Kerala High Court
Jose Peter Felix vs State Of Kerala on 1 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ASHOK MENON
MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942
Bail Appl..No.7372 OF 2020
CRIME NO.1/CB/IDK/R/2020 OF CBCID, IDUKKI , Idukki
PETITIONER/S:
JOSE PETER FELIX, AGED 53 YEARS, ARAKKAL HOUSE, WRRA
60, WINNERS ROAD, SOUTH CHITTOOR P.O, ERNAKULAM,
682027
BY ADV. SRI.P.FAZIL
RESPONDENT/S:
1 STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH
COURT OF KERALA, 682031
2 DEPUTY SUPERINTENDENT OF POLICE, AGED 50 YEARS OFFICE
OF THE DEPUTY SUPERINTENDENT OF POLICE, CRIME BRANCH
CID, THODUPUZHA 685584
3 ADDL.R3
K.S.SANGEETH KUMAR, AGED 61 YEARS, S/O LATE K.R.
SURESH, GEETHALAYAM, T.D. ROAD, ERNAKULAM - 682035.
IS IMPLEADED AS PER THE ORDER DATED13.11.2020 IN
CRL.M.A.NO.1/2020.
R1 BY PUBLIC PROSECUTOR
R3 BY ADV. K.R.SUNIL
OTHER PRESENT:
SMT.V.SREEJA-PP
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON
25.01.2021, THE COURT ON 01.03.2021 PASSED THE FOLLOWING:
Bail Appl..No.7372 OF 2020
2
ASHOK MENON, J.
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B.A.No. 7372 of 2020
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Dated this the 1st day of March, 2021
O R D E R
Application filed under Section 438 of Cr.P.C for
anticipatory bail.
2. The applicant the apprehends arrest in Crime
No. 1/CB/IDK/R of 2020 of Crime Branch CID, Idukki for
having allegedly committed offences punishable under
Sections 468 and 471 read with Section 34 of the I.P.C.
3. The prosecution case, in brief, is that the
applicant is the 4th accused in the aforesaid crime,
which was originally registered as Crime No. 714/2019
of Central Police Station, Ernakulam. It is alleged
that the applicant in furtherance of common intention
with the rest of the accused allegedly executed a
forged document purporting to be a "transfer of
possession rights" of property belonging to the de
Bail Appl..No.7372 OF 2020
facto complainant, 3rd respondent, situated in
Vattavada Village near Munnar in favour of Rajeev
Vishnudas Aswani on 05/01/2009. The applicant received
a notice under Section 41A of the Cr.P.C (Annexure 1)
from the 2nd respondent, Deputy Police Superintendent,
Crime Branch, on 17/02/2020. No provision of law was
mentioned in that notice. However, the applicant
appeared before the 2nd respondent. He was asked
whether he had signed as a witness in a document
executed by Sangeeth Kumar, the de facto complainant in
favour of his employer Rajeev. The applicant admitted
that he had signed as a witness in a document executed
by Sangeeth in favour of Rajeev as a witness before the
Sub Registrar, Devikulam. The statements of the
applicant and his employer Rajeev were recorded by 2 nd
respondent. Annexure 2 is the copy of that document he
had signed as witness. There was some dispute with
regard to property purchased by the mother of Rajeev
from the aforesaid Sangeeth during 2011. Two crimes
were registered as Crime Nos.270 and 271 of 2012 before
the Devikulam Police Station. The applicant, as also
Bail Appl..No.7372 OF 2020
his employer Rajeev, were not accused in the aforesaid
crimes. It is understood that both those crimes have
been referred by the Police after investigation. The
said issue was also subject matter in O.S.No.365/2013
on the files of the Munsiff-Magistrate Court,
Devikulam. Rajeev's mother Asha Vishnudas Aswani was
the 2nd defendant in that Suit. That suit was also
dismissed. On 27/10/2020, the applicant has received
another notice under Section 41A of the Cr.P.C from the
2nd respondent (Annexure 3) directing him to appear in
the aforesaid crime, stating offences punishable under
Sections 468 and 471 read with Section 34 of the I.P.C.
4. The applicant states that he is innocent and
has no connection with any forgery or concoction of
document. He is employed as a driver of the aforesaid
Rajeev Vishnudas. The applicant had earlier appeared
before the 2nd respondent and disclosed about
everything he knew with regard to the execution of the
document. The applicant has no knowledge about the
contention of the document at Annexure 2. The dispute
is between, Sangeeth the executor of the document and
Bail Appl..No.7372 OF 2020
the applicant's employer Rajeev. The applicant is a
law-abiding citizen and is not fleeing from justice. He
is willing to co-operate with the investigation and has
also appeared before the 2nd respondent and he has
nothing more to state. No documents are in the
possession of the applicant and there is nothing to be
recovered from him by subjecting him to custodial
interrogation, and therefore, he seeks pre-arrest bail.
5. The de facto complainant got himself impleaded
as additional 3rd respondent, and he has filed a
petition stating that this crime is connected with
Crime Nos.270/2012 and 271/2012 of Devikulam Police
Station, which is also being investigated by the
C.B.C.I.D. as per order of this Court in O.P.(Crl)
Nos.341 and 351 of 2015 dated 28/01/2016 at Annexure
R3(d). The de facto complainant also had approached
this Court by filing W.P.(C) No.5923/2019 for
investigating his complaint registered as Crime
No.741/2019 of Central Police Station, Ernakulam
together with Crime Nos.270 and 271 of 2012 of
Devikulam Police Station. The said Writ Petition was
Bail Appl..No.7372 OF 2020
allowed by the judgment dated 11/04/2019 at Annexure-
R3(h). Annexure 2 document purporting to be a transfer
of possession rights executed by the 3rd respondent is
forged and concocted. The said document states that his
property having an extent of 53.50 Ares in survey No.
