Burhanudheen A I & Others v Union Territory of Lakshadweep and Others

**BA Nos.7175,7389 & 7602 of 2020** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 20TH DAY OF NOVEMBER 2020 / 29TH KARTHIKA, 1942** ## **Bail Appl..No.7175 OF 2020** **CRIME NO.22/2020 OF Anthroth Police Station , Lakshadweep** ## **PETITIONERS/ACCUSED:** |**1**|**BURHANUDHEEN A I, AGED 47 YEARS,**| |---|---| ||**S/O.SYED YOUSEF KOYA THANGAL,**| ||**ALLIYATHAMMADASHYYEPURA HOUSE,**| ||**ANDROTH, PIN-682551**| ||**UNION TERROTORY OF LAKSHADWEEP.**| |**2**|**MUHASIN P P, AGED 42 YEARS**| ||**S/O.SYED KOYA A.B., EDECHERY, ANDROTH,**| ||**PIN-682551, UNION TERRITORY OF LAKSHADWEEP.**| |**3**|**HASHIM, AGED 35 YEARS**| ||**S/O.SYED MOHAMMED KOYA, PALLIPURA,**| ||**ANDROTH, PIN-682551,**| ||**UNION TERRITORY OF LAKSHADWEEP.**| |**4**|**SHAIKOYA, AGED 64 YEARS,**| ||**S/O.ATTAKOYA,**| ||**AVVAMMADA, ANDROTH**| ||**PIN-682551**| ||**UNION TERRITORY OF LAKSHADWEEP.**| ||**BY ADV. SRI.A.A.ZIYAD RAHMAN**| ## **RESPONDENTS/COMPLAINANT:** |**1**|**THE UNION TERRITORY OF LAKSHADWEEP,**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA**| ||**ERNAKULAM-682031**| **BA Nos.7175,7389 & 7602 of 2020** **2** **2 SUB INSPECTOR OF POLICE ANDROTH POLICE STATION PIN-682551, UNION TERRITORY OF LASHADWEEP.** **3 ADDL. R3: SHRI.MUHAMMED SAYED.K.K AGED 51 YEARS S/O P.P.ATTAKOYA, KAKKARCHIKADA(H), ANDROTT ISLAND, LAKSHADWEEP, KAKKARCHIKADA(H), ANDROTT ISLAND, LAKSHADWEEP. PIN-682551.** **IMPLEADED AS ADDL.R3 AS PER ORDER DATED 5.11.2020 IN BA-7175/2020.** **R1-2 BY ADV. MR.MANU S., SCGC R3 BY ADV. SASTHAMANGALAM S. AJITHKUMAR R3 BY ADV. SRI.SAYED MURTHALA THANGAL** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.11.2020, ALONG WITH Bail Appl..7389/2020, Bail Appl..7602/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BA Nos.7175,7389 & 7602 of 2020** **3** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 20TH DAY OF NOVEMBER 2020 / 29TH KARTHIKA, 1942** ## **Bail Appl..No.7389 OF 2020** ## **PETITIONER/S:** **SYED MOHAMMED NIZAR, AGED 52 YEARS ALIYATHAMMADA ISHAYYAPURA HOUSE, ANDROTH ISLAND U.T OF LAKSHADWEEP, PIN-682 551.** **BY ADVS. SRI.T.A.KATHIRUKUNJU SRI.S.SREEKUMAR (SR.)** ## **RESPONDENT:** **U.T. OF LAKSHADWEEP REPRESENTED BY STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031** **BY PUBLIC PROSECUTOR SRI.C.N.PRABHAKARAN, SR.PP BY SHRI.S.MANU, CGC, DIRECTORATE OF REVENUE INTELLIGENCE KERALA REGIONAL UNIT** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.11.2020, ALONG WITH Bail Appl..7175/2020, Bail Appl..7602/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BA Nos.7175,7389 & 7602 of 2020** **4** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 20TH DAY OF NOVEMBER 2020 / 29TH KARTHIKA, 1942** **Bail Appl..No.7602 OF 2020** **CRIME NO.22/2020 OF Anthroth Police Station , Lakshadweep** ## **PETITIONERSACCUSED NOS.6 AND 7:** |**1**|**SYED THAKIYUDHEEN, AGED 37 YEARS,**| |---|---| ||**S/O.S.S.ABOOSALIH KOYA THANGAL,**| ||**PUTHIYAPURA, ANDROTH,**| ||**UNION TERRITORY OF LAKSHADWEEP**| |**2**|**NPSM ABDUL HASSAN, AGED 51 YEARS,**| ||**S/O.SYED KOYA,**| ||**NEELATHPURA, ANDROTH,**| ||**UNION TERRITORY OF LAKSHADWEEP**| ||**PIN-682551**| ||**BY ADV. SRI.A.A.ZIYAD RAHMAN**| ## **RESPONDENTS/COMPLAINANT:** **1 THE UNION TERRITORY OF LAKSHADWEEP REPRESENTED BY THE STANDING COUNSEL, UNION TERRITORY OF LAKSHADWEEP, PIN- 682551 2 SUB INSPECTOR OF POLICE ANDROTH POLICE STATION, UNION TERRITORY OF LAKSHADWEEP PIN-682551** **BY SHRI.S.MANU, CGC, DIRECTORATE OF REVENUE INTELLIGENCE KERALA REGIONAL UNIT PUBLIC PROSECUTOR SRI.SANTHOSH PETER THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.11.2020, ALONG WITH Bail Appl..7175/2020, Bail Appl..7389/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BA Nos.7175,7389 & 7602 of 2020** **5** ## **O R D E R** **[ Bail Appl..7175/2020, Bail Appl..7389/2020, Bail Appl..7602/2020 ] Dated this the 20th day of November 2020** These Bail Applications filed under Section 438 of Criminal Procedure Code were heard through Video Conference. 2. Petitioners are the accused Nos.1 to 7 in Crime No.22/2020 of Androth Police Station. These three bail applications are filed by the accused in a same crime and therefore I am disposing these bail applications by a common order. Accused Nos.1 to 4 are the petitioners in B.A No.7175/2020, accused No.5 is the petitioner in B.A. No.7389/2020 and accused Nos.6 and 7 are the petitioners in B.A. No.7602/2020. The above case is registered against the petitioners alleging offences punishable under Sections 143, 448 and 380 r/w 149 IPC. 3. The prosecution case is that on 18.8.2020 at 4.30 pm, the accused in this case trespassed into the SSF Nursery School and committed theft. 