Annie Mathew and others v. State of Kerala and Circle Inspector of Kumily Police Station, Crime No. 7/2018

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 25TH DAY OF JUNE 2018 / 4TH ASHADHA, 1940** **Bail Appl..No. 174 of 2018** ## **--------------------------** ## **CRIME NO.7/2018 OF KUMILY POLICE STATION, IDUKKI.** **.......** ## **PETITIONER(S)/ACCUSED:** **---------------------** **1. ANNIE MATHEW, AGED 41 YEARS, D/O. MAMMEN MATHEW, BLUE ROSE AGRO PLANTATIONS, CHENKARA POST, KUMILY, IDUKKI.** **2. KUNJUKUTTY, AGED 65 YEARS, S/O. GEORGE THIRUVANCHAN, PERAKKAL HOUSE, CHENKARA, KUMILY.** **3. ABDUL KHADER, AGED 52 YEARS, S/O. SHAHUL HAMEED, H.M.L LAYAM, CHENKARA POST, KUMILY.** **4. NAGARAJ, AGED 51 YEARS,S/O. MAYAN, AMBEDKAR COLONY, CHENKARA POST, KUMILY.** **5. GODLEY DEV, AGED 40 YEARS, S/O. J.C DEV,CHITTILAPPALLY HOUSE, NEDUNGADAPPALLY POST, KARUKACHAL.** **6. ASKAR K, AGED 26 YEARS, S/O. ABUBACKER, BHAMPUMGAYAM HOUSE, PANATHOOR POST, KASARKODE.** **BY ADVS.SRI.LIJU.V.STEPHEN SMT.INDU SUSAN JACOB** ## **RESPONDENT(S)/COMPLAINANT:** **-------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **2. THE CIRCLE INSPECTOR OF POLICE, OFFICE OF THE C.I OF POLICE, KUMILY, IDUKKI - 685 509.** **Bail Appl..No. 174 of 2018 --------------------------** ## ***ADDL. R3 IMPLEADED** **3. M.K. JOY, AGED 58 YEARS, S/O.M.C. KORA, MUNDUKOTTAKKAL(H), CHETHAKAL KARA, RANNI, PATHANAMTHITTA - 689 677.** **ADDL. R3 IS IMPLEADED AS PER ORDER DATED 11.6.2018 IN CRL.MA.517/2018.** **R1 & R2 BY SENIOR PUBLIC PROSECUTOR SRI.D. CHANDRASENAN ADDL. R3 BY ADV. SRI.A.T.ANILKUMAR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20-06-2018, THE COURT ON 25-06-2018 PASSED THE FOLLOWING:** **mbr/ 25.06.2018.** ## **R.NARAYANA PISHARADI, J** ------------------------------------------------------ B.A.No.174 of 2018 -----------------------------------------------Dated this the 25[th] day of June, 2018 ## **ORDER** This is an application for anticipatory bail filed under Section 438 Cr.P.C. 2. The petitioners are accused 1 to 6 in the case registered as Crime No.7/2018 of the Kumily Police Station under Sections 143, 147, 148, 506(1), 447 and 436 read with 149 I.P.C. 3. The prosecution case is that on 3.1.2018, at about 12.30 hours, the accused together criminally trespassed into the Mundukottakkal Estate and after ousting the employees who were inside two sheds in the estate, they set fire to the sheds and thereby committed mischief by fire. It is alleged that pesticide being used for spraying on cardamom plants, worth about Rs.1,00,000/-, which was kept in the sheds was destroyed. 4. Heard the learned counsel for the petitioners _**B.A.No.174 of 2018**_ 2 and the learned Public Prosecutor. Heard also the learned counsel for the additional third respondent in the bail application, who has got himself impleaded in the application, claiming that he has sustained loss on account of the act of the accused. I have also perused the case diary. 5. The case is registered on the basis of the statement given to the police by one of the employees of the Mundukottakkal Estate. In the first information statement given by him to the police, it is stated that while he was working in the estate near one of the sheds, the accused together reached there in a jeep and they forcibly evicted the employees, who were having food inside the shed, and thereafter, the first and the sixth accused set fire to the shed. He has also stated that the pesticide kept in the shed for spraying on cardamom plants was destroyed in the fire. 6. Learned counsel for the petitioners would _**B.A.No.174 of 2018**_ 3 submit that there is dispute over the property pending before the civil court. He would submit that the property in which the sheds were located actually belongs to one Biju Mathew and the property is in the possession and enjoyment of the company by name M/s.Blue Rose Agro Plantations Pvt. Ltd and that the first petitioner is one of the Directors of this company and she is also its General Manager. Learned counsel for the petitioners has invited the attention of this court to the judgment of the Sub Court, Kattappana in C.M.A.No.23 of 2016, produced as Annexure-VI and contended that the property was in the possession of the aforesaid company and it did not belong to Mundukottakkal Estate. 7. As far as the offence punishable under Section 436 I.P.C is concerned, who is the owner or who is in possession of the property, is immaterial. Moreover, the incident alleged had occurred on 3.1.2018. Copy of the order of this Court in O.P.(C)No.1786 of 2017, produced _**B.A.No.174 of 2018**_ 4 by the petitioners themselves as Annexure-VII, would show that this Court had directed the parties to maintain _status quo_ as it existed on the date of the impugned order passed by the lower appellate court, that is, 20.3.2017. If that be so, none of the parties could have made any change in the property. 8. Section 436 of the Indian Penal Code reads as follows: "436. Mischief by fire or explosive substance with intent to destroy house, etc. -- Whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." 