Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 12TH DAY OF APRIL 2023 / 22ND CHAITHRA, 1945 BAIL APPL. NO.2601 OF 2023 CRIME NO.151/2023 OF CHENGAMANAD POLICE STATION, ERNAKULAM PETITIONER: GENTLE. C.D AGED 38 YEARS, S/O DEVASSY C.K NOW RESIDING AT TRA 111 THENKULAM RESIDENTIAL ASSOCIATION NEDUMBASSERY VILLAGE, ALUVA TALUK MEKKAD PO, ERNAKULAM DISTRICT, PIN - 683 589 BY ADVS. S.RAJEEV V.VINAY M.S.ANEER SARATH K.P. PRERITH PHILIP JOSEPH ANILKUMAR C.R. RESPONDENT/S: 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031 2 STATION HOUSE OFFICER CHANGAMANAD POLICE STATION CHANGAMANAD. ALUVA TALUK MEKKAD PO, ERNAKULAM DISTRICT (CRIME NO. 151/2023 CHANGAMANAD POLICE STATION, ERNAKULAM), PIN 683 589 *ADDL.R3 MILKAMMA THOMAS, W/O A.V.THOMAS, CHERIYA VAPPALASSERY, AREEKKAL HOUSE, MEKKAD (PO), NEDUMBASSERY, ERNAKULAM (IMPLEADED AS PER ORDER DATED 12.04.2023 IN CRL.M.A. NO.1/2023) BY ADVS. SRI.M.I.JOHNSON - R3 SRI.M P PRASANTH - PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: .. 2 ..
ZIYAD RAHMAN A.A, J.
============= B.A. No.2601 of 2023 ============= Dated this the 12th day of April, 2023
ORDER
This is an application filed u/s 438 of the Code of Criminal Procedure seeking pre-arrest bail.
2. The petitioner is the accused in Crime No.151/2023 of
Chengamanad Police Station, Ernakulam. The offences alleged are under Sections 341, 323, and 506 of the IPC and Section 31 (1) of the Protection of Women from Domestic Violence Act, 2005 (for short ‘DV Act’). The defacto complainant is the mother-in-law of the petitioner.
3. The prosecution case, in short, is that, on 24.03.2023,
at about 11.30 pm, the defacto complainant was assaulted and threatened by the petitioner. It is also alleged that the aforesaid acts were committed by the petitioner while an order passed by the Judicial First Class Magistrate Court, Aluva, under the provisions of the Protection of Women from Domestic Violence Act, 2005, was in force and the said act violated the aforesaid order. Therefore, the offence under Section 31 (1) of the DV Act
.. 3 .. was incorporated. This application is submitted by the petitioner in such circumstances as he apprehends arrest in connection with the investigation of the aforesaid case.
4. I have heard Sri. S. Rajeev, the learned counsel for
the applicant, Sri.M.P.Prashanth, the learned public prosecutor and Sri.M.I.Johnson., the learned counsel appearing for the additional 3rd respondent/defacto complainant.
5. The learned counsel for the petitioner contends that the petitioner is innocent of the allegations levelled against him, and a false case has been registered against him in view of the
disputes within the family. According to him, the wife of the petitioner is the co-owner of the residence, which was in the name of the deceased father of his wife. Earlier, the petitioner and his wife were residing at Kakkanad, and due to the fire incident that occurred at Brahmapuram Waste Treatment Plant and atmospheric pollution due to the same, they started residing in the residence where the alleged incident occurred. According to him, when they started living there, it was remaining vacant, and the defacto complainant was residing at Kothamangalam. However, after the petitioner and his wife started living in the said house, the defacto complainant was brought to the said
.. 4 .. residence at the instance of the sister of the wife of the petitioner, and false complaints were registered against the petitioner and his wife to get the petitioner, and his wife evicted from the property. In such circumstances, the learned counsel seeks for grant of anticipatory bail.
6. The learned Public Prosecutor opposed the bail
application. It is pointed out that there are specific allegations of assault against the petitioner, and the matter is under investigation. The learned counsel for the defacto complainant also stoutly opposes the prayer sought by the petitioner, with the support of the documents produced along with the
impleading petition submitted by her. According to her, the petitioner is continuously indulging in criminal acts by committing assaults upon the defacto complainant. Annexure
R3 (a) is the FIR registered in Crime No.145/2023 against the petitioner herein for the offences punishable u/s.324 and 294 (b) of the IPC, and the said incident occurred on 21.03.2023. The victim therein is the brother of the defacto complainant, and according to the defacto complainant, the said incident occurred when her brother attempted to prevent the assault attempted to be committed upon the defacto complainant. Annexure R3 (c)
.. 5 ..
