Mathew George vs The State of Kerala

Alexander Thomas, J.—The petitioner is the 1st accused in Crime No. 876/2014 of Kidangoor Police Station, Kottayam District registered for the offences under Sections 452, 323, 324, 294(b) and 506(ii) read with Section 34 IPC and Section 32 read with Section 27 of Arms Act.

The gist of the allegations raised against the petitioner is that on 28.09.2014 at about 6.00 pm, the petitioner, alongwith his wife and two minor daughters, brother in law, his wife and their one year old child, had trespassed into the house where the lady de facto complainant was residing and attacked her family. Annexure-A is the copy of FIR and Annexure-B is copy of the First Information Statement in the aforementioned crime.

It is submitted by the petitioner that the lady de facto complainant and her family members are residing as tenants in the house owned by the petitioner and though the petitioner repeatedly demanded them to vacate the house, the de facto complainant''s husband refused to do so and that the de facto complainant''s husband made several attempts to purchase the said house property from the petitioner for a lesser price, which is consistently refused by the petitioner. Later, the de facto complainant''s husband got false representations to be made to the petitioner through other persons as building purchasers and thereby the petitioner agreed to sell the house to one Mr. James Mathew, and later that the petitioner came to know that the said James Mathew mentioned in Annexure-C is none other than the brother in law of the de facto complainant''s husband. The petitioner intended to sell his property to other bona fide purchasers and some interested property purchasers attempted to visit the house property which was stated to be resisted by the de facto complainant''s husband and thereupon the said broker involved in the transaction with the said property purchaser, informed the petitioner that they have not been permitted to enter into the property and it was in this context, it is submitted that the petitioner who was traveling with his wife and two minor daughters and his brother in law, brother in law''s wife and their one year old child had while passing through that road, happened to go to the house property in question on getting an intimation from the broker about the resistance made by the de facto complainant''s husband. The de facto complainant''s husband wanted to ensure that the same attempts of the petitioner is frustrated and that property is sold to the de facto complainant''s brother in law covered by Annexure-C and with this intention, he has raised false allegations against the petitioner about the incident in question.

Sri Jacob E. Simon, learned counsel for the petitioner submits that it is highly unbelievable that the petitioner wanted to attack the de facto complainant''s husband and family and he would have gone there with weapons alongwith his wife and two minor daughters and with his brother in law, brother in law''s wife and their one year old child. He further submits that even the injuries mentioned in Annexure-B First Information Statement are very minor and that the investigating agency could not find out any injury that was allegedly sustained by the de facto complainant or other family members. The learned counsel for the petitioner has also relied on Annexure-E which is copy of the plaint filed subsequently by the de facto complainant''s husband as O.S. No. 323/2014 before the Munsiff''s Court, Pala seeking an injunction against the petitioner herein against forceful eviction from the property in question and he pleaded in paragraph 4 of Annexure-E that though the petitioner had used the sword stick against the de facto -complainant and her husband, both of them had evaded the attack and they did not suffer any serious injury on account of the attack made by the petitioner. The learned counsel for the petitioner would submit that the Sessions Court concerned has granted anticipatory bail to the petitioner''s wife, who is accused No. 2 in this crime but rejected the plea of anticipatory bail to the petitioner but directed the petitioner herein to surrender before the investigating officer and if the accused is arrested by the police, he should be produced before the concerned Magistrate Court on the very same day and after interrogation, if any bail application is filed, the Magistrate shall dispose of the application on the very same day on its on merits, etc. The learned counsel for the petitioner would also submit that the version of the police that the sword stick (weapon) was recovered from his car is absolutely incorrect, as since, the police authorities also state that the petitioner could not be arrested sofar and that no such weapon has ever been used by him.

In these circumstances, the learned counsel for the petitioner would strongly urge that the petitioner apprehends arrest, as the de facto complainant''s husband is inimical to him for not selling the property in question to the latter and that this Court may allow the plea of pre-arrest of bail in this case in the interest of justice and that he is prepared to comply with the stringent conditions.

The learned Public Prosecutor would submit that the sword stick (weapon) was recovered from the car of the petitioner and that the 3rd accused (petitioner''s brother-in-law) has been arrested and that the 2nd accused (petitioner''s wife) was granted anticipatory bail and that the wound certificate is not seen in the CD file. However, the learned Public Prosecutor would submit that the presence of the petitioner is very much required for questioning and to enable the investigation to arrive at the truth of the matter.

