Shameer C.K. and Mahroof K v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 BAIL APPL. NO. 327 OF 2024 CRIME NO.31/2024 OF MANJERI POLICE STATION, MALAPPURAM ``` ## **`PETITIONERS/ACCCUSED NOS.1 AND 2:`** ``` 1 SHAMEER C.K, AGED 35 YEARS S/O. MUHAMMED C.K., CHALATTIL KALLADITHODI, MUTTIPADI, MELMURI P.O., ERNAD TALUK, MALAPPURAM DISTRICT, PIN - 676517 2 MAHROOF K, AGED 32 YEARS S/O. ABDU RAHMAN K., KARIMBAN HOUSE, PERIMBALAM P.O., ANAKKAYAM VILLAGE, MUNDUPARAMBA, MALAPPURAM DISTRICT, PIN - 676509 ``` ``` BY ADV K.RAKESH ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** ``` 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM DISTRICT, PIN - 682031 2 THE STATION HOUSE OFFICER , MANJERI POLICE STATION, MALAPPURAM DISTRICT, PIN - 676121 ``` ``` BY PP SMT NIMA JACOB ``` ## B.A.No.327 of 2024 -:2:- ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.327 of 2024 -:3:- ## **O R D E R** Dated this the 15[th] day of February, 2024 The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for short), for an order of pre-arrest bail. 2. The petitioners are the accused 1 and 2 in Crime No.31/2024 of the Manjeri Police Station, Malappuram, registered against the accused for allegedly committing the offences punishable under Section 286 of the Indian Penal Code, and Sections 4 and 5(a) of the Explosive Substances Act. 3. The gist of the prosecution case is that: on 05.01.2024 at about 16.30 hours, the accused were found to be conducting a granite quarry using explosives without any license and permission from the Statutory Authorities. Thus, the accused have committed the above offences. B.A.No.327 of 2024 -:4:- 4. Heard; Sri. K. Rakesh, the learned counsel appearing for the petitioners and Smt. Nima Jacob., the learned Senior Public Prosecutor appearing for the respondents. 5. The learned counsel for the petitioner submitted that the petitioners are totally innocent of the accusations levelled against them. They had only leased out their property, along with other co-owners, to a person named Danoop. They are totally innocent of the accusations with respect to the explosive substances that were allegedly seized from the property. The petitioners have no criminal antecedents. The petitioners’ custodial interrogation is not necessary. The petitioners are willing to abide by any condition that may be imposed by this Court and cooperate with the investigation. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She contended that, as per Annexure C B.A.No.327 of 2024 ## -:5:- lease agreement, it was the petitioners and the two other persons who had leased out the property to a person named Danoop. The Investigating Officer seized the explosive substances from the said property. The petitioners' custodial interrogation is necessary, and recovery is to be effected. If the petitioners are let off on bail, there is every likelihood of them influencing the witnesses and tampering with the evidence. Hence, the application may be dismissed. 7. The prosecution case is that the explosive substances were seized from the property that was leased out by the accused to a person named Danoop. Therefore, the accused have committed the offences under Section 286 of the IPC and Sections 4 and 5 (a) of the Explosive Substances Act. 8. In **Siddharam Satlingappa Mhetre v. State of Maharashtra** [(2011) 1 SCC 694] the Hon’ble Supreme Court has held as follows: B.A.No.327 of 2024 ## -:6:- **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. **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; B.A.No.327 of 2024 ## -:7:- (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 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 B.A.No.327 of 2024 ## -:8:- 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. 9. In **Jai Prakash Singh v. State of Bihar and another** [(2012) 4 SCC 379], the Hon’ble Supreme Court has held that an order of a pre-arrest bail is an extraordinary privilege, which should be granted only in exceptional cases. The judicial discretion conferred upon the court must be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail. The Court has to be prima facie satisfied that the accusation levelled against the applicant is only to enrope him in the crime and would misuse his liberty. 10. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar, and comprehending ## B.A.No.327 of 2024 ## -:9:- the seriousness, gravity and nature of the offences alleged against the petitioners, and on prima facie finding that the accusations to be true, that the petitioners’ custodial interrogation is necessary, that the recovery is to be effected, and that the investigation is in the preliminary stage, I am of the definite view that the petitioners have not made out any exceptional grounds to invoke the extraordinary jurisdiction of this Court under Sec.438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. 11. Nonetheless, I direct that, if the petitioners surrender before the Investigating Officer within 10 days from today, they shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioners move application for bail, the jurisdictional Court shall, untrammelled by any observations in this order, consider B.A.No.327 of 2024 ## -:10:- the bail application on its merits and as expeditiously as possible. If the petitioners do not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioners as if no order has been passed in this case. Sd/- ## **C.S.DIAS,JUDGE** mtk/ 15.02.2024 B.A.No.327 of 2024 -:11:- ## **`APPENDIX OF BAIL APPL. 327/2024`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE AA TRUE COPY OF THE FIR IN CRIME NO.31/2024 OF THE MANJERI POLICE STATION DATED 5-1-2024 ``` ``` ANNEXURE BA TRUE COPY OF THE TAX RECEIPT ISSUED FROM POOKKOTTUR VILLAGE OFFICE DATED 20- 12-2023 SHOWING THE NAME OF THE PETITIONERS. ``` ``` ANNEXURE CA TRUE COPY OF THE LEASE AGREEMENT DATED 30-11-2023 EXECUTED BY THE PETITIONERS AND CO-OWNERS WITH ONE 'DANOOP' ```