Basil Paul vs State Of Kerala And Ors

Applications for anticipatory bail under Section 438 Cr.P.C.

The applicant in BA No.1012 of 2021 is the 3rd accused while the applicants in B. A. No. 1774 of 2021 are accused numbers 4 and 7 in Crime No. 783/2020 of Santanpara Police Station for having allegedly committed offences punishable under Sections 143, 147, 148, 452, 294 (b), 441, 324, 307, 427, 397, 188, 269, 270 and 120B R/W Section 149 of the Indian Penal Code and also under Section 118 (E) of the Kerala Police Act, and under Section 5 read with Section 4 (2) (A) of the Kerala Epidemic Diseases Ordinance.

The prosecution case, in brief, is thus:-M/s. G.I.E.Plantations is a registered partnership firm and consists of estate having an extent of 655 acres of registered land and 200 acres of Kuthakapattom land in Santanpara Village was purchased by the de facto complainant Abdulkader after he returned from abroad. There were some dispute pending in courts as well as Tribunal regarding the ownership of the estate. A2 Biju M Abraham claims to be the authorised custodian of the estate. The applicants and the other accused allegedly hatched a conspiracy to commit murder of the de facto complainant and in consequence of that conspiracy, on 15/07/2020 at about 4 PM, the applicants formed an unlawful assembly, trespassed into the estate and the estate bungalow and in prosecution of the common object of the unlawful assembly, committed riot armed with deadly weapons, hurled abuses at the de facto complainant and with the knowledge and intent to cause death assaulted the de facto complainant, robbed ₹ 10 lakhs in cash and a licensed revolver belonging to the de facto complainant from inside his Innova car parked in front of the bungalow, committed mischief by destroying the jeep and the car belonging to the de facto complainant and attempted to commit murder.

The 3rd accused contents that the allegations of the de facto complainant are all untrue and baseless. It is stated that A2 Biju M Abraham is the custodian of the estate and in his absence he wanted a caretaker and the 3rd accused was appointed vide Annexure 3 letter as a caretaker to secure and protect the property. The contention of the applicants is that, the estate formerly belonged to John Joseph, an erstwhile member of the Minority Commission. He had borrowed money from the Federal Bank. The repayment of the loan was defaulted and proceedings under the SARFAESI was initiated, and the property was taken over by JM Financial Asset Reconstruction Co.Ltd., represented by A2 as the lawful custodian of the estate. The 3rd accused is the care taker. On 16.05.2020, while A3 was in the Estate Manager's Bungalow, the de facto complainant herein and his men barged into the bungalow and attacked them. A complaint was filed before the Judicial First Class Magistrate Court, Nedumkandom which was forwarded to the Santhanpara Police Station and Crime 634/20 under sections 454, 143, 144, 145, 146, 147, 324, 326, 307 read with Section 149 of the Indian Penal Code, under Section 25 (a) of the Arms Act, and under sections 3 (a) and 4 of the Explosive Substances Act was registered against them. That apart, Crime No. 823/2020 was also registered at the same Police Station against the de facto complainant for 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 de facto complainant had on the very same day of the incident alleged in this crime, had a shot at the gatekeeper of the plantation named Sumesh and had attempted to murder him. The de facto complainant had approached this Court for anticipatory bail in that crime and vide order in B. A. No. 7833 of 2020 this Court had granted anticipatory bail to him. Proceedings under Section 107 Cr.P.C was also initiated against the de facto complainant by the Sub Divisional Magistrate, Devikulam. Proceedings were initiated to cancel the bond that was executed by him under Section 107 Cr.P.C. It is pointed out that the investigation in this crime was conducted in a partisan manner due to the influence of the de facto complainant. The DySP, Munnar was placed under suspension pending enquiry.

The applicants state that they are innocent and the allegations are not true and that they have been implicated out of enmity and ill will towards them. None of the applicants have any criminal antecedents. The 3rd accused is a Bachelor in Hotel Management. He was employed as a Manager in various hotels in India and abroad. A4 was working as an estate manager and is residing in the quarters provided to him within the compound of the estate where he is staying with his family. A7, the son of A4, is a youngster in his early twenties without any criminal antecedents. He was employed in Bangalore and had to return due to the pandemic.

The applications for anticipatory bail filed by the applicants before the Sessions Court, Thodupuzha were dismissed. Accused numbers 10 to 12 were granted anticipatory bail by this Court. Accused numbers 14 to 16 were also granted anticipatory bail by the sessions Court. A3, A4 and A7, the applicants before this Court, were declined anticipatory bail by the Sessions Court for the reason that the first information report itself has stated that A3 had attacked the de facto complainant with an iron rod and had inflicted injuries on him. A4 and A7 were indulged in a criminal conspiracy with the A3. Under the circumstances, the learned Sessions Judge felt that custodial interrogation of the applicants is essential for the purpose of investigation.

