Mohammed Nabeel and others v. The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 07TH DAY OF NOVEMBER 2019 / 16TH KARTHIKA, 1941 Bail Appl..No.6551 OF 2019** **AGAINST THE ORDER/JUDGMENT IN CRMC 847/2019 DATED 30-08-2019 OF DISTRICT COURT& SESSIONS COURT,MANJERI CRIME NO.220/2019 OF Perinthalmanna Police Station , Malappuram** ## **PETITIONER/ACCUSED:** **1 MOHAMMED NABEEL AGED 26 YEARS S/O.ABOOBACKER, RESIDING AT POOKKATTUTHODI HOUSE, KUNNAPPALLY PO, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. 2 ABOOBACKER, AGED 68 YEARS S/O.HAMZA, RESIDING AT POOKKATTUTHODI HOUSE, KUNNAPPALLY PO, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. 3 KHADEEJA AGED 58 YEARS W/O.ABOOBACKER,RESIDING AT POOKKATTUTHODI HOUSE, KUNNAPPALLY PO, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT.** **BY ADVS. SRI.P.SAMSUDIN SRI.M.ANUROOP** ## **RESPONDENT/STATE** **1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM-682031(IN CRIME NO.220/2019 PERINTHALMANNA POLICE STATION IN MALAPPURAM DISTRICT)** **2 ADDL.R2. UMMER S/O MUHAMMED, AGED 66 YEARS,, PAZHEDATH HOUSE, ERAVIMANGALAM PO, MALAPPURAM DISTRICT.** **IS IMPLEADED AS PER ORDER DATED 18/09/2019 IN CRL.MA NO.1/2019 IN BA NO.6551/2019.** **B.A.No.6551/2019 & W.P.(C) No.22905/2019** **2** **R2 BY ADV. K.RAKESH** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.11.2019, ALONG WITH WP(C).22905/2019(K), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **B.A.No.6551/2019 & W.P.(C) No.22905/2019** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 07TH DAY OF NOVEMBER 2019 / 16TH KARTHIKA, 1941** ## **WP(C).No.22905 OF 2019(K)** ## **PETITIONER:** **UMMER AGED 66 YEARS** **S/O MUHAMMED,PAZHEDATH HOUSE,ERAVIMANGALAM.P.O, MALAPPURAM DISTRICT.** **BY ADV. SRI.K.RAKESH** ## **RESPONDENTS:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY TO**| ||**GOVERNMENT,DEPARTMENT OF HOME AFFAIRS,GOVERNMENT**| ||**SECRETARIAT,**| ||**THIRUVANANTHAPURAM,PIN-695001.**| |**2**|**THE DISTRICT POLICE CHIEF**| ||**MALAPPURAM,PIN-676505.**| |**3**|**THE STATION HOUSE OFFICER,**| ||**PERINTHALMANNA POLICE STATION,**| ||**MALAPPURAM DISTRICT,PIN-679322.**| |**4**|**THE DEPUTY SUPERINTENDENT OF POLICE,**| ||**C.B.C.I.D,MALAPPURAM,PIN-676505.**| ||**R1-4 BY GOVERNMENT PLEADER, SRI.SAIGI JACOB PALATTY**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.11.2019, ALONG WITH Bail Appl..6551/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **B.A.No.6551/2019 & W.P.(C) No.22905/2019** **4** ## **ALEXANDER THOMAS, J.** **----------------------------------------B.A. No. 6551 of 2019 & W.P.(C.) No. 22905 of 2019 -------------------------------------------------------------------Dated this the 7[th] day of November, 2019** ## **O R D E R/JUDGMENT** It is seen that the investigation has now been entrusted to a senior officer of the rank of Asst. Superintendent of Police. As these matters are pertaining to the very same crime, these cases stand disposed of on the basis of a common order. ## **B.A. No. 6551 of 2019** The petitioners herein have been arrayed as accused Nos. 1 to 3 among the 3 accused in the instant Crime No.220/2019 of Perinthalmanna Police Station. The said case was initially registered under Sec.174 of the Cr.P.C. on account of the unnatural death or suicide of the lady victim in this case, who is the wife of the 1[st] petitioner herein on 12.04.2019. The Police after investigation has altered the offence in this case to those as per Secs.306 and 498A of the IPC and have arrayed the 3 petitioners herein as the 3 accused persons therein. The 2[nd] and 3[rd] petitioners (A2 and A3) are the father and mother respectively of the 1[st] petitioner (A1). 2. The learned counsel appearing for the petitioner would point out that the abovesaid allegations are false and baseless and that the prosecution has not been able to obtain any materials to even remotely establish that the vital ingredients of the offence of abetment as per Sec.107 of the IPC and the **B.A.No.6551/2019 & W.P.