Jayadeep S. v. State of Kerala & Abhilash P.A.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 13[TH] DAY OF DECEMBER 2021/ 22ND AGRAHAYANA, 1943** ## **BAIL APPL. NO. 8697 OF 2021** **CRIME NO.1378 OF 2021 OF ERATTUPETTA POLICE STATION,** ## **KOTTAYAM** ## **PETITIONER:** **JAYADEEP S.** **AGED 47 YEARS, S/O.JOY S., RESIDING AT KUNNATHOORE HOUSE, KADANADU KARA, KADANADU VILLAGE, KOTTAYAM DISTRICT, PIN - 686 653.** **BY ADVS. SRI.NOBLE MATHEW SRI.P.M.JOSEPH** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDING, ERNAKULAM - 682 031. (S.H.O.ERATTUPETTA POLICE STATION, KOTTAYAM DISTRICT).** **2 ABHILASH P.A. AGED 42 YEARS, S/O. AYYAPPAN NAIR, PLANCHUVADU, MOOLAKKULAM, KEEZHOOR, KOTTAYAM DISTRICT, PIN - 686 610, KERALA (ASSISTANT TRANSPORT OFFICER, KSRTC, ERATTUPETTA).** **BY SMT.SEENA C., PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 B.A.No.8697 of 2021 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------B.A.No. 8697 of 2021** **----------------------------------------------------------Dated this the 13[th] day of December, 2021** ## **O R D E R** This is an application for anticipatory bail filed under Section 438 of the Code of Criminal Procedure, 1973. 2. The petitioner is the accused in crime No.1378 of 2021 of Erattupetta Police Station. The offence alleged is under Section 3 of the Prevention of Damage to Public Property Act, 1984. 3. The allegations are that at about 12.45 hours on 16.10.2021 the accused, who was driving the KSRTC bus bearing Reg.No.KL-15-9599 with passengers in it from Kaippally to Erattupetta, ventured to drove it through an inundated road, near St.Mary's Church, Poonjar. As a result of the said act, the bus was substantially submerged in water resulting in damage to the bus to the tune of Rs.5,30,000/-. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3 B.A.No.8697 of 2021 5. The petitioner has filed Crl.M.P.No.1737 of 2021 before the Sessions Court, Kottayam seeking anticipatory bail. The Sessions Court as per ordered dated 03.11.2021 dismissed the application observing thus,- 'There is nothing before the Court to indicate that the accusation against the accused is actuated by malafides or that there was any extraneous consideration on the part of the Investigating Officer in taking steps for the arrest of the accused. Therefore, on a careful consideration of the serious nature of the allegation against the accused and the larger interest of the public, I find that this is not a fit case to grant anticipatory bail and that the appropriate course is to allow the concerned Magistrate to deal with the same on the basis of the materials before the Court, in case the accused is arrested.' 6. The learned counsel appearing for the petitioner would contend that the alleged act cannot be termed as a purposeful one so as to satisfy the definition of 'mischief' as defined under Section 425 of the I.P.C. As long as the act does not amount to an act of mischief, no offence under 4 B.A.No.8697 of 2021 Section 3 of the PDPP Act would get attracted. The learned counsel further would contend that in the nature of allegations, custodial interrogation of the petitioner, at any rate, is not a necessity, and therefore, this is a case where anticipatory bail is liable to be granted. 7. The learned Public Prosecutor has placed on record a report of the investigating officer, a copy of the report of inspection of the bus conducted by the Motor Vehicle Inspector attached to the Sub Regional Transport Office, Pala and the note estimating the loss prepared by the Depot Engineer. The learned Public Prosecutor would submit that considering the gravity of the offence and as the act by its nature would be a challenge to the social conscience, the application for anticipatory bail may be dismissed. 8. The offence alleged against the petitioner is under Section 3 of the PDPP Act. The basis for alleging such an offence is that by driving the KSRTC bus across such a level of flood and by ignoring the fact that the road has been inundated making plying of the bus impossible, the petitioner 5 B.A.No.8697 of 2021 caused serious damage to the bus. No doubt, he should not have, at any rate, ventured to drive the vehicle ignoring such a high level of water on the road. The contention of the petitioner is that the act does not amount to mischief as defined in Section 425 of the I.P.C. That is a matter to be decided on the basis of the evidence to be adduced at the trial. There is no question of the identity of the accused in this case. There is no difficulty for the investigation officer to collect evidence in order to complete the investigation and submit a final report in the matter even without the petitioner being arrested and committed to jail. I am therefore, of view that custodial interrogation and detention during the period of investigation is not a necessary requirement in this case. Moreover, the offence is punishable with less than 7 years of imprisonment. From the materials on record it does not appear that any of the conditions enumerated in Section 41(1)(b) of the Code exists so as to hold that arrest of the petitioner is inevitable. 