High Court of KeralaSingle Judge2023-12-15Bail granted

BA Nos. 10363 & 10386 of 2023 — Abdul Basheer @ Basheer Baba v. State of Kerala

Case / Petition Number:BA Nos. 10363 & 10386 of 2023

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Mohammed Nias C.P.
Judgment Date: 2023-12-15
Court Decision / Holding: Anticipatory bail under Sec. 438 CrPC granted to the petitioners subject to conditions: (i) surrender before the Investigating Officer within 10 days for interrogation, with production before the jurisdictional court on surrender; (ii) bail bonds of Rs. 25,000 each with two solvent sureties; (iii) full cooperation with investigation, including deemed police custody if required; (iv) no intimidation of witnesses or interference with investigation; (v) no offence on bail; and reaffirmation that police may investigate and recover as needed during bail in line with the principle cited (Sushila Aggarwal).
Final Disposition: Bail granted

Parties to the Case

Appellants / Petitioners

Abdul Basheer @ Basheer Baba
Sreenivasan K
Saleem Bai @ Abdul Saleem K.S

Respondents

State of Kerala
Station House Officer, Mankada Police Station

Legal Representation & Advocates

Counsels for Petitioners

• S. Naushad
• V. Beena
• P. P. Ramachandran

Counsels for Respondents

• Smt. T. V. Neema

Case Synopsis & Summary

These bail petitions under Section 438 CrPC arise from Crime No. 893/2023 registered at Mankada Police Station, Malappuram, alleging theft of a lorry from police premises and its removal to a scrap yard with forged documents. The petitioners across BA Nos. 10363/2023 and 10386/2023 include Abdul Basheer @ Basheer Baba (the 8th accused in BA 10363/2023) and Sreenivasan K and Saleem Bai @ Abdul Saleem K.S (accused 2 and 3 in BA 10386/2023). The prosecution claims that on 16.09.2023, following information obtained while interrogating an accused in Crime No. 857/2023, the accused allegedly stole the vehicle KL 02 R 7131 from police custody, released it from custody with forged documents, and transported it to a scrap yard owned by the second accused, Keerthana Traders at Pollachi. The investigation also indicates involvement of other accused who forged documents to release vehicles seized in earlier cases. The petitioners contend they were not present at the scene and that their names stem from co-accused confessions; the FIR was lodged belatedly on 10.11.2023. The court found no material implicating the petitioners warranting custodial interrogation and granted anticipatory bail with conditions, recognizing that police power to investigate can operate even while on bail, per a referenced Apex Court/High Court principle (Sushila Aggarwal).

Provisions of Law Cited

CrPC Section 438IPC Section 379IPC Section 34IPC Sections 420, 465, 468, 471 r/w 34 IPCKPRB & RRS Act Sections 20, 23

Legal Doctrines & Maxims

Police power to investigate and effect recoveries even when accused are on bail (as per Sushila Aggarwal v. State (NCT of Delhi) and another)

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants contended that their involvement is based solely on the confessional statements of co-accused and that they were not present at the scene of the theft. They argued that the delay in registering the FIR (10.11.2023 for an incident dated 16.09.2023) undermines the case for custodial necessity and that there is no concrete material directly tying them to the crime. They urged for protection against arrest under Sec. 438 CrPC, emphasizing lack of direct participation and reliance on confessions as insufficient for custodial custody. They also highlighted that the alleged acts spanned across multiple accused and that the police have alternative means to investigate without immediate detention, especially given the time-lapse and lack of personal presence at the site.

