Ajith Kumar vs Station House Officer Sulthan Bathery Police Station, Wayanad District - 673 592

K.Haripal, J

This is an application filed by the accused in crime No.229/2021 of Sulthan Bathery police station, which was initially registered alleging offence

under Section 286 IPC and Section 9B(1)(d) of the Explosives Act, 1884. The genesis of the crime is a very tragic incident that had happened on

22.04.2021 in a shed adjacent to House No.XIV/522 in Sulthan Bathery Municipality area near Sagar theatre at Karakkandy. The said house belongs

to one Radhakrishnan, who is presently employed abroad in Bahrain. During 2017-2018 that house was leased out to the petitioner Ajith Kumar who

was running a hotel and business in crackers and explosive substances in Sultan Bathery. The prosecution alleges that, as part of his business he had

stored explosive items in the shed. Even though he had vacated the house and stopped the business, he failed to remove the explosive items stored

there and the three teenage boys namely, Firoz, Ajmal and Murali who happened to enter into the shed and one of them had ignited a matchbox which

led to the setting of fire of the crackers and an explosion took place and all of them sustained grievous burn injuries. Later they succumbed to the

injuries. All the three boys died in the incident.

During the course of investigation Section 304 of the IPC also has been incorporated and now apprehending arrest the petitioner has moved this

Court.

Earlier he had moved an application under section 438 of the Cr.P.C. before the Sessions Court, Kalpetta, which was dismissed by order dated

31.05.2021 and seeking the very same relief he has moved this Court.

I heard the learned counsel on both sides.

According to the learned counsel for the petitioner, in order to attract Section 304 of the IPC it is imminent that the facts should come within the

scope of Section 299 of the IPC and there must be overt act on the part of the accused that he had done something with the intention of causing

death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death,

then only culpable homicide will be attracted, here even the prosecution does not have a case that the petitioner had not done any overt act so as to

attract the offence alleged against the petitioner.

The learned Public Prosecutor has opposed the application. According to the senior Public Prosecutor Sri. Santhosh Peter, even though the

petitioner had been stocking explosive substances in the shed where the explosion had happened, in spite of insistence by the house owner, the

petitioner failed to remove the explosive items from the shed and that led to the sad incident in which three valuable lives were lost.

I have also gone through the case diary. The crime was originally registered alleging offence under Section 286 and 9B(1)(d) of the Explosives Act.

There no one has been named as accused. During the course of investigation, it came out that the said the building belongs to one Radhakrishnan who

is presently working abroad; he is working in Bahrain from 2004 onwards, he had purchased this building and 12 cents of land along with the shed but

had never resided there. The building was leased out to Ajith Kumar, the petitioner in 2017. He occupied the building till 2018 and vacated the

premises in November 2018. During the period he had kept all his items in the shed including explosives. The children happened to get inside the shed

on the fateful day in the pretext of consuming some juice and then one of the diseased, Murali had ignited a matchbox and accidentally the explosives

which were kept there caught fire and an explosion took place and all the three boys were burnt in the incident. Out of pain, they ran out of the shed

and jumped into a pond in the paddy field. In fact, such an act of the children had aggravated the burn injuries and later they succumbed to the injuries.

As rightly pointed out by the learned counsel for the petitioner, in order to attract an offence under Section 304 IPC, which is the major offence

now alleged against the petitioner, it is very important that the ingredients of Section 299 should come into play. In other words there must be an act

with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely

by such act to cause death. Then only culpable homicide can be attributed against the person who allegedly did something. Here the prosecution

records do not suggest that the petitioner had done any overt act with the intention or knowledge that his act would cause culpable homicide. Secondly,

the children were playing in the surroundings; they had gone into the shed allegedly for taking some juice carried by them. It is not known as to why

they had gone into the shed for consuming juice. May be they had gone into the shed which was remaining unlocked. Whatever it may be, the

immediate reason for explosion is the kindling of the substance by one of the children Murali by using a matchbox. In other words, the said explosion is

attributable to the acts of the children itself. Whatever it may be, what I wanted to highlight is that no overt act can be said to have been committed by

the petitioner which led to the explosion, even though he ought not to have left the items exposed to such acts, especially to children.

Moreover, perusal of the case diary only indicates that the petitioner had acted negligently. If he was only acting negligently, necessarily that cannot

attract offence under Section 304 of the IPC. In fact, ingredients of Section 304 IPC and that of Section 286 of the IPC cannot go to there. Whatever

it be, I am not convinced that custodial interrogation of the petitioner is warranted in the case. Only thing is that he should co-operate with the

investigation.

The learned counsel submits that he is prepared to co-operate with the investigation and that the means, petitioner can be granted anticipatory bail.

In the result, the application is allowed. The petitioner shall surrender before the Investigating Officer within 10 days from today and make himself

available for interrogation. He shall also produce all necessary documents before the Investigating Officer. In the event of arrest he shall be released

on bail on executing bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the

Investigating Officer; he shall co-operate with the investigation, shall not try to contact or induce the witnesses or tamper with the evidence and shall

not involve in any crime during the period on bail.

The bail application is allowed as above.