WP(C).14297/2019 (Mariyakutty Chakko; Thejus M. Je cob; Anzer Nezeem v. State of Kerala and Others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 24TH DAY OF JUNE 2019 / 3RD ASHADHA, 1941** ## **WP(C).No.14297 of 2019** ## **PETITIONERS:** - **1 MARIYAKUTTY CHAKKO, AGED 76 YEARS W/O.THOMAS CHAKKO, MANAGATTUVEETTIL, ERUMELI EAST VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT - 686 507.** - **2 THEJUS M.JECOB, AGED 31 YEARS S/O.JACOB, MANGATTU HOUSE, VENKURINJI P.O., MANIPUZHA, KOTTAYAM - 686 507.** - **3 ANZER NEZEEM, AGED 35 YEARS S/O.BASHEER, AZAD MANZIL, MUKKOOTTUTHARA P.O., ELYVALIKKARA, ERUMELI, KOTTAYAM - 686 509. BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAURAM - 01.** - **2 DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM - 01.** - **3 SUPERINTENDENT OF POLICE, KOTTAYAM - 686 001.** - **4 DEPUTY SUPERINTENDENT OF POLICE, KANJIRAPPALLAY, KOTTAYAM DISTRICT - 686 507.** - **5 CIRCLE INSPECTOR OF POLICE, ERUMELI,KOTTAYAM DISTRICT - 686 509.** **WP(C).14297/2019,Bail Appl.3458/2019 Bail Appl.3279/2019 2** **6 SUB INSPECTOR OF POLICE, ERUMELI POLICE STATION, KOTTAYAM - 686 509.** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.06.2019, ALONG WITH Bail Appl.3279/2019, Bail Appl.3458/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).14297/2019,Bail Appl.3458/2019 Bail Appl.3279/2019 3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 24TH DAY OF JUNE 2019 / 3RD ASHADHA, 1941** ## **Bail Appl.No.3458 of 2019** **CRIME NO.605/2019 OF Erumeli Police Station, Kottayam** ## **PETITIONERS:** **1 THEJUS M JECOB AGED 31 YEARS S/O. JACOB, MANGATTU HOUSE, VENKURINJI P.O., MANIPUZHA, KOTTAYAM. 2 ANZER NEZEEM, AGED 35 YEARS S/O. BASHEER, AZAD MANZIL, MUKKOTTUTHARA P.O., ELYVALIKKARA, ERUMELI, KOTTAYAM. BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31. 2 SUB INSPECTOR OF POLICE. ERUMELI POLICE STATION, KOTTAYAM DISTRICT 686 509.** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.06.2019, ALONG WITH Bail Appl.3279/2019, WP(C).14297/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **WP(C).14297/2019,Bail Appl.3458/2019 Bail Appl.3279/2019** **4** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 24TH DAY OF JUNE 2019 / 3RD ASHADHA, 1941 Bail Appl.No.3279 of 2019** **CRIME NO.603/2019 OF Erumeli Police Station, Kottayam** ## **PETITIONERS:** **1 THEJUS M.JECOB AGED 31 YEARS S/O. JACOB, MANGATTU HOUSE, VENKURINJI P.O, MANIPUZHA, KOTTAYAM. 2 ANZER NAZEEM AGED 35 YEARS S/O. BASHEER, AZAD MANZIL, MUKKOOTTUTHARA P.O, ELYVALIKKARA, ERUMELI, KOTTAYAM.** **BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM-31. 2 SUB INSPECTOR OF POLICE, ERUMELI POLICE STATION, KOTTAYAM DISTRICT-686509.** ## **BY ADV. GOVERNMENT PLEADER** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.06.2019, ALONG WITH Bail Appl.3458/2019, WP(C).14297/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **WP(C).14297/2019,Bail Appl.3458/2019 Bail Appl.3279/2019** **5** ## **ALEXANDER THOMAS, J.** ================== **WP(C) 14297/2019, Bail Appl.3458/2019 Bail Appl.3279/2019** ================== Dated this the 24[th] day of June, 2019 ## **O R D E R** ## **WP(C) 14297/2019** The prayers in the above Writ Petition (Civil) are as follows:- - _“i) Call for the records relating to_ _**exhibit P1 to P5** and issue a writ or appropriate direction to the 2[nd] respondent to urgently handover the investigation of crime No.603 and 605 of Erumeli Police Station to officer not below the rank of superintendent of Police, from outside of the district of Kottayam and also conduct and enquiry in exhibit P2 and P4 complaints and take appropriate action in the matter._ - _ii) Issue a writ or appropriate direction to the first respondent to obtain a report from the second respondent regarding the custodial harassment of the persons in connection with the crimes and in the event of Human Rights violation, take appropriate action in the matter._ - _iii) Issue a writ or appropriate direction to the 4[th] & 5[th] respondents not to proceed with the investigation any further or any way create any document in the case diary from this date._ - _iv) Issue a writ or appropriate direction to the 3rd respondent to ensure that, no report regarding crime No.603 and 605 Erumeli Police station shall be submitted before any court by the 4[th] and 5[th] respondents._ **WP(C).14297/2019,Bail Appl.3458/2019 Bail Appl.3279/2019** **6** - v) _Pass any other order or direction as this Hon'ble Court may deem fit and proper in the nature and circumstances of the case.”