V.P. Hisham v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI FRIDAY, THE 23RD DAY OF FEBRUARY 2018 / 4TH PHALGUNA, 1939 Bail Appl..No. 997 of 2018 CRIME NO. 53/2018 OF CHEVAYUR POLICE STATION , KOZHIKODE ## PETITIONER/ACCUSED -------------------------------- V.P.HISHAM, AGED 36, S/O. ABDUL RAHMAN, ARABICHIL HOUSE, ERANJIPALA P.O., KOZHIKODE DISTRICT. BY ADVS.SRI.B.RAMAN PILLAI (SR.) SRI.R.ANIL SRI.M.SUNILKUMAR SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.E.VIJIN KARTHIK SRI.THOMAS SABU VADAKEKUT ## RESPONDENT/COMPLAINANT: ----------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031 ## BY SR.PUBLIC PROSECUTOR SRI.K.B.UDAYAKUMAR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 16-02-2018, THE COURT ON 23-02-2018 PASSED THE FOLLOWING: ## **R.NARAYANA PISHARADI, J** ************************* B.A.No.997 of 2018 --------------------------------------------Dated this the 23[rd] day of February, 2018 ## **O R D E R** The petitioner is the sole accused in the case registered as Crime No.53/2018 of the Chevayoor police station under Sections 195A, 354D and 506 IPC. He seeks the protection envisaged under Section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code') in the event of arrest by the police in the case. 2. The prosecution case can be stated as follows: The petitioner is the first accused in the case S.C.No.846/2013 pending before the Additional Sessions Court, Kozhikode. It is a case under Section 302 IPC. The de facto complainant is one of the witnesses to be examined by the prosecution in that case. She is Charge Witness No.19 in S.C.No.846/2013. She is now residing in Bahrain. The petitioner and the de facto complainant are close relatives. The trial of the case S.C.No.846/2013 is in B.A.No.997/2018 2 progress before the Additional Sessions Court, Kozhikode. Meanwhile, the petitioner, several times, called the de facto complainant over phone from the number 91-9497844401. He frequently called her over phone and demanded her to give false evidence in the court in the trial of the case S.C.No.846/2013 and he threatened her that he will not, otherwise, allow her to live. Therefore, the petitioner has committed the offences punishable under Sections 195A, 354D and 506 IPC. 3. Heard the learned Senior Counsel Sri.B.Raman Pillai who appeared for the petitioner and also the learned Public Prosecutor. Perused the case diary produced before the Court. 4. Section 354D IPC deals with the offence of stalking. This offence is bailable, if committed for the first time. The offence punishable under Section 506 IPC is also bailable. The only nonbailable offence now alleged against the petitioner is under Section 195A I.P.C. 5. The case against the petitioner was registered on the basis of the complaint forwarded by the de facto complainant from Bahrain to the Superintendent of Police, Kozhikode (Rural) B.A.No.997/2018 3 through electronic means. The complaint was in turn forwarded to the Station House Officer concerned and the case against the petitioner was registered. 6. Section 195(1)(b)(i) of the Code provides that no Court shall take cognizance of any offence punishable under sections 193 to 196 (both inclusive), when such offence is alleged to have been committed in, or in relation to, any proceedings in any Court, except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate. At first blush, on a reading of this provision, it may appear that a complaint of an offence punishable under Section 195A IPC, when it is alleged to have been committed in, or in relation to, any proceedings in any Court, can be made only by that Court or some other Court to which that Court is subordinate. The reason is that it is one of the “offences punishable under sections 193 to 196 (both inclusive)”. However, the Code itself contains provisions which indicate that a complaint in relation to this offence can be given by an aggrieved person to the police. The offence under Section 195A IPC was introduced by Act 2 of 2006 B.A.No.997/2018 4 with effect from 16.04.2006. This is a cognizable offence as per the First Schedule of the Code. Further, Section 195A of the Code states that a witness or any other person may file a complaint in relation to an offence under Section 195A IPC. When a cognizable offence is reported to the police, the police has got power to conduct investigation as contemplated under Section 156 of the Code. Therefore, the bar under Section 195(1)(b)(i) of the Code is not attracted to a case registered on the basis of the complaint given to the police in respect of an offence under Section 195A IPC. 7. It is not necessary that complaint of an offence punishable under Section 195A IPC must be made to the Magistrate. True, Section 195A of of the Code reads that "a witness