Arun Kumar v. State of Kerala and Anil Kumar v. State of Kerala (Bail Applications Nos. 2199/2024 & 2280/2024)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 21[ST] DAY OF MARCH 2024 / 1ST CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 2199 OF 2024 ``` ``` CRIME NO.240/2024 OF HILL PALACE POLICE STATION, ERNAKULAM ``` ## **`PETITIONER/ACCUSED:`** ``` ARUN KUMAR AGED 41 YEARS ``` ``` S/O MOHANAN, KALLATH HOUSE, PUTHIYAKAVU DESOM, THRIPUNITHURA KARA, NADAMA THEKKUMBAGHOM VILLAGE, THEKKUMBAGAM PUTHIYAKAVU, TRIPUNITHURA P.O, ERNAKULAM, PIN - 682031 ``` ``` BY ADV SUVIN.R.MENON ``` ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** - **`2 STATE OF KERALA HILL PALACE POLICE STATION, TRIPUNITHURA PO, ERNAKULAM, PIN – 682301`** ``` SR.PUBLIC PROSECUTOR SRI.C.S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21.03.2024, ALONG WITH Bail Appl..2280/2024 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. Nos.2199 & 2280 of 2024** ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 21[ST] DAY OF MARCH 2024 / 1ST CHAITHRA, 1946 BAIL APPL. NO. 2280 OF 2024 ``` ``` CRIME NO.240/2024 OF HILL PALACE POLICE STATION, ERNAKULAM ``` ``` PETITIONERS/ACCUSED 1, 2, 5, 8 AND 14: ``` ``` 1ANIL KUMAR AGED 64 YEARS S/O.AMBUJAKSHA MENON, PUTHENPURAYIL HOUSE, UDAYAMPEROOR KARA, MANAKKUNNAM VILLAGE, ERNAKULAM DISTRICT, PIN - 682307 ``` ``` 2SANTHOSH AGED 49 YEARS S/O. NARAYANAN, CHALIYATH HOUSE, NADAMA THEKKUMBHAGOM VILLAGE, KANAYANNUR TALUK, ERNAKULAM, PIN - 682301 ``` - **`3 KRISHNANKUTTY NAIR AGED 75 YEARS`** ``` S/O.KRISHNAN NAIR, REVATHY HOUSE, PUTHIYAKAVU DESOM, THRIPPUNITHURA KARA, NADAMA THEKKUMBHAGAOM VILLAGE, ERNAKULAM DISTRICT, PIN - 682301 ``` - **`4 BALACHANDRAN AGED 60 YEARS`** ``` S/O. PARAMESWARA MENON, NELLUVELIL HOUSE, THRIPPUNITHURA KARA, NADAMA THEKKUMBHAGOM VILLAGE, ERNAKULAM DISTRICT, PIN - 682301 ``` - **`5 SUNIL K MENON AGED 48 YEARS`** - **`S/O. KOCHUNNI MENON, LAKSHMI NIVAS, MEMMARA DESOM, NADAMA THEKKUMBHAGOM, ERNAKULAM DISTRICT, PIN - 682031`** ``` 3 ``` ## **B.A. Nos.2199 & 2280 of 2024** ``` BY ADVS. R.ANIL B.RAMAN PILLAI (SR.) IEANS.C.CHAMAKKALA SUJESH MENON V.B. THOMAS SABU VADAKEKUT MAHESH BHANU S. JOEL GEORGE KAMPIYIL RESSIL LONAN ANANTH KRISHNA K.S. ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031 ``` ``` SR.PUBLIC PROSECUTOR SRI.C.S.HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21.03.2024, ALONG WITH BAIL APPL..2199/2024 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. Nos.2199 & 2280 of 2024** ``` 4 ``` ## **Dated this the 21[st ] day of March, 2024** ## **COMMON ORDER** The applications are filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1,2, 5, 8, 11 and 14 in Crime No.240/2024 of the Hill Police Station, Ernakulam, registered against the accused (19 in number) for allegedly committing the offences under Section 286 of the Indian Penal Code (IPC), Section 118(f) of the Kerala Police Act (KP Act),and Section 9 (B) (1) (b) of the Explosives 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 added. B.A No.2280/2024 is filed by the accused 1,2,5,8 and 14 and B.A. No.2199/2024 is filed by ``` 5 ``` ## **B.A. Nos.2199 & 2280 of 2024** the 11[th] accused in the above crime. As the two applications are pertaining to the same crime, they are consolidated, jointly heard and are being disposed of by this common order. The petitioners were all arrested on 15.02.2024. 2. 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 the Hill Palace Police Station were on patrolling duty they found explosives stored in the compound of the Puthiyakavu Temple for the purpose of conducting fireworks. Accordingly, they approached the organisers and enquired whether they had the license to store the explosives or the permission to conduct the fireworks. The organisers answered that they did not have the license or permission for the same. After ensuring the law and order in the locality, they returned ``` 6 ``` ## **B.A. Nos.2199 & 2280 of 2024** to the Police Station and the above crime was registered against the President, Secretary and ten identifiable persons for the offences punishable under Section 286 of IPC, Section 118(f) of the KP Act and Section 9(B)(1) (b) of the Indian Explosives Act. 3. Heard; Sri. Raman Pillai, learned Senior Counsel for the petitioners in B.A No.2280/2024 and Sri. Suvin R. Menon, the learned counsel for the petitioner in B.A No.2199/2024 and Sri.C.S.Hrithwik the learned Senior Public Prosecutor. 4. The learned Senior Counsel argued that, a reading of Annexure 1 FIR would substantiate that the offences under Section 308 of the IPC and Section 3(a) of the Act will not be attracted. The instant crime has been registered for the unauthorised storage of explosives for which only the originally registered offences will be attracted, which are all bailable in ``` 7 ``` ## **B.A. Nos.2199 & 2280 of 2024** nature. It is after the alleged explosion took place on the following day i.e., on 12.2.2024, at around 10.30 hours, Crime No.242/2024 was registered against 34 accused, including the petitioners 1 to 3. Thereafter, 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, which by no stretch of imagination can be attracted. A reading of the remand report would demonstrate that the Sub Inspector of Police had in the FIR clearly shown that the President, Secretary and 10 known persons are responsible for the illegal storage of the explosives. Yet, nine other accused were also implicated as accused. The accused 17 to 19, the persons who harboured the other accused, have already been released on bail. Except for a vague and omnibus allegation made against the accused, that is accused 1 to 6 are the members of the Puthiyakavu ``` 8 ``` ## **B.A. Nos.2199 & 2280 of 2024** temple, the accused 7 to 14 are the office bearers of the Thekkupuram Karayogam, who engaged accused 15 and 17 to carry out the fireworks, without obtaining requisite permission from the competent statutory authorities, there is no specific overt act alleged against the petitioners. The explosion took place due to the negligence of the office bearers of Vadakkumpuram Karayogam. The petitioners 1 to 4 are aged and sickly and need the assistance of their family members for their daily needs. The 5[th] petitioner is the sole breadwinner of his family. The learned Sessions Judge has failed to consider the above contentions in its proper perspective. Instead, he has intertwined the allegations in the two crimes and dismissed the applications, which is erroneous and unsustainable in law. The learned Sessions Judge ought to have considered the applications in the two crimes independently and adverted to the ``` 9 ``` ## **B.A. Nos.2199 & 2280 of 2024** crimes separately. In any given case, the petitioners have been in judicial custody since 15.2.2024, which is 34 days, the investigation in the present case, so far as the petitioners are concerned, is practically complete and recovery has been effected. Therefore, the petitioners further detention is unnecessary. Hence, they may be released on bail. 5. The learned counsel for the petitioner in B.A No.2199/2024, who is the 11[th] accused in the said crime, reiterated the contentions of the learned Senior Counsel. In addition to the same, he drew the attention of this Court to Annexure A2 remand report and Annexure A3 custody application filed by the Investigating Officer. He contended that the petitioner’s name was mistakenly printed in the brochure named ‘Bhadradeepam’ published in connection with the temple festival. The petitioner has no connection with temple festival that ``` 10 ``` ## **B.A. Nos.2199 & 2280 of 2024** was conducted at the Puthiyakavu Temple. Hence, the said petitioner may also be released on bail. 6. The learned Public Prosecutor strenuously opposed the applications. He submitted that the investigation in the case is in progress. He stated that the accused 1 to 6 were the members of the Puthiyakavu temple Committee, the accused 7 to 14 were the office bearers of the Thekkumpuram Karayogam, the accused 15 and 16 are the contractors who were entrusted to conduct the fireworks and the accused 17 to 19 harboured the accused 1 to 16. He argued that even though prior notice was given by the Sub Inspector of Police to the accused 1 to 14, they did not refrain themselves from conducting the fireworks. The explosives were stored and fireworks were conducted without any valid licence and prior permission from the competent statutory authorities. It is after the explosion ``` 11 ``` ## **B.A. Nos.2199 & 2280 of 2024** that took place on 12.2.2024, the investigation was handed over to the Assistant Commissioner of Police, who has incorporated Section 308 of the IPC and Section 3 (a) of the the Act. In addition to the present crime, Crime No.242/2024 has also been registered against 34 accused, including petitioners 1 to 3 in B.A.No.2280/2024. In the explosion that took place two person lost their lives and 300 houses were damaged. If the petitioners are enlarged on bail, there is every likelihood of them sabotaging the investigation and intimidating the witnesses. Hence, the applications may be dismissed. 