Abdul Rafi M.A and Riyas P.M v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946 ``` ## **`BAIL APPL.NO.5133 OF 2024`** ``` CRIME NO.154/2024 OF Cheruthuruthy Police Station, Thrissur ``` ``` ------------------ ``` ## **`PETITIONERS/ACCUSED No.1 AND 2 :-`** ``` 1ABDUL RAFI M.A, AGED 33 YEARS S/O.ABDUL KAREEM, MULLEPARAMBIL HOUSE, DESAMANGALAM, PALLUR, THALAPILLY TALUK, THRISSUR DISTRICT., PIN - 679 523 2RIYAS P.M., AGED 28 YEARS S/O.MUHAMMEDKUTTY, PILAKKATT THODIYIL HOUSE, DESAMANGALAM,PALLUR, THALAPILLY TALUK, THRISSUR DISTRICT, PIN - 679 523 ``` ``` BY ADV K.M.MUHAMMED HUSSAIN ``` ## **`RESPONDENT/STATE :-`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031`** - **`2 STATION HOUSE OFFICER, CHERUTHURUTHY POLICE STATION, THRISSUR, PIN - 680 590 BY SMT.SEETHA S., SR.PP`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL.NO.5133 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R** ## **Dated this the 26th day of July, 2024** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 _,_ for an order of pre-arrest bail. 2. The petitioners are the accused 1 and 2 in Crime No.154/2024 of the Cheruthuruthy Police Station, Thrissur, which is registered against them, for allegedly committing the offences punishable under Section 379 r/w Section 34 of the Indian Penal Code and Sections 20 and 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. 3. The gist of the prosecution case is that; on 09.03.2024, at around 16:30 hrs., the Investigating Officer and party found the accused removing sand from the Ooroly kadavu in Bharathapuzha. On seeing the police party, the accused fled away from the scene. Thus, the accused have committed the above offences. ``` BAIL APPL.NO.5133 OF 2024 ``` ``` -: 3 :- ``` 4. Heard; Sri.Muhammed Hussain K.M., the learned counsel for the petitioners and Smt.Seetha S., the learned Senior Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. There is no material to substantiate that the petitioners have committed the above offences. This Court has categorically held that an offence under Section 379 will not be attracted in a case of this nature. The petitioners are law abiding citizens. The petitioners' custodial interrogation is not necessary, and the contraband article has already been recovered by the Investigating Officer. Hence, the petitioners are entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report, _inter alia,_ contending that the petitioners have criminal antecedents since they are involved in a case ``` BAIL APPL.NO.5133 OF 2024 ``` ``` -: 4 :- ``` of similar nature. If the petitioners are granted an order of pre-arrest bail, there is every likelihood of them committing a similar offence. Hence, the application may be dismissed. 7. On an overall consideration of the facts, the rival submissions made across the Bar and the materials placed on record, particularly considering the law laid down by this Court that an offence under Section 379 of the IPC may not be attracted in cases of this nature, though that is a matter to be investigated and ultimately decided at the time of trial, and further that the contraband article has already been recovered and that the petitioners' custodial interrogation is not necessary, I am satisfied that the petitioners have made out valid grounds to invoke the discretionary jurisdiction of this Court under Section 438 of the Code. Hence, I am inclined to allow the application. In the result, the application is allowed, subject to the following conditions: ``` BAIL APPL.NO.5133 OF 2024 ``` ``` -: 5 :- ``` - (i) The petitioners are directed to surrender before the Investigating Officer within two weeks from today. - (ii) In the event of the petitioners' arrest, the Investigating Officer shall release the petitioners on bail on them executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like amount; - (iii) The petitioners shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. - (iv) The petitioners shall not directly or indirectly make any inducement, threat or procure 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 or tamper with the evidence in any manner, whatsoever; - (v) The petitioners shall surrender their passports before the jurisdictional court concerned within a period of one week from the date of their ``` BAIL APPL.NO.5133 OF 2024 ``` ``` -: 6 :- ``` release on bail. If they have no passports, they shall file affidavits to the effect before the said court within the said period; - (vi) The petitioners shall not get involved in any other offence while they are on bail; - (vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. - (viii) Applications for deletion/modification of the bail conditions shall also be filed before the court below. - (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners even while the petitioners are on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal** v. ``` BAIL APPL.NO.5133 OF 2024 ``` ``` -: 7 :- ``` **State (NCT of Delhi) and another** [2020 (1) KHC 663]. - (x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by the competent Courts. **Sd/C.S. DIAS, JUDGE** Jvt/26.7.2024 ``` BAIL APPL.NO.5133 OF 2024 ``` ``` -: 8 :- ``` ## **`APPENDIX OF BAIL APPL.5133/2024`** ## **`PETITIONER ANNEXURES :-`** |**`Annexure A1`**|**`THE TRUE COPY OF THE FIRST INFORMATION REPORT IN`**| |---|---| ||**`154/2024 OF CHERUTHURUTHY POLICE STATION,`**| ||**`THRISSUR DISTRICT DATED 09-03-2024`**| |**`Annexure A2`**|**`THE TRUE COPY OF THE ORDER DATED 11-06-2024 IN`**| ||**`CRL.M.C.NO. 720 /2024 ON THE FILES SESSIONS COURT`**| ||**`THRISSUR`**| |**`Annexure A3`**|**`THE TRUE COPY OF THE COMPLAINT FILED BY THE 1 ST`**| ||**`PETITIONER BEFORE THE DISTRICT POLICE CHIEF`**| ||**`THRISSUR DATED 11-03-2024`**|