Nalinakshi and Others v. State of Kerala & Station House Officer, Kumarakom Police Station

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. SATURDAY, THE 4[TH] DAY OF DECEMBER 2021 / 13TH AGRAHAYANA, 1943 BAIL APPL. NO. 8985 OF 2021 [CRIME NO.1471 OF 2021 OF KUMARAKOM POLICE STATION, KOTTAYAM DISTRICT] ## PETITIONERS/ACCUSED NOS.2 TO 6: 1 NALINAKSHI, AGED 74 YEARS W/O. ACHANKUNJU, KAYITHARA HOUSE, KUMARAKOM P.O, KUMARAKOM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT (A2). 2 AJITHA @ AJIMOL T.M, AGED 42 YEARS D/O. CHACKO MATHAI, PLACHERIL HOUSE, MEENADOM P.O, PAMPADY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT (A3). 3 ASOKAN N.N, AGED 56 YEARS S/O. NARAYANAN, NEDUNILAM HOUSE, KADUTHURUTHY P.O, KOTTAYAM TALUK, KOTTAYAM DISTRICT (A4). 4 SINDHU K.A, AGED 49 YEARS W/O. ASOKAN N.N, NEDUNILAM HOUSE, KADUTHURUTHY P.O, KOTTAYAM TALUK, KOTTAYAM DISTRICT, (A5). 5 SREEJAMOL K.A., AGED 39 YEARS W/O. PAVANAN, ETTATHARA LAKSHAMVEEDU HOUSE, THALAYAZHAM P.O, THALAYAZHAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT. BY ADVS. P.P.BLESSY MOL ANILA PETER ## RESPONDENT/S: 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN 682 031. B.A.No.8985 of 2021 2 2 STATION HOUSE OFFICER/INSPECTOR OF POLICE, KUMARAKOM POLICE STATION, KOTTAYAM DISTRICT, PIN 686 563. ## OTHER PRESENT: PP-SMT.MAYA M.N THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A.No.8985 of 2021 3 ## **O R D E R** This is an application filed under Section 438 of Code of Criminal Procedure seeking pre-arrest bail. 2. The petitioners are the accused Nos. 2 to 6 in Crime No.1471/2021 of Kumarakom Police Station. The aforesaid case was registered against the petitioners herein and the 1[st] accused, for the offences punishable under Sections 294(b), 323, 324, 506(i) read with Section 34 of the IPC and 31(1) of Protection of Women from Domestic Violence Act, 2005. 3. The prosecution case against the petitioners is that on 14.10.2021 at about 10.45 a.m., the accused persons have assaulted the de facto complainant and thereby violated the order in CMP No. 961/2021 in MC No. 26/2021 on the file of Judicial First Class Magistrate Court-III, Kottayam. It was further alleged that, on 15.10.2021, the petitioners 4 and 5 herein uttered obscene words and assaulted her again. The aforesaid case was registered on the basis of the above allegations. 4. Heard the learned counsel for the petitioners and the learned Public Prosecutor. 5. The learned counsel for the petitioners contends that the petitioners were falsely implicated in this case. The de facto B.A.No.8985 of 2021 4 complainant was in a living-in relationship with the 1[st] accused, who is the son of the 1[st] petitioner, husband of the 2[nd] petitioner and brother of the petitioners 3 to 5 herein. It is the case of the petitioners that, even though the 1[st ] accused and the de facto complainant were living together for some time, later they got separated in the year 2016. It is contended that, she left the 1[st] accused at a difficult time when he has sustained Left Hemi Paresis. After leaving the 1[st] accused, the defacto complainant, left for Saudi Arabia on her own volition. Thereafter, the 1[st] accused married the 2[nd] petitioner/3[rd] accused and is living with her. 6. The learned Counsel for the petitioner further contends that, by suppressing the fact that, the defacto complainant left the residence of the 1[st] accused as early as in the year 2016, she filed a complaint under the provision of Protection of Women from Domestic Violence Act, and obtained an order under section 18. On the basis of the said order, an attempt was made by her to evict the 1[st] accused and petitioners 2 and 3 herein from their residence. During the said attempt, she pulled the 1[st] petitioner as well, and as a result of the same 1[st] petitioner sustained B.A.No.8985 of 2021 5 injuries. The treatment records of the 1[st] petitioner are produced as Annexure A2. 