7. The prosecution allegation in the present crime is 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 explosives stored in the Puthiyakavu Temple compound. ``` 12 ``` ## **B.A. Nos.2199 & 2280 of 2024** 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. 8. 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 ## **B.A. Nos.2199 & 2280 of 2024** ## **`13`** 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. 9. The fact remains that, even though the Sub Inspector of police saw the explosive substances stored in the compound and ascertained from the organizers that they did not have the licence to store the explosives 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. Even thereafter no action was taken the accused. 10. It was on the following day, the alleged explosion took place at 10.30 hours and Crime ``` 14 ``` ## **B.A. Nos.2199 & 2280 of 2024** 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. 11. 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. 12. A careful reading of Annexure-A1 FIR undoubtedly establishes that the crime is registered as against the accused for unauthorisedly storing the explosives. The explosion that took place on the following day is a separate and distinct incident for which Crime No.242/2024 is registered against 34 accused, including ``` 15 ``` ## **B.A. Nos.2199 & 2280 of 2024** the petitioners 1 to 3 in B.A.No.2280/2024. The said accused are still in judicial custody. 13. 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 -A1 FIR and that the petitioners have been in judicial custody since 15.02.2024, that the investigation in the present case is practically complete and recovery has been effected, I am of the firm view that the petitioners’ further detention is unnecessary. Hence, I am inclined to allow the bail applications. In the result, the application is allowed, by directing the petitioners to be released on bail in Crime No.240/2024, on them executing a bond for Rs.1,00,000/(Rupees one lakh only) each with two solvent sureties each for the like sum, to the satisfaction of the court ``` 16 ``` ## **B.A. Nos.2199 & 2280 of 2024** 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 for a period of two months or till the final report is laid, whichever is earlier. They shall also appear before the Investigating Officer as and when required; (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; ``` 17 ``` ## **B.A. Nos.2199 & 2280 of 2024** (iv) The petitioners shall surrender their passport, if any, before the court below at the time of execution of the bond. If they have no passport, they shall file an affidavit 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 ``` 18 ``` ## **B.A. Nos.2199 & 2280 of 2024** 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].** rmm/21/3/2024 **Sd/C.S.DIAS, JUDGE** ## **B.A. Nos.2199 & 2280 of 2024** ## **`19`** ## **`APPENDIX OF BAIL APPL. 2199/2024`** ## **`PETITIONER ANNEXURES`** - **`Annexure A1 A TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 240 OF 2024 ON THE FILES OF THE HILL PALACE POLICE STATION`** - **`Annexure A2`** - **`A TRUE COPY OF THE REMAND REPORT DATED 15.02.2024 FILED BY THE 3RD RESPONDENT`** - **`Annexure A3 A TRUE COPY OF THE CUSTODY APPLICATION DATED 19.02.2024 FILED BY THE 3RD RESPONDENT`** - **`Annexure A4 A COPY OF THE ORDER DATED 19.02.2024 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE, TRIPUNITHURA, IN C.M.P NO. 232 OF 2024 IS PRODUCED HEREWITH AND MARKED AS ANNEXURE A4.`** - **`Annexure A5 A COPY OF THE ORDER DATED 27.02.2024 OF THE COURT OF SESSIONS, ERNAKULAM DIVISION IN CRL.M.C NO. 565 OF 2024`** ``` Annexure A6CERTIFIED COPY OF THE ORDER DATED 13.03.2024 OF THE COURT OF THE COURT OF SESSIONS, ERNAKULAM DIVISION IN CRL.M.C NO. 700 OF 2024 ``` ``` 20 ``` ## **B.A. Nos.2199 & 2280 of 2024** ## **`APPENDIX OF BAIL APPL. 2280/2024`** ## **`PETITIONER ANNEXURES`** |**`Annexure`**|**`1`**|**`THE TRUE COPY OF THE F.I.R IN CRIME`**| |---|---|---| |||**`NO.240/2024 OF HILL PALACE POLICE STATION`**| |**`Annexure`**|**`2`**|**`THE TRUE COPY OF THE ORDER IN`**| |||**`CRL.M.C.NO.565/2024 DATED 27-2-2024 OF`**| |||**`THE COURT OF SESSIONS, ERNAKULAM`**| |**`Annexure`**|**`3`**|**`THE TRUE COPY OF THE ORDER IN`**| |||**`CRL.M.C.NO.726/2024 DATED 13-3-2024 OF`**| |||**`THE HON'BLE SESSIONS COURT, ERNAKULAM`**|