Mohammed Shiyas v. State of Kerala and Station House Officer, Kothamangalam Police Station

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` TUESDAY, THE 2[ND] DAY OF APRIL 2024 / 13TH CHAITHRA, 1946 ``` ## `BAIL APPL. NO. 1979 OF 2024` ``` CRIME NO.366/2024 OF KOTHAMANGALAM POLICE STATION, ERNAKULAM ``` ## `PETITIONER:` ``` MOHAMMED SHIYAS, AGED 46 YEARS S/O V M MARAKKAR,VADAPPILLIL HOUSE, THAIKKATTUKARA PO, ALUVA, KERALA, PIN – 682006 ``` ``` BY ADVS.SRADHAXNA MUDRIKA MATHEW A KUZHALANADAN T.ASAFALI V.SHYAMOHAN KURIAKOSE VARGHESE ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 2STATION HOUSE OFFICER, KOTHAMANGALAM POLICE STATION,KOTHAMANGALAM, KERALA, PIN – 686691 ``` ## `OTHER PRESENT:` ``` SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.1979/2024_ _-:2:-_ _Dated this the 2[nd] day of April, 2024_ ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for the sake of brevity), of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioner is presently ranked as the first accused in Crime No.366/2024 of Kothamangalam Police Station, Ernakulam, registered against the accused (seven in number) for allegedly committing the offences punishable under Sections 143, 147, 109, 379 read with Section 149 of the Indian Penal Code, 1860 (in short, ‘IPC’) and Section 3(1) of the Prevention of Damages to Public Property Act, 1984(in short, ‘PDPP Act’). The First Information Report [FIR] was originally registered against three accused for allegedly committing the offences punishable under Section 380 read with Section 34 of the IPC and _B.A.No.1979/2024_ _-:3:-_ Section 3(1) of the PDPP Act. 3. The essence of the prosecution case in Annexure-A1 FIR is that: on 04.03.2024, at around 23.00 hours, three identifiable persons, (accused Nos.1 to 3) who are Congress workers, protested against the arrest of the President of the Ernakulam District Congress Committee (the petitioner), who was the accused in Crime No.364/2024 of the very same Police Station. The first accused pulled the right rear view mirror, the second accused broke the right wiper and the third accused stole the key of the Police vehicle bearing No.KL-01-BZ-6976. The accused Nos.1 & 2 pelted stones on the vehicle and broke its windscreen causing a loss of Rs.25,500/- to the Government. Thus, the accused have committed the above offence. 4. Heard; Sri.T. Asafali, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Senior Public Prosecutor appearing for the _B.A.No.1979/2024_ _-:4:-_ respondents. 5. The learned counsel for the petitioner strenuously argued that the offences alleged against the petitioner will not be attracted. A reading of Annexure-A1 FIR would clearly substantiate that the petitioner was not at the scene of occurrence. In fact, he was arrested in Crime No.364/2024 by the very same Police and the alleged march was conducted by three identifiable persons (accused Nos.1 to 3) in protest against his arrest. It is out of sheer political animosity and ego that the Police have implicated him in the present crime. It was the third accused, who allegedly stole the key of the vehicle and committed the offence under Section 379/380 of the IPC. Therefore, by no stretch of imagination, can the petitioner be alleged to be involved in the crime. Actually, the petitioner was just enlarged on bail in Crime No.364/2024 by the jurisdictional Magistrate. _B.A.No.1979/2024_ _-:5:-_ Immediately, to wreak vengeance on the petitioner he has arraigned as an accused in four other crimes. This by itself shows the falsity and frivolity of the cases. The Investigating Officer has acted in blatant violation of the law laid down by the Hon'ble Supreme Court in **Arnesh Kumar v. State of Bihar** [(2014) 8 SCC 173], **Satender Kumar Antil v. CBI** [(2022) 10 SCC 51] and **Nikesh Tarachand Shah v. Union of India** [(2018) 11 SCC 1]. If the petitioner is arrested by the Police, they would subject him to custodial torture. The petitioner's custodial interrogation is not necessary and no recovery is to be effected. The petitioner is willing to co-operate with the investigation. In the other crimes, the jurisdictional Magistrate has enlarged the petitioner on bail. Hence, the petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has _B.A.No.1979/2024_ _-:6:-_ filed a detailed bail objection report, inter-alia, contending that, it was the petitioner who abated his followers, to destroy the Police vehicle, while he was being taken into custody in Crime No.364/2024. It is due to this abatement, his followers stole the key of the vehicle and damaged the vehicle, causing a loss of Rs.30,656/- to the Government. The petitioner is the President of Ernakulam District Congress Committee and is an accused in Crime Nos.363, 364, 365, 366 & 369/2024 of the very same Police Station. The petitioner has been enlarged on bail in Crime Nos.363, 364 & 365/2024. The Police after investigation, have filed an additional report, implicating the petitioner as the first accused in the present crime. There are a total of seven accused in the crime, and the offences have been altered by deleting Section 380 read with Section 34 of the IPC and incorporating Sections 145, 147, 109 & 379 read with Section 149 of the IPC and _B.A.No.1979/2024_ _-:7:-_ Section 3(1) of the PDPP Act. The petitioner and his followers had conducted a protest in connection with the death of a lady named ‘Indira Balakrishnan’, who was killed by a wild elephant. The petitioner and his followers took away the body of the deceased from the mortuary with criminal force and displayed the body to the public. Even though the Police had directed the petitioner to withdraw the protest, he did not do the same. The petitioner is the principal abettor in the present crime. The petitioner is involved in several cases from 2008 onwards in different Police Stations. The Investigating Officer has the right to arrest the petitioner without a warrant as per the provisions of Section 41(1)(e) of the Code. The application is only to be dismissed. 