Mubasher v. State of Kerala

``` 2025:KER:26950 ``` ``` 1 ``` **==> picture [57 x 57] intentionally omitted <==** ## **`BAIL APPL. NO. 3917 OF 2025`** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` FRIDAY, THE 28[TH] DAY OF MARCH 2025 / 7TH CHAITHRA, 1947 ``` ## **`BAIL APPL. NO. 3917 OF 2025`** ``` CRIME NO.163/2025 OF Kalpakanchery Police Station ``` ## **`PETITIONER:`** ``` MUBASHEER AGED 23 YEARS SON OF MUHAMMED KUTTY, KARINGAYI HOUSE, VADAKKEKULAMB, ATHAVANAD , MALAPPURAM, PIN - 676301 ``` ``` BY ADVS. IRFAN ZIRAJ P.M.ZIRAJ ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` 2THE SUB INSPECTOR OF POLICE KALPAKANCHERY POLICE STATION, MALAPPURAM DISTRICT, PIN - 676551 ``` ``` SR PP-NOUSHAD K A ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2025:KER:26950 ``` ``` BAIL APPL. NO. 3917 OF 2025 ``` ``` 2 ``` **==> picture [57 x 57] intentionally omitted <==** ## **P.V.KUNHIKRISHNAN, J.** **-------------------------------B.A.No.3917 of 2025 ---------------------------------------------Dated this the 28[th] day of March, 2025** ## **ORDER** This Bail Application is filed under Section 482 of Bharatiya Nagarik Suraksha Sanhita. 2. Petitioner is the accused in Crime No.163/2025 of Kalpakanchery Police Station. The above case is registered against the petitioner alleging offences punishable under Section 303(2) of the Bharatiya Nyaya Sanhita (for short, BNS) and Sections 20 and 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. 3. The prosecution case is that the accused illegally transported river sand without any valid licence and permit. 4. Heard counsel for the petitioner and the Public Prosecutor. 5. This Court, in the order dated 31.12.2021 in B.A.No.9571/2021, observed that when the offence under ``` 2025:KER:26950 ``` ``` BAIL APPL. NO. 3917 OF 2025 ``` ``` 3 ``` **==> picture [57 x 57] intentionally omitted <==** Sections 20 and 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act is alleged, the offence under the Indian Penal Code will not stand. It will be better to extract the relevant portion of the above order: “6. The offence under Sections 20 and 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 is bailable in nature. It is settled that when there is specific/special law covering the question of theft of river sand, the offence under Indian Penal Code would not apply. Considering the allegations levelled against the petitioner, the custodial interrogation of the petitioner does not appear to be necessary. For all these reasons, the petitioner is entitled to pre-arrest bail on conditions.” 6. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in **Chidambaram. P v Directorate of Enforcement [2019 (16) SCALE 870],** after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail ``` 2025:KER:26950 ``` ``` BAIL APPL. NO. 3917 OF 2025 ``` ``` 4 ``` **==> picture [57 x 57] intentionally omitted <==** is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. 7. Recently the Apex Court in **Siddharth v State** **of Uttar Pradesh and Another [2021(5)KHC 353]** considered the point in detail. The relevant paragraph of the above judgment is extracted hereunder: “12. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. (Joginder Kumar v. State of UP and Others (1994 KHC 189: (1994) 4 SCC 260: 1994 (1) KLT 919: 1994 (2) KLJ 97: AIR 1994 SC 1349: 1994 CriLJ 1981)) If arrest is made routine, ``` 2025:KER:26950 ``` ``` 5 ``` **==> picture [57 x 57] intentionally omitted <==** ## **`BAIL APPL. NO. 3917 OF 2025`** it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.” ## 8. In **Manish Sisodia v. Central Bureau of** **Investigation [2023 KHC 6961]** , the Apex Court observed that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case. 9. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, I think bail can be granted after imposing stringent conditions. Therefore, this Bail Application is allowed with the following directions: 1. The petitioner shall appear before the Investigating Officer within two weeks **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:26950 ``` ## **`BAIL APPL. NO. 3917 OF 2025`** ## **`6`** from today and shall undergo interrogation. 2. After interrogation, if the Investigating Officer propose to arrest the petitioner, he shall be released on bail on executing a bond for a sum of Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the arresting officer concerned. 3. The petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner shall cooperate with the investigation and shall not, directly or indirectly make any inducement, threat or promise 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. 4. The petitioner shall not leave India without ``` 2025:KER:26950 ``` ``` BAIL APPL. NO. 3917 OF 2025 ``` ``` 7 ``` **==> picture [57 x 57] intentionally omitted <==** permission of the jurisdictional Court. 5. The petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. 6. 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]. 7. If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. The prosecution and the victim are at liberty to approach the jurisdictional ``` 8 ``` **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:26950 ``` ## **`BAIL APPL. NO. 3917 OF 2025`** Court to cancel the bail, if any of the above conditions are violated. JV sd/- **P.V.KUNHIKRISHNAN JUDGE**