Kerala High Court
V.A. Gopi vs State Of Kerala on 16 March, 2022
Author: Sophy Thomas
Bench: Sophy Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
WEDNESDAY, THE 16TH DAY OF MARCH 2022 / 25TH PHALGUNA, 1943
BAIL APPL. NO. 9193 OF 2021
(CRIME NO.1106 of 2021 of THRISSUR WEST POLICE STATION,
THRISSUR DISTRICT)
PETITIONER/ACCUSED No.1&2:
1 V.A. GOPI
AGED 68 YEARS
S/O.AYYAPPAN, KUMERANELLUR POST, PARUTHIPRA DESOM,
KUMERANELLUR VILLAGE, TALAPPILLY TALUK,
THRISSUR-680611.
2 JOLSANA,
AGED 34 YEARS
W/O.ABHILASH, NOW RESIDING AT VALIAPARAMBIL HOUSE,
THALAPPILLY TALUK, PARITHIPARA P.O., THRISSUR
DISTRICT, PIN-680590.
BY ADVS.
SAM ISAAC POTHIYIL
TINU JOHNSON
VISHNU DAS
SRUTHI DAS
JISHMA K.S
OSHIN MENDEZ
PHILIP ARUN M.N.
MOHAMED AMJAD K.M
S.SURAJA
VINIDHA.K
MARIA NEETHU T.J
ANJITHA ANIL KUMAR
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, COCHIN-682031.
B.A No.9193 of 2021 2
2 STATION HOUSE OFFICER
THRISSUR WEST POLICE STATION, THRISSUR DISTRICT,
PIN-680584.
3 KUMARI,
AGED 54 YEARS
W/O.PUSHPAKARAN, SANKARACKAL HOUSE, ARANATTUKARA
VILLAGE, ELTHURUTH P.O., THRISSUR TALUK, PIN-680611.
OTHER PRESENT:
ADV.SANAL.P.RAJ, PUBLIC PROSECUTOR.
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
16.03.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A No.9193 of 2021 3
SOPHY THOMAS, J.
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Bail Application No.9193 of 2021
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Dated this the 16th day of March, 2022
ORDER
This is an application for anticipatory bail under Section 438 Cr.P.C.
2. The petitioners are accused Nos.1 and 2 in Crime No.1106 of 2021 of Thrissur West Police Station registered under Sections 323, 294(b), 511 of 363 of IPC and Sections 3(1)(s) and 3(2)(va) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act.
3. The prosecution case is that, on 25.09.2021 at 11 a.m, while the de facto complainant, who belongs to Scheduled Caste, took her grand children from the premises of the Family Court as per the custody ordered by the Family Court, the petitioners, who are the daughter-in-law of the de facto complainant and her father who belong to Hindu Ezhava, tried to kidnap the children, and abused and assaulted the de facto complainant.
B.A No.9193 of 2021 4
4. Heard learned counsel for the petitioners as well as learned Public Prosecutor.
5. According to the petitioners, they are absolutely innocent of this crime. The de facto complainant is none other than the mother- in-law of the 2nd petitioner. No offences were committed under Section 363 of IPC or under the SC/ST Act. So, the bar under Section 18 of the said Act is not applicable in the present case. The 2nd petitioner was included in the array of accused only as an afterthought. Their custodial interrogation is not at all warranted in this case.
6. Though the de facto complainant was impleaded as the additional 3rd respondent and she was served with notice, none appeared for her.
7. Learned Public Prosecutor submitted that, investigation is not over and several cases are pending between parties, and because of the bar under Section 18 of the SC/ST Act, they are not eligible to get pre arrest bail.
8. Admitteldy, the de facto complainant is the mother-in-law of the 2nd petitioner. Son of the de facto complainant is the husband of B.A No.9193 of 2021 5 the 2nd petitioner, and matrimonial disputes are pending between them. 1st petitioner is the father of the 2 nd petitioner. There was dispute regarding custody of the children, and the Family Court, Thrissur granted custody of the children to the son of the de facto complainant. As per that order, on 25.09.2021 at 11 a.m, the de facto complainant took custody of the children from the premises of Family Court, Thrissur, and then the petitioners attacked her and tried to kidnap the children. The de facto complainant belongs to Scheduled Caste and the petitioners belong to Hindu Ezhava. Even if the petitioners tried to take the children from the custody of the de facto complainant, it could not be termed as an attempt of kidnapping. The 2nd petitioner is the mother of the children and 1st petitioner is the maternal grand father. The children were with the petitioners, and as per the court order, they were handed over to the de facto complainant. If the petitioners tried to take back the children, then also, it will not come under the definition of abduction or kidnapping. In fact it was the petitioners who produced the children before Family Court to hand over the children to the de facto complainant.
B.A No.9193 of 2021 6
9. Regarding the offences alleged under Section 3(1)(s) of SC/ST Act, it is punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine. Going by Schedule II of Cr.P.C it is a bailable offence. As far as the offence under Section 3(2)(va) is concerned, if any person, who is not a member of SC/ST, commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code for such offences and shall also be liable to fine.
10. Here, the offences under Section 323 and 294(b) of IPC are bailable. From the available facts and circumstances, an offence under Section 511 of 363 of IPC is not attracted. The parties are close relatives and matrimonial disputes are pending between them. In fact the son of the de facto complainant who belongs to Scheduled Caste married the 2nd petitioner who belongs to Hindu Ezhava following a love affair, and two children were born in their lawful wedlock. Subsequently, their relationship became strained and B.A No.9193 of 2021 7 matrimonial disputes including custody of children arose, and the present incident is an offshoot of that litigation.
11. Investigation is almost over and no purpose will be served by detaining the petitioners in judicial custody. Moreover, it appears that the provisions of SC/ST (Prevention of Atrocities) Act was invoked subsequently as an afterthought. So, the bar under Section 18 of the said Act will not be attracted as a prima facie case is not made out to sustain prosecution under the Act. The de facto complainant, who was served with notice, opted to remain absent and she raised no objection against this bail application.
Considering all these facts, this Court is inclined release the petitioners on pre arrest bail on the following conditions:
(i) The petitioners are directed to surrender before the Investigating Officer on or before 31.03.2022. The Investigating Officer can interrogate them and collect information or materials within their reach useful for the investigation.
(ii) In the event of arrest, they shall be released on bail on executing bond for Rs.50,000/-(Rupees fifty thousand only) each, with two solvent sureties each for the like sum to the satisfaction of the arresting officer.B.A No.9193 of 2021 8
(iii) The petitioners shall appear before the Investigating Officer as and when required.
(iv) They 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 from disclosing such facts to the court or to any police officer.
(v) They shall not tamper with the evidence.
(vi) They shall not commit any offence while on bail.
In case of violation of any of the above conditions, the Jurisdictional Magistrate is empowered to cancel the bail, in accordance with law.
Sd/-
SOPHY THOMAS JUDGE smp