IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE [ENTITY] TUESDAY, THE [SECTION]TH DAY OF NOVEMBER 201[SECTION]/13TH KARTHIKA, 1936 Bail Appl No. 7366 of 201[SECTION] () CRIME NO. 1[SECTION]21/201[SECTION] OF KOLLAM EAST POLICE STATION , KOLLAM PETITIONER(S)/PETITIONERS: 1. NAVEENDRAKUMAR S/O.PAZHANIKUTTY, MUNDAKATHIL VEETIL, PUTHENTHURA MURI NEENDAKARA VILLAGE, KOLLAM DISTRICT. 2. SANDHYA W/O.NAVEENDRAKUMAR, MUNDAKATHIL VEETIL PUTHENTHURA MURI, NEENDAKARA VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.N.SUNIL JOSEPH RESPONDENT(S)/RESPONDENTS: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKUKLAM REPRESENTING THE SUB INSPECTOR OF POLICE KOLLAM EAST POLICE STATION, KOLLAM DISTRICT. BY PUBLIC PROSECUTOR SRI.DHANESH MATHEW. THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 0[SECTION]-11-201[SECTION], THE COURT ON THE SAME DAY PASSED THE FOLLOWING: [ENTITY], J.
Dated this the [SECTION]thOday of November, 201[SECTION] R D E R The two petitioners herein are accused Nos.1 and 2 respectively in Annexure-A[SECTION] FIR in Crime No.1[SECTION]21/201[SECTION] of Kollam East Police Station, registered for offences under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] read with [SECTION] of the [ACT] and [SECTION] and [SECTION] of the [ACT] and [SECTION] of the [ACT] and [SECTION] [SECTION] of the [ACT]. The said crime is registered on the basis of Annexure-A1 private criminal complaint filed on 21.7.201[SECTION] by the defacto complainant, Sri.[ENTITY] before the Judicial First Class Magistrate Court, Kollam, who directed investigation of the same under [SECTION] of the [ACT] This led to the registration of the instant Annexure-A[SECTION] FIR in Crime No. 1[SECTION]21/201[SECTION] registered in July, 201[SECTION] for the aforementioned offences. It is now common ground that later the aforementioned offences under [SECTION], [SECTION] and [SECTION] in the crime were deleted and the offences under [SECTION], [SECTION] & [SECTION] of the [ACT] have B.A.7366/1[SECTION] - : 2 :-
been added and [SECTION] of the [ACT] has also been added. It is submitted by the learned Public Prosecutor that going by the allegations raised in the aforementioned crime, the offences alleged against the the 1st petitioner (A1) are those under [SECTION] and [SECTION] of the 1989 Act.
2. The 1st petitioner is an Assistant Sub Inspector of Police and the 2nd petitioner is his wife and the defacto complainant is a Police Constable.
3. The allegations against the petitioners in the above said crime are that the accused with their common intention to cheat the defacto complainant and to obtain unlawful gain, on 30.01.2012, at the Armed Reserve Police Camp, Kollam, the 1st accused had given Rs.1,00,000/- to the petitioner at an interest at the rate of 5% per month after obtaining signature of the defacto complainant over revenue stamp affixed on blank paper with address of the defacto complainant and that the 1st accused altogether received Rs.1,[SECTION]0,000/- (Rupees One Lakh Forty Thousand only) from the complainant on several occasions. When there was default in repayment of the above said loan and interest amount and that when the complainant was unable to pay the interest, the 2nd B.A.7366/1[SECTION] - : 3 :-
accused presented a fabricated cheque before a bank, which was given to the 1st accused. That when the complainant was not in his house, the 1st accused trespassed into his house by saying that he will not leave the house unless the money along with interest are paid and the 1st accused blocked the wife of the defacto complainant by holding her right hand and pulled her towards him and insulted her by calling her caste name and that both the complainant and his wife belong to Scheduled Caste community.