Heard the learned counsel Sri M. Revikrishnan appearing for the applicants and Sri C.K. Vidyasagar, the counsel appearing for the de facto complainant. The learned Prosecutor Smt. V. Sreeja was also heard.

The learned counsel appearing for the de facto complainant has produced documents to indicate that the de facto complainant had sustained a very serious injuries in the assault. The discharge summary issued from Daya General Hospital and Speciality Surgical Centre, Thrissur produced as Annexure R2(a) describes the history and physical findings pertaining to the injuries sustained by the de facto complainant as thus:

"History of alleged assault by a group of peopleon 15/7/2020 at Munnar, Santhanpara, initially managed elsewhere with suturing of scalp wound and (R) leg wound. Flexor Tendon injury(R) middle finger with 3 cms incised wound. On examination patient concious, oriented, stable. Sutured LW scalp 5cm, another sutured wound (R) leg 2 cm, uncised wound volar aspect (R) middle finger (3cm) with flexor tendon injury(FDP). Multiple abrasion and contusion back, both shoulder, chest, legs and arms. Flexion of DIP joint-not possible. PIP flexion -good.

On 16/7/2020 under LA, wound explored. FDP repaired at level of DIP jt, and POP dorsal slab given.

Wounds clean and healing." (Sic)

The applicants had allegedly hatched a conspiracy to commit murder. Iron rod is the weapon allegedly used by A3. No fracture or grievous hurt caused to the de facto complainant. In fact, the injuries sustained by the de facto complainant were not life threatening. A4 and A7 were alleged to be part of the conspiracy, but they have not inflicted any injury. There is a counter case registered against the de facto complainant for having used his gun and attempted to murder the Gateman.

There has been long pending disputes between the de facto complainant and JM Financial Asset Reconstruction Co.Ltd. of which, A3 claims to be the care taker appointed by A2, the custodian representing the company. It is because the possession and management of the estate are in dispute that so many criminal cases have emerged. The de facto complainant himself is an accuse in a number of cases, and proceedings under S. 107 Cr.Pc has been initiated against him. There is also action taken against him for breach of bond execute by him. Under the circumstances, hostilities would cease only on settlement of the dispute concerning the possession and management of the estate. The estate was allegedly purchased by the de facto complainant from the former owner subject to liabilities due to the Bank. SARFAESI proceedings are pending.

The ambit and scope of S.438 CrPC has been discussed in detail by the Constitution Bench decision of the Supreme Court in Gurubaksh Singh Sibbia V. State of Pujab [1980 KHC 665 1980(2) SCC 565[; and laid down the following principles with regard to anticipatory bail:

" a) S.438(1) is to be interpreted in light of Art.21 of the Constitution of India.

b) Filing of FIR is not a condition precedent to exercise of power under S.438.

c) Order under S.438 would not affect the right of police to conduct investigation.

d) Conditions mentioned in S.437 cannot be read into S.438.

e) Although the power to release on anticipatory bail can be described as of an "extraordinary" character this would "not justify the conclusion that the power must be exercised in exceptional cases only." Powers are discretionary to be exercised in light of the circumstances of each case.

f) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be re - examined after hearing. Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the applicant."

The Honble Supreme Court has in Siddharam Satlingappa Mhetre v. State of Maharastra [2010KHC 4952 : 2011 (1) SCC 694] held thus:

"122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

iii. The possibility of the applicant to flee from justice;

iv. The possibility of the accused's likelihood to repeat similar or the other offences.

v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of S.34 and S.149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case."

After having considered the entire facts and circumstances in this case anxiously, I find that the liberty of the applicants need not be curtailed for the purpose of investigation or trial. None of them have any criminal antecedents. There is no indication that they may flee from justice. The injuries caused to the de facto compalinant, as referred to above are not grave in nature. There are a number of cases against the de facto complainant himself, and the hostilities attributed to the applicants herein is by a mob consisting of 50 odd persons. In fact, if there was intention on the part of the applicants to murder the de facto complainant, it could very well have been accomplished, as it took some time for the police to reach there and rescue the de facto complainant and shift him to the hospital.

Hence, I find no reason to decline pre-arrest bail to the applicants. The applicants have agreed to co operate with the investigation. They are directed to surrender before the investigating officer within two weeks. In the event of their arrest, after interrogation and recovery, they shall be released on bail on execution of a bond for Rs.50,000/- (Rupees fifty thousand only) each with two solvent sureties each for the like amount to the satisfaction of the investigating officer and on the following conditions:

(i) They shall appear before the investigating officer as and when called for and co-operate with the investigation.

(ii) They shall not tamper with evidence or intimidate or influence the witnesses.

(iii) They shall not get involved in any similar offence during the currency of the bail.

In case of breach of any of the above bail conditions, the prosecution is at liberty to approach the jurisdictional court for cancellation of the bail.

The bail applications are allowed as above.