UdhIn A v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` WEDNESDAY, THE 31[ST] DAY OF JULY 2024 / 9TH SRAVANA, 1946 BAIL APPL. NO. 5408 OF 2024 ``` ``` CRIME NO.788/2024 OF VALANCHERY POLICE STATION, MALAPPURAM ``` ## **`PETITIONER/ACCUSED:`** ``` UDHIN A AGED 28 YEARS ``` ``` SON OF MOHANAN A, ANDOORKIZHAKKETHIL, VALANCHERY P.O., KATTIPARUTHI, MALAPPURAM, PIN - 676552 BY ADVS. P.M.ZIRAJ IRFAN ZIRAJ ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM, PIN - 682031`** - **`2 THE INSPECTOR OF POLICE VALANCHERRY POLICE STATION, MALAPPURAM DISTRICT, PIN – 676552`** ## **`SR.PUBLIC PROSECUTOR SMT. NEEMA T.V.`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` B.A.No.5408 of 2024 _-:2:-_ Dated this the 31[st] day of July, 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), for an order of pre-arrest bail. 2. The petitioner is the accused in Crime No.788/2024 of the Valanchery Police Station, Malappuram, which is registered against him for allegedly committing the offences punishable under 379 of the Indian Penal Code and Sections 20 and 23 of the Kerala Protection of River Banks and Regulations of Removal of Sand Act, 2001 ( in short, the Act). 3. The gist of the prosecution case is that: on 23.06.2024, the accused transported river sand without any permit or pass in a lorry bearing B.A.No.5408 of 2024 _-:3:-_ registration No.KL 46-A-5201 by violating the provisions of the Act. Thus, the accused has committed the above offences. 4. Heard; Sri. P.M. Ziraj., the learned counsel appearing for the petitioner, Smt. Neema T.V., the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. There is no material to substantiate that the petitioner has committed the above offences. By Annexure 2 order, this Court has categorically held that the offence under Section 379 of the IPC may not be attracted in a case of this nature. The petitioner’s custodial interrogation is not necessary, and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the B.A.No.5408 of 2024 _-:4:-_ application. She submitted that the investigation is in progress. She also stated that if the petitioner is granted an order of pre-arrest bail, it would hamper the investigation. Hence, the application may be dismissed. Nonetheless, she did not dispute the fact that the petitioner does not have any criminal antecedents. 7. In Annexure 2 order, this Court has observed that, the offences under Sections 20 and 23 of the Kerala Protection of River Banks and Regulations of Removal of Sand Act, 2001 are bailable in nature. It is well settled that when there is special law covering the question of theft of river sand, the offence under the Indian Penal Code may not apply. 8. It was considering the said question of law, this Court granted the petitioner therein an order of prearrest bail. I find that the petitioner is similarly B.A.No.5408 of 2024 _-:5:-_ situated to the petitioner in Annexure 2 order and is entitled to parity. 9. On an overall consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly considering the law laid down by this Court in Annexure 2 order, I am of the firm view that the petitioner has made out valid grounds to invoke the discretionary jurisdiction of this Court under Section 438 of the Code. Hence, I hold that the petitioner is entitled to an order of prearrest bail; subject to the condition that the petitioner co-operates with the Investigating Officer. In the result, the application is allowed subject to the following conditions: (i) The petitioner is directed to surrender before the Investigating Officer within 10 days from today. (ii) In the event of arrest of the petitioner, the B.A.No.5408 of 2024 _-:6:-_ Investigating Officer shall release the petitioner on bail on him executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties for the like amount each; (iii) The petitioner shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. (iv) The petitioner shall not directly or indirectly make any inducement, threat or procure 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 or tamper with the evidence in any manner, whatsoever; (v) The petitioner shall surrender his passport before the jurisdictional court concerned within a period of one week from the date of his release on bail. If he has no passport, he shall file an affidavit to the B.A.No.5408 of 2024 _-:7:-_ effect before said court within the said period; (vi)The petitioner shall not get involved in any other offence while on bail; (vii) 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. (viii)Applications for deletion/modification of the bail conditions shall also be filed before the court below. (ix) 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** B.A.No.5408 of 2024 _-:8:-_ ## **Delhi) And another** [2020 (1) KHC 663]. (x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. Sd/- **C.S.DIAS,JUDGE** rmm/31/7/2024