Kerala High Court
Mohammed Kasim H K vs Union Territory Administration ... on 10 August, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
BAIL APPL. NO. 3854 OF 2022
CRIME NO.20/2022, KAVARATTI POLICE STATION, UNION TERRITORY
OF LAKSHADWEEP
PETITIONER/ACCUSED NO.3:
MOHAMMED KASIM H. K.,
AGED 51 YEARS. S/O SYED MOHAMMED,
THAZHAPPURA TT HOUSE, ANDROTH ISLAND, UNION
TERRITORY OF LAKSHADWEEP-682 551
PERMANENTLY RESIDING AT LAKE VIEW APARTMENTS, ST
VINCENT COLONY ROAD, KARIMPANA PALAM,
CALICUT- 673 006., PIN - 673006
BY ADVS.
AJIT G ANJARLEKAR
G.P.SHINOD
GOVIND PADMANAABHAN
ATUL MATHEWS
P.VIJAYA BHANU (SR.)(K/421/1984)
RESPONDENTS/COMPLAINANT STATE AND DEFACTO COMPLAINANT:
1 UNION TERRITORY OF LAKSHADWEEP
REPRESENTED BY ITS ADMINISTRATOR, KAVARATTI,
LAKSHADWEEP-682 555., PIN - 682555
2 THE DEPUTY SUPERINTENDENT OF POLICE UNION TERRITORY
OF LAKSHADWEEP (SUB DIVISIONAL POLICE OFFICER
NORTH) AND INVESTIGATION OFFICER IN CRIME NO:
20/2022 OF KAVARATTI POLICE STATION, KAVARATTI
ISLAND, UNION TERRITORY OF LAKSHADWEEP- 682 555.,
PIN - 682555
BY ADV
SRI.Sajith Kumar V.,SC
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
10.08.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
B.A.No.3854/2022
2
K.BABU, J.
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B.A No.3854 of 2022
---------------------------------------------
Dated this the 10th day of August, 2022
ORDER
This application is filed under Section 438 of the Code of
Criminal Procedure.
2. The petitioner is accused No.3 in Crime No.20/2022 of
Kavaratti Police Station, Union Territory of Lakshadweep. This
crime has been registered against the petitioner and the other
accused alleging offences punishable under Section 13(1) read
with 13(2) of the Prevention of Corruption Act, 1988 and Sections
120 B, 464, 465, 468, 471 read with Section 34 of IPC.
3. Accused No.1 is an Officer of the Lakshadweep
Administration. On verification of the bank account of accused
No.1, it was revealed that he has received large sum of money
from the petitioner/accused No.3 through a series of transactions
in return for the favours done by him. Further, on verification of
the file relating to the entry permit maintained by the office of
the Additional District Magistrate (ADM), the authority for issuing
permits, it was found that the petitioner had misused the
B.A.No.3854/2022
Letterhead of the Bharatiya Janata Party and used his political
influence for getting entry permits for his guests/tourists to stay
at huts in Agatti/Kavaratti.
4. I have heard Sri.Ajit G. Anjarlekar, the learned counsel
for the petitioner/accused No.3 and Sri. Sajith Kumar V., the
learned Standing Counsel for the Lakshadweep Administration.
5. The learned counsel for the petitioner submitted that
the petitioner was only a facilitator for providing entry permits to
the political learders who visited Lakshadweep, as he was
officiating as the General Secretary of the BJP Lakshadweep Unit.
It is further submitted that accused No.1 is the Secretary of
Lakshadweep Sarkar Karmachari Sangh, a Union affiliated to the
BJP.
6. The learned counsel for the petitioner further
submitted that the petitioner has no involvement in the alleged
crime. It is argued that as the investigation is in the final stage,
the custodial interrogation of the petitioner is not required. The
learned counsel for the petitioner further submitted that
sufficient opportunity was given to the Investigating Agency to
interrogate the petitioner.
7. The learned Standing Counsel for the Lakshadweep
Administration opposed the bail plea of the petitioner. The
B.A.No.3854/2022
learned Standing Counsel submitted that granting pre-arrest bail
to the petitioner will hamper the investigation which is only in the
preliminary stage. The learned Standing Counsel submitted that
the petitioner has criminal antecedents.
8. A statement narrating the antecedents of the
petitioner has been filed by the learned Standing Counsel for the
Lakshadweep Administration. The statement refers to the
antecedents of the petitioner as follows:
"(a)Conviction in RC 4(A) 2009/CBI/KER dated
29.04.2009 with the Petitioner herein as
Accused No. 3.
The gist of the aforesaid case is that, pursuant to a
criminal conspiracy by the Accused No. 1 to 3 therein, the
work Orders for supply of River Sand and Granite chips for a
Project at Kavaratti were awarded to the Petitioner herein
by Accused No. 1 without calling tenders and in violation
of explicit legal formalities. The work Orders therein were
sanctioned at an exorbitant rate, and the Accused Nos. 1 and 2
therein had accepted illegal gratification from the Petitioner
herein as reward for the undue favors shown to him. All the
Accused, including this Petitioner, were convicted by the
Hon'ble Special CBI Court, Ernakulam by Judgment dated
06.08.2019. Criminal Appeals filed by the Petitioner and
other Accused are now pending before this Hon'ble
Court.
(b)Case No. 02(A)/202010/CBI/KER dated
02.06.2010 pending before the Hon'ble
Sessions Court, Kavaratti, with the
Petitioner herein as Accused No. 2.
The above case was registered by the CBI in
connection with corruption in purchase and supply of
building materials such as granite chips, river sand
etc., to Amini and Minicoy for the LDBD Agatti Island.
