Sujith, Suran and Girija v. State of Kerala

2024:KER:59355 **==> picture [58 x 57] intentionally omitted <==** ``` BAIL APPL. NO. 5502 OF 2024 ``` ``` -: 1 :- ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 6[TH] DAY OF AUGUST 2024 / 15TH SRAVANA, 1946 CRIME NO.713/2024 OF Kodungallur Police Station, Thrissur ``` --------------- ## **`PETITIONERS/ACCUSED No.1 TO 3 :-`** - **`1 SUJITH, AGED 43 YEARS S/O SURAN, CHENOOTHARAYIL HOUSE, PANICKERKADAVU DESOM, YANIVELIKULANGARA VILLAGE, KOLLAM CITY, DISTRICT KOLLAM, PIN - 690 573`** ``` 2SURAN, AGED 77 YEARS CHENOOTHARAYIL HOUSE, PANICKERKADAVU DESOM, AYANIVELIKULANGARA VILLAGE, KOLLAM CITY, DISTRICT KOLLAM, PIN - 690 573 ``` ``` 3GIRIJA, AGED 74 YEARS W/O. SURAN, CHENOOTHARAYIL HOUSE, PANICKERKADAVU DESOM, AYANIVELIKULANGARA VILLAGE, KOLLAM CITY, DISTRICT KOLLAM, PIN - 690 573 ``` ``` BY ADVS. PAUL K.VARGHESE A.A.GEETHA ``` ## **`RESPONDENT/DE FACTO COMPLAINANT :-`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031 ``` ``` BY SMT.SEETHA S., SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.08.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` 2024:KER:59355 **==> picture [58 x 57] intentionally omitted <==** ``` BAIL APPL. NO. 5502 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R** ## **Dated this the 6th day of August, 2024** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 _,_ for an order of prearrest bail. 2. The petitioners are the accused 1 to 3 in Crime No.713/2024 of the Kodungallur Police Station, Thrissur, which is registered against them, for allegedly committing the offences punishable under Sections 406, 420 and 498A of the Indian Penal Code. 3. The concise case of the prosecution is that; the first accused was married to the de facto complainant on 05.11.2018. The accused 2 and 3 are the parents of the first accused. Consequent to the marriage, the de facto complainant was residing in the house of the accused. During that period, the accused had mentally and **==> picture [58 x 57] intentionally omitted <==** 2024:KER:59355 ``` BAIL APPL. NO. 5502 OF 2024 ``` ``` -: 3 :- ``` physically harassed the de facto complainant by demanding more dowry. Thus, the accused have committed the above offences. 4. Heard; Sri.Paul K. Varghese, the learned counsel for the petitioners and Smt.Seetha S., the learned Senior Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. The marriage between the first petitioner and the de facto complainant was solemnized as early as on 05.11.2018. It is nearly six years after the marriage that the present complaint is filed, which shows the falsity in the complaint. The complaint has been deliberately filed to pressurise the petitioners to yield to the unlawful demands of the de facto complainant. The petitioners have not misappropriated the property of 2024:KER:59355 **==> picture [58 x 57] intentionally omitted <==** ``` BAIL APPL. NO. 5502 OF 2024 ``` ``` -: 4 :- ``` the de facto complainant or harassed her. The petitioners 2 and 3 are in their 70s and the petitioners do not have any criminal antecedents. 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 would certainly hamper the investigation. Hence, the application may be dismissed. 7. On an evaluation of the materials on record, it is deduced that the first petitioner was married to the de facto complainant on 05.11.2018. Even though it is alleged that the petitioners had mentally and physically harassed the de facto complainant right from the initial **==> picture [58 x 57] intentionally omitted <==** 2024:KER:59355 ``` BAIL APPL. NO. 5502 OF 2024 ``` ``` -: 5 :- ``` days of marriage, the FIR is registered only in the year 2024. Moreover, it is seen from Annexure 3 lawyer notice that the marital relationship between the couple is strained, and the de facto complainant has demanded the marital relationship to be severed by filing a joint petition. All these circumstances prove that there are matrimonial disputes between the parties. 