or any other person may file a complaint in relation to an offence under Section 195 A IPC”. True, 'complaint' is defined under Section 2(d) of the Code as any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. But the word 'complaint' as mentioned under B.A.No.997/2018 5 Section 195A of the Code cannot be interpreted in a narrow sense. The First Schedule of the Code shows that the offence under Section 195A IPC is a cognizable offence. The very fact that the offence under Section 195A IPC is made a cognizable offence would indicate that information relating to the commission of such offence can be given to an officer in charge of a police station as provided under Section 154(1) of the Code. Then such police officer has power to conduct investigation of that offence as contemplated under Section 156 of the Code. When the statute prescribes a penal provision as cognizable offence, it confers powers on the police to investigate that offence. Such a power cannot be curtailed by making a narrow interpretation of the expression 'complaint' with reference to Section 2(d) of the Code. Since the police has power to investigate an offence under Section 195A IPC the expression 'complaint', as referred to in Section 195A of the Code, cannot be given a restricted meaning as defined under Section 2(d) of the Code. 8. Learned Senior Counsel for the petitioner contended that even if the entire allegations contained in the complaint made B.A.No.997/2018 6 against the petitioner by the de facto complainant are accepted and taken to be true and correct, they do not make out a prima facie case for an offence punishable under Section 195A IPC. 9. The material portion of the complaint made against the petitioner by the de facto complainant reads as follows: _“ For more than two weeks now I have been getting calls from the number +91-9497844401 frequently. A few of them were missed calls whereas others were blank calls. However, Hisham spoke to me a few times in an agitated tone threatening to defame me in the society. He also warned me to count my days before he brings shame and notoriety to my family._ _**He was threatening me not to trouble him, by giving witness in the above case.** During the calls, he said he will not return the gold ornaments that he had borrowed from me and that he would circulate my morphed photographs around to humiliate me. He also shouted that he will not let me live. Further, he said that he has engaged 'paid people' to follow me here and hurt me and my contacts here, and that he will come to Bahrain and start a business here just to create problems for me.”_ 10. The provision contained in Section 195A IPC reads as ## follows: B.A.No.997/2018 7 _"Threatening any person to give false evidence.-Whoever threatens another with any injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested, with intent to cause that person to give false evidence shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both; and if innocent person is convicted and sentenced in consequence of such false evidence, with death or imprisonment for more than seven years, the person who threatens shall be punished with the same punishment and sentence in the same manner and to the same extent such innocent person is punished and sentenced”._ 11. A bare perusal of the aforesaid provision would show that the primary ingredient of the offence punishable under Section 195A I.P.C is to make threat to another person. Threat made by the accused shall be to cause injury to the person, reputation or property of the person being threatened or to the person or reputation of any one in whom that person is interested. Such threat made by the accused shall be with the intention to cause the person being threatened to give false B.A.No.997/2018 8 evidence. Merely making a threat of the nature mentioned in the provision is not sufficient. The threat made must be with the intention to cause a person to give false evidence. Then, necessarily, the question arises what is meant by giving false evidence. ## 12. The offence of giving false evidence is defined in Section 191 IPC. It reads as follows: _"Giving false evidence.--Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence._ _Explanation 1.-- A statement is within the meaning of this section, whether it is made verbally or otherwise._ _Explanation 2.--A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.”