Contentions of Respondents

The respondents argued that the information and preplanned conduct of multiple accused establish a prima facie involvement in the theft and its orchestration, supported by the statements of co-accused and circumstantial details about forged documents and release of seized vehicles. They maintained that the delay in lodging the FIR does not nullify an ongoing investigation and that custodial interrogation or preventive custody may be necessary to uncover the truth and safeguard witnesses. The prosecution also stressed the consistency of the narrative with the earlier crimes and the coordinated effort to remove the vehicle from police custody and divert it to a scrap yard, justifying the need for bail safeguards rather than bar on arrest.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sushila Aggarwal and others v. State (NCT of Delhi) and another	2021 (1) KHC 663	Positive	The court relied on the Apex Court ruling that police can investigate and effect recoveries even when the accused are on bail.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **FRIDAY, THE 15[TH] DAY OF DECEMBER 2023 / 24TH AGRAHAYANA, 1945 BAIL APPL. NO. 10363 OF 2023** **CRIME NO.893/2023 OF MANKADA POLICE STATION, MALAPPURAM** ## **PETITIONER/8TH ACCUSED:** ABDUL BASHEER @ BASHEER BABA, AGED 46 YEARS, S/O AHMED KUTTY, PANANGAPURATH HOUSE, VALIYAD, KODUR.P.O, KODUR VILLAGE, MALAPPURAM DISTRICT, PIN - 676504 BY ADVS. S.NAUSHAD V.BEENA ## **RESPONDENT/COMPLAINANT & STATE:** 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 STATION HOUSE OFFICER, MANKADA POLICE STATION , MANKADA .P.O, MALAPPURAM DISTRICT, PIN – 679324 SRI.M.C.ASHI, PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.12.2023, ALONG WITH Bail Appl..10386/2023, THE COURT ON 15.12.2023 DELIVERED THE FOLLOWING: -2- BA Nos. 10363 & 10386 of 2023 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **FRIDAY, THE 15[TH] DAY OF DECEMBER 2023 / 24TH AGRAHAYANA, 1945 BAIL APPL. NO. 10386 OF 2023** **CRIME NO.893/2023 OF MANKADA POLICE STATION, MALAPPURAM** ## **PETITIONER/ACCUSED 2 & 3:** 1 SREENIVASAN.K, AGED 47 YEARS S/O. KRISHNASAMI, NO.12, FRIENDS COLONY, VANLYAPURAMPIRIVU, POLLACHI, COIMBATORE,TAMIL NADU, PIN - 642006 2 SALEEM BAI @ ABDUL SALEEM K.S, AGED 55 YEARS PUTHUKULANGARA,KODUNTHIRAPPULLY, PIRAYIRI, PALAKKAD DISTRICT,, PIN - 678004 BY ADV P.P.RAMACHANDRAN ## **RESPONDENT/COMPLAINANT STATE:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAULAM, PIN – 682031 SMT.T.V.NEEMA, SR.PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.12.2023, ALONG WITH Bail Appl..10363/2023, THE COURT ON 15.12.2023 DELIVERED THE FOLLOWING: -3- BA Nos. 10363 & 10386 of 2023 ## **MOHAMMED NIAS C.P.J** **..................................................** ## **BA Nos. 10363 & 10386 of 2023** **...........................................** **Dated this the 15[th] day of December, 2023** ## **ORDER** Apprehending arrest in Crime No. 893/2023 of Mankada police station, the eighth accused in B A No.10363/2023 and accused Nos.2 and 3 in BA No.10386/2023 have filed these applications u/s 438 of the Code of Criminal Procedure registered alleging offences punishable under Section 379 and r/w Section 34 of the Indian Penal Code. 2. The prosecution case is that on 10.11.2023, while the respondent police were questioning an accused involved in Crime No.857/2023 of that police station, they got information that on 16.9.2023, a lorry bearing registration No.KL 02 R 7131, involved in a sand case, was taken away from the police station premises by him and other 7 persons. Therefore, on the basis of this information, the Sub Inspector of Police registered a case as Crime No.893/2023 against 8 persons alleging commission of the abovesaid offences and thereby committed the above offence. -4- BA Nos. 10363 & 10386 of 2023 3. The learned counsel appearing for the petitioners and the learned Public Prosecutor were heard. 