[SECTION]. Sri[ENTITY], learned counsel for the petitioners, would submit that the 2nd petitioner (wife of the 1st petitioner) had filed Annexure A3 private criminal complaint against the defacto complainant herein ([ENTITY]) under [SECTION] of the [ACT] by filing a Criminal Miscellaneous Petition before the jurisdictional Magistrate as early on 28.09.2013 and the matter is now in the competent Magistrate Court and S.T No.95[SECTION] of 201[SECTION] pending before the Judicial First Class Magistrate Court, Karunagappally as S.T No.95[SECTION] of 201[SECTION] and that the defacto complainant has falsely foisted the present crime against the petitioners for filing complaint against 2nd petitioner in having initiated proper criminal complaint in the matter of dishonour of the B.A.7366/1[SECTION] - : [SECTION] :-
cheque issued by the defacto complainant herein. That the defacto complainant is in the habit of borrowing amounts and issuing cheques against the same and two other complaints are pending against the defacto complainant herein under [SECTION] of the [ACT] as [CASE NUMBER] on the file of the Judicial First Class Magistrate Court-II, Pathanamthitta and S.T No.2[SECTION]9 of 201[SECTION] of Judicial First Class Magistrate Court, Sasthamkotta. The learned counsel for the petitioners would further urge that the entire allegations raised in the petition filed by the defacto complainant herein before the Jurisdictional Magistrate, are false and incorrect and that not even the date and time of any of the incidents are even remotely whispered in the said petition. That the petitioners have two college going daughters and there is no one to look after them if the petitioners are arrested. The learned counsel for the petitioners would strongly urge that there is not even an iota of allegation against the 2nd petitioner to connect her in any manner with any of the offences under the [ACT] and that the only allegation against the 1st petitioner (husband) connecting him with the offence under the said Act is that he had allegedly insulted the B.A.7366/1[SECTION] - : 5 :-
wife of the defacto complainant by calling her caste name. Even the allegation of catching hold of the hand of the wife of the defacto complainant is raised only as against the 1st petitioner and not as against the 2nd petitioner(wife). The learned counsel for the petitioners would further urge that there is not even a remote whisper of allegation in the aforementioned crime to connect the 1st petitioner with the ingredients of the offences alleged under [SECTION] (punishment for neglect of official duties) of the [ACT] except the vague allegation that the defacto complainant had given certain petitions before the police authorities.
5. The learned Public Prosecutor would submit that there is a statutory embargo under [SECTION] of the [ACT] mandating the inapplicability of the provisions of [SECTION] of the [ACT] regarding the grant of anticipatory bail in such matters. The learned Public Prosecutor would urge that the consideration of anticipatory bail is not permissible in view of the aforementioned inhibition under [SECTION] of the [ACT].
B.A.7366/1[SECTION] - : 6 :-
6. Having considered the rival submissions of the learned counsel for the petitioners and the learned Public Prosecutor, it can be seen that there are no allegations raised against the 2nd petitioner wife for connecting her to any offence under the [ACT]. The main allegations raised against her are emanating from the loan transactions between her and the defacto complainant. It is specifically urged by the learned counsel for the petitioners that she had initiated the necessary criminal miscellaneous petition before the Jurisdictional Magistrate for dishonour of the cheque made by the defacto complainant herein by filing such petition before the Magistrate Court as early as on 28.09.2013 and it is long thereafter that the petition has been lodged by the defacto complainant before the Magistrate Court on 21.07.201[SECTION], which has formed the basis of the present crime. Taking into account these aspects and taking into account the fact that the 2nd petitioner is a lady, who has to look after two young daughters, this Court is inclined to exercise its discretion for grant of anticipatory bail to her, more so, as no specific allegations are alleged against her to connect her with any of the offences alleged under the Scheduled Castes and Scheduled B.A.7366/1[SECTION] - : 7 :-
Tribes (Prevention of Atrocities) Act, 1989.
7. It is also submitted by the learned counsel for the petitioners that as evident from Annexures-A5 and A6 private complaints, the defacto complainant is the accused in offences arising under [SECTION] of the [ACT] for dishonour of his cheques in cases more than one and that he is in the habit of taking private loans from his friends and then not returning it and then facing criminal complaints in dishonour of cheques and that though he is only a Police Constable, he is living in a newly constructed house having an extent of more than 2[SECTION]00 sq.ft. and that this is on the basis of various monies borrowed by him, which has not been returned by him. That the petitioners was constrained to initiate private criminal complaints for dishonour of the cheques issued by the defacto complainant herein, which led to Annexure-A3 complaint instituted as early as in September 2013 and that the instant crime No.1[SECTION]21/201[SECTION] has been triggered only much later, as a counter blast, etc.
