IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 6TH DAY OF MAY 2022 / 16TH VAISAKHA, 1944
BAIL APPL. NO. 2772 OF 2022
CRIME NO.211/2022 OF Tirur Police Station, Malappuram
PETITIONER:
FAISAL K P
AGED 35 YEARS
S/O SAIDALAVI, KODAKKATT PARAMBIL HOUSE,
THIRUNAVAYA POST, THIRUNAVAYA, TIRUR TALUK,
MALAPPURAM DISTRICT, PIN - 676301
BY ADV BINU V V VEETTIL VALAPPIL
RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
BY ADV.SANAL P.RAJ, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 06.05.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
B.A.No.2772/2022
2
P.V.KUNHIKRISHNAN, J.
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B.A.No.2772 of 2022
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Dated this the 06th day of May, 2022
ORDER
This Bail Application is filed under Section 438 of Criminal Procedure Code.
2. Petitioner is the accused in Crime No.211/2022 of Tirur Police Station. The above case is registered against the petitioner alleging offences punishable under Section 379 read with Section 34 of the Indian Penal Code. The offence under Sections 20 and 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 was also alleged.
3. The prosecution case is that on 14.03.2022, at about 5.15 pm, the defacto complainant found the accused riding a motorcycle allegedly escorting a tipper lorry transporting river sand, at Thirunavaya -Edakkulam Public Road, violating the provisions of Act 18 of 2001. On seeing the police personal, accused stopped the vehicle and ran away and police seized the vehicle as well as the sand and the crime was registered. Hence it is alleged that the petitioner committed B.A.No.2772/2022 3 the offence.
4. Heard counsel for the petitioner and the Public Prosecutor. The counsel for the petitioner submitted that even if the prosecution case is accepted, the offence alleged is not made out. The counsel also submitted that the petitioner is ready to abide any conditions if this Court grant him bail. The Public Prosecutor opposed the bail application and submitted that if this Court is granting bail, stringent conditions may be imposed. The custodial interrogation of the petitioner may not be necessary in the facts and circumstances of this case. After hearing both sides, I think the bail application can be allowed with stringent conditions.
5. 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 so as to ensure that the accused has the opportunity of securing fair trial.
6. Recently the Apex Court in Siddharth v State of B.A.No.2772/2022 4 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, 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."
7. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following B.A.No.2772/2022 5 directions:
1. The petitioner shall appear before the Investigating Officer within two weeks 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 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.
4. The petitioner shall not leave India without B.A.No.2772/2022 6 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. 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 JV JUDGE