Priya and G. Murugan v. State of Kerala, Station House Officer, Parassala Police Station, and Sudheer

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 25[TH] DAY OF JANUARY 2023 / 5TH MAGHA,** ## **1944** **BAIL APPL. NO. 10551 OF 2022** **CRIME NO.1362/2022 OF PARASSALA POLICE STATION,** ## **THIRUVANANTHAPURAM** ## **PETITIONERS/ACCUSED 1 AND 2 :** **1 PRIYA AGED 37 YEARS D/O SANTHI RESIDING AT 448/3, KAMARAJAPURAM COLONY, PALLAPATTI, SIVAKASHI, THIRUNELVELI, TAMIL NADU, PIN - 627006** - **2 G.MURUGAN, AGED 45 YEARS, 327 ANIL COMPLEX, THIRUTHANGAL ROAD, NEAR BELL HOTL, SIVAKASI, THIRUNELVELI, TAMIL NADU, PIN - 627006** **BY ADV T.M.RAMAN KARTHA** ## **RESPONDENTS/STATE AND COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN - 682031** - **2 STATION HOUSE OFFICER, PARASSALA POLICE STATION, PARASSALA POST,** **THIRUVANANTHAPURAM DISTRICT, PIN - 695502** B.A.No.10551 of 2022 ..2.. **3 SUDHEER,** **S/O SADHASIVAN, AGED ABOUT 49 YEARS, S.N BHAVAN, MURIYANKARA, PARASSALA POST, THIRUVANANTHAPURAM DISTRICT, PIN - 695502** **BY ADVS. PUBLIC PROSECUTOR R.UMASANKAR SMT.NEEMA T.V., SR.PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.No.10551 of 2022 ..3.. ## **A.BADHARUDEEN, J.** **-------------------------------------------------------B.A.No.10551 of 2022 -------------------------------------------------------Dated this the 25[th] day of January, 2023** ## **O R D E R** The petitioners, who are accused Nos.1 and 2 in Crime No.1362 of 2022 of Parassala Police Station, Thiruvananthapuram, seek the relief of pre-arrest bail under Section 438 of the Code of Criminal Procedure in this matter. 2. Heard the learned counsel for the petitioners, the learned Public Prosecutor as well as Adv.Sri.R.Umasankar appeared for the defacto complainant/third respondent. 3. The prosecution case as could be read out B.A.No.10551 of 2022 ..4.. ## from the petition averments are as under: The 1[st] petitioner and the 3[rd] respondent are parties to a legal marriage solemnized on 07.05.2003 as per Hindu Religious rites at Thakkalai. In the wedlock they have a son aged 18 years, and a daughter aged 14 years. The marital life of the parties has all along been a miserable on account of the matrimonial cruelty exerted by the 3[rd] respondent. Finally the 1[st] petitioner was forced to leave the matrimonial home on 29.06.2020 and thereafter she had filed a petition -DVC No.6/2020 for maintenance and incidental relieves against the 3[rd] respondent under the Protection of Women from Domestic Violence Act, before the Judicial Magistrate Court-II, Sivakasi. The learned Magistrate was pleased to pass an order granting interim maintenance to the children @ Rs.6,000/- per month. Thereafter the 1[st] petitioner has also filed a petition before the Sub Court, Sivakasi for dissolution of her marriage with the 3[rd] respondent under S.13(1)(ia) and (ib) of the Hindu Marriage Act. Instead of defending the above proceedings, the 3[rd] respondent has lodged false B.A.No.10551 of 2022 ..5.. criminal complaint against the petitioners alleging that they are in adulterous relationship that, they have tried to administer poison on him while the 1[st] petitioner was cohabiting with him. On the basis of the above complaint the 2[nd] respondent had registered Crime No.1362/2022 on 6.11.2022 alleging offences under Ss.307 and 34 of the Indian Penal Code, 1860. A true copy of the FIR in Crime No.1362/2022 of Parassala Police Station is produced herewith and marked as **Annexure 1** . A true copy of the Statement of the 3[rd] respondent, the defacto complainant, dt.6.11.2022 given to the Police is produced herewith and marked as **Annexure 2** . Thereafter the 2[nd] respondent had filed Report dt.7.11.2022 before the learned Judicial Magistrate adding S.328 also to the FIR, a true copy of which is produced herewith and marked as **Annexure 3** . The gist of Annexures 1 to 3 is that the petitioners, who are in an adulterous life, have tried to administer poison on the 3[rd] respondent while the 1[st] petitioner was cohabiting with him and that the defacto complainant has unexpectedly recovered a Courier Cover containing a packet of ALUMINIUM PHOSPHIDE and an insulin syringe, wrapped in a newspaper B.A.No.10551 of 2022 ..6.. (Kerala Kaumudi daily dt.21.5.2021) from the Almirah of the 1[st] petitioner, which according to the 3[rd] respondent were couriered to the 1[st] petitioner by the 2[nd] petitioner for administering on him. A true copy of Inventory Mahazar dated 10/11/2022 prepared by the 2[nd] respondent while receiving the above courier packet is produced herewith and is marked as **Annexure 4** . 4. It is argued by the learned counsel for the petitioners that the first petitioner is the wife of the defacto complainant and their marriage was on 07.05.2003. Two children also born in the said wedlock. While so, due to difference of opinion, the first petitioner left the matrimonial home on 29.06.2020 along with the two children. Thereafter, she filed DVC No.6/2020 before the Judicial Magistrate Court-II, Sivakasi and the learned Magistrate ordered interim maintenance to the children at the rate of Rs.6,000/- per month. 