Muhammed Syedulla v. State of Kerala

BA 9667/2022 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. THURSDAY, THE 5[TH] DAY OF OCTOBER 2023 / 13TH ASWINA, 1945 BAIL APPL. NO. 9667 OF 2022 ``` ``` CRIME NO. 670/2021 OF PERINTHALMANNA POLICE STATION, MALAPPURAM CRMC 1211/2022 OF DISTRICT COURT& SESSIONS COURT,MANJERI PETITIONER/ACCUSED NO.1: ``` ``` MUHAMMED SYEDULLA, AGED 65 YEARS S/O MUHAMMED ALI, RESIDING AT KIZHEKKETHIL HOUSE, BAITH AL NOOR, PONNIAKURSHI P.O., PERINTHALMANNA, MALAPPURAM, PIN - 679322 BY ADVS. S.RAJEEV M.S.ANEER PRERITH PHILIP JOSEPH SARATH K.P. ANILKUMAR C.R. V.VINAY ``` ## **`RESPONDENT/STATE AND DEFACTO COMPLAINANT:`** ``` 1STATE OF KERALA, REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2STATION HOUSE OFFICER, PERINTHALMANNA POLICE STATION, MALAPPURAM DISTRICT, (CRIME NO 670/2021 OF PERINTHALMANNA POLICE STATION, MALAPPURAM DISTRICT), PIN - 679322 3MOHAMMED ABDUL SAMAD, S/O.MOHAMEDALI, RESIDING AT PULLANI HOUSE, LIBERTY STREET, PATTAMBI,( IMPLEADED AS ADDL R3 AS PER ORDER DATED 9/12/2022 IN CRL MA 2/2022) ``` BA 9667/2022 2 ``` BY ADVS. P.MARTIN JOSE ANNA LINDA EDEN HARIKRISHNAN S. S.SREEKUMAR (SR.) P.PRIJITH THOMAS P.KURUVILLA R.GITHESH AJAY BEN JOSE MANJUNATH MENON SACHIN JACOB AMBAT ``` ## **`OTHER PRESENT:`** ``` SMT.T V NEEMA SR PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 13.9.2023, THE COURT ON 05.10.2023 PASSED THE FOLLOWING: ``` BA 9667/2022 3 ## **MOHAMMED NIAS C.P., J.** ……………………………………… B.A.No. 9667 of 2022 ……………………………………… Dated this the 5[th] day of October, 2023 ## **O R D E R** This bail application is filed under Section 438 of the Code of Criminal Procedure, 1973, seeking pre-arrest bail. 2. The petitioner is the first accused in crime No.670/2021 of Perinthalmanna police station, Malappuram, and the de facto complainant is the brother of the petitioner. 3. The prosecution case is that the de facto complainant and his brother have landed property in Survey Nos.30/6 and 30/7 of Perinthalmanna village. According to the de facto complainant, the property is in the possession of the petitioner, and he alleges that the petitioner falsely obtained a purchase certificate from the Land Tribunal by using the same as genuine and assigning certain extent of property in the name of the second accused. It is also alleged that accused 1 and 2 thereafter alienated the property to third parties. On the basis of the complaint filed by the de facto complainant, the above crime is registered by Perinthalmanna police station, Malappuram. BA 9667/2022 4 4. The petitioner submits that he and his brother, the de facto complainant, have landed property in survey numbers 30/6 and 30/7 of Perinthalmanna village. The de facto complainant would allege that the accused had falsely obtained a purchase certificate from the Land Tribunal and had used the same as a genuine document and assigned portions of property in the name of the second accused and that thereafter, the first and the second accused alienated the property to third parties. The petitioner would submit that the property in re-survey No. 30/6 has an extent of 96 cents of land along with two other items of properties from Kizhisserimannil Muhammedunni by virtue of a registered Verumpattam Assignment deed No.2373/1976 of SRO, Perinthalmanna. The father of the petitioner, Muhammedali Haji applied through an agent for a purchase certificate pertaining to the property in favour of his son (petitioner herein) in the year 1977, having Sy No.4198/1979 before the Perinthalmanna Land Tribunal. Then the Land Tribunal, Perinthalmanna, issued a purchase certificate having No.214/1979 in favour of the petitioner assigned the property in favour of his wife, who was arrayed as the second accused, from which the second assigned 5 cents each to the other third parties. It is also pointed out that OS 4/2022 is pending on the files of the Munsiff Court, Perinthalmanna, for the partition of the properties of their father, Mohammedali Haji and the mother's property. The relationship between the accused and the de facto complainant had grown sour, and while the second accused who was contesting as a candidate in the local body election to BA 9667/2022 5 Perinthalmanna Municipality, the de facto complainant uttered obscene words against her the police had registered crime No.672/2021 against the defacto complainant, which is now pending as CC 681/2022 before the Judicial First Class Magistrate Court-1, Perinthalmanna. The petitioner denied having forged any document. 