Antony Joseph vs State Of Kerala

This petition is filed under section 438 of the Code of Criminal Procedure.

The petitioners herein are husband and wife, who have been arrayed as accused Nos.1 and 2 in Crime No.137 of 2018 of the Kumali Police Station.

The aforesaid Crime has been registered at the instance of the mother of the 1st petitioner alleging offence punishable under Sections 323, 324, 506(1), 406 and 420 read with Section 34 of the IPC. The mother of the victim is a lady aged 89 years. According to the de facto complainant, she is the owner of a property having an extent of 1 acres 10 cents. She executed a settlement deed in favour of one of her sons, one Augustine in the year 2006. Later, she moved a petition under the Maintenance and Welfare of Senior Citizens Act and the settlement deed was cancelled. Thereafter, the petitioners persuaded the mother to stay with them by assuring that she would be well looked after. Thereafter in the year 2009, they managed to get a sale deed executed in their favour by convincing the informant that what is being executed is a settlement deed. After getting the sale deed executed in their favour on 22.5.2009, the petitioners started behaving cruelly towards the de facto complainant. It is alleged that in the month of January, 2018, the 1st petitioner twisted her hand and the 2nd petitioner on 5.2.2018, pushed her down.

The learned counsel appearing for the petitioners submitted that the allegations are without basis. According to the learned counsel, the non bailable offence alleged against them are Sections 420 and 406 of the IPC, and this concerns a sale deed which was executed in their favour on 22.5.2009. The sale deed was executed when the physical health of the informant was good. Now her condition has deteriorated and she is now in the custody of her other children who are not in good terms with the petitioners. In an attempt to get the property in their favour, they have unduly influenced the mother, whose mental condition is very weak, to lodge a complaint with baseless allegations. Allegation of physical torture is without basis is the submission. The informant has also initiated proceedings under the Protection of Women from Domestic Violence Act and orders have been passed by the learned Magistrate granting protection to the mother.

The learned Public Prosecutor has opposed the prayer. He has made available the case diary.

If what is seen in the case diary is believed, the old mother has been undergoing great trauma at the hands of her own children. Whatever that may be, it appears that directions have been issued by the learned Magistrate under the provisions of the Protection of Women from Domestic Violence Act. It is also submitted that Gram Nyayalaya, Azhutha, Peerumedu has passed prohibitory orders restraining the petitioners from alienating the property. The first petitioner is none other than the son of the de facto complainant. The 2nd petitioner is the daughter-in-law.

Having regard to the relationship between the parties and also the fact that the petitioners are not persons with criminal antecedents, it doesn't appear to me that the custodial interrogation of the petitioners are warranted in the instant case. I am of the view that by imposing appropriate conditions, the petitioners can be granted an order of pre-arrest bail.

In the result, this petition is allowed. However, it shall be subject to the following conditions.

i).The petitioners shall appear before the investigating officer within ten days from today and shall undergo interrogation. Thereafter, if they are proposed to be arrested, they shall be released on bail on their executing a bond for a sum of Rs.40,000/- (Rupees forty thousand only)each with two solvent sureties each for the like sum.

ii)The District Women Protection Officer, Idukki shall regularly visit the de facto complainant, at least once in three weeks and see that her interests are protected. If it is found that she is being subjected to hardship or harassment by any of her children, she shall approach the concerned Magistrate who shall pass appropriate orders. The investigating officer shall inform the District Women Protection Officer, Idukki, who shall act accordingly.

iii)The petitioners shall co-operate with the investigation and shall appear before the Investigating Officer as and when directed.

iv)The petitioners shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the court or to any police officer.

v)The petitioners shall not commit any similar offence while on bail.

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law.

A copy of the order shall also be forwarded to the District Women Protection Officer, Idukki for compliance.