Mathew M.M v. State of Kerala

1 BA No.2143 of 2024 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 12[TH] DAY OF APRIL 2024 / 23RD CHAITHRA, 1946 BAIL APPL. NO. 2143 OF 2024 ``` ``` CRIME NO.254/2024 OF Nedumkandam Police Station, Idukki PETITIONER/S: ``` ``` MATHEW M.M, AGED 64 YEARS S/O MATHAI , RESIDING AT MYLADIATHU(H), ANAKKARA P. O., 8TH MILE, IDUKKI DISTRICT, PIN - 685512 ``` ``` BY ADVS. V.S.THOSHIN SATHEESH MOHANAN SREEJITH S. NAIR AKHIL SUSEENDRAN MAHIMA ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ``` OTHER PRESENT: ``` ``` Sr PP Smt Seetha S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.2143 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No.2143 of 2024** **----------------------------------Dated this the 12[th] day of April, 2024** ## **O R D E R** The application is filed under Sec.438 of the Code of Criminal Procedure, 1973 (‘Code’ for short) for an order of prearrest bail. 2. The petitioner is the fifth accused in crime No.254/2024 of the Nedumkandam Police Station, Idukki, registered against the accused ( five in number), for allegedly committing the offences punishable under Secs. 286, 308 and 304 read with Sec.34 of the Indian Penal Code ( for short, IPC) and Secs. 5 and 3 of the Explosive Substances Act. 3 BA No.2143 of 2024 3. The gravamen of the prosecution allegation is that: on 9.3.2024, at around 18.30 hours, the accused, in furtherance of their common intention, without any licence or permission from the statutory authorities and knowing fully well that the use of explosive substances could lead to death, the first and second accused, on the instructions of the third accused, used explosive substances to dig a bore well in the property belonging to Continental Estate at Kamakshi Vilasam, which is owned by the 5th accused. But the explosives got detonated, and the first and second accused got seriously injured in the blast. They were initially treated at the Nedumkandam Medical Trust Hospital and were later shifted to the Pala Marsliva Hospital, Kottayam. Yet, the first accused succumbed to the fatal burn injuries. The fourth accused, who was also at the place of occurrence, fled from there . The fifth accused abetted 4 BA No.2143 of 2024 in committing the offences. Thus, the accused have committed the above offences. 4. Heard; Sri.Sasthamangalam S. Ajith Kumar, thelearned Senior Counsel appearing for the petitioner and Smt.Seetha. S, the learned Public Prosecutor. 5. The learned Senior Counsel for the petitioner vehemently argued that the petitioner is totally innocent of the accusations levelled against him. None of the offence will stand attracted against the petitioner. The petitioner is only the owner of the Estate, who had awarded the contract to the third accused to dig a bore well in his Estate. The third accused, who is an independent contractor, had accepted the contract. Normally, bore wells are dug using specialized machinery and equipments. It is without the knowledge or consent of the petitioner, that the accused 1 to 4 had allegedly used the explosives. In fact, the petitioner was under the bona fide 5 BA No.2143 of 2024 belief that the 3rd accused would only use machineries. It is only due to the wilful laches and negligence on the part of the accused 1 to 4 that the explosion took place, but the petitioner cannot be mulct with vicarious criminal liability. The third accused is an independent contractor. His liability cannot be fastened on the petitioner. The petitioner’s only responsibility was to ensure that the independent contractor had the requisite permission to dig the bore well. Since the third accused is a recognised contractor, it was not within the domain of the petitioner to have ensured that the third accused did not use explosive substances. The third accused had used the explosive substances at his own risk and peril, and he alone can be mulct with the vicarious criminal liability. To prove the act of negligence, the burden is on the prosecution to establish that the death was caused due to the negligence of the accused. There is absolutely no breach of duty on the part of the 6 BA No.2143 of 2024 petitioner. The petitioner hails from a respectable family. He is the owner of an estate. He does not have any criminal antecedents. His custodial interrogation is not necessary and no recovery is to be effected from him. The petitioner is also ready and willing to co-operate with the investigation and abide by any stringent condition that may be imposed by this Court. The learned Senior Counsel relied on the decisions of this Court in **Johny Padikala vs. Hassan** [2024 KHC Online 1071], **Latha vs.T.V Sahadevan** [2023 KHC 772] and **Anil Kumar vs. State of Kerala** [2024 KHC Online 1110] and the decision of the Madras High Court in **Sumanth Ramamoorthy and another vs. State and another** [2020 KHC 3225] to fortify his submissions. He prayed that the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection 7 BA No.2143 of 2024 report. The Investigating Officer has, inter alia, stated that, in the investigation conducted so far, it has been revealed that the first and second accused, on the instructions of the third accused, having full knowledge that they do not have the licence or permission from the statutory authorities, used the explosives for digging the bore well and the same exploded. The fourth accused, who also got injured in the incident, escaped from the spot in his car. A detailed investigation in the case is necessary. The petitioner is an abettor of the above offences. Therefore, all the accused have committed the above offences. The application is meritless and is only liable to be dismissed. 