5. The learned Public Prosecutor objecting to the bail application submitted that the allegation against the petitioner is serious inasmuch as it pertains to a purchase certificate being forged and fabricated and thereafter used the same for making further alienation. Therefore, custodial interrogation is absolutely necessary. 6. The de facto complainant, who also entered appearance, apart from adopting the contentions of the Prosecutor, points out that the petitioner was the owner of 7 cents of land by virtue of a document dated 21.8.1976 and another 96 cents of land in survey No. 30/6 of Perinthalmanna village. Some land from the above survey numbers (Sy. Nos.30/1 and 30/6) was gifted by the petitioner to the second accused (44.5 cents) vide a gift deed in the year 2020. The dispute arose when the second accused in the crime sold the above portion of the land, and the defacto complainant began to raise a claim over the above extent of property gifted by the petitioner to the second accused, stating that it was the excess land in which the de facto complainant is also having a claim and which was transferred by the petitioner in the name of the second accused. The de facto complainant thus came up with an allegation that the Land Tribunal Pattayam was a document BA 9667/2022 6 forged by the petitioner. Thus, it is his submission that the first accused had forged and fabricated purchase certificate No.1723/2013 dated 6/6/2013 in the name of the Land Tribunal, Manjeri, in his favour in respect of 1 acre 23 cents of land. The seal and signature of the Presiding Officer, Land Tribunal, and the emblem were forged to create the purchase certificate. He had also forged Annexure-A2 purchase certificate with certificate No.214/1979 in the name of the first accused in respect of 14 cents of land in re-survey No.30/6 of Perinthalmanna village. Using these two forged purchase certificates, title deeds in respect of 1 acre 26 cents of land in re-survey Nos.30/6 and 30/7 and 48 cents of land in re-survey No.30/6 were created in his favour. That apart, using the above-forged purchase certificates, the first accused had executed 13 sale deeds in respect of lands in survey No. 30/6 and also another seven sale deeds. In short, the contention of the de facto complainant is that the first accused owned only 103 cents of land, but by virtue of the forged purchase certificates, the extent of land became 174 cents. The 71 cents of land sold using the forged purchase certificates were found to be part of the co-ownership property of the de facto complainant. Since, for a proper investigation, seizure of the documents and custodial interrogation of the first accused is necessary, he prayed for dismissing the application. 7. In response to the submission of the learned counsel for the de facto complainant, the learned counsel for the accused submitted a civil suit O.S.No. 98/99 is pending before the Sessions Court, Manjeri, in connection BA 9667/2022 7 with the partition of the property of the common ancestor of the petitioner and the de facto complainant in which suit the petitioner herein is the 20th defendant and the de facto complainant the 21st defendant and their father was the first defendant. In the said suit, Annexure-III written statement was earlier filed, which was sought to be withdrawn by Annexure-IV statement. 8. The contentions of both sides about their civil or proprietary rights do not arise for consideration in this bail application. True, there are cases where the same transactions would invite action under both civil and criminal law. The allegation in the present case is of committing forgery by fabricating two purchase certificates. The said allegation is indeed serious and would call for a proper investigation. It is also to be noticed that most of the assertions of either side are based on documentary evidence. It is also not to be forgotten that the petitioner and the de facto complainant are brothers and that the second accused, the wife of the petitioner, has already been granted anticipatory bail. Though the matter was referred to mediation, same did not produce any result. In this case, there is also an interim order not to arrest the petitioner from 30.11.2022, which is currently in force. Under such circumstances, despite the seriousness of the allegations and as stated above, the