IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 30TH JANUARY 2008 / 10TH MAGHA 1929 Bail Appl..No. 491 of 2008() ---------------------------- CRIME NO.666/07 OF THE KOYILANDY POLICE STATION PETITIONERS/ACCUSED NOS. 1 TO 3 ------------------------------------------------ 1. GAFOOR.V.K., S/O.ABOOBACKER, AGED 32 YEARS, THANIKKUNI HOUSE, POOKKADU, KOYILANDY TALUK. 2. ABOOBACKER.V.K., S/O.MOIDEENKOYA, AGED 60 YEARS, THANIKKUNI HOUSE, POOKKADU, KOYILANDY TALUK. 3. KAICHUMMA, W/O.ABOOBACKER, AGED 58 YEARS, THANIKKUNI HOUSE, POOKKADU, KOYILANDY TALUK. BY ADV. SRI.SUNNY MATHEW RESPONDENTS: COMPLAINANT ------------------------ 1. THE SUB INSPECTOR OF POLICE, KOYILANDY POLICE STATION. 2. THE DEPUTY SUPERINTENDENT OF POLICE, THAMARASSERY. (RESPONDENTS 1 AND 2 REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI. JAI GEORGE. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No.491 OF 2008 ------------------------------------------------- Dated this the 30th day of January, 2008 ORDER Application for anticipatory bail. The petitioners are the husband of a deceased woman and his parents. They face allegations for offences punishable, inter alia, under Secs.498A and 306 of the IPC. The marriage between the 1st petitioner and the deceased took place on 16/4/2000. The deceased committed suicide on 13/9/07 by hanging. The spouses are blessed with two children - aged about 4 ½ years and 1 year respectively. The suicide was committed when the deceased was residing along with the petitioners. They had shifted to a new house and within a week of such shifting of the house, the deceased had committed suicide in a room in the said house. 2. The husband initially advanced a version to the Doctor that the deceased was suffering from epilepsy. The people at B.A. No.491 OF 2008 -: 2 :- home divulged the information that she had attempted to commit suicide and she was saved in the course of such attempt. The conflicting versions gave rise to doubt and suspicion. A complaint was made before the police. The crime was initially registered under Sec.306 of the IPC. In the course of investigation, after getting the post-mortem certificate, it was confirmed that the death was due to hanging. But it was alleged that the husband and his mother were guilty of matrimonial cruelty of the culpable variety which had ultimately led to the commission of suicide. Though the presumption under Sec.113A Cr.P.C. is not available, a period of 7 years having been elapsed from the date of the marriage at the time of commission of suicide, the police came to the conclusion ultimately that the offences under Secs.498A and 306 of the IPC have been committed by the petitioners. 3. The learned counsel for the petitioner submits that the petitioners are absolutely innocent. The version regarding the commission of suicide was not initially revealed to the Doctor and the police in the anxiety to avoid any unpleasant legal action against the deceased and in an attempt to ensure that she gets prompt medical aid. It is further submitted that there was absolutely no matrimonial cruelty flowing from the petitioners to B.A. No.491 OF 2008 -: 3 :- the deceased. 4. The learned counsel for the petitioners, in these circumstances, prays that anticipatory bail may be granted to the petitioners. 5. This application is opposed by the learned Public Prosecutor. The learned Public Prosecutor points out that the Case Diary reveals many instances of matrimonial cruelty flowing from the 1st and 3rd petitioners against the deceased. I have gone through the Case Diary. I shall at this stage scrupulously avoid any detailed discussions on merits about the acceptability of the allegations or the credibility of the data collected. Suffice it to say that the Case Diary bears ample evidence for series of acts of cruelty flowing from the 1st and the 3rd petitioners against the deceased. 6. So far as the 2nd petitioner/2nd accused – father of the 1st accused, is concerned except that he was also present in the house and was sharing the same roof, I find no specific allegations against him. I am, in these circumstances, satisfied that there is merit in the opposition by the learned Public Prosecutor in so far as the prayer of the 1st and 3rd petitioners are concerned. The 2nd petitioner, I am satisfied, can be granted anticipatory bail. So far as petitioners 1 and 3 are concerned, I B.A. No.491 OF 2008 -: 4 :- am unable to perceive any features in this case which can justify or warrant the invocation of the extraordinary equitable discretion under Sec.438 of the Cr.P.C. It is true that there is no suicide note. It is true that there is no prior allegations of matrimonial cruelty raised before any authorities. But I am not persuaded to agree that the powers under Sec.438 of the Cr.P.C. can or ought to be invoked in favour of petitioners 1 and 3. 7. In the result, this bail application in so far as it relates to petitioners 1 and 3 is dismissed with the observation that if they surrender before the Investigating Officer or the learned Magistrate having jurisdiction and then seek regular bail in the ordinary and normal course, such application must be considered by the learned Magistrate in accordance with law and expeditiously. 8. Following directions are issued in favour of the 2nd petitioner under Sec.438 of the Cr.P.C: (i) The 2nd petitioner shall appear before the learned Magistrate having jurisdiction at 11 a.m. on 6/2/08. He shall be released on regular bail on his executing a bond for Rs.25,000/- with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. (ii) The 2nd petitioner shall make himself available for B.A. No.491 OF 2008 -: 5 :- interrogation before the Investigating Officer between 10 a.m. and 3 p.m. on 7/2/08 and 8/2/08. Thereafter the 2nd petitioner shall appear before the Investigating Officer on all Mondays and Fridays between 10 a.m. and 12 noon for a period of two months. Subsequently, he shall so make himself available for interrogation before the Investigating Officer as and when directed by the Investigating Officer in writing to do so. (iii) If the 2nd petitioner does not appear before the learned Magistrate as directed in clause (i), directions issued above shall thereafter stand revoked and the police shall be at liberty to arrest the petitioner and deal with him in accordance with law as if these directions were not issued at all; (iv) If the 2nd petitioner were arrested prior to his surrender on 6/2/08 as directed in clause (i) above, he shall be released on his executing a bond for Rs.25,000/- without any sureties undertaking to appear before the learned Magistrate on 6/2/08. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge