Akhil Ansari and Nouphel v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 22[ND] DAY OF JULY 2024 / 31ST ASHADHA, 1946** **BAIL APPL. NO. 4762 OF 2024** ## **CRIME NO.177/2024 OF Meppadi Police Station, Wayanad** ## **PETITIONER/S:** **1 AKHIL ANSARI, AGED 24 YEARS S/O. SULAIMAN, KALATHIL HOUSE, THAMARASSERY POST & VILLAGE &TALUK, , KOZHIKODE DIST., PIN - 673573 2 NOUPHEL AGED 39 YEARS S/O HAMZA, VADAKKEKARA HOUSE, KUNNAMBATTA POST KOTTAPADY VILLAGE, VYTHIRI TALUK, WAYANAD DIST.,, PIN - 673577** ## **BY ADV CELINE JOSEPH** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** ## **SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **C.S.DIAS,J** ## **======================** ## **B.A No.4762 of 2024** ## **-----------------------------------** ## **Dated this the 22[nd] day of July, 2024** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of prearrest bail. 2. The petitioners are the accused 2 and 3 in Crime No.177/2024 of the Meppadi Police Station, Wayanad, which is registered against the accused, for allegedly committing the offences punishable under Section 304 of the Indian Penal Code, Section 126 of the Electricity Act, 2003 and Regulations 14 and 31 of the Central Electricity Authority (Measures Relating to Safety and Electric Supply) Safety Regulation, 2023. 3. The concise case of the prosecution is that: on 24.03.2024, at around 19:20 hours, a second year medical student named Balaji (deceased), had gone with BAIL APPL. NO. 3332 OF 2024 3 his friends to a resort managed by the 2[nd] accused and owned by the 4[th] accused, got electrocuted from the iron grill installed around the swimming pool. The 3[rd] accused was the electrician in the resort and the 1[st] accused was helping the 2[nd] accused in running the resort. Thus, the accused have committed the above offences. 4. Heard; Sri. Celine Joseph, the learned counsel appearing for the petitioners and Smt.Seetha S., the learned 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. By no stretch of imagination can the offence under Section 304 of the IPC be attracted to the facts of the case. In fact, the jurisdictional Magistrate has enlarged the 1[st] accused on bail. The deceased and his friends had actually trespassed into the property of the accused and got electrocuted. In the above BAIL APPL. NO. 3332 OF 2024 4 circumstances, the petitioners' custodial interrogation is not necessary and no recovery is to be effected. 6. The learned Public Prosecutor seriously opposed the bail application. She submitted that on the previous day of the incident, that is on 23.03.2024, the 1[st] accused had got electrocuted at the very same place. The 3[rd] accused, who was the electrician, had no proper license. The 2[nd] accused was running the resort owned by the 4[th] accused. It is only due to the acts of the accused, that the deceased lost his life. The petitioners' custodial interrogation is necessary and recovery is to be effected for the proper and full investigation of the crime. Even though the petitioners had filed a similar application before the Court of Session, Kalpetta, the same was dismissed by Annexure-2 order. If the petitioners are granted an order of pre-arrest bail, it would certainly hamper the investigation. Hence, the application may be dismissed. 7. The allegation against the petitioners is that, due BAIL APPL. NO. 3332 OF 2024 5 to their illegal acts, the deceased lost his life by getting electrocuted in a fence attached to the swimming pool of the resort belonging to the 4[th] accused. It is further alleged that the 3[rd] accused, the Electrician, had no proper license. 8. The prima facie materials placed on record show that the 2[nd] accused had entered into an agreement with the 4[th] accused to manage the resort. The CCTV footage also show that the accused 1 and 2 had permitted the deceased and his friends to use the swimming pool. It is also alleged that the accused did not have proper license to have electricity connection in the property and the 3[rd] accused was not a certified/licensed Electrician. Prima facie, the above materials show the active involvement of the petitioners in the crime, though that is a matter to be investigated and ultimately decided at the time of trial. 9. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Honourable Supreme Court, after referring to all the earlier BAIL APPL. NO. 3332 OF 2024 6 ## decisions on the point, has observed in the following lines: “8. It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In other words, the position is that the power to grant anticipatory bail under S.438, CrPC is an exceptional power and should be exercised only in exceptional cases and not as a matter of course. Its object is to ensure that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr., 2010 (1) SCC 679). xxx xxx xxx xxx xxx 24. We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. xxx xxx xxx”. ## 10. In **Jai Prakash Singh v. State of Bihar and** BAIL APPL. NO. 3332 OF 2024 7 **another,** [(2012) 4 SCC 379], the Hon’ble Supreme Court has held that, an order of pre-arrest bail being an extra ordinary privilege, should be granted only in exceptional cases. The judicial discretion conferred upon the Courts has to be properly exercised, after proper application of mind, to decide whether it is a fit case to grant an order of pre-arrest bail. The court has to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. 11. On an over all consideration of the facts, rival submissions made across the Bar and the materials placed on record, particularly considering the fact that there are prima facie materials to substantiate the petitioners' involvement in the crime, and on comprehending the nature, seriousness and gravity of the accusations leveled against the petitioners, that the learned Sessions Judge has already rejected the petitioners' application by Annexure-2 order on finding that the petitioners' custodial interrogation is necessary, BAIL APPL. NO. 3332 OF 2024 8 I am not satisfied that the petitioners have made out any valid ground to invoke the discretionary jurisdiction of this Court under Sec.438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Nonetheless, I direct that, if the petitioners surrender before the Investigating Officer within ten days from today, they shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioners move an application for bail, the jurisdictional Court shall, consider the bail application on its merits. If the petitioners do not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioners as if no order has been passed in this case. Sd/- rkc/22.07.2024 **C.S.DIAS, JUDGE** BAIL APPL. NO. 3332 OF 2024 9 ## **APPENDIX OF BAIL APPL. 4762/2024** ## **PETITIONER ANNEXURES** **Annexure 1 TRUE COPY OF THE FIR NO.177/2024 DATED 25.03.2024 REGISTERED AGAINST THE PETITIONER.** **Annexure 2 TRUE COPY OF THE ORDER DATED 01.06.2024 IN CRL.MC NO. 406/2024 OF THE SESSIONS COURT, KALPETTA, WAYANAD.** **Annexure A3 TRUE COPY OF THE ORDER IN CMP NO. 1503/2024 DATED 20.05.2024 BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KALPETTA** **Annexure A4 THE TRUE COPY OF THE OWNERSHIP CERTIFICATE ISSUED FROM THE MEPPADI GRAMA PANCHAYATH TO ONE K.P.ABDUL GAFOOR** **Annexure A5 TRUE COPY OF THE WORK CONTRACT AGREEMENT DATED 26.09.2023 EXECUTED BETWEEN THE 4TH ACCUSED AND ONE RASHEED**