proof of which is more based on documentary evidence and the proprietary rights ultimately to be decided by taking recourse to an action under civil law, a custodial interrogation of the petitioner, who also has produced certain medical records showing his illness, is not necessary, given the facts and circumstances of the case. It BA 9667/2022 8 cannot also be forgotten that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is a rule and refusal the exception. Accordingly, this bail application is allowed on the following conditions:- - i. The petitioner shall appear before the Investigating Officer within ten days from today and subject himself to interrogation. - ii. After interrogation in the event of the investigating officer deciding to arrest the petitioner, he shall be released on bail on executing a bond for a sum of Rs.1,00,000/- (Rupees one lakh only) with two solvent shorties each for the like some to the satisfaction of the officer concerned. - iii.The petitioner shall appear before the investigating officer for interrogation as and when directed. - iv.He shall also cooperate with the investigation and shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case to dissuade them from disclosing such facts to the court or the police officer. - v. The petitioner shall not leave India without the permission of the jurisdictional court. - vi.The petitioner shall not commit any offence while on bail. - vii.The petitioner shall appear before the investigating officer every Monday till the final report is filed. - viii.If any of the above conditions are violated by the petitioner, the jurisdictional court is empowered to cancel the bail in accordance with law. 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 BA 9667/2022 9 by the petitioner, even when the petitioner is 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** okb //True copy// PS to Judge BA 9667/2022 10 ## **`APPENDIX OF BAIL APPL. 9667/2022`** ``` PETITIONER ANNEXURES ``` |`Annexure-I`|`A COPY OF THE FIR IN CRIME NO 670/2021 OF`| |---|---| ||`PERINTHALMANNA POLICE STATION, MALAPPURAM`| |`Annexure-II`|`A COPY OF THE ORDER IN CRL MC NO 1211 OF`| ||`2022 PASSED BY THE COURT OF SESSION, MANJERI`| ||`DATED 26.11.2022`| |`RESPONDENT ANNEXURES`|| |`Annexure A1`|`TRUE COPY OF PURCHASE CERTIFICATE NO.1723 OF`| ||`2013 DATED 05-11-2013`| |`Annexure A2`|`TRUE COPY OF PURCHASE CERTIFICATE NO.214 OF`| ||`1979 DATED 29-03-1979`| |`Annexure A3`|`TRUE COPY OF FIR IN CRIME NO.670/2021 DATED`| ||`21-07-2021 OF PERINTHALMANNA POLICE STATION,`| ||`MALAPPURAM DISTRICT.`| |`PETITIONER ANNEXURES`|| |`Annexure-III`|`THE TRUE COPY OF THE WRITTEN STATEMENT DATED`| ||`26.03.2009 SUBMITTED BY THE 21ST DEFENDANT`| ||`(DEFACTO COMPLAINANT HEREIN) IN OS NO`| ||`98/1999 OF SUB COURT MANJERI`| |`Annexure-IV`|`THE TRUE COPY OF THE STATEMENT DATED`| ||`07.07.2017 FILED BY THE 21ST DEFENDANT`| ||`(DEFACTO COMPLAINANT HEREIN) IN OS NO`| ||`98/1999 OF SUB COURT MANJERI`| |`Annexure-V`|`A TRUE COPY OF THE DISCHARGE SUMMARY OF THE`| ||`PETITIONER DATED 02.03.2023`| |`Annexure VI`|`TRUE COPY OF THE STATEMENT OF THE WIFE OF`| ||`THE PETITIONER RECORDED IN THE OFFICE OF THE`| ||`DY.S.P, PERINTHALMANNA`| |`Annexure VII`|`TRUE COPY OF THE ORDER DATED 17.12.2022 IN`| ||`CMP NO 9489/2022 PASSED BY THE JFCM-I,`| ||`PERINTHALMANNA`| BA 9667/2022 11 |`Annexure VIII`|`THE TRUE COPY OF THE DEATH CERTIFICATE OF`| |---|---| ||`THE PETITIONER'S FATHER DATED 28.04.2016`| ||`ISSUED BY THE THAZHEKODE GRAMA PANCHAYATH`| |`Annexure IX`|`THE TRUE COPY OF THE ORDER DATED 26.11.2022`| ||`IN CR.M.C NO.1234/2022 OF SESSIONS COURT,`| ||`MANJERI`| |`Annexure X`|`THE TRUE COPY OF THE COMMUNICATION DATED`| ||`09.08.2021 ISSUED TO MUHAMMED FIROZ FORM THE`| ||`OFFICE OF THE SPECIAL TAHASILDAR, MANJERI`| |`Annexure-XI`|`THE TRUE COPY OF THE ORDER DATED 25.05.2023`| ||`IN CMP 1481A/2023 OF THE JFCM-I,`| ||`PERINTHALMANNA`| |`Annexure-XII`|`THE TRUE COPY OF THE SEARCH LIST DATED`| ||`26.02.2023 OF THE PERINTHALMANNA POLICE`| |`Annexure-XIII`|`THE TRUE COPY OF THE FROM-8 APPLICATION FOR`| ||`SURVEY SUBMITTED BY THE PETITIONER'S WIFE`| ||`ALONG WITH RECEIPT DATED 17.05.2023`| |`Annexure-XIV`|`THE TRUE COPY OF THE LETTER DATED 03.12.2023`| ||`ISSUED BY THE ENDODIAB CENTRE FOR`| ||`ENDOCRINOLOGY AND DIABETES`| |`Annexure-XV`|`THE TRUE COPY OF THE DISCHARGE SUMMARY DATED`| ||`02.03.2023 ISSUED BY THE EMS MEMORIAL C0-`| ||`OPERATIVE HOSPITAL, PERINTHALMANNA`|