Jahfar v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` TUESDAY, THE 21[ST] DAY OF MAY 2024 / 31ST VAISAKHA, 1946 ``` ``` BAIL APPL. NO. 3560 OF 2024 ``` ``` CRIME NO.194/2024 OF VENGARA POLICE STATION, MALAPPURAM ``` ## `PETITIONER:` ``` JAHFAR AGED 37 YEARS S/O ALAVI KUTTY, KUZHIKKAOARA HOUSE, CHIRAYIL POST VTC NEDIYIRUPPU, MALAPPURAM, PIN – 673638 ``` ``` BY ADVS.K.S.ARUN KUMAR AYISHA RIFATH K. AMRUTHA K P ELDHO BABY VIJAY SANKAR V.H. ``` ## `RESPONDENT:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## `OTHER PRESENT:` ``` SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.3560/2024_ _-:2:-_ _Dated this the 21[st] day of May,2024_ ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(in short, ‘Code’), for an order of pre-arrest bail. 2. The petitioner is the accused in Crime No.194/2024 of the Vengara Police Station, Malappuram, registered against him for allegedly committing the offences punishable under Section 286 of the Indian Penal Code, 1860 and Sections 4(b) & 5 of the Explosive Substances Act, 1908( in short, ‘Act’). 2. The gist of the prosecution case is that: on 21.02.2024, at around 13.10 hours, the accused was found conducting quarrying activities endangering human life and property by using explosive substances. The accused did not possess the licence to possess explosive substances. Thus, the accused has _B.A.No.3560/2024_ ## _-:3:-_ ## committed the above offences. 3. Heard; Sri. K.S. Arun Kumar, the learned counsel appearing for the petitioner and Sri. C. S. Hrithwik, the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The petitioner is only the owner of the property from where the explosives were allegedly recovered, which is lying vacant and barren. In fact, there are other quarries in the locality. The remnants of the explosives allegedly recovered from the petitioner's property may be due to the illegal use by the petitioner's neighbours. The petitioner apprehends that, it is out of the previous animosity of some person that the petitioner has been falsely implicated in the crime. The petitioner is further apprehensive that if he is arrested by the Police, he _B.A.No.3560/2024_ _-:4:-_ would suffer custodial torture. In any given case, the petitioner's custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. He submitted that the remnants of the explosives were recovered from the petitioner's property. The petitioner is solely responsible to explain the circumstances under which the explosives were stored in his property. The petitioner's custodial interrogation is necessary, and recovery is to be effected. Moreover, the Court of Session, Manjeri, has already dismissed the petitioner's application for an order of pre-arrest bail by Annexure-1 order. Despite the learned Sessions Judge, directing the petitioner to surrender before the Investigating Officer on or before 15.03.2024, he has failed to surrender. The present application is nothing _B.A.No.3560/2024_ _-:5:-_ but a sheer abuse of the process of law. If the petitioner is granted an order of pre-arrest bail, it would torpedo the investigation. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioner is that, he has committed the offences under Sections 4 & 5 of the Act for using explosive substances by endangering human life and property, without having a valid licence. The bone of contention of the petitioner is that he is not using the property for any quarrying activity. The remnants that have been recovered from the petitioner's property may be due to some mischief committed by his neighbours to get the petitioner framed in the present case. 7. Section 4 of the Act states that any person who is in possession or under control of any explosive substance is liable to be prosecuted. The prosecution allegation is that remnants were recovered from the ## _B.A.No.3560/2024_ ## _-:6:-_ the petitioner’s property. Merely because the petitioner states that he is not using the property, the same cannot be a ground to hold that the petitioner has not committed the offence, especially because he is the owner of the property and is responsible to account for whatever happens in his property. 8. On a perusal of the materials on record, it is seen that the petitioner had filed a similar application before the Court of Session, Manjeri, which was dismissed by Annexure-1 order, on finding that the remnants were recovered from the property of the petitioner. Although the learned Sessions Judge directed the petitioner to surrender before the Investigating Officer before 15.03.2023, he has failed to make use of the benefit of the order. 9. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Hon'ble Supreme Court, after referring to a plethora of judgments on the _B.A.No.3560/2024_ _-:7:-_ ## powers under Section 438 of the Code has observed as follows: “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 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 _B.A.No.3560/2024_ _-:8:-_ 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 such orders shall be passed in eminently fit cases. xxx xxx” ## 10. 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. 11. After considering the facts, the rival submissions made across the Bar, and the materials placed on record, especially on comprehending the seriousness, gravity, and nature of the offences alleged _B.A.No.3560/2024_ _-:9:-_ against the petitioner, that the petitioner’s custodial interrogation is necessary and the investigation is only at its nascent stage, I am not satisfied that the petitioner has 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. Consequently, the bail application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/21.05.24