Subin Suresh Babu, Suresh Babu, and Mercy Suresh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 23[RD] DAY OF JULY 2024 / 1ST SRAVANA, 1946** **BAIL APPL. NO. 5693 OF 2024** **CRIME NO.475/2024 OF Peramangalam Police Station, Thrissur PETITIONER/S:** **1 SUBIN SURESH BABU AGED 35 YEARS S/O SURESH BABU, GREESHMAM, NEAR MAHE RAILWAY STATION, AZHIYUR P.O., VADAKARA KOZHIKODE, PIN - 673309** **2 SURESH BABU AGED 65 YEARS /O KANARAN, GREESHMAM, NEAR MAHE RAILWAY STATION, AZHIYUR P.O, KOZHIKODE, PIN - 673309** **3 MERCY SURESH AGED 52 YEARS W/O SURESH BABU, GREESHMAM, NEAR MAHE RAILWAY STATION, AZHIYUR P.O, KOZHIKODE, PIN - 673309** **BY ADVS. BASIL CHANDY VAVACHAN CHARUTHA BHAIJU CHANDHANA BHAIJU BASIL SAJAN FATHIM NAVAS KAVYA P.R. LEKSHMI PRIYA V. BASIL SCARIA** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031** **SR.PP.SMT.SEETHA S.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **C.S.DIAS,J** ## **-------------------------------------------Bail Application No.5693 of 2024 --------------------------------------------Dated this the 23[rd] day of July, 2024** ## **ORDER** The application is filed under Sec.438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioners are the accused 1 to 3 in Crime No.475/2024 of the Peramangalam Police Station, Thrissur, which is registered against them, for allegedly committing the offences punishable under Section 498-A of the Indian Penal Code (in short, 'IPC'). 3. The concise case of the prosecution is that: the 1[st] accused is the husband of the defacto complainant. Their marriage was solemnised on 12.09.2021. The accused 2 and 3 are the parents of the 1[st] accused. During the period from 12.09.2021 to 20.05.2024, the accused had mentally and physically harassed the defacto complainant demanding more dowry. Thus, the accused have committed the above offence. 4. Heard; Sri.Basil Chandy Vavachan, the learned BAIL APPL. NO. 5693 OF 2024 3 counsel appearing for the petitioners and Smt.Seetha S., the learned Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are innocent of the accusations leveled against them. The defacto complainant has deliberately got Annexure-1 FIR registered against the petitioners to wreck vengeance on them. There is no materials to substantiate the petitioners' involvement in the case. A reading of Annexure-1 FIR would show that there are only omnibus allegations. The petitioners' custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated that if the petitioners are granted an order of pre-arrest bail, it may hamper the investigation of the case. Hence, the application may be dismissed. 7. The prosecution case is that the petitioners 1 to 3 had mentally and physically harassed the defacto BAIL APPL. NO. 5693 OF 2024 4 complainant, who is the wife of the 1[st] petitioner, by demanding more dowry. Indisputably, the 1[st] petitioner and the defacto complainant were married as early as on 12.09.2021. Even though the defacto complainant has alleged that the petitioners had been mentally and physically harassed the defacto complainant since the date of marriage, Annexure-1 FIR was only registered on 28.06.2024. It is apparent that there is a difference of opinion between the spouses. 8. The Honourable Supreme Court in **Bhadresh Bipinbhal Sheth vs. State of Gujarat and another** [2015 KHC 4579] has succinctly culled out the principles to grant orders of pre-arrest bail especially in matters where family disputes are involved. It is observed that the courts should carefully evaluate whether there is any falsity or frivolity in the complaint lodged against the family members especially for the purpose of getting them arrested. In such cases, there is no requirement that the accused must make out a special case for the exercise of the power to grant an order of pre-arrsest BAIL APPL. NO. 5693 OF 2024 5 bail which would virtually reduce the salutary power conferred under Section 438 of the Code of Criminal Procedure. 9. On an overall consideration of the facts, the rival submissions made across the Bar and the materials placed on record, particularly considering the fact that the marital relationship between the 1[st] petitioner and the defacto complainant stands strained, the alleged incident started from 12.09.2021 and Annexure-1 FIR was registered only on 28.06.2024, I am satisfied that the petitioners have made out convincing grounds to invoke the discretionary jurisdiction of this Court under Section 438 of the Code. Hence, I hold that the petitioners are entitled to an order of pre-arrest bail, subject to the condition that they co-operate with the Investigating Officer. Hence, I am inclined to allow the application. In the result, the application is allowed subject to the following conditions: (i) The petitioners are directed to surrender before BAIL APPL. NO. 5693 OF 2024 6 the Investigating Officer within 10 days from today. - (ii) In the event of the petitioners' arrest, the Investigating Officer shall release the petitioners on bail on them executing a bond for Rs.50,000/(Rupees fifty thousand only) with two solvent sureties for the like amount each; - (iii) The petitioners shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. - (iv) The petitioners shall not directly or indirectly make any inducement or threat to the victim or her witnesses or procure to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (v) The petitioners shall surrender their passports before the jurisdictional court concerned within a period of one week from the date of their release BAIL APPL. NO. 5693 OF 2024 7 on bail. If they have no passport, they shall file affidavits to the effect before said court within the said period; - (vi) The petitioners shall not get involved in any other offence while on bail; - (vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. - (viii) Applications for deletion/modification of the bail conditions shall also be filed before the court below. - (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners even while the petitioners are on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) And** BAIL APPL. NO. 5693 OF 2024 8 **another** [2020 (1) KHC 663]. (x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. Sd/- rkc/23.07.2024 **C.S.DIAS, JUDGE** BAIL APPL. NO. 5693 OF 2024 9 ## **APPENDIX OF BAIL APPL. 5693/2024** ## **PETITIONER ANNEXURES** **Annexure 1 THE TRUE COPY OF FIR DATED 28/06/2024 IN CRIME NO. 475/2024 OF PERAMANGALAM POLICE STATION, THRISSUR CITY Annexure 2 THE TRUE COPY OF THE MEDICAL REPORT OF THE TREATMENT PLAN DATED 08/02/2024**