High Court of KeralaSingle JudgeAnticipatory bail granted to the petitioner wit...

Subair K.H. v. State of Kerala

Case / Petition Number:BA No.8703 of 2023

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Mohammed NiAs C.P.
Judgment Date
2023-10-27
Court Decision / Holding
Anticipatory bail granted to Subair K.H. with conditions: surrender before the Investigating Officer within one week; on surrender, the IO may interrogate the petitioner and produce him before the jurisdictional court on the date of surrender; the court to release on bail on a bond for Rs. 25,000 with two solvent sureties; cooperation with investigation; no witness intimidation; no commission of any offence while on bail; violation may lead to cancellation of bail as per law; the decision cites the power of police to investigate and recover information even when on bail per Sushila Aggarwal (Apex Court).
Final Disposition
Anticipatory bail granted to the petitioner with conditions as stated above.

Parties to the Case

Appellants / Petitioners

  • Subair K.H.

Respondents

  • State of Kerala represented by Public Prosecutor, High Court of Kerala
  • Sudheer

Legal Representation & Advocates

Counsels for Petitioners

  • • Millu Dandapani

Counsels for Respondents

  • • Vishnumaya M.B.
  • • Shifna Muhammed Shukkur
  • • Sri P.G. Manu (Mammalassery)

Case Synopsis & Summary

Subair K.H., the sole accused in Crime No. 93/2023 of Alathur Police Station, moves for anticipatory bail under the provisions of the IPC for offences including forgery (sections 468, 471) and offences of cheating and criminal misappropriation (sections 419 and 420). The prosecution alleges that the accused, with dishonest intent, obtained thumb impressions from his father and forged signatures of the complainant’s sister to secure a licence and NOC for a saw mill on a co-owned property, using a power of attorney allegedly executed by his father and without the knowledge or consent of the complainant’s family. The FIR relates to events between 2019 and 2022, but was registered on 20 January 2023, after the father’s death on 28 July 2022. The petitioner contends that there are longstanding family disputes and that the NOC and powers of attorney were obtained with the father’s knowledge; he also points to multiple civil and criminal proceedings brought by the complainant or his agents, including partition suits (OS 131/2020 and OS 177/2022) and 107 CrPC proceedings later stayed in a prior order. The learned Public Prosecutor submits that the offences involve forgery and warrants proper investigation including custodial interrogation. The court, noting the documentary nature of most evidence and the family ties, finds custodial interrogation unnecessary and grants anticipatory bail with conditions: surrender within a week, a bond of Rs. 25,000 with two sureties, cooperation with investigation, non-interference with witnesses, and compliance with bail conditions; it also clarifies police power to recover information during bail per the Apex Court decision in Sushila Aggarwal.

Provisions of Law Cited

IPC Sections 468, 471, 419 and 420CrPC Section 107

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submitted that there are several ongoing litigations within the family; the father had empowered him through a power of attorney to run the business, and the NOC was obtained with the father’s knowledge and consent. He argued that most of the other cases are initiated by the defacto complainant or a person he organized, and that 107 CrPC proceedings were stayed in a prior order (Crl. M.C. 5748/2023). He contended that custodial interrogation is unnecessary owing to documentary nature of evidence and that the delay and disputes among family members do not warrant denial of bail. He further emphasized partition suits (OS 131/2020; OS 177/2022) over the property where the saw mill is located and questioned the credibility of the complaint given the relationships.

Contentions of Respondents

The Public Prosecutor argued that the case involves forgery and that a thorough investigation, including custodial interrogation, is essential to unearth the truth and to protect the complainant’s interests. The defacto complainant’s counsel urged denial of anticipatory bail due to the accused’s antecedents and the existence of absconding charges in other cases; he highlighted previous bail orders and the ongoing civil disputes to argue that the applicant may misuse liberty.

Cited Precedents (3)

Case NameCitationTreatmentExplanation
Sushila Aggarwal and others v. State (NCT of Delhi) and another2021 (1) KHC 663PositiveThe court relies on this Apex Court ruling to justify police’s authority to investigate and recover information even when a person is on bail.
WP(C) 25313 of 2023WP(C) 25313 of 2023Mentioned OnlyAnnexed as Appendix A5; not a part of the reasoning or direct application in the bail order.
CRL(MC) 5748 of 2023CRL(MC) 5748 of 2023Mentioned OnlyCited in the context of prior bail-related or procedural orders; not discussed in the judgment’s reasoning.