The same is now pending trial before the Hon'ble
Sessions Court, Kavaratti.
(c)RC 9(A)/202010/CBI/KER dated
02.06.2010 pending before the Hon'ble
Sessions Court, Kavaratti, with the
petitioner herein as Accused No.2
The aforesaid case was registered in connection with
corruption in awarding of work to the Petitioner and
other Accused therein for modifying the existing Central
B.A.No.3854/2022
Library at Kavaratti into Auditorium cum Cultural Centre.
The same is now pending trial before the Sessions
Court, Kavaratti.
(d)RC 1(A)/2009/CBI/KER dated 28.02.2009
pending before the Hon'ble Sessions Court.
Kavaratti, with the Petitioner herein as
Accused No. 1.
The case against the Petitioner was that he, on being
awarded the contract for supplying diesel at subsidized
rate to the residents of Lakshadweep through LCMF
(A Co-operative S&M Society), had sold diesel at open
market in the mainland, thereby causing wrongful loss of Rs.
3.45 crore to the Lakshadweep Administration. The same is
now pending trial before the Hon'ble Sessions Court,
Kavaratti.
(e) Crime No.2/2022 of Aaatti Police Station with
the Petitioner herein as Accused No. 1.
The aforesaid Crime was registered against the Petitioner as
Accused No. 1 for commission of offences under Section 294(b),
353, 186, 506, 510, 188 and 341 of IPC. The same was in
relation to an incident at 08.30 pm on 04.03.2022 at
Bangaram Island wherein the Petitioner, along with one
other person, had shouted filthy language to the manager of
Bangaram Resort under the influence of alcohol, wrongfully
restrained and obstructed him from fulfilling his official
duties and criminally intimidated him. The aforesaid case is now
under investigation."
9. The factors and parameters that need to be taken into
consideration while dealing with anticipatory bail are:
(1) the nature and gravity of the accusation and
the exact role of the accused;
(2) the antecedents of the applicant including
imprisonment on conviction for cognizable
offence;
(3) possibility of fleeing from justice;
(4) possibility of the accused's likelihood to repeat
B.A.No.3854/2022
similar or other offences.
(5) accusations have been made only with the
object of injuring or humiliating the applicant by
arrest;
(6) impact of grant of anticipatory bail particularly
affecting a very large number of people;
(7) courts must evaluate the entire available
material carefully; greater care should be taken
when the accused is implicated using Sections 34
and 149;
(8) a balance has to be struck between two
factors, namely, no prejudice should be caused to
free, fair and full investigation, and there should
be prevention of harassment, humiliation and
unjustified detention of the accused;
(9) court should consider reasonable
apprehension of tampering of the witness or
apprehension of threat to the complainant;
(10) 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
B.A.No.3854/2022
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. {Vide:
Gurbaksh Singh Sibbia and Ors. v. State of Punjab
[(1980) 2 SCC 565], Bhadresh Bipinbhai Sheth v.
State of Gujarat [(2016) 1 SCC 152] and Sushila
Aggarwal and Ors. v. State (NCT of Delhi) and Ors.
[(2020) 5 SCC 1]}.
10. Having gone through the entire materials, this Court is
of the view that the petitioner failed to establish a prima facie
case for getting the benefits contemplated in Section 438 of the
Cr.P.C. Therefore, the petitioner is not entitled to anticipatory bail
as prayed for.
11. The learned counsel for the petitioner submitted that
the petitioner may be permitted to surrender before the
Jurisdictional Court.
12. At the request of the learned Standing Counsel, this
Court had directed the petitioner to appear before the
Investigating Officer for interrogation. In compliance with the said
direction, the petitioner had appeared before the Investigating
Officer for interrogation on 14.07.2022 and for a period of 3 days
from 20.07.2022 to 22.07.2022.
B.A.No.3854/2022
13. The learned Standing Counsel submitted that the
custodial interrogation of the petitioner is not required.
14. It is legally permissible for this Court to direct the
accused to surrender before the Jurisdictional Court while
rejecting a prayer for anticipatory bail [See: Nathu Singh v. State
of Uttar Pradesh MANU/SC/0360/2021 : (2021 (3) KLT Online
1113 (SC) and Rahul v. State of Kerala (ILR 2021 (4) Kerala
64)].
15. Resultantly, the prayer for anticipatory bail is rejected.
The petitioner is directed to surrender before the Jurisdictional
Court within a period of two weeks from this date. On his
surrender before the Jurisdictional Court, if the petitioner prefers
an application seeking regular bail, the Court shall dispose of the
application preferably on the same day itself.
The bail application is disposed of as above.
K.BABU
JUDGE
VPK
B.A.No.3854/2022
APPENDIX
PETITIONER ANNEXURES
Annexure1 A TRUE COPY OF THE F.I.R DATED
10/05/2020 IN CRIME NO: 20/2022 OF
KAVARATTI POLICE STATION, UNION
TERRITORY OF LAKSHADWEEP
Annexure2 A TRUE COPY OF THE OFFICE ORDER DATED
12/03/2022 ISSUED BY THE STATE PRESIDENT
OF LAKSHADWEEP BJP
Annexure3 A TRUE COPY OF THE PRINT OUT OF THE
GOOGLE PAY ACCOUNT TRANSACTION IN FAVOUR
OF THE STATE MEDIA CONVENER LAKSHADWEEP
STATE COMMITTEE OF BJP UNIT, FROM THE
ACCOUNT OF THE PETITIONER'S WIFE SMT
BEENA
