Salam v. State (Bail Applications Nos. 3584 and 3589 of 2023)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 9[TH] DAY OF MAY 2023 / 19TH VAISAKHA, 1945 BAIL APPL. NO. 3584 OF 2023** **(CRIME NO.480/2023 OF TANUR POLICE STATION, MALAPPURAM) PETITIONER/2ND ACCUSED:** SALAM AGED 50 YEARS S/O. KASIM, PARITHOLI HOUSE, KODINJI, MALAPPURAM DISTRICT, PIN - 676309 BY ADV K.P.SUDHEER ## **RESPONDENTS/STATE:** 1 STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031 2 STATION HOUSE OFFICER TANUR POLICE STATION, TANUR, MALAPPURAM DISTRICT,, PIN - 676302 ## **OTHER PRESENT:** PP; T V NEEMA THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A.Nos.3584 and 3589 of 2023 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 9[TH] DAY OF MAY 2023 / 19TH VAISAKHA, 1945 BAIL APPL. NO. 3589 OF 2023** **(CRIME NO.484/2023 OF TANUR POLICE STATION, MALAPPURAM) PETITIONER/2ND ACCUSED:** SALAM AGED 50 YEARS S/O. KASIM, PARITHOLI HOUSE, KODINJI, MALAPPURAM DISTRICT, PIN - 676309 BY ADV K.P.SUDHEER ## **RESPONDENTS/STATE:** 1 STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682031 2 STATION HOUSE OFFICER TANUR POLICE STATION, TANUR, MALAPPURAM - 676302 ## **OTHER PRESENT:** SR PP C,M PRABHAKARAN THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A.Nos.3584 and 3589 of 2023 3 ## **P.V.KUNHIKRISHNAN, J** **-------------------------------B.A.Nos.3584 and 3589 of 2023 ------------------------------Dated this the 9[th] day of May, 2023** ## **O R D E R** These Bail Applications are filed under Section 439 of Criminal Procedure Code . 2. The petitioner in these bail applications are one and the same and hence, I am disposing of these bail applications by a common judgment. The petitioner is an accused in Crime No.480/2023 and Crime No.484/2023 of Tanur Police Station. 3. The prosecution case is that, in February, 2023, the 1[st] accused had committed theft of battery of a Tipper Lorry and the same was received by the 2[nd] accused from the 1[st] accused. The petitioner is the 2[nd] accused. Hence, it is alleged that the accused committed the offence under Sections 379, 413 r/w 34 of IPC. The petitioner was arrested and produced before the court below on 27.04.2023. 4. The counsel for the petitioner submitted that the petitioner has not committed the offences. The 1[st] accused is the main culprit. The counsel submitted that the petitioner is implicated B.A.Nos.3584 and 3589 of 2023 4 in this case based on a confession statement of the 1[st] accused. It is alleged that he has no connection with the crime as alleged by the prosecution. It is also stated that he has been doing scrap business for the last more than 25 years with valid licence issued by the Edarikode Grama Panchayat. The petitioner produced the copy of the receipt showing the renewal of the licence. Hence, it is stated that the petitioner has not committed any offence. The Public Prosecutor opposed the bail application. The Public Prosecutor submitted that the the petitioner is involved in several cases. The petitioner may not be released on bail is the submission of the Public Prosecutor. 5. Heard the counsel for the petitioner and the Public Prosecutor. 6. This Court considered the contentions of the petitioner and the Public Prosecutor. It is true that the allegation against the petitioner is very serious and several cases are registered against the petitioner. According to the petitioner, he is a licenced scrap businessman and this case is falsely foisted against the petitioner. He produced certain documents to show that he is having the licence as on the date of the alleged commission of offence. I do not want to make any observation about the merit of the case. These are matters to be investigated by the investigating authority. But I am of B.A.Nos.3584 and 3589 of 2023 5 the considered opinion that the continued detention of the petitioner is not necessary in the facts and circumstances of these cases. It is true that several cases of similar nature is registered against the petitioner. That itself is not a ground to reject the bail. The Apex Court in _**Moulana Mohad. Amir Rashadi v. State of U.P. And others [(2012) 2 SCC 382]**_ observed that merely on the basis of criminal antecedents, claim of bail cannot be rejected. Considering the entire facts and circumstances of these cases and also considering the detention period of the petitioner, these bail applications can be allowed on stringent conditions. If the petitioner committed similar offences in future, the investigating authority is free to file application before the jurisdictional court for cancellation of bail and if such an application is filed, the jurisdictional court can cancel the bail in accordance to law. With that rider, these applications can be allowed. 7. 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 is the rule and refusal is the exception B.A.Nos.3584 and 3589 of 2023 6 so as to ensure that the accused has the opportunity of securing fair trial. 8. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, these Bail Applications are allowed with the following directions: 1. Petitioner shall be released on bail on executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court. 2. The petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner shall co-operate 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. 3. Petitioner shall not leave India without permission of the jurisdictional Court. 4. 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. B.A.Nos.3584 and 3589 of 2023 7 5. 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. ## **Sd/-** ## **P.V.KUNHIKRISHNAN JUDGE** yd B.A.Nos.3584 and 3589 of 2023 8 ## **APPENDIX OF BAIL APPL. 3584/2023** PETITIONER ANNEXURES ANNEXURE A 1 TRUE COPY OF FIRST INFORMATION REPORT DATED 25.4.2023 IN CRIME NO. 480/2023 OF TANUR POLICE STATION ANNEXURE A 2 TRUE COPY OF RECEIPT NO. 1220300455/G101002 DATED 28.2.2023 ISSUED BY THE EDARIKKODE GRAMA PANCHAYATH ANNEXURE A 3 TRUE COPY OF THE ORDER DATED 29.04.2023 IN CMP NO.1963/2023 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PARAPPANANGADI B.A.Nos.3584 and 3589 of 2023 9 ## **APPENDIX OF BAIL APPL. 3589/2023** PETITIONER ANNEXURES ANNEXURE A 1 TRUE COPY OF FIRST INFORMATION REPORT DATED 26.4.2023 IN CRIME NO. 484/2023 OF TANUR POLICE STATION ANNEXURE A 2 TRUE COPY OF RECEIPT NO. 1220300455/G101002 DATED 28.2.2023 ISSUED BY THE EDARIKKODE GRAMA PANCHAYATH ANNEXURE A 3 TRUE COPY OF THE ORDER DATED 29.04.2023 IN CMP NO.1965/2023 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PARAPPANANGADI