Manu K.K. v. State of Kerala and The Station House Officer, Vechoochira Police Station, Pathanamthitta

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 667 OF 2024 ``` ## **`CRIME NO.649/2023 OF VECHOOCHIRA POLICE STATION, PATHANAMTHITTA PETITIONER/ACCUSED NO.2:`** ``` MANU K.K, AGED 48 YEARS S/O. RAVI MOHANAN, MANU SADANAM, MUKKOOTTUTHARA, ERUMELI SOUTH, PATHANAMTHITTA DISTRICT, PIN - 686510 ``` ## **`BY ADV SHIJU VARGHESE`** ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** - **`2 THE STATION HOUSE OFFICER, VECHOOCHIRA POLICE STATION, PATHANAMTHITTA DISTRICT, PIN - 686510`** ## **`OTHER PRESENT:`** ## **`SR PUBLIC PROSECUTOR SMT NEEMA T V`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.667 of 2024** ``` 2 ``` ## **Dated this the 18[th] day of March, 2024** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (‘Code’, for short), for an order of pre-arrest bail. 2.The petitioner is the second accused in Crime No.649/2023 of the Vechoochira Police Station, Pathanamthitta, registered against the accused (two in number) for allegedly committing the offences punishable under Sections 283, 308, 353, of the Indian Penal Code and Sections 20 and 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. 3. The gravamen of the prosecution case is that; the first accused while driving a tipper lorry bearing No. KL 41/9266, with river sand and without any valid permit or permission attempted to unload the sand on the police ``` 3 ``` ## **B.A. No.667 of 2024** jeep, that was chasing the lorry, with an intention to cause death of the police officials. After the accused illegally removed the river sand and was proceeding with the vehicle, the police party attempted to intercept the vehicle. Then, the accused suddenly stopped the vehicle in the midst of the road and unloaded the sand on the police jeep. The road was blocked and the public were put to difficulty. Moreover, the police were restrained from discharging their official duty. Thus, the accused have committed the above offences. 3. Heard Sri. Shiju Varghese., learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioner vehemently argued that the petitioner is totally innocent of the accusation levelled against him. He has been falsely implicated in the crime. A reading of the First Information Report as well as the First Information **B.A. No.667 of 2024** ``` 4 ``` Statement clearly establish that the petitioner was nowhere in the picture. It was the first accused who drove the lorry. There is not even a whisper about the second accused in any material. The lorry does not belong to the petitioner. The lorry actually belongs to a person named Jobin Varghese, who is the registered owner of the vehicle. After the lorry was confiscated in the crime, the registered owner had filed Annexure A2 application under Section 451 of the Code. The Court of the Judicial First Class Magistrate, Ranni, by order dated 1.3.2024 in Crl.M.P.No.623/24, had allowed the application, on the specific finding that the applicant was the owner of the vehicle. Therefore, by no stretch of imagination can the petitioner be ropped in as an accused in the crime. 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 **B.A. No.667 of 2024** ``` 5 ``` the application. The Investigating Officer has filed a bail objection report, inter alia, stating that the investigation has revealed that the registered owner of the vehicle Sri. Jobin Varghese is employed abroad. He has pledged the vehicle to the petitioner for an amount of Rs.3,00,000/-. The petitioner agreed to transfer the ownership of the vehicle to his name with immediate effect and the registered owner has handed over his Aadhaar card and other relevant records. However, since the registered owner has gone abroad, the transfer could not be effected. The vehicle is in the possession of the petitioner. The investigation has revealed that the petitioner has criminal antecedents, since he is involved in Crime No. 842/2022 of the Erumely Police Station for allegedly committing a similar offence. The petitioner is engaged in the illegal trade of mining river sand from the Pampa river. The investigation has also unveiled that the petitioner was at the place of occurrence, as per his ``` 6 ``` ## **B.A. No.667 of 2024** mobile phone call records. The petitioner was also accompanying the first accused in the lorry at the relevant point of time. The first accused is the regular driver of the second accused for illegally mining sand from the Pamba river. If the petitioner is granted an order of pre-arrest bail, it would sabotage the entire investigation. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioner is that on 17.11.2023, at around 5.40 hours, the accused 1 and 2 were found illegally transporting river sand without a valid permit in a lorry through Marthoma PalliKulamankuzi Public road. The first accused was the driver and the petitioner was seated in the cabin of the lorry. When the Vechoochira Police was conducting a patrolling duty, they found the lorry in question. Immediately, they attempted to chase and intercept the lorry. But, the accused deliberately unloaded the river sand in the midst of the public road with an intention to engulf the police ``` 7 ``` ## **B.A. No.667 of 2024** jeep with sand and murder the police officials. It is only because the driver of the police jeep suddenly stopped the vehicle, the police officials did not lose their lives. It is on the basis of the said incident that the police officials have lodged the above complaint. 7. The petitioner had filed Cr.M.P. No. 8300/2023 before the Court of Session, Pathanamthitta under Section 438 of the Code for a similar relief. By Annexure A1 order, the learned Sessions Judge has dismissed the application, on the specific finding that petitioner’s custodial interrogation is necessary and if he is granted an order of pre-arrest bail, it would harm the investigation of the crime. 8. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Hon'ble Supreme Court after referring to the earlier decisions on the point has made the following observations:- - “8. It is thus obvious from the catena of decisions - dealing with bail that even while clarifying that arrest **B.A. No.667 of 2024** ``` 8 ``` 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 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 **B.A. No.667 of 2024** ## **`9`** 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 the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. …………..” 9. Similarly, 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. 10. On an anxious consideration to the facts, the rival submissions made across the Bar, the materials placed on record, the findings of the learned Sessions ``` 10 ``` ## **B.A. No.667 of 2024** Judge in Annexure A1 order, and on comprehending the nature, seriousness and gravity of the accusations levelled against the petitioner, that the petitioner’s custodial interrogation is necessary, and that the recovery is to be effected, I am convinced that the petitioner has not made out any exceptional grounds to invoke the extraordinary 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/-** **C.S.DIAS, JUDGE** ``` rmm/18/3/2024 ```