BAIL APPL.NO.3206 OF 2024

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` WEDNESDAY, THE 29[TH] DAY OF MAY 2024 / 8TH JYAISHTA, 1946 ``` ## **`BAIL APPL.NO.3206 OF 2024`** ``` CRIME NO.101/2024 OF Vythiri Police Station, Wayanad ``` ``` ------------ ``` ## **`PETITIONERS/ACCUSED 6 TO 9 :-`** - **`1 ANTONY, AGED 43 YEARS S/O.HENTRY, SUGHANDHAGIRI, 4TH UNIT, VYTHIRI, WAYANAD, PIN - 673 576`** - **`2 SREEJITH, AGED 30 YEARS S/O.SREEDHARAN, SUGHANDHAGIRI, 4TH UNIT, VYTHIRI, WAYANAD, PIN - 673 576`** - **`3 JAMSHEED, AGED 26 YEARS S/O.ALI, PARAKKAL HOUSE, UNNIKULAM, THAMARASSERY, KOZHIKODE, PIN - 673 574`** - **`4 MUHAMMED ALI, AGED 56 YEARS S/O.AHAMMEDKUTY, MUNDICHIPARA, KANNUTTIPPARA, CHAMAL, KEDAVOOR, KOZHIKODE, PIN - 673 573`** ``` BY ADVS. P.V.ANOOP PHIJO PRADEESH PHILIP ANJU R S. K C MOHAMED RASHID BIJITHA B. BOSE ABIN BENNY ``` ## **`RESPONDENTS/STATE :-`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031`** - **`2 STATION HOUSE OFFICER, VYTHIRI POLICE STATION, VYTHIRI P.O, WAYANAD DISTRICT, PIN - 673 576 SMT.NEEMA T.V., SR.PP`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 29.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL.NO.3206 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R** ## **Dated this the 29th day of May, 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 Nos.6 to 9 in Crime No.101/2024 of the Vythiri Police Station, Wayanad, registered against the accused (9 in number) for allegedly committing the offences punishable under Sections 3, 25(1-B)(a) of the Arms Act. 3. The essence of the prosecution case is that; on 02.03.2024, at around 1 hours, while the de facto complainant - the Kalpetta Section Forest Officer, and party were conducting a patrolling duty at Sugandhagiri Chennayakkavala, the accused were found in possession of a loaded gun without licence for the purpose of hunting. Thus, the accused have committed the above offences. ``` BAIL APPL.NO.3206 OF 2024 ``` ``` -: 3 :- ``` 4. Heard; Sri.P.V.Anoop, the learned counsel for the petitioners and Smt.Neema T.V., the learned Senior Public Prosecutor. 5. The learned counsel for the petitioners vehemently argued that the petitioners are totally innocent of the accusations levelled against them. A reading of Annexure A FIR would substantiate that there is no overt act alleged against the petitioners. It was the accused 1 to 5 who were found in possession of the illegal firearm. Therefore, by no stretch of imagination can the offence under Sections 3 and 25 be attributed against the petitioners. The petitioners' custodial interrogation is not necessary and no recovery is to be effected. Moreover, the accused 1 to 5 have already been arrested and the firearm has been recovered by the Investigating Officer. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She submitted that the petitioners were along with the accused 1 to 5. On seeing the patrolling ``` BAIL APPL.NO.3206 OF 2024 ``` ``` -: 4 :- ``` party, the accused ran away from the scene. The petitioners' custodial interrogation is necessary and recovery is to be effected. Hence, the application may be dismissed. 7. On an evaluation of Annexure A FIR, it can be seen that the specific allegation is made against accused 1 to 5, who were found to be in illegal possession of a firearm and other articles for the purpose of hunting. The petitioners were not mentioned or identified in Annexure A FIR. It is subsequently that the petitioners have been implicated as accused in the crime. Indisputably, the accused 1 to 5 were arrested on the spot with the firearm and they were remanded to judicial custody. The firearm was recovered from the accused 1 to 5. 8. On an overall appreciation of the facts, rival submissions made across the Bar and the materials placed on record, especially on considering the fact that the firearm was recovered from the accused 1 to 5, that there is no specific overt act alleged against the petitioners so as ``` BAIL APPL.NO.3206 OF 2024 ``` ``` -: 5 :- ``` to attract the offences under the Arms Act, which is a matter to be investigated and decided at the time of trial, and that the petitioners' custodial interrogation is not necessary, I am of the view that the petitioners have made out exceptional grounds to invoke the extra ordinary 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: - (i) The petitioners are directed to surrender before the Investigating Officer within 10 days 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 ``` BAIL APPL.NO.3206 OF 2024 ``` ``` -: 6 :- ``` 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 release on bail. If they have no passports, they shall file an affidavit to the effect before the said court within the said period; - (vi) The petitioners shall not get involved in any other offence while 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.3206 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 competent Courts. **Sd/C.S.DIAS, JUDGE** Jvt/29.5.2024 ``` BAIL APPL.NO.3206 OF 2024 ``` ``` -: 8 :- ``` ## **`APPENDIX OF BAIL APPL. 3206/2024`** ## **`PETITIONER ANNEXURES :-`** ``` Annexure ATRUE COPY OF THE FIR DATED 04.03.2024 IN CRIME NO.101/2024 OF VYTHIRI POLICE STATION; WAYANAD DISTRICT Annexure BTRUE COPY OF THE ORDER PASSED BY THE COURT OF SESSIONS DIVISION, KALPETTA, WAYANAD IN CRIMINAL MISCELLANEOUS CASE NO.228/2024 DATED 03.04.2024 ```