IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 27TH FEBRUARY 2008 / 8TH PHALGUNA 1929 Bail Appl..No. 1126 of 2008() ----------------------------- CRIME NO.20/04 OF KADAIKKAVUR POLICE STATION, TRIVANDRUM. .................... PETITIONER/ACCUSED ----------------------------------- LISA NIZAMUDEEN, D/O. NAZARULLA, RESIDING AT 'DWARAKA', NEDUMPARAMBU, ATTINGAL, TRIVANDRUM DISTRICT. BY ADV. SRI.MILLU DANDAPANI RESPONDENTS: COMPLAINANT AND STATE ---------------------------------- THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No. 1126 of 2008 ------------------------------------------------- Dated this the 27th day of February, 2008 ORDER Application for anticipatory bail. The petitioner is the 2nd accused. Her husband is the 1st accused. Even though in the F.I.R. registered, the de facto complainant only complains about the creation of a forged document to make it appear that a property obtained by him from the petitioner - 2nd accused, has been transferred to her husband – the 1st accused. Investigation in this crime which has been pending from 20/1/04 reveals a series of relevant facts. 2. The property in question belonged originally to the mother of the 1st accused. According to her, she had pledged the property to a bank to raise a loan. She was under the impression that the said loan liability continues. When she went to the bank to discharge the liability and take back the documents, she was informed that her son (A1) had already B.A. No. 1126 of 2008 -: 2 :- discharged the liability and had taken away the document. He then got a document dated 3-4-01 executed purportedly by his mother in his name to transfer the property to him. A1, in turn, by a document dated 14/5/01 had transferred the property to one Sunilkumar. The said Sunilkumar, in turn, transferred the property to one Vilasini by a document dated 15/3/02. The said Vilasini had on 14/6/02 transferred the property to the name of the petitioner herein. The petitioner herein had transferred the property to the de facto complainant – Babu, by a document dated 16/9/02. It is thereafter that the document complained of in the present F.I.R. is seen executed on 8/1/03. The investigation has been pending from 2004. It has now been taken over by the Deputy Superintendent of Police evidently on the basis of complaints of inaction. Long earlier, the petitioner had applied for anticipatory bail and the learned Sessions Judge by order dated 7/11/05 had dismissed the said application for anticipatory bail after observing that the petitioner has not been arrayed as an accused till then. The order shows that the learned Sessions Judge did take note of the impending probability of the petitioner being arrayed as an accused. In spite of that, it was held that the petitioner is not entitled for anticipatory bail. 3. Be that as it may, the learned counsel for the petitioner B.A. No. 1126 of 2008 -: 3 :- submits that the petitioner is absolutely innocent. The learned counsel points out that on the specific allegations raised in the F.I.R. by the de facto complainant – Babu, the petitioner has no complicity whatsoever. In these circumstances, for investigation of the crime alleged in the F.I.R., the petitioner need not be arrested or detained. 4. The learned Public Prosecutor submits that though the F.I.R. reveals complaint only regarding document dated 8/1/03, investigation reveals that that is only the tip of iceberg. The investigation now believes that right from 3.4.2001 there was a conscious attempt to defraud the mother of the first accused and to ensure that she is divested of the property. The de facto complainant was only one person in the chain of events, who was also defrauded in the course of the events. The learned Prosecutor submits that, at any rate, a detailed and exhaustive interrogation of the petitioner is necessary to ascertain the circumstances under which the document dated 3.4.2001 was brought into existence and the circumstance under which the document was executed in favour of the petitioner and later by the petitioner in favour of the said Babu. The learned Prosecutor submits that this is not a fit case where the petitioner deserves to be permitted to arm herself with an order of anticipatory bail. She has to be interrogated thoroughly to B.A. No. 1126 of 2008 -: 4 :- bring out the truth. Custodial interrogation of the petitioner is necessary. The petitioner may not be permitted to arm herself with an order of anticipatory bail at this stage, submits the learned Public Prosecutor. 5. The learned counsel for the petitioner submits that the de facto complainant has filed O.S. No.30 of 2004 before the Munsiff's Court, Attingal, against accused 1 and 2 as also a Co- operative Society. That suit is still pending, it is submitted. Pendency of the said suit does not, according to me, have any bearing on the alleged culpable conduct which is the subject matter of the investigation in this crime. That relates to the grievance of the de facto complainant who at that time does not appear to have fathomed the deep rooted culpable conduct allegedly involved in the transaction. 6. I have considered all the relevant inputs. I take note of the fact that the petitioner is a woman, I take note of the fact that the specific allegations raised in the F.I.R. do not reveal the complicity of the petitioner; but all the same I am not persuaded to agree that there are any features in this case which would justify or warrant the invocation of the extra ordinary equitable discretion under section 438 Cr.P.C. in favour of the petitioner. This, I agree with the learned Public Prosecutor, is a fit case where the Investigator must be given an opportunity to B.A. No. 1126 of 2008 -: 5 :- thoroughly and exhaustively interrogate the petitioner to ascertain the alleged fraudulent nature of the transaction commencing from the document dated 3.4.01 and now ending with the document dated 8.1.2003. I am not persuaded, in these circumstances, to invoke the discretion under Sec.438 of the Cr.P.C. This, I agree with the learned Public Prosecutor, is a fit case where the petitioner must surrender before the Investigating Officer or the learned Magistrate having jurisdiction and then seek regular bail in the normal and ordinary course. 7. In the result, this bail application is dismissed; but with the observation that if the petitioner surrenders before the Investigating Officer or the learned Magistrate and seeks bail, after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass appropriate orders on merits and expeditiously – on the date of surrender itself. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge B.A. No. 1126 of 2008 -: 6 :-