Mohammad Shan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946 BAIL APPL. NO. 5870 OF 2024 ``` ``` CRIME NO.715/2024 OF Palarivattom Police Station, Ernakulam ``` ``` ------------------ ``` ## **`PETITIONER :-`** ``` MOHAMMAD SHAN, AGED 30 YEARS S/O.ABDUL LATHEEF, KARITHARAPARAMBIL HOUSE, SASTHA TEMPLE ROAD, VTC, KALOOR.P.O, PIN - 682 017 ``` ``` BY ADVS. V.R.GOPU URMILA.M.G ``` ## **`RESPONDENTS :-`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031`** - **`2 STATION HOUSE OFFICER PALARIVATTOM POLICE STATION, ERNAKULAM, KOCHI, PIN - 682 025 BY SMT.SEETHA S., SR.PP`** ## **`THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON`** ## **`26.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:`** ``` BAIL APPL. NO. 5870 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R** ## **Dated this the 26th day of July, 2024** The application is filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023, for an order of pre-arrest bail. 2. The petitioner is the second accused in Crime No.715/2024 of the Palarivattom Police Station, Ernakulam, which is registered against the accused (two in number), for allegedly committing the offence punishable under Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015. 3. The gist of the prosecution case is that; the first accused is the mother of the victim (a 2[1] /2 year old child), who is suffering from genetic disorder. The first accused without taking care of the child, left the child with her parents. The second accused is the friend of the first accused. It was the second accused who abetted the first accused not to take care of the child. Thus, the accused have committed the above offence. ``` BAIL APPL. NO. 5870 OF 2024 ``` ``` -: 3 :- ``` 4. Heard; Sri.V.R.Gopu, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Senior Public Prosecutor. 5. 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 first accused and her husband are having matrimonial disputes. The petitioner only helped the first accused to secure an employment. It is due to said reason, to wreck vengeance on the petitioner, that the de facto complainant has lodged the present complaint. The petitioner is a law abiding citizen without any criminal antecedents. The petitioner's custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated that if the petitioner is granted an order of pre-arrest bail, it may hamper the ``` BAIL APPL. NO. 5870 OF 2024 ``` ``` -: 4 :- ``` investigation. Nonetheless, she did not dispute the fact that the first accused has already been enlarged on bail. 7. In **Bhadres Bipinbhai Sheth** v. **State of Gujarat and another** [2015 KHC 4579] the Hon'ble Supreme Court has succinctly culled out the principles to grant orders of pre-arrest bail. It is laid down that Courts should be careful and meticulous in evaluating the facts of each case before granting an order of pre-arrest bail. The court should consider whether arresting of an accused would lead to ignominy, humiliation and disgrace to the accused and their family, and also if there is any frivolity in the complaint registered against the accused. 8. On an overall consideration of the facts, the rival submissions made across the Bar and the materials placed on record, especially on considering the fact that there is no specific overt act alleged against the petitioner, other than that he allegedly instigated the first accused to neglect looking after her child, who is in the custody of the parents of the first accused, I am of the firm view that the ``` BAIL APPL. NO. 5870 OF 2024 ``` ``` -: 5 :- ``` petitioner's custodial interrogation is not necessary. Hence, I hold that the petitioner has made out valid grounds to invoke the discretionary jurisdiction of this Court under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Therefore, the petitioner is entitled to an order of pre-arrest bail, but subject to the condition that the petitioner co-operates with the Investigating Officer. In the result, the application is allowed, subject to the following conditions: - (i) The petitioner is directed to surrender before the Investigating Officer within 10 days from today. - (ii) In the event of the petitioner's arrest, the Investigating Officer shall release the petitioner on bail on him executing a bond for Rs.50,000/(Rupees fifty thousand only) with two solvent sureties for the like amount each; ``` BAIL APPL. NO. 5870 OF 2024 ``` ``` -: 6 :- ``` - (iii) The petitioner shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. - (iv) The petitioner shall not directly or indirectly make any inducement, threat or procure 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 or tamper with the evidence in any manner, whatsoever; - (v) The petitioner shall surrender his passport before the jurisdictional court concerned within a period of one week from the date of his release on bail. If he has no passport, he shall file an affidavit to the effect before the said court within the said period; - (vi) The petitioner shall not get involved in any other offence while he is 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. ``` BAIL APPL. NO. 5870 OF 2024 ``` ``` -: 7 :- ``` - (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 petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal** v. **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/27.7.2024 ``` BAIL APPL. NO. 5870 OF 2024 ``` ``` -: 8 :- ``` ## **`APPENDIX OF BAIL APPL. 5870/2024`** ## **`PETITIONER ANNEXURES :-`** ``` Annexure A1THE TRUE COPY OF THE FIR IN CRIME NO.715/2024 OF PALARIVATTOM POLICE STATION DATED 24.6.2024 ```