is yet another FIR, which was registered in connection with the incident that occurred on 27.03.2023, and the offences alleged are punishable under Sections 341, 323, 294 (b) and 34 of the IPC and also under Section 31 (1) of the DV Act. It is further pointed out that, on account of the acts of the petitioner herein, the defacto complainant has approached the Judicial First Class Magistrate Court - I, Aluva, by filing MC No.18/2023 under the
provisions of the DV Act. In the said proceeding, as per Annexure III order various ad-interim orders were passed, and the said directions read as follows:- “i. Respondents shall not subject the petitioner to any verbal or emotional abuse coming within the definition of domestic violence under Protection of Women from Domestic Violence Act, 2005. ii. Respondents shall not enter the residence of the petitioner i.e., Areekkal house, Mekkad P.O, Nedumbassery, Ernakulam, House No.6/238 (Old No.6/645/A) of Nedumbassery Grama Panchayath. iii. Respondents shall not dispossess or in any other manner disturb the possession of petitioner from the residence of the petitioner i.e., Areekkal house, Mekkad P.O, Nedumbassery, Ernakulam, House No.6/238 (Old No.6/645/A) of Nedumbassery Grama Panchayath.” .. 6 ..
7. Even though the petitioner approached this Court
against the said order, this Court granted liberty to the petitioner to invoke the appellate remedy against the same and an interim stay was granted for a period of two weeks as far as
the order shown as Srl.No.ii above is concerned. The said order
of stay was passed on 22.03.2023, and the incident, which is the subject matter of this crime, occurred on the next day. Besides the same, it was also pointed out that after filing this bail application and obtaining an interim order on 27.03.2023, the petitioner got involved in another offence, as evidenced by Annexure R3 (c) FIR, which was registered for an act committed on the very same day. Thus it is pointed out that the petitioner has been involved in a series of incidents wherein assaults were committed by the petitioner against the defacto complainant and her relatives. In such circumstances, the learned counsel for the additional 3rd respondent/defacto complainant seeks for dismissal of the bail application.
8. The learned counsel for the petitioner denies the contentions put forward by the learned counsel for the additional 3rd respondent/defacto complainant. According to him, whenever .. 7 ..
he obtains an order from this Court, the defacto complainant used to submit some complaints with false allegations to create an impression that the petitioner is indulging in criminal activities. Besides the same, it was also submitted that the petitioner, along with his family, is now residing at Vazhakkala from 28.03.2023 onwards.
9. I have gone through the records and heard the contentions raised by all the parties concerned.
10. The specific case of the learned counsel for the
petitioner is that he was falsely implicated by filing complaint after complaint because of the rivalry between the parties. On the other hand, the learned counsel for the petitioner would contend that the petitioner is constantly creating problems in the house and on account of such acts, she was compelled to approach the jurisdictional court by invoking the provisions of the DV Act. Even though she could secure interim protection, the petitioner continues his criminal acts. From the perusal of the entire materials, it is evident that there are serious disputes between the parties, and the matter is under investigation. However, it is evident that no serious injuries were sustained to
the defacto complainant. Therefore, I do not find any .. 8 .. circumstances which require the denial of anticipatory bail to the
petitioner. However, even while granting such an order
protecting the personal liberty, it should be ensured that he is cooperating with the investigation and he is not interfering or intimidating the defacto complainant and the witnesses. In such circumstances, I am of the view that this application can be disposed of directing the petitioner to surrender before the investigating officer, and thereupon he shall be released on bail subject to the following conditions:-
In the result, the application is allowed on the following conditions:-
(i) The petitioner shall surrender before the Investigating officer, within a period of two weeks from today, for subjecting himself to interrogation.
(ii) After interrogation, the petitioner shall be
released on bail on the very same day of surrender upon the petitioner executing a bond for Rs 1,00,000/- with two sureties each for the like sum, to the satisfaction of the investigating officer
(iii) The petitioner shall not enter into the residence where the defacto complainant is .. 9 .. presently residing and where the incident has occurred, until further orders;
(iv) The petitioner shall fully cooperate with the investigation, including subjecting himself to the deemed police custody for the purpose of recovery, if any, as and when demanded.
(v) The petitioner shall appear before the investigating officer between 10.00 a.m and 11.00 a.m every Wednesday until the filing of the final report.
(vi) The petitioner shall also appear before the investigating officer as and when required by him.
(vii) The petitioner shall not commit any
offence of similar nature while on bail. (viii) The petitioner shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation. .. 10 ..
(ix) The petitioner shall not leave the State of Kerala without the permission of the trial Court. In case of violation of any of the above conditions, it shall be open for the jurisdictional court to the application, if any, filed for cancellation of bail. Sd/- ZIYAD RAHMAN A.A, JUDGE ded/12.04.2023