Satheesan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 25[TH] DAY OF MARCH 2024 / 5TH CHAITHRA, 1946 BAIL APPL. NO. 2500 OF 2024 ``` ``` CRIME NO.240/2024 OF HILL PALACE POLICE STATION, ERNAKULAM PETITIONER/ACCUSED NO.6: ``` ``` SATHEESAN AGED 63 YEARS S/O. SANKARAN NAIR KALLAMPARAMBIL HOUSE, KAROTH ROAD, PUTHIYAKAVU, TRIPUNITHURA, ERNAKULAM, PIN - 682301 ``` ``` BY ADVS. SRUTHY N. BHAT M.REVIKRISHNAN NIKITA J. MENDEZ RAHUL SUNIL SRUTHY K.K NANDITHA S. SOHAIL AHAMMED HARRIS P.P. ``` ## **`RESPONDENT`** ``` 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 25.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.2500 of 2024** ``` 2 ``` ## **Dated this the 25[th] day of March, 2024** ## **ORDER** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 6[th] accused in Crime No.240/2024 of the Hill Palace 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. The petitioner was arrested on 12.02.2024. 2. The gravamen of the prosecution allegation is ``` 3 ``` ## **B.A. No.2500 of 2024** 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 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. P.Vijayabhanu, the learned Senior ``` 4 ``` ## **B.A. No.2500 of 2024** Counsel for the petitioner and Sri.C.S.Hrithwik the learned Senior Public Prosecutor. 4. The learned Senior Counsel argued that, a reading of 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 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. 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 ``` 5 ``` ## **B.A. No.2500 of 2024** 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 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 petitioner is aged 63 years and is sickly. He has recently undergone a surgery. The learned **B.A. No.2500 of 2024** ``` 6 ``` 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 application, 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 crimes separately. In any given case, the petitioner has been in judicial custody since 12.2.2024, which is more than 42 days, the investigation in the present case, so far as the petitioner is concerned, is practically complete and recovery has been effected. Therefore, the petitioner’s further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor strenuously opposed the application. He submitted that the investigation in the case is in progress. He stated that ``` 7 ``` ## **B.A. No.2500 of 2024** 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 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 Act. In addition to the present crime, Crime No.242/2024 has also been registered against 34 **B.A. No.2500 of 2024** ``` 8 ``` accused. In the explosion that took place two person lost their lives and 300 houses were damaged. If the petitioner is enlarged on bail, there is every likelihood of him sabotaging the investigation and intimidating the witnesses. Hence, the application may be dismissed. 6. 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. 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 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 ``` 9 ``` ## **B.A. No.2500 of 2024** already narrated above. 7. 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 a fine not exceeding Rs.10,000/-. Likewise, Section 9(B) (1) (b) of the 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. 8. The fact remains that, even though the Sub ``` 10 ``` ## **B.A. No.2500 of 2024** 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 the FIR only at 23.35 hours. Even thereafter no action was taken the accused. 9. It was on the following day, the alleged explosion took place at 10.30 hours and Crime 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. 10. 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 ``` 11 ``` ## **B.A. No.2500 of 2024** crime incorporating the offences under Section 308 of IPC and Section 3(a) of the Act, which are non-bailable offences. 11. A careful reading of 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. The said accused are still in judicial custody. 12. 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 petitioner in the FIR and that the petitioner has been in judicial custody since 12.02.2024, that the investigation in the present case is practically complete and recovery has ``` 12 ``` ## **B.A. No.2500 of 2024** been effected, I am of the firm view that the petitioner’s further detention is unnecessary. Hence, I am inclined to allow the bail applications. In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions: (i) The petitioner 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. He shall also appear before the Investigating Officer as and when required; (ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person ``` 13 ``` ## **B.A. No.2500 of 2024** acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (iii) The petitioner shall not commit any offence while he is on bail; (iv) 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; (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 **B.A. No.2500 of 2024** ``` 14 ``` 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 matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner 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].** **C.S.DIAS, JUDGE** rmm/25/3/2024