Mohammed Kasim H. K. v. Union Territory of Lakshadweep and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` WEDNESDAY, THE 10[TH] DAY OF AUGUST 2022 / 19TH SRAVANA, 1944 BAIL APPL. NO. 3854 OF 2022 ``` ## **`CRIME NO.20/2022, KAVARATTI POLICE STATION, UNION TERRITORY`** ## **`OF LAKSHADWEEP`** ## **`PETITIONER/ACCUSED NO.3:`** ``` MOHAMMED KASIM H. K., AGED 51 YEARS. S/O SYED MOHAMMED, THAZHAPPURA TT HOUSE, ANDROTH ISLAND, UNION TERRITORY OF LAKSHADWEEP-682 551 PERMANENTLY RESIDING AT LAKE VIEW APARTMENTS, ST VINCENT COLONY ROAD, KARIMPANA PALAM, CALICUT- 673 006., PIN – 673006 ``` ``` BY ADVS. AJIT G ANJARLEKAR G.P.SHINOD GOVIND PADMANAABHAN ATUL MATHEWS P.VIJAYA BHANU (SR.)(K/421/1984) ``` ## **`RESPONDENTS/COMPLAINANT STATE AND DEFACTO COMPLAINANT:`** ``` 1UNION TERRITORY OF LAKSHADWEEP REPRESENTED BY ITS ADMINISTRATOR, KAVARATTI, LAKSHADWEEP-682 555., PIN – 682555 ``` ``` 2THE DEPUTY SUPERINTENDENT OF POLICE UNION TERRITORY OF LAKSHADWEEP (SUB DIVISIONAL POLICE OFFICER NORTH) AND INVESTIGATION OFFICER IN CRIME NO: 20/2022 OF KAVARATTI POLICE STATION, KAVARATTI ISLAND, UNION TERRITORY OF LAKSHADWEEP- 682 555., PIN – 682555 ``` ``` BY ADV SRI.Sajith Kumar V.,SC ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.3854/2022 2 ## **K.BABU, J.** ------------------------------------------- ## B.A No.3854 of 2022 --------------------------------------------- Dated this the 10[th] day of August, 2022 ## **O R D E R** This application is filed under Section 438 of the Code of Criminal Procedure. 2. The petitioner is accused No.3 in Crime No.20/2022 of Kavaratti Police Station, Union Territory of Lakshadweep. This crime has been registered against the petitioner and the other accused alleging offences punishable under Section 13(1) read with 13(2) of the Prevention of Corruption Act, 1988 and Sections 120 B, 464, 465, 468, 471 read with Section 34 of IPC. 3. Accused No.1 is an Officer of the Lakshadweep Administration. On verification of the bank account of accused No.1, it was revealed that he has received large sum of money from the petitioner/accused No.3 through a series of transactions in return for the favours done by him. Further, on verification of the file relating to the entry permit maintained by the office of the Additional District Magistrate (ADM), the authority for issuing permits, it was found that the petitioner had misused the B.A.No.3854/2022 3 Letterhead of the Bharatiya Janata Party and used his political influence for getting entry permits for his guests/tourists to stay at huts in Agatti/Kavaratti. 4. I have heard Sri.Ajit G. Anjarlekar, the learned counsel for the petitioner/accused No.3 and Sri. Sajith Kumar V., the learned Standing Counsel for the Lakshadweep Administration. 5. The learned counsel for the petitioner submitted that the petitioner was only a facilitator for providing entry permits to the political learders who visited Lakshadweep, as he was officiating as the General Secretary of the BJP Lakshadweep Unit. It is further submitted that accused No.1 is the Secretary of Lakshadweep Sarkar Karmachari Sangh, a Union affiliated to the BJP. 6. The learned counsel for the petitioner further submitted that the petitioner has no involvement in the alleged crime. It is argued that as the investigation is in the final stage, the custodial interrogation of the petitioner is not required. The learned counsel for the petitioner further submitted that sufficient opportunity was given to the Investigating Agency to interrogate the petitioner. 7. The learned Standing Counsel for the Lakshadweep Administration opposed the bail plea of the petitioner. The B.A.No.3854/2022 4 learned Standing Counsel submitted that granting pre-arrest bail to the petitioner will hamper the investigation which is only in the preliminary stage. The learned Standing Counsel submitted that the petitioner has criminal antecedents. 8. A statement narrating the antecedents of the petitioner has been filed by the learned Standing Counsel for the Lakshadweep Administration. The statement refers to the antecedents of the petitioner as follows: ## **“(a)Conviction in RC 4(A) 2009/CBI/KER dated 29.04.2009 with the Petitioner herein as Accused No. 3.** The gist of the aforesaid case is that, pursuant to a criminal conspiracy by the Accused No. 1 to 3 therein, the work Orders for supply of River Sand and Granite chips for a Project at Kavaratti were awarded to the Petitioner herein by Accused No. 1 without calling tenders and in violation of explicit legal formalities. The work Orders therein were sanctioned at an exorbitant rate, and the Accused Nos. 1 and 2 therein had accepted illegal gratification from the Petitioner herein as reward for the undue favors shown to him. All the Accused, including this Petitioner, were convicted by the Hon’ble Special CBI Court, Ernakulam by Judgment dated 06.08.2019. Criminal Appeals filed by the Petitioner and other Accused are now pending before this Hon’ble Court. ## **(b)Case No. 02(A)/202010/CBI/KER dated 02.06.2010 pending before the Hon’ble Sessions Court, Kavaratti, with the Petitioner herein as Accused No. 2.