_ 2. Heard Sri.Vinoy Varghese Kallumoottil, learned counsel appearing for the petitioners (accused) and Sri.Saiji Jacob Palatty learned Senior Public Prosecutor appearing for the respondents. 3. This case have been heard _in extenso_ in occasions more than one along with the connected matters in BA.No.3458 of 2019 and B.A.No.3279 of 2019 which are pertaining to Crime No.603/2019 and Crime No.605 of 2019 both of Erumeli Police Station. 4. After hearing both sides, this Court had _prima facie_ felt that there appears to be some contradictions in the present prosecution case pertaining to these two connected crimes. The said contradictions are found mainly in the context of the fact that though Crime No.605 of 2019 in which the mother is the defacto complainant and which is said to have been occurred at 9.00am on 30.4.2019, are not in any manner narrated or even referred to in the FI Statement given by her son who is the defacto complainant in Crime No.603 of 2019. Further, it is also seen that the allegations of the petitioners' that the defacto complainant in Crime No.603 of 2019 had gone to the ATM counter and used the ATM card of the 1[st] petitioner and had withdrawn money from his account at 2.30pm on 30.4.2019, whereas the time of occurrence in respect of the crime **WP(C).14297/2019,Bail Appl.3458/2019 Bail Appl.3279/2019 7** registered at the instance of the mother (crime No.605/2019) is said to be at 9.00am on 30.4.2019, whereas the time of occurrence of the crime registered on the basis FI Statement of the son in Crime No. 603/2019 is said to be in between 11 and 12.00 hours. If that be so, there is no proper explanation from the prosecution as to the said conduct of the defacto complainant/victim who is said to have been assaulted by the petitioners in having used the ATM card of the 1[st] petitioner later at 2.30pm on the same day. This has been so observed by this Court in the context of the factual assertion made by the petitioners that the CC TV kept in the ATM counter would reveal that the defacto complainant in Crime No.603/2019 had used the ATM card of the 1[st] petitioner from the ATM counter of the Bank concerned at about 2.30pm on 30.4.2019. Further, the respondentPolice Authorities in paragraph 9 of their statement dated 30.6.2019 filed in BA No.3279 of 2019 has stated that, the allegations regarding withdrawal of the money using ATM card of the 1[st] accused by the defacto complainant in Crime No.603/2019 is true, and that the said defacto complainant has stated before the Police that it was so done as demanded by the accused and that he had returned the ATM card. The said version of the prosecution appears to be quite anomalous and contradictory inasmuch as, the specific case of the defacto complainant is that he was assaulted by the petitioners (accused) **WP(C).14297/2019,Bail Appl.3458/2019 Bail Appl.3279/2019** **8** between 11.00 am and 12.00 noon on 30.4.2019, and if that be so, there does not appear to be any rationale in the petitioners allowing the defacto complainant who is stated to be their Driver to use their ATM card at 2.30 pm on 30.4.2019, which is about 2 1/2 hours after the incident of assault etc. 5. It is in the light of these aspects that this Court while considering the matter had passed an order on 17.6.2019 whereby the learned Prosecutor was requested to get specific instructions from the District Police Chief, Kottayam as to whether the further investigation in the instant two crimes, viz, Crime No. 603/2019 and Crime No.605/2019 both of Erumeli Police Station could be entrusted to a superior officer attached to the District Crime Branch, Kottayam, and under the supervision of a higher ranking official of the District Crime Branch. Now the Prosecutor on the basis of the instructions of the respondent-the District Police Chief, Kottayam, has provided in that officer's letter No. D1(a)-45200/2019-K dated 24.6.2019 that further investigation in respect of the abovesaid two crimes could be entrusted to an officer of the rank of the Deputy Superintendent of Police attached to the District Crime Branch, Kottayam. The abovesaid stand of the respondent-District Police Chief is recorded. 