_ B.A.No.997/2018 9 13. The essence of the offence of giving false evidence is making any statement which is false which the person who makes it knows or believes to be false or does not believe to be true. In the instant case, the allegation in the complaint made against the petitioner by the de facto complainant is that the petitioner threatened her not to trouble him by giving evidence in the sessions case in which the petitioner is an accused. There is no allegation that the petitioner threatened her with a view to cause her to give false evidence in the court. There is no allegation that the petitioner threatened her with the intention to cause her give evidence in the Court in his favour. There is no allegation that the petitioner threatened her not to state the truth before the Court. The allegation is that the petitioner threatened her with the intention to prevent her from giving evidence in the Court. The offence punishable under Section 195A I.P.C will be attracted only if the threat is made by the accused with the intention to cause a person to give false evidence. If the threat is made with some other intention or for some other purpose, the offence punishable under Section 195A I.P.C will not be attracted. B.A.No.997/2018 10 In the instant case, the threat allegedly made by the petitioner to the de facto complainant was with the intention to prevent her from making trouble to him by giving evidence in the Court. In other words, he wanted her to abstain from giving evidence in the case S.C.No.846/2013. Giving false evidence and abstaining from giving evidence are distinct acts. Abstaining from giving evidence against a person cannot be equated to giving false evidence. The allegations against the petitioner, no doubt, prima facie, constitute the offence defined under Section 503 I.P.C but not under Section 195A I.P.C. 14. Moreover, the case diary reveals that the investigating officer had issued notice to the petitioner to appear before him and that the petitioner responded to the notice. It is also seen that his statement was recorded by the investigating officer. This indicates that the petitioner has co-operated with the investigation of the case and that he is ready to do so. The report filed by the investigating officer also shows that the petitioner has not absconded. If the person who applies for anticipatory bail is found to be fully co-operating with the investigation and if B.A.No.997/2018 11 there is no reason to believe that he will not do so in future also, the discretionary relief can be exercised in his favour (See Srinivasa Rao v. State of Kerala : 2012(4) KHC 315 : 2013(2) KLT 924). Custodial interrogation of the petitioner appears to be not necessary to have an effective investigation into the allegations raised against him in the complaint. In these circumstances, I am of the view that the discretion of the Court can be exercised in favour of the petitioner to grant him prearrest bail. Of course, there is apprehension expressed by the prosecution that on granting pre-arrest bail, the petitioner would again intimidate or threaten the de facto complainant. Necessary conditions can be imposed on granting bail to avoid such a contingency. 15. In the result, the application is allowed and it is ordered as follows: i) The petitioner shall be released on bail on executing a bond for Rs.50000/- (Rupees fifty thousand only) with two sureties each for the like amount in the event of his arrest by the police in Crime No.53/2018 of Chevayoor Police B.A.No.997/2018 12 Station. ii) The petitioner shall appear before the investigating officer between 9 a.m and 11 a.m on all Saturdays for a period of six months from the date of his release on bail or till final report is filed, whichever is earlier. iii) The petitioner shall not in any manner, by or through phone or otherwise, contact the de facto complainant. He shall not influence or intimidate the prosecution witnesses. He shall not make any attempt to tamper with the evidence in the case. iv) The petitioner shall not leave the State of Kerala without the prior permission of the jurisdictional Court concerned. v) The petitioner shall appear before the investigating officer as and when directed in writing to do so. vi) The petitioner shall surrender his passport in the jurisdictional Court concerned within three days from the date of his release on bail. If he has no passport or if he has already surrendered his passport in any Court in connection with any case, he shall file an affidavit to that effect in the Court B.A.No.997/2018 13 concerned within the aforesaid period. vii) If the petitioner violates any of the conditions of bail, the jurisdictional Court concerned is at liberty to cancel the bail in accordance with law, without any further orders of this Court. 16. This order or the observations made herein will not in any manner affect the proceedings, if any, taken or pending against the petitioner for cancellation of the bail granted to him in the case S.C.No.846/2013 which is pending before the Additional Sessions Court, Kozhikode. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr