Kerala High Court
Jahfar vs State Of Kerala on 21 May, 2024
Author: C.S.Dias
Bench: C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
BAIL APPL. NO. 3560 OF 2024
CRIME NO.194/2024 OF VENGARA POLICE STATION, MALAPPURAM
PETITIONER:
JAHFAR
AGED 37 YEARS
S/O ALAVI KUTTY,
KUZHIKKAOARA HOUSE,
CHIRAYIL POST VTC NEDIYIRUPPU,
MALAPPURAM, PIN - 673638
BY ADVS. K.S.ARUN KUMAR
AYISHA RIFATH K.
AMRUTHA K P
ELDHO BABY
VIJAY SANKAR V.H.
RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
OTHER PRESENT:
SR PP SRI C S HRITHWIK
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
21.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.No.3560/2024
-:2:-
Dated this the 21st day of May,2024
ORDER
The application is filed under Section 438 of the
Code of Criminal Procedure, 1973(in short, 'Code'), for
an order of pre-arrest bail.
2. The petitioner is the accused in Crime
No.194/2024 of the Vengara Police Station,
Malappuram, registered against him for allegedly
committing the offences punishable under Section 286
of the Indian Penal Code, 1860 and Sections 4(b) & 5
of the Explosive Substances Act, 1908( in short, 'Act').
2. The gist of the prosecution case is that: on
21.02.2024, at around 13.10 hours, the accused was
found conducting quarrying activities endangering
human life and property by using explosive substances.
The accused did not possess the licence to possess
explosive substances. Thus, the accused has
committed the above offences.
3. Heard; Sri. K.S. Arun Kumar, the learned
counsel appearing for the petitioner and Sri. C. S.
Hrithwik, the learned Senior Public Prosecutor.
4. The learned counsel for the petitioner
submitted that the petitioner is totally innocent of the
accusations levelled against him. He has been falsely
implicated in the crime. The petitioner is only the
owner of the property from where the explosives were
allegedly recovered, which is lying vacant and barren.
In fact, there are other quarries in the locality. The
remnants of the explosives allegedly recovered from
the petitioner's property may be due to the illegal use
by the petitioner's neighbours. The petitioner
apprehends that, it is out of the previous animosity of
some person that the petitioner has been falsely
implicated in the crime. The petitioner is further
apprehensive that if he is arrested by the Police, he
would suffer custodial torture. In any given case, the
petitioner's custodial interrogation is not necessary
and no recovery is to be effected. Hence, the
application may be allowed.
5. The learned Public Prosecutor seriously
opposed the application. He submitted that the
remnants of the explosives were recovered from the
petitioner's property. The petitioner is solely
responsible to explain the circumstances under which
the explosives were stored in his property. The
petitioner's custodial interrogation is necessary, and
recovery is to be effected. Moreover, the Court of
Session, Manjeri, has already dismissed the petitioner's
application for an order of pre-arrest bail by
Annexure-1 order. Despite the learned Sessions Judge,
directing the petitioner to surrender before the
Investigating Officer on or before 15.03.2024, he has
failed to surrender. The present application is nothing
but a sheer abuse of the process of law. If the
petitioner is granted an order of pre-arrest bail, it
would torpedo the investigation. Hence, the
application may be dismissed.
6. The prosecution allegation against the
petitioner is that, he has committed the offences under
Sections 4 & 5 of the Act for using explosive
substances by endangering human life and property,
without having a valid licence. The bone of contention
of the petitioner is that he is not using the property for
any quarrying activity. The remnants that have been
recovered from the petitioner's property may be due to
some mischief committed by his neighbours to get the
petitioner framed in the present case.
7. Section 4 of the Act states that any person
who is in possession or under control of any explosive
substance is liable to be prosecuted. The prosecution
allegation is that remnants were recovered from the
the petitioner's property. Merely because the
petitioner states that he is not using the property, the
same cannot be a ground to hold that the petitioner
has not committed the offence, especially because he is
the owner of the property and is responsible to account
for whatever happens in his property.
8. On a perusal of the materials on record, it is
seen that the petitioner had filed a similar application
before the Court of Session, Manjeri, which was
dismissed by Annexure-1 order, on finding that the
remnants were recovered from the property of the
petitioner. Although the learned Sessions Judge
directed the petitioner to surrender before the
Investigating Officer before 15.03.2023, he has failed
to make use of the benefit of the order.
9. Recently, in Srikant Upadhyay v. State of
Bihar [2024 KHC OnLine 6137] the Hon'ble Supreme
Court, after referring to a plethora of judgments on the
powers under Section 438 of the Code has observed as
follows:
"8. It is thus obvious from the catena of decisions dealing
with bail that even while clarifying that arrest should be the last
option and it should be restricted to cases where arrest is
imperative in the facts and circumstances of a case, the consistent
view is that the grant of anticipatory bail shall be restricted to
exceptional circumstances. In other words, the position is that the
power to grant anticipatory bail under S.438, CrPC is an
exceptional power and should be exercised only in exceptional
cases and not as a matter of course. Its object is to ensure that a
person should not be harassed or humiliated in order to satisfy the
grudge or personal vendetta of the complainant. (See the decision
of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr., 2010 (1)
SCC 679).
xxx xxx xxx
24.We have already held that the power to grant anticipatory
bail is an extraordinary power. Though in many cases it was held
that bail is said to be a rule, it cannot, by any stretch of
imagination, be said that anticipatory bail is the rule. It cannot be
the rule and the question of its grant should be left to the cautious
and judicious discretion by the Court depending on the facts and
circumstances of each case. While called upon to exercise the said
power, the Court concerned has to be very cautious as the grant of
interim protection or protection to the accused in serious cases
may lead to miscarriage of justice and may hamper the
investigation to a great extent as it may sometimes lead to
tampering or distraction of the evidence. We shall not be
understood to have held that the Court shall not pass an interim
protection pending consideration of such application as the Section
is destined to safeguard the freedom of an individual against
unwarranted arrest and we say that such orders shall be passed in
eminently fit cases. xxx xxx"
10. In Jai Prakash Singh v. State of Bihar and
another [(2012) 4 SCC 379], the Hon'ble Supreme
Court has held that, an order of pre-arrest bail being
an extra ordinary privilege, should be granted only in
exceptional cases. The judicial discretion conferred
upon the Courts has to be properly exercised, after
proper application of mind, to decide whether it is a fit
case to grant an order of pre-arrest bail. The court has
to be prima facie satisfied that the applicant has been
falsely enroped in the crime and his liberty is being
misused.
11. After considering the facts, the rival
submissions made across the Bar, and the materials
placed on record, especially on comprehending the
seriousness, gravity, and nature of the offences alleged
against the petitioner, that the petitioner's custodial
interrogation is necessary and the investigation is only
at its nascent stage, I am not satisfied that the
petitioner has made out any exceptional ground to
invoke the extraordinary jurisdiction of this Court
under Section 438 of the Code. Hence, I hold that this
is not a fit case to grant an order of pre-arrest bail.
Consequently, the bail application is dismissed.
Sd/-
C.S.DIAS,JUDGE
DST/21.05.24 //True copy//
P.A. To Judge