4. Learned counsel for the petitioners argued that it is only on the basis of the confession of the co-accused that they were roped in; the only allegation is that A1 and A2 had instructed the other accused. The allegation is of theft of a lorry from the police station premises. Learned counsel submits that he was not present at the scene. It is also pointed out that the alleged incident happened on 16.9.2023, and the FIR was registered only on 10.11.2023, 5. The learned Prosecutor has filed a report in the instant case stating that Saleem Bai, Akbar, Abdul Muneer, Aneesh, Riyas and Basheer Baba were present on the spot when the vehicle was taken, and the investigation revealed that the investigation conducted as far, in this case, it is revealed that on 16.09.2023 at 14.00 hours as per preplan and the instruction of the accused 1 and 2 namely Sadik Basha and Sreenivasan, the accused 3,4,5,6,7 and 8 Saleem Bai, Akbar, Abdul Muneer, Aneesh, Riyas and Basheer Baba respectively stolen away the vehicle bearing registration No. KL 02 R 7131 seized by the police involved in Crime No.254/2014 under section 20, 23 of KPRB & RRS Act and kept in the safe custody of police,650 meters away from the police station at Palakkathadam and to clear check posts forged documents and took away the vehicle tying to the crane of the first accused to the vehicle scrap yard named Keerthana Traders at Pollachi -5- BA Nos. 10363 & 10386 of 2023 owned by the second accused. From the investigation conducted, it is revealed that the sixth accused of the case cited in the reference, namely Aneesh, who is also the first accused in Mankada police station Crime No.857/2023, 865/2023, 866/2023 under Section 420, 465, 468, 471 r/w 34 of the IPC forged documents to release vehicles seized by police involved in crimes and the released vehicles bearing registration Nos.KL 58 5833, KL 10 Q 4517, and KL 12 C 2034 were taken to the vehicle scrap yard named Keerthana Traders at Pollachi, owned by the second accused in this case, Sreenivasan. 6. Having regard to the fact that the petitioners were admittedly not present at the scene of occurrence and that they were impleaded on the basis of the confession of the co-accused, no materials as such implicating the petitioners have been found so far. The delay in registering the F.I.R. also assumes significance as no plausible explanation is given for the same. Given these facts, I do not think the custodial interrogation of the petitioners is necessary. Accordingly, the anticipatory bail applications are allowed subject to the following conditions: (i) The petitioners are directed to surrender before the Investigating Officer within ten days from today, and on such surrender, the Investigating Officer can interrogate the petitioners. In the event of their arrest, the Investigating officer shall produce the petitioners before the jurisdictional court on the date of surrender itself. -6- BA Nos. 10363 & 10386 of 2023 (ii) On such production, the jurisdictional court shall release the petitioners on bail, on executing separate bonds for Rs.25,000/- (Rupees twenty-five thousand only) each by the petitioners and by two solvent sureties each for the like sum to the satisfaction of the jurisdictional court. (iii). The petitioner shall fully cooperate with the investigation, including subjecting themselves to the deemed police custody for the purpose of recovery, if any, as and when demanded. (iv) The petitioners shall not intimidate the witnesses or interfere with the Investigation in any manner. - (v) The petitioners shall not be involved in any offence while on bail. It is made clear that it is within the power of police to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners, even when the petitioners are on bail as per the judgment of the Apex Court in **Sushila Aggarwal and others v. State ( NCT of Delhi) and another [2021 (1) KHC 663]** . ## **Sd/-** ## **MOHAMMED NIAS C.P.** ## **JUDGE** dlk 12.12.2023 -7- BA Nos. 10363 & 10386 of 2023 ## **APPENDIX OF BAIL APPL. 10386/2023** PETITIONER'S ANNEXURES Annexure A A TRUE COPY OF THE FIR IN CRIME NO.893/2023 OF OF MANKADA POLICE STATION, MALAPPURAM DISTRICT -8- BA Nos. 10363 & 10386 of 2023 ## **APPENDIX OF BAIL APPL. 10363/2023** PETITIONER ANNEXURES Annexure A1 TRUE COPY OF FIR IN CRIME NO. 893/2023 DATED 10/11/2023 OF THE MANKADA POLICE STATION IN MALAPPURAM DISTRICT Annexure A 2 TRUE COPY OF NON- INVOLVEMENT IN OFFENCES CERTIFICATE ISSUED BY ADDITIONAL SUPRERINTEND OF POLICE OFFICE, MALAPPURAM