7. The learned Public Prosecutor seriously opposes the bail application. It is also pointed out that, there are allegations against the petitioners and therefore, this is not a fit case in which pre-arrest bail is to be granted. It is pointed out that, going by the statement of the defacto complaint, she is the wife of the 1[st] accused and there are three children in the said wedlock. The acts which are the subject matter of the offences, were committed by the accused , to evict the petitioner from the residence where she was was living along with her husband, the 1[st] accused. 8. It is evident from the records that, the basic dispute is between the 1[st] accused and the de facto complainant herein. The acts which resulted in registration of the crime are apparently the escalation of the said disputes. The petitioners herein are close relatives of the 1[st] accused. The 1[st] petitioner is aged 74 years. No criminal antecedents are brought to my notice, as regard to any of the petitioners herein. Dispute in relation to the domestic relationship between the parties are pending adjudication before the appropriate court. In the facts B.A.No.8985 of 2021 6 and circumstances of the case, it does not appear that a custodial interrogation of the petitioners is required. Considering the aforesaid aspects, even though there are allegations against petitioners herein, I am of the view that a lenient view can be taken in the matter of pre-arrest bail, by ensuring their cooperation with the investigation, so as to enable the Investigating Officer to conduct a proper investigation in the matter. In the result, the application is allowed on the following conditions:- i. The petitioners shall surrender before the Investigating officer, within a period of two weeks from today, for subjecting themselves for interrogation. ii. After interrogation, the petitioners shall be released on bail, on the very same day of surrender upon the petitioners executing a bond for Rs. 1,00,000/- (Rupees One Lakh only) with two solvent sureties each for the like sum, to the satisfaction of the investigating officer. iii. The petitioners shall fully co-operate with the investigation, including subjecting themselves to the deemed B.A.No.8985 of 2021 7 police custody for the purpose of discovery, if any, as and when demanded. iv. All the petitioners except the 1[st] petitioner, shall appear before the investigating officer between 10.00 a.m and 11.00 a.m on every Wednesday until final report is submitted. v. The petitioners shall also appear before the Investigating Officer as and when required by him. vi. The petitioners shall not commit any offence of like nature while on bail. vii. The petitioners shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation. viii. The petitioners shall not leave the State of Kerala without the permission of the trial Court. Sd/- ## **ZIYAD RAHMAN A.A. JUDGE** LU B.A.No.8985 of 2021 8 ## APPENDIX OF BAIL APPL. 8985/2021 |PETITIONER ANNEXURE|| |---|---| |Annexure A1|TRUE COPY OF THE OP TICKET ISSUED BY THE| ||COMMUNITY HEALTH CENTRE TO THE 1ST| ||PETITIONER DATED 14.10.2021.| |Annexure A2|TRUE COPY OF THE CASUALITY TREATMENT CHART| ||OF THE 1ST PETITIONER DATED 14.10.2021 OF| ||MEDICAL COLLEGE HOSPITAL, KOTTAYAM.| |Annexure A3|TRUE COPY OF THE STATEMENT GIVEN BY THE| ||DEFACTO COMPLAINANT TO THE 2ND RESPONDENT.| |Annexure A4|TRUE COPY OF THE ORDER DATED 18.08.2021 IN| ||CMP NO 961/2021 IN MC NO. 26/2021 BEFORE| ||THE JFMC-III, KOTTAYAM.| |Annexure A5|FREE COPY OF THE ORDER OF HON'BLE SESSION| ||COURT, KOTTAYAM IN CRL.M.P NO. 1721/2021| ||DATED 02.11.2021.|