Sajeev Kumar M.N vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 2, 3, 4 and 12 in Crime No.242/2024 of the Hill Palace Police Station, Ernakulam, registered against the accused, for allegedly committing the offences punishable under Sections 286, 304, 308, 337, 427, 212 read with 34 IPC, Section 3(a) of Explosive Substances Act 1908 and Section 9(B) (1) (b) of Explosive Act. The petitioners were arrested on 29.02.2024.

The gravamen of the prosecution allegation is that: On 12.2.2024, the accused Nos.7, 8, 29 to 31 led by the 1st accused (the contractor), on instructions from the accused Nos. 2 to 6 and 9 to 28 - the members of Vadakkumpuram Thalappoli Festival Committee, the Office bearers of Vadakkumpuram Karayogam and the Office bearers of the Temple Devaswom- brought raw materials and explosive substances in a 17 seater tempo traveller van bearing No.KL– 07–CB–7133, without any licence or permission from Pothencode, Thiruvananthapuram, being aware that it could cause harm to life and property and even death. The explosives were unloaded and unlawfully stored in a shed built on 70 cents of land belonging to Vadakkumpuram Nair Karayogam, situated on the southern margin of the YMA Road. Due to the careless handling of the explosives, an explosion took place resulting in the death of Vishnu and Anil, causing grievous injuries to 12 persons, extensive damage to 15 nearby houses, leaving them unfit to dwell, and damage to 300 houses and vehicles parked in the locality. The accused Nos. 1 to 34, including the accused Nos.32 to 34, who harboured the accused persons 9 to 11, have committed the offences punishable under Sections 286, 304, 308, 337, 427, 212 read with 34 IPC, Section 3(a) of Explosive Substances Act 1908 and Section 9(B) (1) (b) of Explosive Act.

Heard; Sri. P.Vijayabhanu, learned Senior Counsel appearing for the petitioners and Smt.Neema.T.V, the learned Senior Public Prosecutor.

The learned Senior Counsel appearing for the petitioners strenuously argued that the accused have no complicity in the crime. In any given case, the offences under Secs.304 and 308 of the Indian Penal Code or Sec.4 of the Explosives Substances Act cannot be attributed against the petitioners. The petitioners are the respectable persons of the locality and have no criminal antecedents. The petitioners were only glorified volunteers for the temple festival. They have no complicity in the crime. It was only due to the laches on the part of the contractor, who transported the explosives from Thiruvananthapuram without any licence that the explosion happened. The petitioners cannot be attributed with any of the offences charged against them. The petitioners have been languishing in the jail for the last 55 days. There is no useful purpose for their further detention, especially since the investigation is complete and recoveries have been effected. The petitioners are willing to abide by any stringent condition that may be imposed by this Court.

The learned Public Prosecutor opposed the application. He submitted that although the investigation is practically complete, the final report has not been laid. If the petitioners are enlarged on bail, there is a likelihood of the petitioners interfering with the investigation and tampering with the evidence. Hence, the application may be dismissed.

By common order dated 2.4.2024 in BA Nos.2285 and 2498 of 2024, this Court had dismissed the earlier applications filed by the petitioners on the prima facie finding that the Temple Devaswom, Karayogams and Committees had an integral part in conducting the firework display in connection with the temple festival and the investigation was only at its preliminary stage. Moreover, as two lives were lost and substantial damages were caused to 321 dwellings, scientific evidence also had to be collected. This Court also directed the Kerala State Legal Services Authority (KELSA) to explore the possibility of organizing an Adalath and making an endeavour to redress the grievances of the persons affected by the explosion.

It has now been brought to the notice of this Court that, the KELSA has already conducted an Adalath and all the affected parties have submitted their grievances. KELSA is also putting in every effort to redress the grievances of the affected parties.

It is also not disputed by the prosecution that the investigation is complete and recoveries have been effected. All that now remains to be done is the filing of the final report.

In Sanjay Chandra v. CBI, [2012 1 SCC 40], the Honourable Supreme Court has categorically held that the fundamental postulate of criminal jurisprudence is the presumption of innocence, until a person is found guilty. Any imprisonment prior to conviction is to be considered as punitive.

In Dataram Singh v. State of U.P., [(2018) 3 SCC 22] the Honourable Supreme Court observed that grant of bail is the rule and putting a person in jail is an exception. Even though the grant of bail is entirely the discretion of the court, it has to be evaluated based on the facts and circumstances of each case and the discretion has to be exercised in a judicious and compassionate manner.

In State of Kerala v. Raneef, [(2011) 1 SCC 784], the Honourable Supreme Court has declared that undertrial prisoners detained in jail for indefinite periods, without any sufficient reason or due to the delay in concluding the trial, will tantamount to infringement of their right to life guaranteed under Article 21 of the Constitution.

In Hussainara Khatoon (I) v. Home Secy., State of Bihar [(1980) 1 SCC 81], the Honourable Supreme Court while dealing with a case of under trials, who suffered long incarceration, held that the procedure that keeps large number of people behind the bars without trial for long is unreasonable and unfair, and is not in conformity with the mandate of Article 21 of the Constitution of India.

The principle that bail is the rule and jail is an exception is on the touch stone of Article 21 of the Constitution of India. Once the charge sheet is filed, a strong case has to be made out for continuing a person in judicial custody. The right to bail cannot be denied merely due to the sentiments of the society.

After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, particularly on comprehending the fact that the petitioners have been in judicial custody for the last 55 days, the investigation in the case is complete and recoveries have been effected and all that remains to be done is the filing of the final report, I am of the firm view that the petitioners’ further detention is unnecessary. Hence, I am inclined to allow the bail applications, but subject to stringent conditions.

In the result, the application is allowed, by directing the petitioners to be released on bail on them executing a bond for Rs.1,00,000/- (Rupees One Lakh only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions:

(i) The petitioners shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final  report  is  laid.   They  shall  also  appear  before  the Investigating Officer as and when directed by the Investigating Officer;

(ii) The petitioners shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;

(iii) The petitioners shall not commit any offence while they are on bail;

(iv) The petitioners shall surrender their passports, if any, before the court below at the time of execution of the bond. If they have no passports, they shall file affidavits to the effect before the court below on the date of execution of the bond;

(v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law.

(vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below.

(vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners even while the petitioners are on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663].

(xi) Any observations made in this order is only for the purpose of deciding the application and the same shall not be construed as an expression on the merits of the case, which is to be decided by the competent Court(s).