9. In order to attract Section 436 of the Indian Penal Code, the following ingredients must be satisfied: i) There _**B.A.No.174 of 2018**_ 5 must be commission of mischief by fire or any explosive substance. ii) It should have been committed intending to cause, or knowing it to be likely that the accused will thereby cause the destruction of any building. iii) The building should be one which is ordinarily used as a place of worship or as a human dwelling or as a place for custody of property. ## 10. Mischief is defined under Section 425 of the Indian Penal Code thus: "425. Mischief. -- Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits mischief." 11. To attract the definition of mischief, it is not necessary that there should be destruction of any property. It is sufficient if there occurs a change in the property or in the situation thereof as to destroy or _**B.A.No.174 of 2018**_ 6 ## diminish its value or utility or to affect it injuriously. ## 12. In _**Indian Oil Corporation v. NEPC India**_ _**Ltd.:AIR 2006 SC 2780**_ , it has been held as follows: “The three ingredients of the section are: (i) intention to cause or knowledge that he is likely to cause wrongful loss or damage to the public or to any person; (ii) causing destruction of some property or any change in the property or in the situation thereof; and (iii) the change so made destroying or diminishing the value or utility or affecting it injuriously. For the purpose of S.425, ownership or possession of the property are not relevant. Even if the property belongs to the accused himself, if the ingredients are made out, mischief is committed.” (emphasis supplied). Therefore, it is immaterial whether the property, wherein the shed which was put to fire was located, was under the ownership or possession of the accused. 13. In the instant case, as noticed earlier, the person who gave first information statement to the police has stated that he saw the first and the sixth accused _**B.A.No.174 of 2018**_ 7 committing the act of mischief by setting fire to one of the sheds. The case diary also contains the statements of three witnesses who have stated to the police that they saw the first and the sixth accused committing the act of mischief by setting fire to one of the sheds. Therefore, _prima facie,_ there is sufficient material to find that the first and the sixth petitioners, who are the first and the sixth accused in the case, had set fire to one of the sheds and committed the act of mischief by fire. 14. As far as Section 436 IPC is concerned, the intention or knowledge of the accused is the relevant criterion. Actual destruction of the building is not always necessary to attract Section 436 IPC. It is also not necessary that the building should be destroyed by fire or severely damaged. It is sufficient if there was every likelihood of the building being destroyed by fire by the criminal act of mischief by fire. The intention to destroy any building or the knowledge of the likelihood of 8 ## _**B.A.No.174 of 2018**_ destruction of the building, are all matters for evidence. Intention or knowledge is a state of mind which could be decided only on appreciation of evidence or on consideration of the materials on record or both. Considering the nature and gravity of the act allegedly committed by the first and the sixth accused in the case, I am not inclined to grant them the benefit of pre-arrest bail. 15. However, the case against the other petitioners, who are accused 2 to 5, stands on a different footing. There is no allegation against them that they actually set fire to the shed. There is also no material to find that they gave any help or assistance to the first and the sixth accused to set fire to the shed. There is no allegation against them that they had in any manner participated in the act of committing mischief by fire. Considering these aspects, I am inclined to grant them the benefit of prearrest bail provided they would co-operate with the _**B.A.No.174 of 2018**_ 9 investigation of the case. 16. In the result, the prayer for granting anticipatory bail to first and the sixth petitioners, who are the first and the sixth accused in the case, is rejected. Pre-arrest bail is granted to the other petitioners, who are accused Nos. 2 to 5 in the case, on the following conditions: 1) Petitioners 2 to 5 shall be released on bail on executing a bond for Rs.50,000/-(Rupees Fifty Thousand only) each with two sureties each for the like amount in the event of their arrest by the police in Crime No.7/2018 of the Kumily Police Station. 2) Before releasing petitioners 2 to 5 on bail, the Investigating Officer is entitled to interrogate them. They shall co-operate with the investigation of the case. 3) Petitioners 2 to 5 shall report before the Investigating Officer on all Mondays between 9.a.m and 11.a.m for a period of four months or till the final report 10 ## _**B.A.No.174 of 2018**_ is filed, whichever is earlier. 4) Petitioners 2 to 5 shall make themselves available for interrogation as and when required by the Investigating Officer in writing to do so. - 5) Petitioners 2 to 5 shall not influence or intimidate - the prosecution witnesses. 6) If petitioners 2 to 5 violate any of the conditions of bail, it is open to the Court having jurisdiction over the case to cancel their bail without any further orders from this Court but in accordance with law. _Sd/-_ ## **R. Narayana Pisharadi, Judge** _//True Copy//_ _P.A. To Judge_ ss