6. Accordingly, it is ordered that the 3[rd] respondent-District **WP(C).14297/2019,Bail Appl.3458/2019 Bail Appl.3279/2019 9** Police Chief (Superintendent of Police, Kottayam) will immediately take steps to ensure that the further investigation in respect of Crime No.603 of 2019 and Crime No.605 of 2019 of Erumeli Police Station is entrusted to an officer of the rank of Deputy Superintendent of Police of District Crime Branch, Kottayam and the said investigation may be monitored and supervised by the District Police Chief himself as far as possible. The investigation in respect of the abovesaid two crimes may be completed without much delay, preferably within a period of two months from the date of production of a certified copy of this judgment. With these observations and directions, the above Writ Petition (Civil) will stand disposed of. ## **B.A.No. 3458 OF 2019** The petitioners herein have been arrayed as the two accused (A1 & A2) in the instant crime No.605/2019 of Erumeli Police Station which have been registered on the basis of the FI Statement dated 2.5.2019 given by the lady defacto complainant aged 55 years, whereby the offenses alleged in the abovesaid crime are those under Section 452, 354, 323, 294(b), 506 (i) r/w 34 IPC. 2. The prosecution case in brief is that, the son of the lady defacto complainant is a driver employed by the 1[st] petitioner and **WP(C).14297/2019,Bail Appl.3458/2019 Bail Appl.3279/2019 10** that he was paid extremely low wages by the 1[st] petitioner and that he had taken some loan from the 1[st ] petitioner and could not repay it because of financial difficulty and on account of the fact that the son could not repay the loan liability, the 1[st] petitioner with the help of A2 wanted to assault and attack the son and that they had come to the house of the lady defacto complainant on 30.4.2019 at 9.00 am in the morning at which point of time she was alone and that they had barged into her house and had used extremely foul and abusive languages on her and had caught her by neck and pulled her up etc. The FI Statement is given on 2.5.2019 at about 4.35pm which is about two days after the incident which is said to have happened on 30.4.2019 at about 9.00am. 3. It is further stated by the lady in the FI Statement that when the petitioners were assaulting her in her house, A2 had received a mobile call and thereupon A2 had informed A1 that the defacto complainant's son has been now found out, and hearing that both of them went out of the house, presumably to go after to catch the defacto complainant's son etc. Crime No. 605/2019 of Erumeli Police Station has been registered on 2.5.2019 at about 9.30 pm, in which the defacto complainant happens to be the son of the defcto complainant in crime No.605 of 2019. The version of the son who is the defacto complainant in crime No.605 of 2019 is that at about **WP(C).14297/2019,Bail Appl.3458/2019 Bail Appl.3279/2019 11** 11.00am in the morning on 30.4.2019, accused 1 and 2 had come in a car and collided on his motorcycle and taken away in their car to the house of the 1[st] petitioner (A1) and they had assaulted him etc. Knowing about the said incident, the mother of the defacto complainant had reached the house of the A1. At that time accused persons had threatened the defacto complainant in Crime No.603/2019 that if he divulges these incidents to his mother he would be put to peril. That the mother had told to her son to go to the hospital and the son did not want to do it, as he was afraid that A1 would again assault him and later he went to the hospital etc. It is pertinent to note that the abovesaid aspects narrated by the son that the mother had also gone to the house of A1 after coming to know about the incident etc are conspicuously silent in her FI Statement given subsequently two days thereafter which led to the registration of Crime No.605/2019. 4. On this basis counsel of the petitioners would point out that, there are serious discrepancies and suspicions in the very genesis of the crime. Further petitioners would point out that the defacto complainant in Crime No.603/2019 was engaged as a driver of the 1[st] petitioner and he had misappropriated the money from the 1[st] petitioner and that after coming to know that the 1[st] petitioner will inform the Police about that, he and his mother had raised the **WP(C).14297/2019,Bail Appl.3458/2019 Bail Appl.3279/2019** **12** instant false allegations etc. 5. In view of the aspects already dealt with in WP(C).No.14297/2019, there appears to be some significant contradictions in the very case set up by the prosecution, especially after careful evaluation of the cases projected by these two defacto complainants in the respective crimes. Moreover, the District Police Chief, Kottayam has also now fairly taken a stand that the matter requires indepth further investigation by a different Police agency and has ordered to entrust the further investigation in respect of both the crimes to a senior officer of the rank of Deputy Superintendent of Police of the District Crime Branch, Kottayam. 