Kerala High Court
Subair K.H vs State Of Kerala on 27 October, 2023
BA No.8703 of 2023
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 27TH DAY OF OCTOBER 2023 / 5TH KARTHIKA, 1945
BAIL APPL. NO. 8703 OF 2023
CRIME NO.93/2023 OF ALATHUR POLICE STATION, PALAKKAD
PETITIONER/ACCUSED:
SUBAIR K.H, AGED 40 YEARS
S/O LATE HAMSA , PANAKKAL PARAMBU
NEAR T.B ROAD ALATHUR , PALAKKAD, PIN - 678541
BY ADV MILLU DANDAPANI
RESPONDENT/COMPLAINANT & STATE:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
*2 SUDHEER ,AGED 47 YEARS, S/O.HAMSA, 105, 1ST FLOOR,
FATHIMA APARTMENTS, MANAPPADAM P.M, MANAPADAM
JUNCTION, ALATHUR TALUK, PALAKKAD
(IS IMPLEADED AS ADDL R2 AS PER ORDER DATED 16/10/23
IN CRL MA 1/23)
BY ADVS.
VISHNUMAYA M.B.
SHIFNA MUHAMMED SHUKKUR
BY SRI.P.G.MANU(MAMMALASSERY) SR.PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
25.10.2023, THE COURT ON 27.10.2023 DELIVERED THE FOLLOWING:
BA No.8703 of 2023
2
MOHAMMED NIAS C.P., J.
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B.A.No. 8703 of 2023
---------------------------
Dated this the 27th day of October, 2023
ORDER
The sole accused in Crime No. 93/2023 of Alathur Police Station
registered for offences punishable under Sections 468, 471, 419 and 420
of the IPC, has filed this application seeking pre-arrest bail.
2. It was the allegation of the second respondent - the defacto
complainant, who is the brother of the petitioner herein that the
petitioner has, with a dishonest intention to defraud the defacto
complainant, his sister and father obtained the thumb impression on
various dates from their father without his knowledge and consent in
order to obtain the licence and NOC for running a saw mill which is co-
ownership property. It is also alleged that the accused had forged the
signature of the defacto complainant's sister in order to show that she
had witnessed the fraudulent transactions between the second
respondent and the defacto complainant's father.
BA No.8703 of 2023
3. Learned counsel for the petitioner submits that there are several
litigations between the siblings and that the father had given him a power
of attorney to run the business, and the NOC was also obtained with his
knowledge and consent. It is also his argument that out of the nine cases
he has, except one, all the other cases are filed by the defacto
complainant or somebody he set up. It is also pointed out that 107 Cr.P.C.
proceedings were initiated against him incorporating five crimes, and the
same was challenged in Crl. M.C.No.5748/2023, and this Court had
already stayed the proceedings. It is also pointed out that there are two
civil cases filed by the defacto complainant against the petitioner as, OS
No.131/2020 and OS No.177/2022, which is a suit filed for partition by
the defacto complainant including the property in which the saw mill is
situated.
4. The Learned Public Prosecutor submits that the allegation
against the petitioner is forgery; therefore, a proper investigation,
including custodial interrogation, is necessary.
5. Learned counsel who appeared for the defacto complainant
would submit producing documents that, in view of the antecedents of
the petitioner, anticipatory bail may not be granted. It is also pointed out
that an absconding charge has been filed against him in some cases and
that in spite of this Court granting anticipatory bail on an earlier
BA No.8703 of 2023
occasion, he has indulged in similar cases, thus praying for dismissing
the application for anticipatory bail.
6. Having considered the rival submissions few things deserve
notice. Firstly, the period in which the alleged incident took place is
mentioned as 6/6/2019 to 28/7/2022, but the FIR is seen registered only
on 20/01/2023, which is after the death of the father of the petitioner and
the defacto complainant. It is also the contention of the petitioner with all
the siblings except the defacto complainant have sailed along with the
petitioner, and it is the defacto complainant who instigates others to
stand against the petitioner. It is also to be noted that the power of
attorney was executed on 16/4/2019, and consent for NOC by the father
was given on 2/3/2021. Obviously, the alleged complaints against the
petitioner have come only after his death on 28/7/2022. It is also to be
noted that a partition suit is pending with respect to the property over
which the sawmill is situated.