7. Annexure-A1 FIR was on registered 05.03.2024, at 06.01 hours, in connection with an incident that occurred on 04.03.2024, at 23.00 hours. _B.A.No.1979/2024_ _-:8:-_ The prosecution allegation in Annexure-A1 FIR was that three identifiable persons, who were stated to be the accused Nos.1 to 3, had hit and damaged the Police vehicle bearing No.KL-01-BZ-6976 and stole the key and caused a loss of Rs.25,500/- to the Government. 8. It is specifically stated in Annexure-A1 FIR that it was the accused Nos.1 & 2 who caused damage to the vehicle and the third accused who stole the key as a mark of protest against the arrest of the petitioner in Crime No.364/2024. This fact is also clearly stated by the Investigating Officer in his statement filed before this Court. 9. Initially, only the offence under Section 380 read with Section 34 of the IPC was incorporated in Annexure-A1 read with Section 3(1) of the PDPP Act. 10. On 06.03.2024, the petitioner filed the present application before this Court. On a consideration of the accusation alleged against the petitioner in _B.A.No.1979/2024_ _-:9:-_ Annexure-A1 FIR and Annexure-A2 remand report, and on prima-facie being satisfied that the offences alleged in Annexure-A1 FIR may not have been attracted against the petitioner, this Court directed the Investigating Officer not to arrest the petitioner till the date of next hearing. 11. Now, it is reported that, on 07.03.2024, the Investigating Officer has filed a report before the court below, stating that the petitioner was the main abettor in the crime and, consequently, the offence under Section 380 read with Section 34 of the IPC have been deleted and the offences under Sections 143, 147, 109 & 379 read with Section 149 of the IPC have been incorporated and the petitioner is the first accused in the crime because he was the person who abetted the commission of the offence. 12. Indisputably, the petitioner was not even at the scene of the occurrence at the time the key of the _B.A.No.1979/2024_ _-:10:-_ vehicle was allegedly stolen by the third accused. The present non-bailable offences are under Section 379 and Section 3(1) of the PDPP Act. Therefore, prima-facie I am of the view that the said offences may be attracted against the petitioner. 13. The parameters to grant an order of pre-arrest bail have been succinctly laid down by the Hon’ble Supreme Court in **Siddharam Satlingappa Mhetre v. State of Maharashtra** [(2011) 1 SCC 694] in the following lines: **111.** No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia case [(1980) 2 SCC 565 : 1980 SCC (Cri) 465] that the High Court or the Court of Session has to exercise their jurisdiction under Section 438 CrPC by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. _B.A.No.1979/2024_ _-:11:-_ **112** . The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) 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 there being some doubt as to the genuineness of the _B.A.No.1979/2024_ _-:12:-_ prosecution, in the normal course of events, the accused is entitled to an order of bail. **126** . We deem it appropriate to reiterate and assert that discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations. 14. A reading of the parameters laid down by the Hon'ble Supreme Court would clearly reveal that, if the Court is convinced that the accusations have been made with the object of injuring or humiliating the applicant by arresting or hurting him or there is a frivolity in the prosecution, this Court can grant an order of pre-arrest bail. 15. On a careful scrutiny of the materials placed on record and taking into account the fact that the petitioner was in judicial custody in Crime No.364/2024, that the prosecution had at the first instance unambiguously stated that the offence in the _B.A.No.1979/2024_ _-:13:-_ present crime were committed by the accused Nos.1 to 3 as a mark of protest in connection with the petitioner’s arrest, I am of the firm view that the petitioner is entitled to an order of pre-arrest bail because his custodial interrogation is not necessary and no recovery is to be effected. Consequently, I am inclined to allow the application; but subject to the condition that the petitioner co-operates with the investigation. In the result, the application is allowed subject to the following conditions: - (i) The petitioner is directed to surrender before the Investigating Officer within one week from today; - (ii) In the event of the petitioner’s arrest, the Investigating Officer shall produce him before the jurisdictional court on the date of surrender itself; _B.A.No.1979/2024_ ## _-:14:-_ - (iii)On such production, the jurisdictional court shall release the petitioner on bail on him executing a bond for Rs.1,00,000/- (Rupees One Lakh only) with two solvent sureties for the like amount each, to the satisfaction of the jurisdictional court; - (iv) The petitioner shall co-operate with the investigation and make himself available for interrogation and for the purpose of investigation as and when the Investigating Officer directs; - (v) The petitioner shall not intimidate witnesses or interfere with the investigation in any manner; - (vi) The petitioner shall not get involved in any other offence while he is on bail. - (vii)The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the _B.A.No.1979/2024_ ## _-:15:-_ ## bond; - (viii)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. - (ix)Applications for deletion/modification of the bail conditions shall also be filed before the court below. - (x) 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]. - (xi) Any observations made in this order is only for the purpose of deciding the application and the same shall not be construed as an expression on the merits of the case to be decided by the _B.A.No.1979/2024_ _-:16:-_ Courts. Sd/- ## **C.S.DIAS,JUDGE** DST/02.04.24 //True copy// P.A. To Judge