182/13, 15.30 Ares in survey No. 182/11 and 121.40 Ares
of land in survey No. 184/12 in Vattavada Village was
conveyed/transferred to Rajeev Vishnudas for a
consideration of ₹ 35,25,000/-. The 3rd respondent
states that he has not received any consideration for
their property and neither has he handed over
possession. In fact, the 3rd accused namely Tomy Joseph
had approached the 3rd respondent claiming to be a real
estate developer and broker and stated that Rajeev
Vishnudas is interested in purchasing property having
an extent of 8.76 acres belonging to the applicant in
Vattavada village and all the documents pertaining to
the property was handed over to the lawyer of Rajeev
Vishnudas and it was agreed that the property would be
purchased by him for a sale consideration of ₹ 66
lakhs. The broker Tomy Joseph received the entire sale
Bail Appl..No.7372 OF 2020
consideration but transferred only ₹ 25 lakhs to the
account of the 3rd respondent. The balance is still due
from him. Sale deed with regard to that property was
executed by the 3rd respondent, his sister and brother-
in-law. Tomy Joseph evaded payment of the balance sale
consideration stating one reason or another. It is
understood that the aforesaid Tomy Joseph impersonated
as one Chellaiyya Thevar and executed a sale deed in
favour of his wife Reji Tomy in the year 2010 and
thereafter the said Reji Tomy executed a sale deed in
favour of Asha Vishnudas, the mother of Rajeev
Vishnudas. On the basis of the complaint filed by the
3rd respondent before the Judicial First Class
Magistrate Court Devikulam, Crime No.271/2012 was
registered. Chellaiyya Thevar, who was already dead in
the year 2010, could not have executed the sale deed in
favour of Reji Tomy. Chellaiyya Thevar's son Sentoor
Pandiyan had also filed a complaint stating that his
father's property has been grabbed and consequently,
Crime No.270/2012 was registered. It was the aforesaid
Sentoor Pandiyan who filed O.P.(Crl) Nos. 341 and 351
Bail Appl..No.7372 OF 2020
of 2015, and obtained Annexure R3(d) judgment handing
over the investigation to C.B.C.I.D. It is true that,
Crime No.271/2012 has been referred and 3rd respondent
has received notice from the Judicial First Class
Magistrate Court. He intends to file a protest
complaint. It is stated that the applicant may not be
granted anticipatory bail as the concocted document was
forged with his active participation and knowledge.
6. Heard the learned Counsel appearing for the
applicant and the learned Counsel appearing for the de
facto complainant, 3rd respondent. The learned Public
Prosecutor was also heard. Records perused.
7. The Hon'ble Supreme Court in Gurbaksh Singh
Sibbia and another v. State of Punjab [1980 KHC 665 :
(1980) 2 SCC 565] laid down the following principles
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.
Bail Appl..No.7372 OF 2020
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 the 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.
In Siddharam Satlingappa Mhetre v. State of Maharashtra
and Others [2010 KHC 4952 : (2011) 1 SCC 694], it was
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.
Bail Appl..No.7372 OF 2020
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."
8. The applicant is the 4th accused in this
crime. His role is limited to execute the disputed
document as a witness. There is no indication that he
has wrongfully gained by execution of the document. The
Bail Appl..No.7372 OF 2020
document was allegedly executed in favour of Rajeev
Vishnudas. It is he who got the property. The 3rd
accused Tomy is supposed to be a broker and probably,
he also may have wrongfully gained because of the
alleged act of forgery. The allegedly forged document
is within the reach of the investigating officer and he
has the authority to subject the document to export
opinion regarding the signature subscribed by the
executant of the document. The applicant is not in
possession of any documents which needs to be recovered
from him. The fact that he had appeared before the
investigating officer in response to the first notice
that he received indicates that he is willing to co-
operate with the investigation. There is no possibility
of his fleeing from justice. There is nothing to be
tampered with. There are no witnesses to be influenced.
Under the circumstances, I find that it is not
necessary to subject the applicant to custodial
interrogation. He is not involved in any large-scale
fraud. He has no criminal antecedents. Applying the
decisions of the Apex Court to the facts and
Bail Appl..No.7372 OF 2020
circumstances of this case, I find no reason to decline
granting of anticipatory bail to the applicant.
As a result, the application is allowed and the
applicant is directed to surrender before the
investigating officer within a period of two weeks. In
the event of his arrest, after interrogation, he shall
be released on bail on execution of bond for ₹
1,00,000/- (Rupees one lakh only) with two solvent
sureties for like amount each to the satisfaction of
the arresting officer and on following conditions:
i) He shall appear before the investigating officer
as and when called for and cooperate with the
investigation;
ii) He shall not get involved in any crime of similar
nature during the bail period;
iii) He shall not tamper with evidence, influence or
intimidate witnesses.
Bail Appl..No.7372 OF 2020
In the event of breach of the above conditions, the
prosecution shall be at liberty to approach the
jurisdictional Court for cancellation of the bail.
Sd/-
ASHOK MENON
JUDGE
jg
