Varghese P C vs State Of Kerala

C.S.Dias, J

The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for the sake of brevity), of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail.

The petitioners are the accused Nos.15 & 16 in Crime No.240/2024 of Hill Palace Police Station, Ernakulam, registered against the accused (19 in number), for allegedly committing the offences under Section 286 of the Indian Penal Code, 1860 (IPC), Section 118(f) of the Kerala Police Act (KP Act),and Section 9 (B) (1) (b) of the Explosive Substances Act, 1884 (Amendment 2013 & 2014). Subsequently, Section 308 of the IPC and Section 3(a) of the Explosive Substances Act, 1908( in short, ‘Act’) have been incorporated.

The gravamen of the prosecution allegation is that; on 11.2.2024, at around 20.30 hours, when the Sub Inspector of Police and a Civil Police Officer named ‘Sharath’ of Hill Palace Police Station were on patrolling duty they saw explosives stored inside the compound of the Puthiyakavu Temple for the purpose of conducting fireworks. Then they approached the organisers and enquired whether they had the permission to store the explosives or conduct the fireworks. They answered that they did not have the permission. After ensuring the law and order of the locality, they returned to the Police Station and registered the crime against the President, Secretary and ten identifiable persons for the offences punishable under Sections 286 of IPC, Section 118(f) of the KP Act and Section 9(B)(1) (b) of the Indian Explosives Act.

Heard Sri.Ananthakrishnan A. Kartha, the learned counsel appearing for the petitioners and Smt.Neema T.V., the learned Senior Public Prosecutor appearing for the respondents.

The learned counsel appearing for the petitioners submits that the petitioners are totally innocent of the accusations levelled against them. The first petitioner/15th accused had the requisite licence to store the explosive substances and manufacture the fireworks and its display. The second petitioner/ 16th

accused is only an agriculturist. He has no connection with the incident. He has been implicated on the ground that he is the employee of the first petitioner. The case has been registered for the unauthorised storage of explosives, which are all bailable in nature. After an alleged explosion took place on the following day i.e., 12.02.2024, Crime No.242/2024 was registered against 34 persons. Then, the investigation was handed over to the Assistant Commissioner of Police, who subsequently added Section 308 of the IPC and Section 3(a) of the Act. In the above crime, the said offences, by no stretch of imagination, can be attracted. A reading of the remand report filed by the Investigating Officer would show that only the President, Secretary and 10 unknown persons were initially implicated as accused for illegal storage of the explosives. Subsequently, nine other persons have been implicated. Except for a vague and omnibus allegation against the petitioners, there is nothing on record to implicate them. Annexure-II document would show that the first petitioner had the requisite licence to store the fireworks. The explosion that took place the following day has no connection with the present crime. By Annexure-III order, the learned Sessions Judge has committed an error by intertwining the allegations in the two crimes. The learned Sessions Judge ought to have independently considered the applications in the two crimes and adverted to the accusations separately. The petitioners’ custodial interrogation is not necessary, and no recovery is to be effected. Therefore, the petitioners are entitled for an order of pre-arrest bail.

The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report. He has contended that even though the first petitioner had the licence to manufacture a certain quantity of fireworks, he did not have permission to conduct the firework display at the Puthiyakavu Temple. The petitioners had a massed explosives illegally and displayed fireworks at the Puthiyakavu Temple. The first petitioner has been in the field of fireworks for many years. He has full knowledge that firework display can only be conducted with proper permission and licence. The investigation in the case is only at its preliminary stage. The petitioners’ custodial interrogation is necessary, and evidence is to be collected. If the petitioners are granted an order of pre-arrest bail, they may tamper with the evidence and also flee from justice. Hence, the application may be dismissed.

The prosecution allegation in the present crime is that, on 11.02.2024, at around 20.30 hours, when the Sub Inspector of Police and a Civil Police Officer were conducting the patrolling duty, they witnessed the explosives stored in the Puthiyakavu Temple compound. The Sub Inspector enquired with the organisers and learnt that they had no valid licence to store the explosives or permission to conduct the fireworks. Consequently, the Sub Inspector of Police registered Crime No.240/2024 (Annexure A1 FIR) on the very same night at 23.35 hours against the President and Secretary of the Temple Committee and ten identifiable persons for the offences already narrated above.

Section 286 of the IPC is the offence for negligent conduct with respect to explosive substances, which is punishable for a period of six months, or with a fine which may extend to Rs.1,000/-. Similarly, Section 118 (f) of the KP Act is the penalty for transporting explosive articles or dangerous substances without being lawfully authorized, which is punishable for a term which may extend to three years or with fine not exceeding to Rs.10,000/-. Likewise, Section 9(B) (1) (b) of the Explosives Act is the offence for possessing, using, selling or transporting any explosives, which is punishable for a period of two months. Thus, only Section 118 (f ) of the KP Act is punishable for a period upto three years. As per Section 125 of the KP Act, an offence under Section 118 is cognizable and bailable.

The fact remains that, even though the Sub Inspector of police saw the explosive substances stored in the compound and ascertained that the organizers did not have the licence to store them or the permission to use them, no action was taken, then and there, against the accused. Instead, she proceeded to the Police Station and registered Annexure AI FIR only at 23.35 hours.

It was on the following day, the alleged explosion took place at 10.30 hours and Crime No.242/2024 was registered against 34 accused for allegedly committing the offences punishable under Sections 304, 308, 427 & 337 read with Section 34 of the IPC and Section 4 of the Act.

The materials on record reveal that consequent to the explosion, the investigation in the crime was transferred to the Assistant Commissioner of Police who has subsequently filed an additional report in the instant crime incorporating the offences under Section 308 of IPC and Section 3(a) of the Act,

which are non-bailable offences.

A careful reading of Annexure-I FIR undoubtedly establishes that the crime is registered as against the accused for unauthorisedly storing the explosives. The explosion took place on the following day is a separate and distinct incident for which Crime No.242/2024 is registered against 34 accused. The said accused are still in judicial custody.

On an overall consideration of the facts, the rival submissions made across the Bar and the materials placed on record, especially on comprehending the specific accusations attributed against the petitioners in Annexure -I FIR and that the present crime has nothing to do with Crime No.242/2024, which is registered in connection with the explosion that took place at the Puthiyakavu Temple, that the petitioners’ custodial interrogation is not necessary and no recovery is to be effected, I am of the firm view that the petitioners’ have made out exceptional grounds to invoke the extra ordinary jurisdiction of this Court under Section 438 of the Code. Hence, I am inclined to allow the bail application.

In the result, the application is allowed subject tothe following conditions:

(i) The petitioners are directed to surrender before the Investigating Officer within one week from today;

(ii) In the event of the petitioners’ arrest, the Investigating Officer shall produce them before the jurisdictional court on the date of surrender itself;

(iii)On such production, the jurisdictional court shall release the petitioners on bail on them executing a bond for Rs.1,00,000/- (Rupees One Lakh only) each with two solvent sureties for the like amount each, to the satisfaction of the jurisdictional court;

(iv) The petitioners shall co-operate with the investigation and make themselves available for interrogation and for the purpose of investigation as and when the Investigating Officer directs;

(v) The petitioners shall not intimidate witnesses or interfere with the investigation in any manner;

(vi) The petitioners shall not get involved in any other offence while on bail.

(vii)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;

(viii)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.

(ix)Applications for deletion/modification of the bail conditions shall also be filed before the court below.

(x) 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 to be decided by the Courts..