Samsudeen and Abdul Rahiman M.K.C. v. State of Kerala and Chandera Police Station

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 10[TH] DAY OF JULY 2023 / 19TH ASHADHA, 1945 ``` ``` BAIL APPL. NO. 4465 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENTCRMP 2928/2023 OF DISTRICT COURT & SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD IN CRIME NO.416/2023 OF CHANDERA POLICE STATION, KASARAGOD PETITIONERS/ACCUSED 1 AND 2: ``` ``` 1SAMSUDEEN AGED 47 YEARS S/O. MOHAMMED KUNHI, RESIDING AT PADANNA POROT HOUSE, PADANNA P.O., KASARAGOD DISTRICT., PIN - 671312 2ABDUL RAHIMAN M.K.C AGED 72 YEARS S/O.ABDULLA, RESIDING AT NAFEESA MANZIL, PADANNA P.O., KASARAGOD DISTRICT, PIN - 671312 BY ADVS. T.MADHU C.R.SARADAMANI RENJISH S. MENON VRINDA T.S. AISWARYA JAYAPAL ``` ## **`RESPONDENTS/STATE:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2THE STATION HOUSE OFFICER CHANDERA POLICE STATION, KASARAGOD DISTRICT, PIN - 671310 BY ADV PUBLIC PROSECUTOR ``` ``` ADV.C.S HRITWIK, SR.GP ``` ## **`THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON`** ``` 10.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.4465/2023 : 2 : ## ORDER Dated this the 10[th] day of July, 2023 This is an application for anticipatory bail. 2. The petitioners are the 1[st] and 2[nd] accused in crime No.416/2023 of Chandera Police Station, Kasaragod District, which was registered for the offences punishable under Sections 341 and 195A read with Section 34 of the Indian Penal Code. 3. The prosecution case is that, on 23.02.2023 the 1[st] petitioner wrongfully restrained the survivor aged 14 years in crime No.158/2023 of Chandera Police Station, which was registered for the offences punishable under Section 354A1(i) IPC and under Section 9(m)(n)(1) of POCSO Act from the compound of the Collectorate, Kasaragod by shaking her body and threatening her to withdraw the complaint. The 2[nd] petitioner also threatened the survivor to compel her to settle the criminal case. The crime was registered in such circumstances and as the petitioners apprehend arrest in connection with the investigation of the said case, this application for anticipatory bail is submitted in such circumstances. B.A.No.4465/2023 : 3 : 4. Heard Sri.T.Madhu, the learned counsel appearing for the petitioners and Sri.C.S Hrithwik, the learned Senior Public Prosecutor for the State. 5. The learned counsel for the petitioners submits that, the petitioners are innocent of all the allegations. One of the crucial contention raised by the learned counsel for the petitioners is that, the offence under Section 195A of Indian Penal Code, cannot be investigated by the police consequent to the specific prohibition contained under Section 195 of Cr.P.C. The learned counsel places reliance upon the decision rendered by this Court in Suni @ Sunil v. State of Kerala [ 2023 (3) KHC 57]. 6. On the other hand, the learned Public Prosecutor would oppose the aforesaid application. It is pointed out that, there are specific allegations against the petitioners and the matter is being investigated. The learned Public Prosecutor pointed out that, the offence under Section 195A of Cr.P.C, is classified as a cognizable offence and therefore in the light of the statutory stipulations contained in Section 154 of Cr.P.C nothing would preclude the police from registering the crime and investigating the matter. 7. I have gone through the records, it is discernible that B.A.No.4465/2023 : 4 : only non bailable offence is under Section 195A of IPC. As mentioned above, the crucial contention is that the police cannot investigate the matter and while considering this issue, observations made by this Court in Suni @ Sunil ’ s case (supra) are very crucial. Paragraph 27 of the aforesaid decision was observed as follows:- “The conundrum as regards to the competence of the police to register a crime when offence under Section 195 A of IPC is alleged sprang up for consideration only on the ground that the offence is classified as 'cognizable'. It is relevant to note that, as I have already pointed out, Section 195 A of IPC was introduced with effect from 16.04.2006 in between Section 195 and Section 196. It is pertinent to note further that all other offences dealt under Section 195 of Cr.P.C. are 'noncognizable'. It is to be noted further that when the threat dealt in Section 195 of IPC is giving false evidence, that is a matter to be considered by the court and in view of the matter, it has to be held that a police officer cannot register a crime in relation to an offence under Section 195 A of IPC and for which procedure under Section 195 read with 340 of Cr.P.C. should have been followed. Therefore, the cognizance of the offence under Section 195 A of IPC by the police is held to be bad in law. However, the police registered crime under B.A.No.4465/2023 : 5 : Section 120(O) of the Kerala Police Act also and therefore, investigation in this regard can go on.” 8. In the light of observations made above, it is evident that, even though offence under Section 195 A was classified as a cognizable offence, the same would not enable the police to conduct an investigation after registering a crime on the basis of the same. For the purpose of prosecuting the accused, for the said offence, the procedure contemplated under Section 195 of Cr.P.C read with Section 340 are to be complied. It has been specifically observed in the said decision above referred that, the classification as contemplated in the schedule of the Cr.P.C, cannot go against the substantive provision contemplated under Section 195 A Cr.P.C. In such circumstances, in the light of the observations made in the Suni @ Sunil ’ s case (supra), I find some force in the contention put forward by the learned counsel for the petitioners. Anyhow, since the case is at the investigation stage and I do not intend to enter upon any finding in this regard. Considering the aforesaid aspects, I deem it appropriate to grant anticipatory bail to the petitioners. In such circumstances, this bail application is disposed B.A.No.4465/2023 : 6 : ## of with the following directions: - (1) The petitioners shall surrender before the Investigating Officer, within a period of three weeks from today, for subjecting themselves to interrogation. - (2) After interrogation, the petitioners shall be released on bail on the very same day of surrender upon the petitioner executing a bond for Rs.1,00,000/- (Rupees One Lakh only) each with two sureties each for the like sum, to the satisfaction of the Investigating Officer. - (3) The petitioners shall fully cooperate with the investigation, including subjecting themselves to the deemed police custody for the purpose of recovery, if any, as and when demanded. - (4) The petitioners shall appear before the Investigating Officer between 10.00 a.m and 11.00 a.m. every Saturday until the filing of the final report. - (5) The petitioners shall also appear before the Investigating Officer as and when required. - (6) The petitioners shall not commit any offence of similar nature while on bail. - (7) The petitioners shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation. B.A.No.4465/2023 : 7 : (8) The petitioners shall not leave India without the permission of the Jurisdictional Court. In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation of bail, if any, and pass appropriate orders in accordance with the law. Sd/- ZIYAD RAHMAN A.A. JUDGE AP ## B.A.No.4465/2023 : 8 : ## **`APPENDIX OF BAIL APPL. 4465/2023`** ``` PETITIONER ANNEXURES ``` ``` Annexure-A1THE TRUE COPY OF THE ORDER DATED 29/05/2023 IN CRL.M.P.NO.2928/2023 ON THE FILES OF LEARNED SESSION'S COURT; KASARAGOD. ```