(C) No.22905/2019** **5** offence of abetment to commit suicide as per Sec.306 of the IPC etc. are made out. The learned counsel for the petitioner has taken this Court's attention to various rulings of the Apex Court and this Court which have laid down the parameters and ingredients of the offence of abetment as per Sec.107 of the IPC and the offence of abetment to commit suicide as per Sec.306 of the IPC in decisions as in **Sanju @ Sanjay Singh Sengar v. State of M.P. [ 2002 SCC (Crl.) 1141], Krishnadas v. State of Kerala [2017 (2) KLT 579], Gurucharan Singh v. State of Punjab [2016 (12) SCALE 414], Harikrishnan & Anr. v. State of Kerala and Anr. [2019 (3) KHC 437]** and **M.Arjunan v. State [2019 (3) SCC 315].** 3. Accordingly, it is urged by the petitioners that they may be granted anticipatory bail subject to strict conditions. The learned Prosecutor and Sri.K.Rakesh, learned counsel appearing for the defacto complainant (father of the deceased) has opposed the plea for anticipatory bail. The investigating agency has filed a statement dated 04.11.2019 in this case. It is stated in paragraph 6 thereof that the investigation has revealed that on 12.04.2019 at 8.30 p.m., A1 (victim's husband) had telephoned the complainant (victim's father) and informed that the victim has locked her room from inside and that some unusual sound were heard from the room and the complainant had rushed to their house and both of them broke open into the room and found that the complainant's daughter was found hanging on the hook of the ceiling fan. The victim was then, immediately taken to a nearby hospital, upon which she was declared brought dead. A1 had married the victim on **B.A.No.6551/2019 & W.P.(C) No.22905/2019** **6** 19.03.2017 which was not to the liking of the families, as it was a love affair and later after marriage, both of them resided in A1's sister's house for two months, as they were not permitted to enter their matrimonial house as insisted by the brother of A1 and his parents. Later, she was brought to A1's house and in the said relationship, she delivered a boy and all the expenses in the hospital was also met by her family. Further that, the parents of the deceased victim has given statement to the investigating agency that A1 used to physically assault the victim and used to mentally torture her demanding more dowry and that more investigation is required to ascertain those facts. Further that, the investigation has revealed that the victim has committed suicide by means of hanging due to continuous physical and mental torture by the accused persons. It is stated in paragraph 10 of the statement given by the parents of the victim in the present investigation, the accused persons have mentally tortured the victim demanding more ornaments and A1 had assaulted her physically several times and that this fact has been corroborated with more material evidence etc. Further that, the case is pending for arresting the accused persons for collecting more evidence in this case, including site plan, ownership certificate of the house etc. 4. After hearing both sides and after careful evaluation of the facts and circumstances of this case, more particularly examining the attendant facts of this case, in the light of the aforesaid judicial precedents, this Court is inclined to take the view that the custodial interrogation of the petitioners may not be necessary or warranted for effectuating the smooth and fair **B.A.No.6551/2019 & W.P.