Binu v. State of Kerala

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 30[TH] DAY OF MAY 2022 / 9TH JYAISHTA, 1944 CRL.MC NO. 3019 OF 2022 [AGAINST CONDITION NO.2 IN THE ORDER DATED 11.5.2022 IN CRL.M.C.NO.914/2022 IN CRIME NO.219/2022 OF SAKTHIKULANGARA POLICE STATION] ## PETITIONER/ACCUSED: BINU,AGED 39 YEARS, S/O. RAVEENDRAN, A.B MANDIRAM, MANGALAPURAM, THIRUVANANTHAPURAM- PIN 695317, PIN - 695317 BY ADVS. M.R.SASITH PREETI S. BHAVANA K.K VISHNUMAYA M.B. R.K.CHIRUTHA RAJITHA V.K NEELANJANA NAIR ## RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 STATION HOUSE OFFICER SAKTHIKULANGARA POLICE STATION, KOLLAM PIN 691581. BY ADV C.S.HRITHWIK, SR.PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25.05.2022, THE COURT ON 30.05.2022 PASSED THE FOLLOWING: CRL.M.C.No.3019 /2022 2 ## O R D E R The petitioner is the accused in Crime No.219/2022 of Sakthikulangara Police Station, which is registered for the offences punishable under Section 436 of the Indian Penal Code (IPC) r/w. Section 3(2)(e) _[presumably_ _wrongfully mentioned as Section 4(2)(e)]_ of the Prevention of Damages to Public Property Act, 1984 (for short ‘PDPP Act’). 2. The allegation against the petitioner is that on 25.3.2022 at 00.55 mid-night, the petitioner set ablaze a temporary shed in which a plastic cleaning unit of the Sakthikulangara Fishing Harbour. It was alleged that, on account of the petitioner's acts, a loss of Rs.8 lakhs was sustained to the Harbour Engineering Department. The petitioner was arrested on 10.4.2022 and was remanded to CRL.M.C.No.3019 /2022 3 judicial custody. The application submitted by the petitioner for bail was allowed by the Principal Sessions Court, Kollam, as per order dated 11.5.2022 in Crl.M.C.No.914/2022. One of the conditions imposed by the learned Sessions Judge was to furnish cash security of Rs.8 lakhs before the Judicial First Class Magistrate Court-II, Kollam for releasing him on bail. The petitioner has approached this Court challenging the aforesaid order to the extent of imposing cash security as mentioned above. 3. Heard Sri.Sasith M.R., the learned counsel for the petitioner, Sri.C.S.Hrithwik, the learned Public Prosecutor for respondents 1 and 2. 4. The learned counsel for the petitioner contends that, the petitioner is a layman who has no means to pay a considerable amount of CRL.M.C.No.3019 /2022 4 Rs.8 lakhs as directed by the learned Sessions Judge. It was also pointed out that, he is a person diagnosed with HIV positive and is undergoing treatment. In such circumstances, the learned counsel prays for setting aside the aforesaid condition. 5. On the other hand, the learned Public Prosecutor would rely upon the decisions rendered by this Court in Hemanth Kumar and Others v. Sub Inspector of Police and Another [2011(4) KHC 89] . It was pointed out that as per the principles laid down therein, the furnishing of cash security is a mandatory condition to be imposed while releasing a person accused of the offence under the PDPP Act. In such circumstances, the learned Public Prosecutor prays for dismissal of this Crl.M.C. 6. It is true that, in Hemanth Kumar’s case (supra), this Court specifically highlighted CRL.M.C.No.3019 /2022 5 the necessity to impose conditions to furnish cash security before the trial court for releasing a person accused of the offence punishable under the PDPP Act. The relevant observations of this Court are as follows: _“8. I am of the view that in cases where public property is destroyed, the value of the same or even more should be directed to be deposited by the accused as a condition for granting bail to them. Otherwise, the loss sustained to the State would not be realised at all. Courts cannot be mute spectators to the wanton destruction of public property. Nobody should be allowed to destroy public property and claim success of the strikes on the basis of the quantum of loss sustained to the State. It is easy to destroy; but it is not so easy to make.”_ _9. If the accused are found not guilty and they are accordingly acquitted, they would be entitled to get refund of the amount deposited by them. If the Court comes to the conclusion that the accused are liable to pay any fine, the amount in deposit can be utilised for payment of fine.”_ CRL.M.C.No.3019 /2022 6 _7._ A careful perusal of the aforesaid order would reveal that such a condition was imposed considering the destruction of public properties that usually occur during strikes and agitations organized by various organizations and political parties. The aforesaid condition was included with an intention to create a deterrent effect upon the organizations which convene/conduct such strikes and agitations as part of their protest. 8. However, the factual circumstances existing in this case are entirely different from the above case. In this case, the offence is allegedly committed by the petitioner not as part of any strike or agitation. Annexure-A1 F.I.R does not indicate any such interest behind the same. Thus, the circumstances under which the aforesaid order was passed is not in existence in this case. CRL.M.C.No.3019 /2022 7 9. There is yet another relevant aspect for consideration in this case. The amount directed to be deposited by the petitioner is Rs.8 lakhs. Now, since the petitioner cannot afford such a huge amount, he is languishing in jail since 10.04.2022, despite the fact that he was granted bail by the Sessions Court as per order dated 11.5.2022. In Sandeep Jain v. National Capital Territory of Delhi [(2000)2 SCC 66], the Hon’ble Supreme Court considered the question regarding the imposition of onerous conditions for the release of the accused on bail. In paragraph 4 of the said decision, it was observed as follows: “ _4. We are unable to appreciate even the first order passed by the Metropolitan Magistrate imposing the onerous condition that an accused at the FIR stage