4. Heard the learned counsel for the petitioners and the learned Public Prosecutor. **BA Nos.7175,7389 & 7602 of 2020** **6** 5. The counsel for the petitioners submitted that even if the entire allegations are accepted, no offence is made out against the petitioners under Sections 448 and 380 IPC. The counsel appearing for the petitioners submitted that as per order dated 1.8.2016, the Sub Divisional Officer, Androth passed an order by which it is informed to all concerned that the present institution of Islamic Nursery and SSF Androth unit has to remain keep closed until and unless an appropriate orders is issued by him. The counsel submitted that the allegation is that in violation of this order, the accused trespassed into this Nursery and committed theft of furniture. The counsel submitted that at the maximum there may be a violation of this order and this will not attract an offence under Sections 448 and 380 IPC. The Senior Counsel, who is appearing in B.A. No.7389/2020 submitted that as per Annexure A2, the Sub Divisional Officer directed the President, SSF to take back furniture and place all of them in side the Islamic Nursery at the earliest. As per Annexure 3, the President of SSF reported that all the furniture were removed only for the cleaning purpose and the same is already returned. The counsel for the petitioners submitted that the offence under Section 448 and 380 IPC is not made out prima facie. **BA Nos.7175,7389 & 7602 of 2020** **7** 6. A counsel appeared for the defacto complainant. I heard the learned counsel for the defacto complainant also. The counsel submitted that it is a clear case in which the offences under Sections 448 and 380 IPC is made out. The counsel submitted that the recovery of the theft articles is to be effected. The petitioners custodial interrogation is necessary. 7. The Standing Counsel appearing for the Union Territory of Lakshadweep submitted that the petitioners who are the accused are not co-operating with the investigation. Therefore, the Standing Counsel submitted that this Court may not pass orders under Section 438 Cr.P.C. Custodial interrogation of the petitioners is necessary. 8. After hearing both sides, I think, these bail applications can be allowed on stringent conditions. There are two groups and both groups claim right in the disputed property. The matter reached before the Sub Divisional Magistrate. The Sub Divisional Magistrate passed an interim order. The allegation is that one party violated this order. Whether an offence under Section 448 and 380 IPC is made out in such situation is a matter to be investigated by the investigating officer. I don't want to make any observation about the merit of the case. But considering the entire facts and circumstances of **BA Nos.7175,7389 & 7602 of 2020** **8** the case, I think, these bail applications can be allowed on stringent conditions. There can be a direction to the petitioners to co-operate with the investigation. Therefore, these bail applications are allowed. 9. Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the Hon'ble Supreme Court in **Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020)** and a Full Bench of this Court in **W.P(C)No.9400 of 2020** issued various salutary directions for minimizing the number of inmates inside prisons. 10. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in **Chidambaram. P v Directorate of Enforcement (2019 (16) SCALE 870),** after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. 11. Considering the dictum laid down in the above decision and considering the facts and circumstances of the case, these Bail Applications are allowed with the following directions: **BA Nos.7175,7389 & 7602 of 2020** **9** 1. The petitioners shall appear before the Investigating Officer within two weeks from today and shall undergo interrogation. 2. After interrogation, if the Investigating Officer propose to arrest the petitioners, they shall be released on bail executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) each with two solvent sureties each for the like sum to the satisfaction of the officer concerned. 3. The petitioners shall appear before the Investigating Officer for interrogation as and when required. The petitioners shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer. 4. Petitioners shall not leave India without permission of the jurisdictional Court. 5. Petitioners shall not commit an offence similar to the offence of which they are accused, or suspected, of the commission of which they are suspected. 6. The petitioners shall strictly abide by the various guidelines issued by the State Government and Central Government with respect to keeping of social distancing in the wake of Covid 19 pandemic. 7. If any of the above conditions are violated by the petitioners, the jurisdictional **BA Nos.7175,7389 & 7602 of 2020** **10** Court can cancel the bail in accordance to law, even though the bail is granted by this Court. **Sd/-** **P.V.KUNHIKRISHNAN** **JUDGE** **ab**