IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 29^TH DAY OF AUGUST 2024 / 7TH BHADRA, 1946 BAIL APPL. NO. 4365 OF 2024 CRIME NO.713/2024 OF Tirur Police Station, Malappuram PETITIONER/S:

1 SHAHUL HAMEED,AGED 34 YEARS SON OF HAMZA, KOYYASANTAKATH, PADINJAREKKARA P.O, TIRUR, MALAPPURAM, PIN - 676562

2 IQBAL,AGED 27 YEARS SON OF HAMZA, KOYYASANTAKATH, PADINJAREKKARA P.O, TIRUR, MALAPPURAM, PIN - 676562 BY ADVS.

P.M.ZIRAJ IRFAN ZIRAJ RESPONDENT/S:

1 STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031

2 THE SUB INSPECTOR OF POLICE, TIRUR POLICE STATION, MALAPPURAM DISTRICT, PIN -

676101 SMT.M.K PUSHPALATHA, SR.PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON

29.08.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

C.S.DIAS,J ======================

BA No. 4365 of 2024 -----------------------------------

Dated this the 29^th day of August, 2024

O R D E R

The application is filed under Section 438 of the Code of Criminal Procedure, for an order of pre-arrest bail.

2. The petitioners are the accused 1 and 2 in Crime No.713 of 2024 of the Tirur Police Station, Malappuram, which is registered against them for allegedly committing the offences punishable under Section 379 of the Indian Penal Code and Secs 20 and 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. 3. The crux of the prosecution case is that: on

12.5.2024, at around 7.10 hours, the accused had committed theft of river sand by using a lorry bearing registration No.KL

45/A 9243. The accused did not have any valid permit to remove the sand. Thus, the accused have committed the above offences.

4. Heard; Sri.P.M Ziraj, the learned counsel for the petitioners and Smt.M.K Pushpalatha, the learned Public Prosecutor.

5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. There is no material to substantiate that the petitioners have committed the above offences. This Court has categorically held that the offence under Sec.379 of the IPC will not be attracted in the case where the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act is made applicable. Sec.379 of the IPC is only a non-bailable offence. Hence, the entire proceedings are unsustainable in law. Therefore, the petitioners are entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. She submitted that there are incriminating materials to substantiate the petitioners’ involvement in the crime. The petitioners are inveterate criminals since the first petitioner is involved in 19 cases and the second petitioner is involved in 11 cases. If the petitioners are granted an order of pre-arrest bail, there is every likelihood of them tampering with the evidence and intimidating the witnesses. Hence, the application may be dismissed.

7. The prosecution allegation against the petitioners is that, they committed theft of the river sand with a vehicle bearing registration No.KL 45/A 9243. Whether the offence under Sec.379 of the IPC is attracted or not, is a matter to be investigated and decided at the time of trial.

8. In Srikant Upadhyay v. State of Bihar [2024 KHC OnLine 6137], the Hon’ble Supreme Court, after referring to the earlier precedents on the point, has succinctly laid down the law in the following lines:

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 obje