should pay a huge sum of Rs. 2 lacs to be set at liberty. If he had paid it is a different matter. But the fact that he was not able to pay that amount and in default thereof he is to languish in jail for more than 10_ CRL.M.C.No.3019 /2022 8 _months now, is sufficient indication that he was unable to make up the amount. Can he be detained in custody endlessly for his inability to pay the amount in the range of Rs. 2 lacs. If the cheques issued by his surety were dishonoured, the court could perhaps have taken it as a ground to suggest to the payee of the cheques to resort to his legal remedies provided by law. Similarly if the court was dissatisfied with the conduct of the surety as for his failure to raise funds for honouring the cheques issued by him, the court could have directed the appellant to substitute him with another surety. But to keep him in prison for such a long period, that too in a case where bail would normally be granted for the offences alleged, is not only hard but improper. It must be remembered that the court has not even come to the conclusion that the allegations made in the FIR are true. That can be decided only when the trial concludes if the case is charge-sheeted by the police.”_ In Hassainara Khatoon and Others v. Home Secretary, State of Bihar [(1980)1 SCC 81], the Hon’ble Supreme Court considered the question of the rights of under-trial prisoners and the necessity to release them on bail during the CRL.M.C.No.3019 /2022 9 pendency of the trial. The spirit of the observations made by the Hon’ble Supreme Court in Hassainara’s case(supra) is that, merely because of the reason that the accused is incapable of complying with the condition for furnishing security which contains monitory obligations, he should not be deprived of his right to get bail. In this case, the condition imposed is to furnish cash security for Rs.8 lakhs which is undoubtedly an onerous condition as far as an ordinary person with limited income is concerned. From the records available, there is nothing to indicate that the petitioner is a person who has the means to afford such an amount. The fact that he is even now continuing under judicial custody for failure to furnish the bond, stands as a testimony of his incapacity. I am of the view that, the lack of financial capacity to comply with the condition, when the monetary CRL.M.C.No.3019 /2022 10 obligation imposed as per the same is onerous, cannot be a reason to deny the right of an accused to be released on bail. In this case, the monitory obligation is fixed as Rs.8 lakhs based on an estimate prepared by the department. The correctness of the said estimate is neither tested by subjecting itself to the trial. Whether the amount claimed as damages by the prosecution represents the correct amount is also not adjudicated by any authorities. Moreover, the complicity of the accused is also a factor that must be proved after the investigation and the trial to be followed. So long as a competent court does not hold the petitioner guilty of the offence, it cannot be concluded that the petitioner is liable to pay the aforesaid amount. 10. It is true that the impugned condition is only to provide cash security which shall be refundable after completion of the trial when CRL.M.C.No.3019 /2022 11 the accused is found to be not guilty. However, considering the present system of administration of criminal justice, it may not be possible to conclude the trial against the accused in a short duration. To retain the petitioner for the entire period of the trial, even after finding that he is entitled to bail, does not seems to be proper. This is mainly because the condition imposed upon the petitioner for releasing him, is prima facie onerous. As mentioned above, the imposition of such a condition was made by the learned Magistrate by relying upon the judgment of this Court in Hemanth Kumar’s case (supra). I have already observed that the circumstances under which the aforesaid order passed were completely different from this case. This is not a case in which the incident occurred during the course of any strike, procession or agitation by any organization. The allegations CRL.M.C.No.3019 /2022 12 raised against the petitioner are personal in nature, and the same is yet to be proved in a full fledged trial. In such circumstances, the imposition of a condition to furnish cash security for such a huge amount for releasing him on bail is unwarranted. However, considering that the petitioner is accused of causing damages to public property, it is only proper that he should be directed to furnish cash security for some reasonable amount. In the facts and circumstances of this case, I deem it appropriate to fix an amount of Rs.1 lakh for the said purpose as a provisional measure. In the result, this Crl.M.C. is allowed. Annexure-A2 order passed by the Principal Sessions Court, Kollam, is hereby set aside to the extent of imposing a condition to deposit cash security of Rs.8 lakhs. It is directed that condition No.ii mentioned in the aforesaid CRL.M.C.No.3019 /2022 13 order shall stand revised as Rs.1 lakh instead of Rs 8 lakhs. All the other conditions imposed by the lower court are to be complied with by the petitioner. With such modification and direction, this Crl.M.C. is disposed of. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk CRL.M.C.No.3019 /2022 14 ## APPENDIX OF CRL.MC 3019/2022 PETITIONER’S ANNEXURES: |Annexure A1|TRUE COPY OF FIR IN CRIME NO 219/2022 OF| |---|---| ||SAKTHIKULANAGARA POLICE STATION| |Annexure A2|TRUE COPY OF THE ORDER IN CRL MC 914/2022| ||OF SESSION COURT KOLLAM| |Annexure A3|TRUE COPY OF THE LABORATORY REPORT ISSUED| ||BY THE NATIONAL AIDS CONTROL ORGANIZATION| |Annexure A4|TRUE COPY ORDER IN CRL MC OF HON’BLE HIGH| ||COURT CRL MC NO 784/2022| |Annexure A5|TRUE COPY ORDER IN CRL MC OF HON’BLE HIGH| ||COURT CRL M.C NO. 4056/2020|