The learned counsel for the petitioner would submit that he would fully co-operate with the investigation in the manner decided by the investigating agency. He would also submit that it is the projected case of the police that the weapon in question has been already recovered. On the other hand, he would also submit that the police also contends that the petitioner is not available for arrest now and petitioner and his family members would have immediately travelled away using the same car and in that eventuality, it is quite difficult to believe that the weapon in question had been recovered from the petitioner''s car on the same day, which clearly show that the allegation of use of weapon is concocted.

The Public Prosecutor would reply that the truth of the matter can be ascertained only after the completion of investigation and that the questioning of the petitioner is necessary and that in case this Court is inclined to grant the plea of the petitioner, then this Court may consider adopting the course of action that has been ordered in the order dated 15.07.2014 issued by this Court in Bail Application No. 5030/2014, so as to protect the interest of the prosecution for getting effective custodial interrogation of the petitioner to arrive at the truth.

Having heard the submissions of the learned counsel for the petitioner and the learned Public Prosecutor and on an evaluation of the aforementioned facts and circumstances of this case, this Court is inclined to hold that judicial discretion can be exercised in the interest of justice. There is an element of landlord-tenant dispute and issues relating to disputes arising out of performance of the sale agreement covered by Annexure-C between the petitioner and the relatives of the de facto complainant. So also it is an admitted case of the de facto complainant in the First Information Statement that she and her husband are tenants in the building owned by the petitioner. Even the case set up in the First Information Statement is that the petitioner had rushed in the car with weapon to attack the de facto complainant and her family alongwith petitioner''s wife, two minor daughters, brother-in-law, brother-in-law''s wife and their one year old child. On an assessment of the facts and circumstances, this Court is of the considered opinion that exercise of judicial discretion, is justified. However, the submission made by the learned Public Prosecutor is very fair and in a case like this, the investigating officer should also have the recourse to effecting interrogation of the petitioner so that the truth of the matter is arrived at in a fair manner and especially as there are rival versions and claims between the petitioner who is the landlord and the de facto complainant and her family relatives, who are his tenants and about the dispute arising out of the proposed sale of the property in question, etc. Accordingly, this Court is inclined to adopt the course of action made by this Court in the order dated 15.07.2014 in Bail Application No. 5030/2014 so that the interest of both sides are well protected and instead of straight away granting anticipatory bail.

Accordingly, it is ordered as follows:

i) The petitioner shall surrender before the Investigating Officer in Crime No. 876 of 2014 of Kidangoor Police Station, Kottayam District on 05.11.2014 at 10 a.m. for interrogation and the investigating officer shall conduct the interrogation of the petitioner.

ii) In case interrogation as aforesaid is not completed on that day, it is open to the investigating officer concerned to direct the presence of the petitioner on other day/days and time as may be specified by him in writing which the petitioner shall comply with.

iii) The petitioner shall fully co-operate with the investigation of the case.

iv) After the interrogation process is over as aforesaid, and in case the arrest of the petitioner is recorded, the investigating officer shall produce the petitioner before the jurisdictional Magistrate on the same day and on such production, the jurisdictional Magistrate shall release the petitioner on bail on his executing a bond for Rs. . 35,000/- (Rupees Thirty Five Thousand Only) with two solvent sureties each for the like amount to the satisfaction of the learned Magistrate and subject to such other conditions that may be imposed by the learned Magistrate as found necessary by him.

v) In case, after the interrogation process is over and the investigating officer does not record the arrest of the petitioner, then the petitioner shall forthwith on the same day or on the very next day shall appear and formally surrender before the jurisdictional magistrate concerned and apply for bail which shall be considered on the same day itself by the Magistrate and petitioner shall be granted bail on his executing a bond for Rs. 35,000/- (Rupees Thirty Five Thousand Only) with two solvent sureties each for the like amount to the satisfaction of the learned Magistrate and subject to such other conditions that may be imposed by the learned Magistrate as found necessary and just by him.

If there is any violation of any of the aforementioned conditions, the bail granted to the petitioner is liable to be cancelled.