Kerala High Court
K P Rafeek vs State Of Kerala on 6 May, 2022
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. 2452 OF 2022
CRIME NO.5/2022 OF KOPPAM POLICE STATION, PALAKKAD
PETITIONER:
K P RAFEEK
AGED 34 YEARS
S/O K P MUHAMMED KUTTY, KUNNUMPURATH, CHEMBRA
POST, TRIPRANGODE, THIRUVEGAPURA,
PALAKKAD DISTRICT., PIN - 679304
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, SR.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.2452/2022
2
P.V.KUNHIKRISHNAN, J.
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B.A.No.2452 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 1st accused in Crime No.5/2022 of
Koppam Police Station. The above case is registered against
the petitioner and others alleging offences punishable under
Section 379 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 04.01.2022 at 6 am,
Thiruvegappura Village Officer found a tipper lorry loaded
with river sand at Thiruvegappura Park Kadavu, violating the
provisions of Act 18 of 2001. On seeing the Village officials,
accused stopped the vehicle and ran away and the Village
Officer seized the vehicle as well as the sand and produced
before the Koppam Police station. Hence it is alleged that the
accused committed the offence.
B.A.No.2452/2022
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
Uttar Pradesh and Another (2021 (5) KHC 353)
B.A.No.2452/2022
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
directions:
B.A.No.2452/2022
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
permission of the jurisdictional Court.
B.A.No.2452/2022
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
B.A.No.2452/2022
APPENDIX OF BAIL APPL. 2452/2022
PETITIONER ANNEXURES
Annexure1 TRUE COPY OF THE FIR IN CRIME NO.
05/2022 OF KOPPAM POLICE
