Fasil P vs State Of Kerala

This is an application filed u/s 438 of Code of Criminal Procedure seeking pre-arrest bail.

The petitioner is the accused in Crime No.139/2021 of Tanur Police Station, Malappuram. The offences alleged are under Section 379 of IPC and

Ss.20 and 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (hereinafter referred to as the Act).

The prosecution case in short is that on 11/4/2021 at about 11.30 a.m., the petitioner was found transporting river sand illegally in the lorry bearing

Registration .No KL-47 5679 belongs to him and thereby committed the offence.

Heard both sides and perused the case diary.

The learned counsel for the petitioner submitted that the petitioner is absolutely innocent and he has been falsely implicated in the present case. He

further submitted that there are no materials to connect the petitioner with the alleged crime and hence he is entitled to get bail. The learned Public

Prosecutor opposed the bail application. He contended that the alleged incident occurred as a part of the intentional criminal acts of the petitioner and

if the petitioner is released on bail at this stage, it would affect the course of investigation.

The only non bailable offence alleged is u/s 379 of IPC. The offence under Sections 20 and 23 of the Act are bailable. When there is

specific/special law covering the question of theft of river sands, the general law contained in S.379 of IPC may not be applicable. The investigation is

almost over and the recovery of sand and vehicle used for the commission of the offence has already been effected. Considering the allegations

levelled against the petitioner, his custodial interrogation does not appear to be necessary. For all these reasons, the petitioner is entitled to pre-arrest

bail on conditions.

In the result, the application is allowed on the following conditions:-

(i) The petitioner shall be released on bail in the event of his arrest on executing a bond for `1,00,000/- (Rupees One lakh only) with two solvent

sureties for the like sum each to the satisfaction of the arresting officer/investigating officer, as the case may be.

(ii) The petitioner shall fully co-operate with the investigation, including subjecting himself to the deemed police custody for the purpose of discovery, if

any, as and when demanded.

(iii) The petitioner shall appear before the investigating officer between 10.00 a.m and 11.00 a.m on every Saturday until further orders. The petitioner

shall also appear before the investigating officer as and when required by him.

(iv) The petitioner shall not commit any offence of like nature while on bail.

(v) The petitioner shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or any other way try to

tamper with the evidence or influence any witnesses or other persons related to the investigation.

(vi) The petitioner shall not leave State of Kerala without the permission of the trial Court.