8. The Hon'ble Supreme Court in **Bhadres Bipinbhai Sheth** v. **State of Gujarat and another** [2015 KHC 4579] has succinctly culled out the principles to grant orders of pre-arrest bail in cases involving family disputes It is apposite to extract the relevant portions of the judgment, which reads thus : "23. The principles which can be culled out, for the purposes of the instant case, can be stated as under: (i) The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The Court should also examine the fact 2024:KER:59355 **==> picture [58 x 57] intentionally omitted <==** ## `BAIL APPL. NO. 5502 OF 2024` ``` -: 6 :- ``` whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the Investigating Officer is established then action be taken against the investigating officer in accordance with law. (ii) The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the Court. (iii) It is imperative for the Courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the Court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre conviction stage or post - conviction stage. (iv) There is no justification for reading into S.438 CrPC the limitations mentioned in S.437 CrPC. The plentitude of S.438 must be given its full play. There is no 2024:KER:59355 **==> picture [58 x 57] intentionally omitted <==** ``` BAIL APPL. NO. 5502 OF 2024 ``` ``` -: 7 :- ``` requirement that the accused must make out a "special case" for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by S.438 CrPC to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the Court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail." 9. On an overall consideration of the facts, the rival submissions made across the Bar and the materials placed on record, particularly on considering the fact that there are matrimonial disputes between the first petitioner and the de facto compainant and the de facto complainant has issued Annexure 3 notice to the first petitioner to severe their marital relationship by mutual consent, I am satisfied that the petitioners' have made out valid grounds entitling them to an order of pre-arrest bail. Hence, I hold that the petitioners are entitled to an order of pre-arrest bail, but subject to the condition that the petitioners cooperate with the Investigating Officer. 2024:KER:59355 **==> picture [58 x 57] intentionally omitted <==** ``` BAIL APPL. NO. 5502 OF 2024 ``` ``` -: 8 :- ``` In the result, the application is allowed, subject to the following conditions :- - (i) The petitioners are directed to surrender before 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 each for the like amount; - (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; **==> picture [58 x 57] intentionally omitted <==** 2024:KER:59355 ``` BAIL APPL. NO. 5502 OF 2024 ``` ``` -: 9 :- ``` - (v) The petitioners shall surrender their passports before the jurisdictional court concerned within a period of one week from the date of their release on bail. If they have no passports, they shall file affidavits to the effect before the 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 2024:KER:59355 **==> picture [58 x 57] intentionally omitted <==** ``` BAIL APPL. NO. 5502 OF 2024 ``` ``` -: 10 :- ``` - Hon'ble Supreme Court in **Sushila Aggarwal** v. **State (NCT of Delhi) and 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/-** **C.S. DIAS, JUDGE** Jvt/6.8.2024 2024:KER:59355 **==> picture [58 x 57] intentionally omitted <==** ## `BAIL APPL. NO. 5502 OF 2024` ``` -: 11 :- ``` ## **`APPENDIX OF BAIL APPL. 5502/2024`** ## **`PETITIONER ANNEXURES :-`** ``` Annexure 1TRUE COPY OF THE TREATMENT CERTIFICATE ISSUED BY DR. ANANDU P.S. RMO VALIYATH INSTITUTE OF MEDICAL SCIENCE AT KARUNAGAPPALLY TO THE 2ND PETITIONER DATED 19.6.2024. ``` - **`Annexure 2 TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY DR, C.G. SHAH, KRISHNA HOSPITAL DATED 10.11.1996.`** - **`Annexure 3 TRUE COPY OF THE LAWYER NOTICE ISSUED BY ADVOCATE K. M. JOSEPH DATED 12.4.2024.`** - **`Annexure 4 TRUE COPY OF THE REPLY NOTICE ISSUED BY ADVOCATE STEPHY JOHNY DATED 20.4.2024.`**