6 B.A.No.8697 of 2021 9. The allegation is that as a result of the act of the petitioner, Kerala State Road Transport Corporation sustained a huge loss and as per the inspection done by the Motor Vehicle Inspector and as per the note prepared by the Depot Engineer, the act of the accused has caused a loss of Rs.3,50,000/- to the Corporation in terms of the expenses incurred to repair of the bus. 10. In the decision reported in **M.T.Hemachandran @ Kamalesh v. Sub Inspector of Police [2011 (4) KLT 288]** this Court held that,- “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.” 7 B.A.No.8697 of 2021 ## 11. This Court also in **P.C.Ummer v. State of Kerala [2019 (4) KLT 724]** held that,- “9. Learned counsel for the petitioner invited the attention of this Court to the decision in **Lekha v. State of Kerala, 2019 (3) KHC 983 : 2019 (3) KLT 330 : ILR 2019 (3) Ker. 369 : 2019 (3) KLJ 825** and contended that deposit of cash cannot be insisted as a condition for granting bail. In **Lekha (supra),** I had occasion to hold that the Court shall not, normally, make any direction for deposit of cash as a condition for granting bail. But, this Court had also held, relying upon the decision of the Apex Court in **Sumit Mehta v. State, 2013 KHC 4730 : 2013 (15) SCC 570 : 2013 (4) KHC SN 13 : 2013 (2) KLD 677 : 2013 (11) SCALE 374 : 2013 (4) KLT SN 89** , that it is not totally impermissible for the Court to insist on deposit of cash as a condition for granting bail in appropriate cases. Of course, does not specifically mention that in cases involving destruction of public property, deposit of cash could be insisted by the Court as a condition for granting bail. **Lekha (supra)** It does not mean that, the earlier decisions in **Hemanth Kumar and Hemachandran (supra)** , have got no binding force. 8 B.A.No.8697 of 2021 There is no real conflict between Lekha (supra) and the decisions in **Hemanth Kumar(supra)** and **Hemachandran v. Sub Inspector of Police : 2011 (4) KHC 689 : 2011(4) KLT.** Deposit of cash, as a condition for granting bail, shall be insisted in respect of offences under the Act, involving destruction of public property”. 12. In view of the above principles, when bail is granted in cases involving offences under Section 3 of the PDPP Act, deposit of loss sustained on account of the act of the accused shall be insisted. 13. Considering all the matter in detail, I am of the view that the application can be allowed by granting anticipatory bail to the petitioner on the condition of his depositing the amount of loss and on such other conditions. In such circumstances, this bail application is allowed and the petitioner is directed to surrender before the investigating officer within two weeks. After interrogation and in the event of his being arrested, he shall be released on bail on his depositing an amount of Rs.3,50,000/- (Rupees three lakhs 9 B.A.No.8697 of 2021 fifty thousand only) before the Judicial First Class Magistrate Court, Erattupetta and on his executing a bond for Rs.50,000/- (Rupees fifty thousand only), with two solvent sureties for the like amount each, to the satisfaction of the investigating officer, and on the following conditions: - (i) The amount so deposited shall be at the disposal of the Magistrate and subject to the orders to be passed by the Magistrate at the time of disposal of the case; - (ii) Once he is released on bail, he shall appear before the Investigating Officer on all Wednesdays between 10.00 a.m. and 11.00 a.m. for a period of three months or till the final report is filed, whichever is earlier; - (iii) He shall not leave the limits of the jurisdictional court without prior permission of the Magistrate until further orders; - (iv) He shall not go abroad without the permission of the jurisdictional Court and shall surrender his passport before the investigating officer, and in case he does not have a passport, he shall file an affidavit to that 10 ## B.A.No.8697 of 2021 effect; - (v) He shall not influence or intimidate witnesses or tamper with evidence or make any communication about the case in the social, print or visual media till the trial of the case is concluded; and - (vi) During the bail period, he shall not get involved in any offence. In case of breach of the bail conditions, the prosecution shall be at liberty to apply for cancellation of the bail before the jurisdictional court. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr