Prosecutor would submit that the allegations involved in Annexure A1 appear to be quite complex and the investigation is not complete. He would fairly submit that the offence under Section 392 IPC (non-bailable) initially registered in Annexure A1, has subsequently been deleted from the aforementioned crime. The learned Public Prosecutor has opposed this application for anticipatory bail in view of the serious allegations raised in Annexure A1 and in view of the fact that investigation is not yet completed. 4. Therefore, Sri.Rajasimhan, the learned counsel for the petitioners would submit that the petitioners would accept any restrictive conditions that this Court may impose in the interest of justice and to protect the bonafide interest of the prosecution and that the petitioners would fully abide by such conditions that are deemed just and necessary by this Court. 5. The aspects in Annexure A1 dated 15.8.2014 and those aspects arising out of Annexure A2 dated 14.7.2014, require B.A.7435/14 - : 6 :- serious consideration at the hands of the investigation so that the unvarnished truth and nothing but the truth emerges in view of the complex sets of allegations and counter allegations that have been made by two sets of couples. 6. Having considered the submissions of the learned counsel for the petitioners and the learned Public Prosecutor and the totality of the facts and circumstances emerging in this case, this Court is inclined to adopt the course of action resort to by this Court in the order dated 15.7.2014 in B.A.No.5030/2014. In the aforementioned order dated 15.7.2014 in B.A.No.5030/2014, this Court, instead of straightaway granting the plea of prayer for anticipatory bail, had directed that the accused therein surrender before the investigating officer on a designated day for interrogation and that in case the interrogation is not completed on that day, it is open to the investigating officer therein to direct the presence of the accused therein on other day/days and time as may be specified by the him, which the accused shall comply and that the accused therein was directed to co-operate with the investigation and that in case the arrest of the accused therein is recorded, he shall be produced before the jurisdictional magistrate B.A.7435/14 - : 7 :- on the same day. Further it is directed therein that on such production the petitioner therein shall be released (if not required to be detained otherwise) on his execution of the bond with two sureties to the satisfaction of the magistrate with other conditions regarding grant of bail. Accordingly, it is ordered that:- (1) The petitioners herein shall surrender before the investigating officer in crime No.1106/2014 of Nedumangad Police Station, Thiruvananthapuram district on 31.10.2014 at 10 a.m. for interrogation. (2) In case the interrogation is not completed on that day, it is open to the investigating officer concerned to direct the presence of both the petitioners or any of the petitioner as deemed fit by him on other day/days and time as may be specified by the investigation officer which the petitioners/ petitioner shall concerned comply. (3) After the interrogation process as aforesaid is over, the investigating officer shall produce the petitioners before the jurisdictional magistrate concerned and on such production, the petitioners shall be released (if not required to be detained otherwise) on their executing separate bonds for Rs.35,0000/- (rupees thirty five thousand only) with two separate sureties each for the like amount to the satisfaction of the jurisdictional Magistrate and subject to the following conditions: - (i) The petitioners shall surrender their passports, if any, before the jurisdictional Magistrate concerned and if either of them are not holders of passports, then they shall file affidavit to that effect in the said court. If the petitioners require their passports in connection with their travel abroad, then they are free to approach the court concerned for the release of the same and for necessary permission in that regard. In case such an application is filed, the trial court or the jurisdictional Magistrate concerned, as the case may be, is free to consider the same on merits and to pass appropriate orders thereon, taking necessary guidance from the principles laid down in the decision of this Court in the case Asok Kumar v. State of Kerala, reported in 2009 (2) KLT 712, notwithstanding the aforementioned conditions imposed by this Court. - (ii) The petitioners shall not involve in any criminal offence of similar nature or graver in nature. - : 8 :- B.A.7435/14 - (iii) The petitioners shall fully co-operate with the investigation and report before the investigating officer as and when required. - (iv) The petitioners shall not influence the witnesses or shall not tamper or attempt to tamper evidence in any manner whatsoever. If the petitioners violate any of the conditions as ordered above, then the bail granted to them are liable to be cancelled. With the above said directions, this Bail Application stands finally disposed of. Sd/sdk+ ALEXANDER THOMAS, JUDGE ///True copy/// P.S. to Judge