7. On an evaluation of the prosecution case, it can be deduced that the principal allegation is against the third accused – the independent contractor - who was entrusted with the work to dig the bore well. It is he who had instructed the 8 BA No.2143 of 2024 accused 1 and 2 to use explosives to dig the bore well without any licence or permission. The accused 1 and 2, following the instructions of the third accused, used the explosives which got detonated and the first accused tragically succumbed to fatal burn injuries and the second accused suffered third degree burns. The fourth accused, who was also present at the scene of occurrence, took to his heels after the incident. A careful reading of the prosecution allegation prima facie shows that the fifth accused (the petitioner) was nowhere at the scene of occurrence. The only overt act alleged against him is that he had entrusted the work to the third accused, an independent contractor. Other than from being the owner of the estate, there is no other material to substantiate the petitioner’s involvement in the crime. 8. Dealing with criminal vicarious liability, the Hon’ble Supreme Court in **Sham Sundar vs State of Haryan** a [ (1989) 9 BA No.2143 of 2024 4 SCC 630] has categorically held that criminal liability under a penal provision is not a civil liability. The penal provision must be strictly construed in the first place. There is no vicarious liability in criminal law unless the statute takes it within its fold. 9. Subsequently, in **Hira Lal Hari Lal Bhagwati vs C.B.I., New Delhi** [ (2003) 5 SCC 257] the Hon’ble Supreme Court has again reiterated the observations made in **Sham Sundar** (supra) that there is no concept of vicarious criminal liability, unless the statute covers the same. 10. This Court while dealing with the question ofvicarious criminal liability, in an illuminating judgment rendered by Dr.Justice Kauser Edappagath, in **Manual vs State of Kerala and another** [2022 (2) KHC 142] has reiterated the law in **Sham Sundar and Hira Lal Hari Lal Bhagwati** (supra) and 10 BA No.2143 of 2024 held that vicarious criminal liability can be fastened only by reason of a provision in a statute and not otherwise. 11. In the instant case, as already observed in the preceding paragraphs, the only allegation against the petitioner is that he entrusted the contract work of digging the bore well to the third accused, who in turn instructed the accused 1 and 2 to use explosives without any licence. There is no other specific allegation attributed against the petitioner in using the explosives, the same getting detonated or the accused 1 and 2 suffering the burn injuries. 12. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record, particularly on being prima facie satisfied that there is no specific overt act alleged against the petitioner, other than him entrusting the work to the third accused to dig a bore well and there being no duty cast upon him to have seen 11 BA No.2143 of 2024 that the third accused did not use explosives for doing the work, and there is no other material to show his involvement in the crime, I hold that the petitioner is entitled to an order of pre-arrest bail, but subject to the condition that he co-operates with the Investigating Officer. Hence, I am inclined to allow the application. In the result, the application is allowed on the following conditions: i) The petitioner is directed to surrender before the Investigating Officer within one week from today. ii) In the event of the petitioner’s arrest, the Investigating Officer shall produce him before the jurisdictional court on the date of surrender itself. iii) On such production, the jurisdictional court shall release the petitioner on bail on him 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; 12 BA No.2143 of 2024 iv) The petitioner shall co-operate with the investigation and make himself available for interrogation, as and when directed by the Investigating Officer; v). The petitioner shall not intimidate witnesses or interfere with the investigation in any manner; vi) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond; vii). The petitioner shall not get involved in any other offence while on bail. 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. 13 BA No.2143 of 2024 (x) Needless to mention, it would be well within thepowers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while he is 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 thepurpose of deciding the application and the same shall not be construed as an expression on the merits of the case, which is to be decided by the Court(s). sd/- sks/12.4.2024 **C.S.DIAS, JUDGE** 14 BA No.2143 of 2024 The crime number, wherever it occurs in the final order dated 12.4.2024 in BA No.2143/2024 stands corrected and substituted as “255/2024 of Nedumkandam Police Station, Idukki District” instead of “254/2024 of Nedumkandam Police Station, Idukki District” as per order dated 23.4.2024 in Crl.M.A No.1/2024 in BA No.2143/2024. Sd/- DEPUTY REGISTRAR