8. The learned Public Prosecutor submitted about the details of the registration of the case. Having regard to the submissions made by the learned counsel for the petitioners and B.A.7366/1[SECTION] - : 8 :-
the learned Public Prosecutor and on an evaluation of the totality of the facts and circumstances of this case, this Court is of the considered opinion that the plea of pre-arrest bail can be allowed to the 2nd petitioner (A2/wife), as she is not mulcted with any allegations involving those relatable to the offence under the [ACT] and therefore, the embargo under [SECTION] of the said Act will not apply as against her. Accordingly, it is ordered that in the event of the 2nd petitioner being arrested in connection with Crime No. 1[SECTION]21/201[SECTION], she shall be released on bail on her executing a bond for Rs. 35,000/- (rupees thirty five thousand only) with two solvent sureties each for the like amount to the satisfaction of the investigating officer in the above crime and subject to the following conditions:
(i) The petitioner shall surrender her passport, if any, before the jurisdictional Magistrate concerned within 3 days from the execution of the bail bond before the Investigating Officer and if she is not holder of passport, then she shall file an affidavit to that effect in the said court. If the petitioner requires her passport in connection with her travel abroad, then she is free to approach the court below concerned for the release of the same and for necessary permission in that regard. In case such an application is filed, the trial court or the jurisdictional Magistrate concerned, as the case may be, is free to consider the same on merits and to pass appropriate orders thereon, taking necessary guidance from the principles laid down in the decision of this Court in the case [PRECEDENT], notwithstanding the aforementioned conditions imposed by this Court.
(ii) The petitioner shall report before the Investigating Officer in the above B.A.7366/1[SECTION] - : 9 :-
said crime between 10 a.m. and 11 a.m. on every alternate Sundays.
(iii) The petitioner shall not involve in any criminal offence of similar nature or graver in nature.
(iv) The petitioner shall co-operate with the investigation and report before the investigating officer as and when required.
(v) The petitioner shall not influence the witnesses or shall not tamper or attempt to tamper evidence in any manner whatsoever.
If the 2nd petitioner violates any of the conditions as ordered above, then the bail granted to her is liable to be cancelled.
9. As regards the allegations raised against the 1st petitioner, though there is embargo under [SECTION] of the 1989 Act, this Court is of the considered opinion that the course of action adopted by this Court in the case [ENTITY] v. State of Kerala, reported in 2000(3) KLT [SECTION]52, can be adopted in this case also, taking into account the facts and circumstances made out in this case. In the above said [ENTITY]'s case (supra), this Court held that though the offences punishable under the 1989 Act are made triable by the Special Court presided over by a Sessions Judge, considering the peculiar nature and circumstances under which those cases are registered and tried with regard to atrocities perpetrated against the weaker sections, the offences punishable under the 15 sections under [SECTION] of the Act are B.A.7366/1[SECTION] - : 10 :-
punishable with imprisonment for a term which shall not be less than six months, but which may extend to five years and with fine and that therefore, the 15 offences enumerated under [SECTION] of the Act are punishable with maximum imprisonment of five years and with fine, though the offences are triable by the Special Court, which is the Sessions Court. Therefore, applying the principles enunciated by the decision of this Court referred therein, it is clear that the Judicial First Class Magistrate's Court has got jurisdiction to grant bail to the persons accused of the offence punishable under any of the said provisions in the 1989 Act. Accordingly, this Court in [ENTITY]'s case directed the jurisdictional Magistrate to enlarge the petitioners therein on bail, on appropriate conditions which it deem fit, in case the petitioners surrender or produced before the Magistrate court and move for bail, etc. It is for the 1st petitioner to appear and formally surrender before the jurisdictional Magistrate without any further delay and move an appropriate bail application in that behalf and on such surrender and moving of the bail application, the jurisdictional Magistrate concerned shall consider the said application on the same day, in the light of the principles laid down by this Court in [ENTITY]'s case B.A.7366/1[SECTION] - : 11 :-
(supra) and in the light of observations made in this case and grant bail to the 1st petitioner.
The application stands disposed of, accordingly.
sdk+ [ENTITY], JUDGE True copy P.S. to Judge