Apprehending arrest in connection with Crime No.627 of 2014 of Ambalamughal Police Station, Ernakulam district, the petitioners herein have preferred this application under Section 438 of the Code of Criminal Procedure. The petitioners are the two accused in the aforementioned crime initiated at the instance of the mother-in-law of the first petitioner. 2. The gist of the prosecution allegation is that on 21.07.2014 at around 1 p.m, the 1st petitioner, who is the son-in-law of the lady de facto complainant, along with two others illegally trespassed into the flat in which the de facto complainant and the wife of the first petitioner were residing and the de facto complainant was attacked by hands thereby caused injuries to her. The offences alleged are those under Sections 452, 323 and 325 r/w Section 34 of the Indian Penal Code.
3. Sri.Rajit, the learned counsel for the petitioner, would submit that the entire allegations are falsely foisted against him, at the instance of his mother-in-law and wife and that Annexure A, which is the copy of the title deed relating to the flat property in question, would clearly show that the flat in question, where the incident is alleged to have happened, is one owned jointly by the petitioner herein and his wife. The learned counsel for the petitioner would submit that apart from the fact that the allegations have been falsely foisted against him, the offences alleged are very trivial and have been initiated only to harass the petitioner out of personal disputes. He would further urge that the offence under Section 452 of Indian Penal Code will not be attracted, as it is a punishing provision for the offence contemplated under Section 441 of Indian Penal Code, which defines criminal trespass as criminal trespass by entering into or upon the property in possession of another with intend to commit an offence and that in this case indisputably the flat property in question belong jointly to the first petitioner and his wife etc. and that the first petitioner was admittedly residing in the above flat and therefore, entering into the flat belonging to the 1st petitioner cannot constitute the offence of criminal trespass defined in Section 441 of Indian Penal Code and that equally for the same reason the offence under Section 452 of Indian Penal Code will not also lie.
4. The learned Public Prosecutor would submit that investigation is almost over in this case and that if this Court is inclined to allow the plea of pre-arrest bail in this case, stringent conditions may be imposed so as to protect the bonafide interest of the prosecution.
5. Having considered the submissions of the learned counsel for the petitioners and the learned Public Prosecutor and on evaluation of the totality of the facts and circumstances in this case, this Court is inclined to allow the plea of anticipatory bail to the petitioners, but subject to necessary conditions to protect the bonafide interest of the prosecution.
Accordingly, it is ordered that in the event of arrest of the petitioners in connection with Crime No.627 of 2014 of Ambalamughal Police Station, Ernakulam district, they shall be released on bail on each of them executing bond for Rs.35,000/- (Rupees Thirty Five Thousand Only) with two solvent sureties each for the like amount to the satisfaction of the investigating officer in the aforementioned crime, and subject to the following conditions:
i) The petitioners shall surrender their passport, if any, before the jurisdictional Magistrate concerned within three days from the execution of the bail bond before the Investigating Officer and if either of them are not holders of passport, they shall file an affidavit to that effect in the said court. If the petitioners require their passport in connection with their travel abroad, then they shall approach the court concerned for the release of the same and for necessary permission in that regard. In case such an application is filed, the trial court or the jurisdictional Magistrate concerned, as the case may be, is free to consider the same on merits and to pass appropriate orders thereon, taking necessary guidance from the principles laid down in the decision of this Court in the case Asok Kumar v State of Kerala, (2009(2) KLT 712), notwithstanding the aforementioned conditions imposed by this Court.
ii) The petitioners shall not involve in any criminal offence of similar nature.
iii) The petitioners shall not influence the witnesses or shall not tamper or attempt to tamper evidence in any manner whatsoever.
iv) The petitioners shall fully co-operate with the investigation and report before the Investigating Officer as and when required by him.
If the petitioners indulge in any activities similar to one in the instant crime against the mother-in-law and wife of the 1st petitioner, then the Investigating Officer on being notified about such incident, shall submit appropriate application for cancellation of the bail granted as per this order.
Sd/-
ALEXANDER THOMAS, JUDGE.
vdv //True Copy// P.A to Judge