** The above case was registered by the CBI in connection with corruption in purchase and supply of building materials such as granite chips, river sand etc., to Amini and Minicoy for the LDBD Agatti Island. The same is now pending trial before the Hon’ble Sessions Court, Kavaratti. **(c)RC 9(A)/202010/CBI/KER dated 02.06.2010 pending before the Hon’ble Sessions Court, Kavaratti, with the petitioner herein as Accused No.2** The aforesaid case was registered in connection with corruption in awarding of work to the Petitioner and other Accused therein for modifying the existing Central B.A.No.3854/2022 5 Library at Kavaratti into Auditorium cum Cultural Centre. The same is now pending trial before the Sessions Court, Kavaratti. ## **(d)RC 1(A)/2009/CBI/KER dated 28.02.2009 pending before the Hon’ble Sessions Court. Kavaratti, with the Petitioner herein as Accused No. 1.** The case against the Petitioner was that he, on being awarded the contract for supplying diesel at subsidized rate to the residents of Lakshadweep through LCMF (A Co-operative S&M Society), had sold diesel at open market in the mainland, thereby causing wrongful loss of Rs. 3.45 crore to the Lakshadweep Administration. The same is now pending trial before the Hon’ble Sessions Court, Kavaratti. ## **(e) Crime No.2/2022 of Aaatti Police Station with the Petitioner herein as Accused No. 1.** The aforesaid Crime was registered against the Petitioner as Accused No. 1 for commission of offences under Section 294(b), 353, 186, 506, 510, 188 and 341 of IPC. The same was in relation to an incident at 08.30 pm on 04.03.2022 at Bangaram Island wherein the Petitioner, along with one other person, had shouted filthy language to the manager of Bangaram Resort under the influence of alcohol, wrongfully restrained and obstructed him from fulfilling his official duties and criminally intimidated him. The aforesaid case is now under investigation.” ## 9. The factors and parameters that need to be taken into consideration while dealing with anticipatory bail are: - (1) the nature and gravity of the accusation and the exact role of the accused; - (2) the antecedents of the applicant including imprisonment on conviction for cognizable offence; - (3) possibility of fleeing from justice; - (4) possibility of the accused's likelihood to repeat B.A.No.3854/2022 6 similar or other offences. (5) accusations have been made only with the object of injuring or humiliating the applicant by arrest; - (6) impact of grant of anticipatory bail particularly affecting a very large number of people; (7) courts must evaluate the entire available material carefully; greater care should be taken when the accused is implicated using Sections 34 and 149; (8) a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused; (9) court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (10) frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of B.A.No.3854/2022 7 there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. {Vide: **Gurbaksh Singh Sibbia and Ors. v. State of Punjab [(1980) 2 SCC 565], Bhadresh Bipinbhai Sheth v. State of Gujarat [(2016) 1 SCC 152]** and **Sushila Aggarwal and Ors. v. State (NCT of Delhi) and Ors. [(2020) 5 SCC 1]}.** 10. Having gone through the entire materials, this Court is of the view that the petitioner failed to establish a prima facie case for getting the benefits contemplated in Section 438 of the Cr.P.C. Therefore, the petitioner is not entitled to anticipatory bail as prayed for. 11. The learned counsel for the petitioner submitted that the petitioner may be permitted to surrender before the Jurisdictional Court. 12. At the request of the learned Standing Counsel, this Court had directed the petitioner to appear before the Investigating Officer for interrogation. In compliance with the said direction, the petitioner had appeared before the Investigating Officer for interrogation on 14.07.2022 and for a period of 3 days from 20.07.2022 to 22.07.2022. B.A.No.3854/2022 8 13. The learned Standing Counsel submitted that the custodial interrogation of the petitioner is not required. 14. It is legally permissible for this Court to direct the accused to surrender before the Jurisdictional Court while rejecting a prayer for anticipatory bail [See: **Nathu Singh v. State of Uttar Pradesh MANU/SC/0360/2021 : (2021 (3) KLT Online 1113 (SC)** and **Rahul v. State of Kerala (ILR 2021 (4) Kerala** **64)]** . 15. Resultantly, the prayer for anticipatory bail is rejected. The petitioner is directed to surrender before the Jurisdictional Court within a period of two weeks from this date. On his surrender before the Jurisdictional Court, if the petitioner prefers an application seeking regular bail, the Court shall dispose of the application preferably on the same day itself. The bail application is disposed of as above. ``` K.BABU JUDGE ``` VPK B.A.No.3854/2022 9 ## **APPENDIX** ## `PETITIONER ANNEXURES` ``` Annexure1A TRUE COPY OF THE F.I.R DATED 10/05/2020 IN CRIME NO: 20/2022 OF KAVARATTI POLICE STATION, UNION TERRITORY OF LAKSHADWEEP Annexure2A TRUE COPY OF THE OFFICE ORDER DATED 12/03/2022 ISSUED BY THE STATE PRESIDENT OF LAKSHADWEEP BJP Annexure3A TRUE COPY OF THE PRINT OUT OF THE GOOGLE PAY ACCOUNT TRANSACTION IN FAVOUR OF THE STATE MEDIA CONVENER LAKSHADWEEP STATE COMMITTEE OF BJP UNIT, FROM THE ACCOUNT OF THE PETITIONER'S WIFE SMT BEENA ```