6. In the light of these aspects this Court is of a considered view that, the custodial interrogation of the petitioners in the instant Crime No.605/2015 may not be necessary. Accordingly, it is ordered that in the event of the petitioners being arrested in relation to the abovesaid crime, then they shall be released on bail on their separately executing bonds for Rs.40,000/- (Rupees Forty Thousand only) each, and on their separately furnishing two solvent sureties each for the like sum, both to the satisfaction of the Investigating Officer concerned. **WP(C).14297/2019,Bail Appl.3458/2019 Bail Appl.3279/2019** **13** 7. Further it is ordered that the grant of bail will be subject to following conditions:- - i. _The petitioners shall not involve in any criminal offences of similar nature._ - _ii. The petitioners shall fully co-operate with the investigation._ - _iii. The petitioners shall report before the new investigating officer (Dy.SP, District Crime Branch) as and when required in that connection._ - _iv. The petitioners shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ - _v. The petitioners shall not go or visit anywhere near the residence or workplace of the lady defacto complainant until the conclusion of trial._ If there is any violation of the abovesaid conditions by the petitioners then the jurisdictional court concerned stand hereby empowered, to consider the plea for cancellation of bail at the appropriate time. With these observations and directions, the above Bail Application will stand disposed of. ## **Bail Appl. 3279/2019** In the above bail application petitioners herein had been arrayed as accused Nos. 1 and 2 in Crime No.603 of 2019 of Erumeli Police Station which has been registered on the basis of the FI **WP(C).14297/2019,Bail Appl.3458/2019 Bail Appl.3279/2019 14** statement given by the defacto complainant who is the son of the defacto complaint in crime No.605/2019, given on 1.5.2019 in respect of the alleged incidents which are said to have happened on 30.4.2019 between 11.00am and 12.00 noon. 2. The brief of the prosecution case is that, the 1[st] petitioner had enmity towards the defacto complainant in this case who happens to be the former driver inasmuch as latter had not re-paid some of the loan amounts to A1 and that the accused persons came in a car and deliberately collided and hit on the motorcycle which was ridden by the defacto complainant, on 30.4.2019 at about 11.00am and he was fallen down forcibly taken away by the accused persons to the house of the A1 where he was seriously assaulted and attacked etc. 3. Learned counsel for the petitioner has pointed out some significant and substantial contradictions in the very case set up by the prosecution which has been dealt with in detail in the matters in WP(c).No.14297 of 2019 and B.A. No.3458 of 2019. Further it is pointed out that, even the prosecution would now admit that it has come out in the investigation, that the defacto complainant in the instant crime had used the ATM card of the 1[st] petitioner by going to the ATM counter of the bank concerned and had withdrawn money **WP(C).14297/2019,Bail Appl.3458/2019 Bail Appl.3279/2019 15** from the account of the 1[st] petitioner at about 2.30pm on 30.4.2019, which is about 2 ½ hours after the incidents which happened the instant crime. That the abovesaid aspect has also been admitted in the statement filed by the respondent Police Officer in these matters. According to the Police the explanation given by the defacto complainant is that, he was asked to do that as requested by the 1[st] petitioner. Very pertinently the petitioners have argued that, if as a matter of fact the defacto complainant was assaulted and attacked between 11.00am and 12.00pm on 30.4.2019 by the petitioners, then there is no logic and reason whatsoever, that 1[st] petitioner would voluntarily handover the ATM card to the defacto complainant to be used at 2.30 pm on that day and that it clearly shows that the dishonest intention of the defacto complainant. 