(C) No.22905/2019** **7** conduct of the investigation of this crime. Further, the petitioners will have to fully co-operate with the investigating officer in the conduct of the investigating process. Hence, the following orders and directions are passed : _(i) The petitioners shall personally appear before the Investigating Officer (I.O.), in relation to Crime No.220/2019 of Perinthalmanna Police Station and to subject himself for interrogation process without any further delay at any rate by 9 a.m. on any day on or before 22.11.2019 or within such time limit that may be extended by the IO as he deems fit and proper._ _(ii) The petitioners will fully co-operate with the Investigating Officer in the interrogation process._ _(iii) After the interrogation process is over, in case the Investigating Officer arrests the petitioners in relation to the abovesaid crime, then they shall be released on bail on their separately executing bonds for Rs.40,000/- (Rupees Forty Thousand only) each and on separately furnishing two solvent sureties for the likesum both to the satisfaction of the Investigating Officer concerned and subject to the following conditions:_ _(a) The petitioners shall not involve in any criminal offences of similar nature. (b) The petitioners shall report before the Investigating Officer as and when required in that connection._ _(c) The petitioners shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ _(d) If there is any violation of the abovesaid conditions by the petitioners then the jurisdictional court concerned stand hereby empowered, to consider the plea for cancellation of bail at the appropriate time._ **B.A.No.6551/2019 & W.P.(C) No.22905/2019** **8** With these observations and directions, the above Bail Application will stand disposed of. ## **W.P.(C.) No. 22905 of 2019** The prayers in the above W.P.(C.) filed under Article 226 of the Constitution of India are as follows : _(i) Issue a writ of mandamus or any other appropriate writs, orders of directions directing the 2[nd] respondent to entrust the investigation of Crime No.220/2019 of the Perinthalmanna Police Station with the 4[th] respondent or any other specialized agency to ensure an effective investigation._ _(ii) Grant such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.”_ 2. Heard Sri.K.Rakesh, learned counsel appearing for the petitioner (defacto complainant), Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the respondents. Sri.P.Samsudin, learned counsel appearing for the petitioner/accused in the aforementioned anticipatory bail application No.6551/2019 has also been heard. 3. Sri. K.Rakesh, learned counsel appearing for the petitioner would submit on the basis of the instructions of the parties that now a statement dated 04.11.2019 has been filed on behalf of the investigating agency in this W.P.(C.). It is revealed from the said statement more particularly, in paragraph (9) in page No.3 thereon that the investigation has now been handed over to a senior officer of the rank of Asst. Superintendent of Police, Perinthalmanna on 19.09.2019 onwards and **B.A.No.6551/2019 & W.P.(C) No.22905/2019** **9** though earlier, it has been conducted by a officer of the rank of SubInspector of Police. Accordingly, it is submitted by the learned counsel appearing for the petitioner that this Court may record the said factual aspect and then may make necessary direction to the investigating agency to conduct an effective and proper investigation etc. and to complete and finalise the investigation without any further delay. 4. Taking note of the abovesaid facts and circumstances, it is ordered in the interest of justice that the investigating agency will take all necessary steps to ensure that the investigation is conducted and completed effectively and property and finalise the same, without much delay. With these observations and directions, the above W.P.(C.) will stand disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** SKS **B.A.No.6551/2019 & W.P.(C) No.22905/2019** **10** ## **APPENDIX OF WP(C) 22905/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE F.I.R.IN CRIME NO.220/2019 OF THE PERINTHALMANNA POLICE STATION DATED,13.4.2019. EXHIBIT P2 TRUE COPY OF THE REPRESENTATION FIELD BY THE PETITIONER ON 25.6.2019 BEFORE THE DIRECTOR GENERAL OF POLICE AND ALSO TO THE FIRST RESPONDENT,WITHOUT DOCUMENTS. EXHIBIT P3 TREU COPY OF THE POST-MORTEM CERTIFICATE ISSUED FROM THE DIRECTORATE OF MEDICAL EDUCATION,GOVERNMENT MEDICAL COLLEGE,MANJERI DATED,13.4.2019 EXHIBIT P4 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE INJURY ON THE LEFT HAND OF THE FIRST ACCUSED.**