5. While so, the third respondent lodged a B.A.No.10551 of 2022 ..7.. complaint, alleging adulterous relationship between the petitioners and also raised specific allegation that they jointly tried to administer poison to the defacto complainant with intend to do away him. 6. According to the learned counsel for the petitioners, eventhough the prosecution allegation is that the petitioners herein attempted to administer aluminium phosphide, on the premise that, when the third respondent searched the Almirah used by the first petitioner on 20.7.2021, it was found that she kept aluminium phosphide at the Almirah, when the above chemical was produced before the police, the same was wrapped in a newspaper published on 07.05.2021 and that itself shows falsity of the case. According to him, in order to avoid payment of maintenance and consequences arose out of the marriage, this case is foisted. Therefore, B.A.No.10551 of 2022 ..8.. the petitioners are liable to be released on anticipatory bail. 7. The learned Public Prosecutor opposed bail. But the learned Public Prosecutor pointed out that when the chemical alleged to be containing aluminium phosphide was sent for chemical analysis, the report was to the effect that the same is not aluminium phosphide but the same is diazepam. 8. The learned counsel for the defacto complainant opposed bail and submitted that the first and second petitioners have been maintaining illicit relationship starting from the initial days of marriage and the third respondent could notice the same at a later stage. When the third respondent knew about the illicit relationship, the first petitioner left the company of the third respondent and went along with the second B.A.No.10551 of 2022 ..9.. petitioner and now they are living together. 9. According to the learned counsel for the third respondent, since they are living together, they have jointly filed this petition before this Court and the same would also buttress this point. 10. In this case, the prosecution alleges commission of offences punishable under Sections 307, 328 and 34 of the Indian Penal Code. Although the offences are serious, the plank on which the prosecution case emanated, as discussed, where the allegation was raised in the year 2022, after the wife left the matrimonial home during 2020 and after suffering an order to pay maintenance by the third respondent, it is a matter which would require effective investigation. I leave the same to the domain of the Investigating Officer for effective and unfair investigation. B.A.No.10551 of 2022 ..10.. 11. As far as the factual events referred herein above are concerned, I do not think that the arrest and custodial interrogation of the petitioners are necessary and therefore, they can be enlarged on anticipatory bail with direction to co-operate with the investigation in the matter of interrogation and other purposes, without hesitation. Therefore, this petition stands allowed. The petitioners are enlarged on bail on conditions: i. The petitioners shall surrender before the Investigating Officer within ten days from today and on such surrender, the Investigating Officer can question the petitioners. In the event of their arrest, the Investigating Officer shall produce the petitioners before the Magistrate Court on the date of surrender itself. ii. On such production, Magistrate Court shall release the petitioners on bail, on executing bond for B.A.No.10551 of 2022 ..11.. Rs.30,000/- (Rupees Thirty thousand) each, by themselves and by two sureties, each for the like sum to the satisfaction of the Magistrate Court. iii. The petitioners shall co-operate with investigation and shall be made available for interrogation and for the purpose of investigation, as and when the Investigating Officer directs so. iv. The petitioners, shall not, intimidate the witnesses or interfere with the investigation in any manner. v. The petitioners shall not commit any offence during currency of this bail and any such involvement is a reason to cancel the bail hereby granted. Sd/- ## **A.BADHARUDEEN, JUDGE** rkj B.A.No.10551 of 2022 ..12.. ## **APPENDIX OF BAIL APPL. 10551/2022** |**PETITIONER**|**ANNEXURES**| |---|---| |**ANNEXURE 1**|**TRUE COPY OF THE FIR IN CRIME**| ||**NO.1362/2022 OF PARASSALA POLICE**| ||**STATION**| |**ANNEXURE 2**|**TRUE COPY OF THE STATEMENT OF THE 3RD**| ||**RESPONDENT, THE DEFACTO COMPLAINANT,**| ||**DT.6.11.2022 GIVEN TO THE POLICE**| |**ANNEXURE 3**|**TRUE COPY OF REPORT DT.7.11.2022 FILED**| ||**BY THE 2ND RESPONDENT BEFORE THE**| ||**JUDICIAL FIRST CLASS MAGISTRATE COURT-**| ||**II, NEYYATTINKARA**| |**ANNEXURE 4**|**TRUE COPY OF THE INVENTORY MAHAZAR**| ||**DATED 10/11/2022 PREPARED BY THE 2ND**| ||**RESPONDENT**|