Abdul Kader vs State Of Kerala And Anr

This is an application for anticipatory bail under Section 438 of Cr.P.C.

The applicant is the sole accused in Crime No.823/2020 of Santhanpara Police Station for having allegedly committed the offences punishable under

Sections 307 of the I.P.C. and under Section 4 read with Section 25(1)(b)(B) of the Arms Act.

The prosecution case, in brief, is that on 15.07.2020 at about 4.00 PM, the applicant allegedly shot at the de facto complainant’s husband,

Sumesh, a Gatekeeper in M/s GIE Plantations intending to commit his murder. The gun was an unlicensed and unauthorised one and thereby he

committed an offence under the Arms Act also.

The applicant states that the allegations are not true. He had purchased the estate after spending 17 crores 50 lakhs and it is a registered

partnership by the name M/s GIE Plantations consisting of 655 acres of land and 200 acres of Kuthakapattom in Santhanpara Village in Idukki

District. There are certain disputes between him and one Biju M.Abraham, who is alleged to be a notorious gang leader and is organizing the land

mafia in the locality and has been consistently threatening the applicant. On the alleged date of occurrence, the aforesaid Biju M.Abraham and about

50 other persons formed an unlawful assembly and attacked the de facto complainant in his estate bungalow. They rampaged the bungalow,

committed mischief, stole Rs.10 lakhs in cash and also a licenced revolver from inside his Innova car parked in front of the Bungalow. The car and a

jeep were destroyed, and the applicant assaulted. He was lying inside the bungalow when the police came and took him to the hospital. He was

treated at the local hospital and also at Daya Hospital in Thrissur. The applicant states that the husband of the de facto complainant, who is the injured

victim in this crime, was never employed as a Watchmen in the estate and that he is actually a member of the gang, led by Biju M.Abraham and

Beena, another lady, who was previously an employee in the estate, was removed from service on serious charges levelled against her. It is stated

that since then, the aforesaid Beena and Biju M.Abraham and others have been planning to foist false cases against the applicant. As a result of

which, certain crimes were registered, including for an offence under Section 376 of I.P.C. in 2019, for the alleged rape of the aforesaid Beena. It is

also stated that on the basis of these complaints, proceedings under Section 107 of the Cr.P.C. was also initiated against the applicant. All these

complaints have been falsely foisted with the intention to harass the applicant. The applicant is on bail in all those crimes registered against him. He is

actually a victim of an assault by a gang of 50 persons, who had raided his house. Crime No.783/2020 was registered against all these persons for

offences punishable under Sections 143, 147, 452, 204(b), 441, 324, 307, 427 and 397 read with Section 149 of the I.P.C. However, it is admitted that

there are certain civil disputes pending regarding the estate and the property. Therefore, the applicant submits that he has been falsely implicated in

this crime for attempted murder with an unlicensed gun. The gun was allegedly used by someone in the gang, who had come to rampage his house

and the victim was injured. It is also pointed out that there was an unreasonable delay in filing the F.I.R. in this crime. Though the incident took place

on 15.07.2020 at about 4.00 PM, the F.I.R. is seen registered only on 20.08.2020. That itself would falsify the complaint.

Heard the learned Senior Counsel Sri.B.Raman Pillai appearing for the applicant, and the learned Senior Counsel Sri. K.Ramkumar appearing for

the de facto complainant. The learned Senior Public Prosecutor Sri. C.N. Prabhakaran was also heard.

The learned Senior Counsel appearing for the applicant would verify to several documents, which have been produced to challenge the verity of this

complaint and it is stated that when the victim in this complaint got injured somehow due to firing by a member of the gang belonging to Biju

M.Abraham and others, they wanted to make effective of that injury sustained by the victim to foist a false case against the applicant of attempted

murder with an unlicensed gun. It is submitted by Sri.Raman Pillai that the applicant has a licensed gun kept inside his car. In fact, he did not get the

opportunity to defend himself from the marauders ransacking his Bungalow. He could not even reach up to his car either to save himself, or the

money or revolver kept in the dashboard in his car from the marauding mob. The revolver has already been recovered and assailants including Beena,

who had foisted a rape case against the applicant arrested and subsequently released on bail. The applicant states that he has been depicted as a

criminal, whereas he has no conviction against him and he is a law-abiding citizen and he is willing to cooperate with the investigation, seeking

anticipatory bail.

