Alavi v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 27[TH] DAY OF MAY 2024 / 6TH JYAISHTA, 1946 BAIL APPL. NO. 4063 OF 2024 ``` ``` CRIME NO.14/2024 OF OTTAPALAM FOREST RANGE OFFICE, PALAKKAD ``` ## **`PETITIONER/ACCUSED:`** ``` ALAVI AGED 62 YEARS S/O. VALIYA KUNJIMMU, PARAMBIL PEEDIKA, KARIPPAMANNA, KARIMPUZHA-I, ATTASSERI (P.O), PALAKKAD DISTRICT., PIN - 679513 BY ADV NIREESH MATHEW ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI., PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`BY SR PP SMT SEETHA S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.4063 of 2024 -:2:- Dated this the 27[th] day of May, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioner is the sole accused in O.R No.14/2024 of the Ottappalam Forest Range, Palakkad, for allegedly committing the offences punishable under Sections 27(1)(e)(iii)(iv), Sections 47A, 47B, 47C, 47D, 47F, 47G and 47 H of the Kerala Forest Act, 1961. 3. The crux of the prosecution case is that: on 02.05.2024, in a search conducted in the house of the accused, three sacks of sandalwood weighing 38.3 kg and one sack of sandalwood chips weighing 2.3 kg were seized from the car porch. Thus, the accused has committed the above offences. B.A.No.4063 of 2024 -:3:- 4. Heard; Sri.Nireesh Mathew, the learned counsel appearing for the petitioner and Smt. Seetha.S, the learned Public Prosecutor. 5. The learned counsel for the petitioner strenuously argued that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The petitioner is a 62 year old man who is suffering from various illnesses. The contraband articles were seized from the compound of the petitioner, which is lying open. Some person with an animosity towards the petitioner, has deliberately planned the contraband in the petitioner’s compound. There is no material to substantiate the petitioner’s involvement in the crime. The Investigating Officer has recorded the statement of the daughter of the petitioner, which is invisible in evidence in view of the law laid down by this Court in **Luca Beltrami vs.** ## B.A.No.4063 of 2024 ## -:4:- **State of Kerala** (2020 (4) KHC 603). The petitioner’s custodial is not and no interrogation necessary, recovery is to be effected. Hence, the petitioner is entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. She submitted that the contraband articles were found hidden in the car porch of the petitioner’s house, and were recovered in the search conducted by the Investigating Officer. There are incriminating materials to establish the petitioner’s involvement in the crime. Moreover, the petitioner is a person with criminal antecedents since he is an accused in C.C.No.253/2012 of the Judicial First Class Magistrate Court, Ottappalam, for committing a similar offence. If the petitioner is granted an order of prearrest bail, it would hamper the investigation. Hence, the application may be dismissed. B.A.No.4063 of 2024 -:5:- 7. The prosecution allegation against the petitioner is that the contraband articles were seized from his house. The petitioner’s contention is that he is not responsible for the contraband articles that were found in his house. The said contention is untenable because the petitioner alone is responsible unless there is cogent material to take a contrary view. Nonetheless, that is a matter to be investigated and decided at the time of trial. 8. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Honourable Supreme Court, after referring to all the earlier 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 B.A.No.4063 of 2024 -:6:- 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). **==> picture [274 x 7] intentionally omitted <==** 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 B.A.No.4063 of 2024 -:7:- such orders shall be passed in eminently fit cases. xxx xxx xxx”. 9. In **Jai Prakash Singh v. State of Bihar and 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. 10. After bestowing anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, especially on comprehending the nature, seriousness, and gravity of the accusations levelleld against the petitioner, that the -:8:- ## B.A.No.4063 of 2024 petitioner’s custodial interrogation is necessary, and that the petitioner is a person with criminal antecedents, I am convinced that the petitioner has not made out any exceptional ground to invoke the extraordinary jurisdiction of this Court under Section 438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Resultantly, the bail application is dismissed. 11. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 days from today, he shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioner moves an application for bail, the jurisdictional Court shall, consider the bail application on its merits. If the petitioner does not surrender before the Investigating Officer as directed above, the Investigating Officer B.A.No.4063 of 2024 -:9:- shall be free to arrest the petitioner as if no order has been passed in this case. Sd/- **C.S.DIAS,JUDGE** mtk/27.05.24