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Extracted Judgment Text

Exact text extracted from official judgment records.

BA No.8703 of 2023 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **FRIDAY, THE 27[TH] DAY OF OCTOBER 2023 / 5TH KARTHIKA, 1945 BAIL APPL. NO. 8703 OF 2023** **CRIME NO.93/2023 OF ALATHUR POLICE STATION, PALAKKAD** ## **PETITIONER/ACCUSED:** SUBAIR K.H, AGED 40 YEARS S/O LATE HAMSA , PANAKKAL PARAMBU NEAR T.B ROAD ALATHUR , PALAKKAD, PIN - 678541 BY ADV MILLU DANDAPANI ## **RESPONDENT/COMPLAINANT & STATE:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 *2 SUDHEER ,AGED 47 YEARS, S/O.HAMSA, 105, 1ST FLOOR, FATHIMA APARTMENTS, MANAPPADAM P.M, MANAPADAM JUNCTION, ALATHUR TALUK, PALAKKAD (IS IMPLEADED AS ADDL R2 AS PER ORDER DATED 16/10/23 IN CRL MA 1/23) BY ADVS. VISHNUMAYA M.B. SHIFNA MUHAMMED SHUKKUR BY SRI.P.G.MANU(MAMMALASSERY) SR.PP **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.10.2023, THE COURT ON 27.10.2023 DELIVERED THE FOLLOWING:** BA No.8703 of 2023 2 ## **MOHAMMED NIAS C.P., J.** **- - - - - - - - - - - - - - - - - - - - -** B.A.No. 8703 of 2023 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 27[th] day of October, 2023 ## **O R D E R** The sole accused in Crime No. 93/2023 of Alathur Police Station registered for offences punishable under Sections 468, 471, 419 and 420 of the IPC, has filed this application seeking pre-arrest bail. 2. It was the allegation of the second respondent - the defacto complainant, who is the brother of the petitioner herein that the petitioner has, with a dishonest intention to defraud the defacto complainant, his sister and father obtained the thumb impression on various dates from their father without his knowledge and consent in order to obtain the licence and NOC for running a saw mill which is coownership property. It is also alleged that the accused had forged the signature of the defacto complainant's sister in order to show that she had witnessed the fraudulent transactions between the second respondent and the defacto complainant's father. BA No.8703 of 2023 3 3. Learned counsel for the petitioner submits that there are several litigations between the siblings and that the father had given him a power of attorney to run the business, and the NOC was also obtained with his knowledge and consent. It is also his argument that out of the nine cases he has, except one, all the other cases are filed by the defacto complainant or somebody he set up. It is also pointed out that 107 Cr.P.C. proceedings were initiated against him incorporating five crimes, and the same was challenged in Crl. M.C.No.5748/2023, and this Court had already stayed the proceedings. It is also pointed out that there are two civil cases filed by the defacto complainant against the petitioner as, OS No.131/2020 and OS No.177/2022, which is a suit filed for partition by the defacto complainant including the property in which the saw mill is situated. 4. The Learned Public Prosecutor submits that the allegation against the petitioner is forgery; therefore, a proper investigation, including custodial interrogation, is necessary. 5. Learned counsel who appeared for the defacto complainant would submit producing documents that, in view of the antecedents of the petitioner, anticipatory bail may not be granted. It is also pointed out that an absconding charge has been filed against him in some cases and that in spite of this Court granting anticipatory bail on an earlier BA No.8703 of 2023 4 occasion, he has indulged in similar cases, thus praying for dismissing the application for anticipatory bail. 6. Having considered the rival submissions few things deserve notice. Firstly, the period in which the alleged incident took place is mentioned as 6/6/2019 to 28/7/2022, but the FIR is seen registered only on 20/01/2023, which is after the death of the father of the petitioner and the defacto complainant. It is also the contention of the petitioner with all the siblings except the defacto complainant have sailed along with the petitioner, and it is the defacto complainant who instigates others to stand against the petitioner. It is also to be noted that the power of attorney was executed on 16/4/2019, and consent for NOC by the father was given on 2/3/2021. Obviously, the alleged complaints against the petitioner have come only after his death on 28/7/2022. It is also to be noted that a partition suit is pending with respect to the property over which the sawmill is situated. 