IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 Bail Appl..No. 4201 of 2009() ----------------------------- CRIME NO.845/2008 OF KANNUR TOWN POLICE STATION PETITIONERS : ACCUSED 1 & 2 ------------------------------------------- 1. T.J.RINIL ROLENCE, AGED 40 YEARS S/O.JOHN VINCENT, SUPALITHA NILAYAM, ONDEN ROAD, KANNUR. 2. ARCHI BOLD LEE PRINCELY T.J. AGED 35 YEARS, S/O.JOHN VINCENT BETHEL,EDAPPAL AMSOM, THUYYAM DESOM MALAPPURAM DISTRICT. BY ADV. SMT.P.K.PRIYA RESPONDENT(S): --------------- THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM REPRESENTING S.H.O.KANNUR TOWN POLICE STATION. PUBLIC PROSECUTOR SRI.JIKKU GEORGE THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 06/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.4201 of 2009 --------------------------------------------- Dated this the 6th day of August, 2009 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioners are accused Nos.1 and 2 in Crime No.845 of 2008 of Kannur Town Police Station. 2. The offences alleged against the petitioners herein and the third accused are under Sections 420, 468 and 120B of the Indian Penal Code. 3. One Dr.Augustin Sumitran, who was working in London, owned several items of property in Kannur and Palakkad Districts. His house is at Kannur. Accused Nos.1 and 2 are related to Augustin Sumitran. Accused Nos.1 and 2 are brothers. The third accused is a relative of accused Nos.1 and 2. It would appear that the third accused was, for quite sometime, in London along with Augustin Sumitran. On 13.11.2005, Augustin Sumitran executed a power of attorney in favour of the first accused authorising him to deal with the immovable BA No.4201/2009 2 properties. On the basis of the power of the attorney, the first accused executed and registered two assignment deeds dated 7.4.2007 assigning two items of properties in favour of the second accused. Augustin Sumitran died on 19.2.2008. 4. The defacto complainant claims to be the son of Augustin Sumitran. This is disputed by the petitioners. On 4.10.2008, the defacto complainant and his mother filed O.S.No.341 of 2008 on the file of the court of the Subordinate Judge of Thalassery to cancel the two assignment deeds executed by the first petitioner in favour of the second petitioner. The petitioners are defendant Nos.1 and 2 in O.S.No.341 of 2008. On 17.7.2008, the defacto complainant and his mother filed O.S.No.357 of 2008 on the file of the Munsiff's Court, Kannur for recovery of possession of another item of immovable property. The first petitioner is the sole defendant in O.S.No.357 of 2008. In the suits, the case of the defacto complainant is that the power of attorney was executed by Augustin Sumitran at the influence of the third accused. The defacto complainant has also a case that the power of attorney does not contain a power to sell the properties; but the power was given to sell the properties BA No.4201/2009 3 and to purchase other properties. It is also contended by the defacto complainant that the two assignment deeds executed by the first petitioner in favour of the second petitioner are sham documents. The suits are pending. After the suits were filed, the defacto complainant filed a petition before the police which was registered as Crime No.845 of 2008 on 14.10.2008. 5. The petitioners filed B.A.No.6987 of 2008 before this Court for anticipatory bail, which was dismissed as per the order dated 26th November 2008. The petitioners have approached this Court again in this Bail Application with a prayer for anticipatory bail stating that there is a change of circumstance. It is submitted that at the time when Bail Application No.6987 of 2008 was disposed of, the petitioners had not received the summons in the two suits filed by the defacto complainant and his mother and therefore, the petitioners could not submit about the same in the earlier Bail Application. 6. I am of the view that there are justifiable reasons for maintaining a second application for anticipatory bail. Most of the allegations in the petition submitted by the defacto complainant are covered by the pleadings in the suits. Further, BA No.4201/2009 4 it is alleged in the petition that Augustin Sumitran died on 19.2.2008 and on 20.2.2008, the accused persons presented papers before the Municipality as if those documents were signed by Augustin Sumitran. This was done by forging his signature. 7. I have perused the case diary. 8. The application submitted before the Kannur Municipality for change of mutation is dated 20.2.2008. It is submitted by the learned counsel for the petitioner that the signature in the application dated 20.2.2008 filed before the Municipality is not the signature of Augustin Sumitran. But, it is the signature of the first petitioner. Counsel referred to copies of the assignment deeds produced along with this Bail Application to fortify the contention that the signature of the first petitioner is found in the application submitted to the Municipality and it does not contain the signature of Augustin Sumitran. Prima facie, the contention appears to be well founded. 9. Two suits are pending between the parties. The question whether the two assignment deeds executed by the first BA No.4201/2009 5 petitioner in favour of the second petitioner are sham or not would be considered by the civil court. The extent of power granted under the power of attorney dated 13.11.2005 is also to be considered by the civil court and not by the police. Most of the disputes between the parties as revealed from the petition submitted before the police are to be resolved in the civil suits which are now pending. 10. Taking into account the facts and circumstances of the case, I am of the view that the petitioners are entitled to the grant of anticipatory bail. There will be a direction that in the event of the arrest of the petitioners, the officer in charge of the police station shall release them on bail on their executing bond for Rs.50,000/- each with two solvent sureties for the like amount to the satisfaction of the officer concerned, subject to the following conditions: a) The petitioners shall appear before the investigating officer for interrogation as and when required; b) The petitioners shall not try to influence the prosecution witnesses or tamper with the evidence; c) The petitioners shall not commit any offence or indulge in BA No.4201/2009 6 any prejudicial activity while on bail; d) In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. The Bail Application is allowed to the extent indicated above. K.T.SANKARAN, JUDGE csl