7. Taking into account the relationship between the parties,
custodial interrogation is not required as most of the evidence sought to
be adduced by the defacto complainant is in documentary form. Under
such circumstances, I am inclined to allow the application.
Subject to the above, anticipatory bail is allowed with the following
conditions:-
BA No.8703 of 2023
(i.) The petitioner is directed to surrender before the Investigating
Officer within a week from today, and on such surrender, the
Investigating Officer can interrogate the petitioner. In the event of
his arrest, the Investigating officer shall produce the petitioner
before the jurisdictional court on the date of surrender itself.
(ii) On such production, the jurisdictional court shall release the
petitioner on bail, on executing a separate bond for Rs.25,000/-
(Rupees twenty-five thousand only) by the petitioner and by two
solvent sureties each for the like sum to the satisfaction of the
jurisdictional court.
(iii) The petitioner shall cooperate with the investigation and shall
make himself available for interrogation and for the purpose of
investigation as and when the Investigating Officer directs them to
do so.
(iv) The petitioner shall not intimidate the witnesses or interfere
with the Investigation in any manner.
(v) The petitioner shall not be involved in any offence while on
bail.
(vi) If any of the above conditions are violated, the court
concerned will be empowered to take steps for cancellation of bail
as per law.
It is made clear that it is within the power of police to investigate
the matter and, if necessary, to effect recoveries on the information,
BA No.8703 of 2023
if any, given by the petitioners, even when the petitioners are on
bail as per the judgment of the Apex Court in Sushila Aggarwal
and others v. State ( NCT of Delhi) and another [2021 (1)
KHC 663].
Sd/-
MOHAMMED NIAS C.P.
JUDGE
dlk/26/10/23
BA No.8703 of 2023
APPENDIX OF BAIL APPL. 8703/2023
PETITIONER'S ANNEXURES
Annexure A1 THE COPY OF THE FIR IN CRIME NO 93/2023 OF
ALATHUR POLICE STATION
Annexure A2 THE TRUE OF THE POWER OF ATTORNEY ISSUED
BY THE FATHER TO THE PETITIONER DATED
12.04.2019
Annexure A3 THE TRUE COPY OF THE NOTARIZED CONSENT
LETTER EXECUTED BEFORE THE NENMARA
DIVISIONAL FOREST OFFICER DATED 2.03.2021
Annexure A4 THE TRUE COPY OF THE ORDER DATED
19.07.2023 IN CRL(MC) 5748 OF 2023
Annexure A5 THE TRUE COPY OF THE JUDGMENT IN WP(C)
25313 OF 2023
RESPONDENT'S ANNEXURES
ANNEXURE R1 A TRUE COPY OF THE FIR DATED 27.11.20 IN
CRIME NO. 1033/2020 OF ALATHUR POLICE
STATION
ANNEXURE R2 THE WRITTEN INSTRUCTION DATED 30.1.23
SUBMITTED BY T.N UNNI KRISHNAN INSPECTOR
OF POLICE, ALATHUR POLICE STATION BEFORE
THE HON'BLE COURT
ANNEXURE R3 TRUE COPY OF FIR IN CRIME NO. 1269/2022 OF
PALAKKAD TOWN SOUTH POLICE STATION DATED
21.12.22
ANNEXURE R4 THE TRUE THE COPY OF THE RTI NUMBERED AS
27/RTI/F1/2023 DATED 24.4.23
ANNEXURE R5 TRUE COPY OF A FIR IN CRIME NO. 478/2017
OF MEENAKSHIPURAM POLICE STATION DATED
21.08.17
ANNEXURE R6 TRUE COPY OF FIR IN CRIME NO. 1002/2020 OF
ALATHUR POLICE STATION DATED 10.11.2020
BA No.8703 of 2023
Annexure R8 the true copy of The documents related to
fake voters identity cards
Annexure R9 The copy of death certificate, medical
discharge summary and course in hospital
dated 24.09.2018
Annexure R7 true copy of show cause notice (form 14)
and s. 107 CrPC notice dated 30.05.23
Annexure R10 The affidavits of three sisters of the
defacto complainant dated 26.01.23 and
27.1.23
Annexure R11 The order of the Anticipatory bail by this
Honble Court dated 19.01.21