7. Taking into account the relationship between the parties, custodial interrogation is not required as most of the evidence sought to be adduced by the defacto complainant is in documentary form. Under such circumstances, I am inclined to allow the application. Subject to the above, anticipatory bail is allowed with the following conditions:- BA No.8703 of 2023 5 (i.) The petitioner is directed to surrender before the Investigating Officer within a week from today, and on such surrender, the Investigating Officer can interrogate the petitioner. In the event of his arrest, the Investigating officer shall produce the petitioner before the jurisdictional court on the date of surrender itself. (ii) On such production, the jurisdictional court shall release the petitioner on bail, on executing a separate bond for Rs.25,000/(Rupees twenty-five thousand only) by the petitioner and by two solvent sureties each for the like sum to the satisfaction of the jurisdictional court. (iii) The petitioner shall cooperate with the investigation and shall make himself available for interrogation and for the purpose of investigation as and when the Investigating Officer directs them to do so. (iv) The petitioner shall not intimidate the witnesses or interfere with the Investigation in any manner. (v) The petitioner shall not be involved in any offence while on bail. (vi) If any of the above conditions are violated, the court concerned will be empowered to take steps for cancellation of bail as per 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, BA No.8703 of 2023 6 if any, given by the petitioners, even when the petitioners are 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** dlk/26/10/23 BA No.8703 of 2023 7 ## **APPENDIX OF BAIL APPL. 8703/2023** PETITIONER'S ANNEXURES Annexure A1 THE COPY OF THE FIR IN CRIME NO 93/2023 OF ALATHUR POLICE STATION Annexure A2 THE TRUE OF THE POWER OF ATTORNEY ISSUED BY THE FATHER TO THE PETITIONER DATED 12.04.2019 - Annexure A3 THE TRUE COPY OF THE NOTARIZED CONSENT LETTER EXECUTED BEFORE THE NENMARA DIVISIONAL FOREST OFFICER DATED 2.03.2021 - Annexure A4 THE TRUE COPY OF THE ORDER DATED 19.07.2023 IN CRL(MC) 5748 OF 2023 - Annexure A5 THE TRUE COPY OF THE JUDGMENT IN WP(C) 25313 OF 2023 ## **RESPONDENT'S ANNEXURES** - ANNEXURE R1 A TRUE COPY OF THE FIR DATED 27.11.20 IN CRIME NO. 1033/2020 OF ALATHUR POLICE STATION - ANNEXURE R2 THE WRITTEN INSTRUCTION DATED 30.1.23 SUBMITTED BY T.N UNNI KRISHNAN INSPECTOR OF POLICE, ALATHUR POLICE STATION BEFORE THE HON'BLE COURT - ANNEXURE R3 TRUE COPY OF FIR IN CRIME NO. 1269/2022 OF PALAKKAD TOWN SOUTH POLICE STATION DATED 21.12.22 - ANNEXURE R4 THE TRUE THE COPY OF THE RTI NUMBERED AS 27/RTI/F1/2023 DATED 24.4.23 - ANNEXURE R5 TRUE COPY OF A FIR IN CRIME NO. 478/2017 OF MEENAKSHIPURAM POLICE STATION DATED 21.08.17 - ANNEXURE R6 TRUE COPY OF FIR IN CRIME NO. 1002/2020 OF ALATHUR POLICE STATION DATED 10.11.2020 BA No.8703 of 2023 8 |Annexure R8|the true copy of The documents related to| |---|---| ||fake voters identity cards| |Annexure R9|The copy of death certificate, medical| ||discharge summary and course in hospital| ||dated 24.09.2018| |Annexure R7|true copy of show cause notice (form 14)| ||and s. 107 CrPC notice dated 30.05.23| |Annexure R10|The affidavits of three sisters of the| ||defacto complainant dated 26.01.23 and| ||27.1.23| |Annexure R11|The order of the Anticipatory bail by this| ||Honble Court dated 19.01.21|