Per contra, the learned Senior Counsel Sri.Ramkumar submits that the applicant is a notorious criminal and an incorrigible one, who despite the

proceedings initiated against him under Section 107, Cr.P.C. continues with his villainous ways and attempted to murder of a poor Watchman, who

was employed in the estate performing his duty to eke out a livelihood. The proprietary right to the estate is in dispute. The applicant had entered the

estate Bungalow despite there being an injunction by the Civil Court prohibiting trespass.

The learned Senior Public Prosecutor submits that the injured was taken to the hospital and subjected to treatment, but he was also arraigned as an

accused in Crime No.783/2020, he did not dare to reach to the police with a complaint against the applicant for fear of being himself detained. And

that is the reason why there was 35 days delay in filing this complaint. The delay is well explained, submits the learned Public Prosecutor. The gun

which was allegedly used by the applicant is yet to be recovered, and therefore, he is not entitled to anticipatory bail, submits the learned Public

Prosecutor.

On examining the materials placed and considering the submissions made by both the Senior Counsel and also the learned Senior Public Prosecutor

anxiously, I find that even though there was an injunction order against the applicant, it did not prohibit his entry into the estate as is argued by the

learned Senior Counsel. The injunction was only against dealing with the property or alienating it. The civil disputes pertaining to the estate are under

the consideration of a civil court of competent jurisdiction.

There are strong reasons to doubt the verity of the prosecution version for more reasons than one. He was admittedly beaten up, injured and lying

on the floor when the police came to the scene of occurrence. He was taken to the hospital from the bungalow. There was no gun recovered from

him at that point in time.

If that is so, definitely, the gun may not have been in his possession to commit the alleged offence. Apart from the victim in this crime, none others

were injured. There are other persons like Beena, Biju M.Abraham and the accused in the connected crime, who had allegedly trespassed into his

house to assault him. He did not get the opportunity to use the licenced gun to defend himself. When 50 persons ransack his Bungalow and assault

him, he had the right to defend himself by using his licensed gun, but he could not do so. The gun was stolen by the marauders. It is hard to believe

prima facie, that the applicant would have used an unlicensed gun to defend himself or to attack the Watchman as alleged, while he had a licensed gun

with him. There is also a serious dispute regarding whether the injured Sumesh was actually employed as a Watchman in the estate as contended by

the prosecution. The delay in registering of the F.I.R. is also not satisfactory explained, because the injured was treated in a hospital, and the hospital

authorities would have intimated the police and in consequence of that, there was no reason for not registering the F.I.R. The statement of the injured

could not have been recorded, as he was in a critical condition. But what prevented his wife, an eye witness, to give a statement which she did

ultimately give after a lapse of one month. Under the circumstances, I find that there are so many queries glaring at the prosecution case seeking

cogent explanations. Hence, I find that the applicant is entitled to the exceptional remedy of anticipatory bail in this crime.

In the result, the bail application is allowed and the applicant is directed to surrender before the investigating officer within two weeks. In the event of

his being arrested, after interrogation and recovery, if any, he shall be released on bail on the execution of a bond for Rs.1,00,000/- (Rupees one lakh

only), with two solvent sureties for the like amount each, to the satisfaction of the investigating officer, and on the following conditions:

(i) He shall not influence or intimidate witnesses or tamper with evidence;

(ii) He shall surrender his passport before the jurisdictional Court, and shall not go abroad without the permission of that Court.

(iii) He shall appear before the investigating officer on all Saturdays between 9.00 AM and 12.00 noon for a period of two months or till the final

report is final, whichever is earlier;

(iv) During the bail period, he shall not get involved in any similar offences.

In case of breach of the bail conditions, the prosecution shall be at liberty to apply for cancellation of the bail before the jurisdictional court.