4. Further, even now the learned prosecutor was asked to get specific instructions from the Police Authorities concerned about the abovesaid aspects and the learned prosecutor has now submitted on the basis of the written instructions given by the District Police Chief that, the images retrieved from the CC TV camera of the ATM counter concerned on 30.4.2019 would show that the defacto complainant in crime No.603 of 2019 had access to the ATM counter on 30.4.2019 at about 2.24 pm and that he come there in a moped/scootie. **WP(C).14297/2019,Bail Appl.3458/2019 Bail Appl.3279/2019 16** 5. The learned counsel for the petitioner would then pertinently argue that, the very fact that the defacto complainant had come to the ATM counter on 30.4.2019 at about 2.24pm and that too in a moped would clearly show that, his version that he was seriously assaulted and that he was suffering from vomiting from 12 Noon on the same day is absolutely false etc. So also the petitioners pointed out that, the version given the defacto complainant in FI statement that he was initially taken to the hospital/clinic at Erumeli etc is absolutely false inasmuch as none of the doctors of clinics in Erumeli has come out to say that the defacto complainant has visited any of the clinics or doctors in Erumeli etc. 6. Now the District Police Chief has also fairly submitted that the matter requires indepth further investigation at the hands of a different Police agency and he has ordered that the further investigation this crime along with the other crime should be entrusted to an officer of the rank of Deputy Superintendent of Police, District Crime Branch, Kottaym. 7. This Court has already directed the District Police Chief to ensure that the said further investigation by the Officer of the rank of Dy.SP, District Crime Branch Kottayam to be monitored by the District Police himself in order to ensure fairness and integrity in the investigation process. **WP(C).14297/2019,Bail Appl.3458/2019 Bail Appl.3279/2019** **17** 8. In the light of these aspects this Court is of the considered view that the custodial interrogation of the petitioners herein is not necessary. Accordingly, the following directions of the orders are passed:- - i. _The new Investigating Officer, viz, Deputy Superintendent of Police of the District Crime Branch, Kottayam will intimate the petitioners to come forward to subject themselves for interrogation process on a date and time to be fixed by the said officer. Upon receipt of the said intimation petitioners will personally appear before the said new Investigating Officer of the District Crime Branch, Kottayam and will fully cooperate to the said Investigating Officer in the interrogation process._ - ii. _If the interrogation process is not over in a single day, it will be open to the Investigating Officer to direct the petitioners to appear before him for the further interrogation process on any subsequent dates which the petitioners will comply._ - iii. _After the interrogation process is over, in case the Investigating Officer arrests the petitioners, in relation to this crime and then they shall be released on bail on their separately executing bonds for Rs.40,000/- (Rupees Forty Thousand only) each and on their separately furnishing two solvent sureties each for the like sum, both to the satisfaction of the Investigating Officer concerned._ **WP(C).14297/2019,Bail Appl.3458/2019 Bail Appl.3279/2019** **18** However the grant of bail will be subject to following conditions:- - _(a) Petitioners shall not involve in any criminal offences of similar nature._ - _(b) Petitioners shall fully co-operate with the investigation._ - _(c) Petitioners shall report before the Investigating Officer as and when required in that connection._ - _(d) Petitioners shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ - _(e) Petitioners shall not visit or go anywhere near the residence of the de facto complainant in this case._ - _(f) If there is any violation of the abovesaid conditions by the petitioners then the jurisdictional court concerned stand hereby empowered, to consider the plea for cancellation of bail at the appropriate time._ With these observations and directions, the above Bail Application will also stand disposed of. ## **Sd/-** ## **ALEXANDER THOMAS** **JUDGE** ska **WP(C).14297/2019,Bail Appl.3458/2019 Bail Appl.3279/2019 19** ## **APPENDIX OF WP(C) 14297/2019** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE FIR IN CRIME NO.603/2019 OF ERUMELI POLICE STATION REGISTERED U/S. 323, 324, 363, 506(i), 308 R/W 34 IPC. EXHIBIT P2 TRUE COPY OF THE COMPLAINT FILED BY THE 2ND PETITIONER'S WIFE BEFORE THE 2ND RESPONDENT. EXHIBIT P3 TRUE COPY OF THE FIR IN CRIME NO.605/2019 OF THE ERUMELI POLICE STATION. EXHIBIT P4 TRUE COPY OF THE COMPLAINTS SUBMITTED BEFORE THE 2ND RESPONDENT. EXHIBIT P5 TRUE COPY OF THE COMPLAINTS SUBMITTED BEFORE THE 3RD RESPONDENT.**