Ashif M v. State of Kerala & Malappuram District Police Station (Criminal Case No. 779/2024)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 10[TH] DAY OF JULY 2024 / 19TH ASHADHA, 1946** **BAIL APPL. NO. 5293 OF 2024** **CRIME NO.779/2024 OF Malappuram Police Station, Malappuram AGAINST THE ORDER/JUDGMENT DATED 18.06.2024 IN CRMC NO.661 OF 2024 OF DISTRICT COURT& SESSIONS COURT,MANJERI PETITIONER/S:** **ASHIF M AGED 33 YEARS S/O. ABOOBACKER M MYLAPPURAM HOUSE, PERINTHATTIRI PO, KUTTILANGHADI, MALAPPURAM DISTRICT, PIN - 676507** **BY ADVS. S.RAJEEV V.VINAY M.S.ANEER PRERITH PHILIP JOSEPH ANILKUMAR C.R. K.S.KIRAN KRISHNAN** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 STATATION HOUSE OFFICER MALAPPURAM POLICE STATION, (CRIME NO.779/2024 OF MALAPPURAM POLICE STATION, MALAPPURAM DISTRICT -, PIN - 676519** ## **OTHER PRESENT:** ## **SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.S.DIAS,J** ## **======================** ## **B.A No.5293 of 2024** ## **-----------------------------------** ## **Dated this the 10[th] 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 petitioner is the sole accused in Crime No.779/2024 of the Malappuram Police Station, Malappuram registered against the accused, for allegedly committing the offences punishable under Sections 286 and 336 of the Indian Penal Code and Sections 3(a), 4(a) and 4 of the Explosives Substances Act. 3. The crux of the prosecution case is that: on 08.05.2024, at around 14.30 hours, the accused had negligently handled certain explosive items, without any license, and caused an explosion endangering human life. Thus, the accused has committed the above offences. BAIL APPL. NO. 3332 OF 2024 3 4. Heard; Sri.S.Rajeev, the learned counsel appearing for the petitioner and Smt.Seetha S, the learned Public Prosecutor. 5. The learned counsel for the petitioner argued that the petitioner is totally innocent of the accusations levelled against him. The petitioner is only the owner of the property, where the alleged explosion took place. In fact, the property was being used by children as a sports ground and the petitioner is unaware as what really happened in the property. A few persons of the locality had expressed their desire to purchase the property, which the petitioner did not accede to. Perhaps, it is those persons who have done the mischief in the property. In any given case, the offence under the Explosive Substances Act will not be attracted. The petitioner's custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the bail BAIL APPL. NO. 3332 OF 2024 4 application. She submitted that there are incriminating materials to substantiate the petitioner's involvement in the crime. The Investigating Officer had seized fused wires, granite stones, iron rods, compressor, dynamo and remnants of explosives from the petitioner's property. The petitioner's custodial interrogation is necessary and recovery is to effected. If the petitioner is granted an order of pre-arrest bail, it would certainly torpedo the entire investigation. Hence, the application may be dismissed. 7. The prosecution allegation against the petitioner is that the petitioner had used explosive items, without any license and an explosion took place in his property, endangering human life. The petitioner had moved a similar application before the Court of Session, Manjeri, which was dismissed by Annexure -II order on a consideration that there are prima facie materials to substantiate the petitioner's involvement in the crime. BAIL APPL. NO. 3332 OF 2024 5 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 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 BAIL APPL. NO. 3332 OF 2024 6 the freedom of an individual against unwarranted arrest and we say that 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. After bestowing my anxious consideration to the facts, rival submissions made across the Bar and the materials placed on record, especially on comprehending the nature, gravity, and seriousness of the accusations leveled against the petitioner that there BAIL APPL. NO. 3332 OF 2024 7 are prima facie materials to prove the petitioner's involvement in the crime, that the petitioner's custodial interrogation is necessary and recovery is to be effected, I am of the firm view that the petitioner has not made out valid to invoke the any ground 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. Resultantly, the bail application is dismissed. Sd/- rkc/10.07.2024 **C.S.DIAS, JUDGE** BAIL APPL. NO. 3332 OF 2024 8 ## **APPENDIX OF BAIL APPL. 5293/2024** **PETITIONER ANNEXURES** **Annexure I COPY OF THE PHOTOGRAPHS OF THE PLACE OF OCCURRENCE** **Annexure II TRUE COPY OF THE ORDER PASSED BY THE COURT OF SESSIONS MANJERI IN CRL MC NO 661/2024 DATED 18.06.2024**