Sheikh Mohammed Murthaza v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 14[TH] DAY OF FEBRUARY 2024 / 25TH MAGHA, 1945 ``` ``` BAIL APPL. NO. 1042 OF 2024 ``` ``` CRIME NO.1542/2023 OF PAYYANNUR POLICE STATION, KANNUR ``` ``` AGAINST THE ORDER IN CRMC 126/2024 OF DISTRICT COURT & SESSIONS COURT,THALASSERY ``` ## `PETITIONER:` ``` SHEIKH MOHAMMED MURTHAZA AGED 21 YEARS S/O.ABDUL HAMEED SHEIKH, SARAIE, NEAR MASJID SHREEF, BANDI SARAIE, KAMAL KOOTE, HARDU KAMAL KOOTE, BARAMULLA, JAMMU AND KASHMIR., PIN – 193123 ``` ``` BY ADVS.D.ARUN BOSE K.VISWAN NIDHIN S. KUMAR ``` ## `RESPONDENT:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.1042/2024 -:2:- Dated this the 14[th] day of February,2024 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.1542/2023 of Payyannur Police Station, Kannur, registered against him, for allegedly committing the offences punishable under Section 447 of the Indian Penal Code, 1860 and Section 3(1)(a) of the Official Secrets Act,1923(in short, ‘Act’). The petitioner was arrested on 25.12.2023. 2. The crux of the prosecution case is that: on 24.12.2023, at around 9.30 am, the accused trespassed into the Ezhimala Indian Naval Academy, which is a prohibited area as per the provisions of the Act, without any valid documents or permission. Thus, the accused has committed the above offences. 3. Heard; Sri.D. Arun Bose, the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Senior Public Prosecutor appearing for the B.A.No.1042/2024 -:3:- respondent. 4. The learned counsel appearing for the petitioner strenuously argued that the petitioner has been falsely implicated in the crime. The petitioner is a 21 year old boy, hailing from the State of Jammu & Kashmir. The petitioner had approached the Academy only for the purpose of securing an admission there. The petitioner had no intention to commit any offences as alleged by the prosecution. The petitioner has been in judicial custody for the last 53 days. The investigation in the case is practically complete and the recoveries have been effected. The sole reason for rejecting the petitioner’s application for bail by the Court of Session as per Annexure-7 order, is that, the petitioner is not co-operating with the Investigating Officer because he has not disclosed the password of his mobile phone. In fact, the mobile phone is in the custody of the Investigating Officer. It is only due to the fact that the Investigating Officer tried to unlock B.A.No.1042/2024 -:4:- the phone by himself and entered the wrong pin number on several occasions the phone got locked. The petitioner has filed an affidavit stating that he has no objection in the Investigating Officer adopting any means to unlock the mobile phone. The petitioner is willing to abide by any stringent condition that may be imposed by this Court. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor vehemently opposed the application. She contended that the investigation in the present case is still in progress. All possible angles are being looked into by the investigating agency. The petitioner is not co-operating with the investigating agency. Even though the petitioner was asked on several occasions to unlock his mobile phone, he has refused to do the same. The Ezhimala Indian Naval Academy falls under the Ministry of Defence, which falls squarely within the purview of Section 3 of the Act. The petitioner had B.A.No.1042/2024 -:5:- trespassed into the prohibited area of the Academy and has thus committed the above offences. Going by the nature and seriousness of the offences, the petitioner may not be granted bail at this stage. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioner is that, the petitioner who hails from the State of Jammu & Kashmir, came down to Kannur on 24.12.2023, at around 9.30 a.m., and trespassed into the Ezhimala Indian Naval Academy, which is a prohibited area as per the Act. 7. Section 3 of the Official Secrets Act,1923, reads as follows: “ **3. Penalties for spying.** —(1) If any person for any purpose prejudicial to the safety or interests of the State— (a) approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited place; or (b) makes any sketch, plan, model, or note which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy; or (c) obtains, collects, records or publishes or communicates to any other person any secret official code or pass word, or any B.A.No.1042/2024 -:6:- sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy 1 [or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States], he shall be punishable with imprisonment for a term which may extend, where the offence is committed in relation to any work of defence, arsenal, naval, military or air force establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Government or in relation to any secret official code, to fourteen years and in other cases to three years. (2) On a prosecution for an offence punishable under this section it shall not be necessary to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of the State, and, notwithstanding that no such act is proved against him, he may be convicted if, from the circumstances of the case or his conduct or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interests of the State; and if any sketch, plan, model, article, note, document, or information relating to or used in any prohibited place, or relating to any thing in such a place, or any secret official code or pass word is made, obtained, collected, recorded, published or communicated by any person other than a person acting under lawful authority, and from the circumstances of the case or his conduct or his known character as proved it appears that his purpose was a purpose prejudicial to the safety or interests of the State, such sketch, plan, model, article, note, document,[information, code or B.A.No.1042/2024 -:7:- pass word shall be presumed to have been made], obtained, collected, recorded, published or communicated for a purpose prejudicial to the safety or interests of the State.” 8. A reading of the above extracted provision shows that, if any person approaches, inspects, passes over or is in the vicinity of a prohibited place and if the place is a work of defence, arsenal, naval, military or air force establishment he is liable to be punished for a period of 14 years. Indisputably, the Academy is a naval establishment. 9. In **Prasanta Kumar Sarkar v. Ashis Chatterjee and Anr.** [(2010) 14 SCC 496], the Hon’ble Supreme Court has observed as follows: “9. …...... It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation: (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the B.A.No.1042/2024 -:8:- accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail.” ## 10. The Hon’ble Supreme Court in **Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and another** [AIR 2004 SC 1866] has held thus: “11. The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the Court granting bail to consider among other circumstances, the following factors also before granting bail; they are, (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (b) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (c) Prima facie satisfaction of the Court in support of the charge. See Ram Govind Upadhyay v. Sudarshan Singh and others (2002(3) SCC 598) and Puran v. Rambilas and another (2001 (6) SCC 338)” 11. On an anxious consideration of the facts, the materials placed on record, the law referred to above and on comprehending the nature, seriousness and B.A.No.1042/2024 -:9:- gravity of the accusations levelled against the petitioner, that the investigation in the case is still in progress, that the investigating agency is unable to unlock the phone of the petitioner and also that the petitioner has no roots in the State of Kerala, I am of the definite view that, it is too premature to release the petitioner on bail. Hence, I am not inclined to release the petitioner on bail because there is a danger of justice being thwarted. The application is devoid of any merits and is only to be dismissed. Resultantly, the bail application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/14.02.24 //True copy// P.A. To Judge