Kerala High Court
Krishnankutty vs State Of Kerala on 27 May, 2016
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
FRIDAY, THE 27TH DAY OF MAY 2016/6TH JYAISHTA, 1938
Bail Appl..No. 3086 of 2016 ()
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CRIME NO. 711/2016 OF PARAVOOR POLICE STATION,KOLLAM DISTRICT
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PETITIONER(S)/A1,A2,A7,A8,A9,A10 AND A11:
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1. KRISHNANKUTTY, AGED 61 YEARS,
S/O.JANARDHANAN, KRISHNA BHAVAN,
POZHIKKARA CHERRY, PARAVUR VILLAGE,
(MANAGEMENT COMMITTEE SECRETARY OF THE
PUTTINGAL TEMPLE).
2. P.S. JAYALAL, AGED 46 YEARS, S/O.PADMANABHA PILLAI,
PADHAMA VILASAM, KOONAYIL CHERRY,
PARAVUR VILLAGE, (MANAGEMENT COMMITTEE
SECRETARY OF THE PUTTINGAL TEMPLE).
3. PRASAD, AGED 54 YEARS, S/O.JANARDHANA PILLAI,
POOVANA VILA, KURUMANDAL CHERRY,
PARAVOOR VILLAGE, (KEY HOLDER OF THE
PUTTINGAL TEMPLE)
4. SURENDRAN PILLA,
AGED 65 YEARS, S/O.VELU PILLAI, SURABHI,
KONGAL CHERRY, KOTTAPURAM VILLAGE,
(KEY HOLDER OF THE PUTTINGAL TEMPLE)
5. RAVEENDRAN PILLAI,
AGED 65 YEARS, S/O.CHANDRAN PILLAI,
CHANDRODHAYAM VEEDU, KONGAL CHERRY,
KOTTAPURAM VILLAGE.
(KEY HOLDER OF THE PUTTINGAL TEMPLE).
6. SOMASUNDARAN PILLAI,
AGED 47 YEARS, S/O.GOPINATHAN PILLAI,
KADAKATH THODIYIL, POZHIKKARA CHERRY,
PARAVUR VILLAGE (KEY HOLDER OF THE
PUTTINGAL TEMPLE)
7. MURUKESH, AGED 52 YEARS, S/O. DHARMA RAJAN,
MANEESHA COTTAGE, POZHIKKARA CHERRY, PARAVUR VILLAGE,
(KEY HOLDER OF THE PUTTINGAL TEMPLE).
BY ADVS.SRI.N.PRASANNAN
SRI.C.P.UDAYABHANU
SMT.S.THENRAJAM
2/-
-2-
BA.NO.3086/2016
RESPONDENT/COMPLAINANT:
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STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
(ON BEHALF OF S.I. OF POLICE,
ANGAMALI POLICE STATION).
BY SR PUBLIC PROSECUTOR SRI.C.RASHEED
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD
ON 25-05-2016, ALONG WITH BA.NO. 3020/2016 AND CONNECTED
CASES, THE COURT ON 27-05-2016 PASSED THE FOLLOWING:
sts
P.UBAID, J.
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B.A Nos.3086, 3207, 3440, 3517, 3530, 3541,
3542, 3703, 3732, 3805 and 3020 of 2016
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Dated this the 27th May, 2016
O R D E R
A competitive fire works demonstration made at the premises of the Puttingal Devi Temple, Paravur, during the early hours of 10.4.2016 in connection with an annual festival, turned into a tragedy of explosion, in which 110 human beings were burnt to death, and more than 400 human beings sustained severe burn injuries. At 7 a.m on 10.4.2016 itself, the Paravur Police registered crime No.711/2016 against five persons in connection with the said incident of explosion, including the Secretary of the Managing Committee of the Temple, one of the licensees who took up the fire works display on contract, and her husband. Later, many persons including the members of the Managing Committee of the Temple, and the workers who helped and assisted the contractors in making the fire works demonstration were arraigned as accused and B.A Nos.3086 of 2016 and connected cases 2 arrested by the police during investigation. The crime is now being investigated by a Special Team of the Crime Branch C.I.D. The petitioners in these bail applications are some of the accused arrested by the police. They have been in judicial custody since different dates, and they seek bail from this Court under Section 439 Cr.P.C. Most of them are the persons who actually caused the massacre or who facilitated the explosion. The petitioners in B.A No.3086/2016 are the accused Nos.1,2 and 7 to 11, the petitioners in B.A No.3517/2016 are the accused Nos.4and 5, the petitioners in B.A No.3541/2016 are the accused Nos.18 to 22, the petitioners in B.A No.3732/2016 are the accused Nos.23 to 25, the petitioner in B.A No.3805/2016 is the accused No.28, the petitioner in B.A No.3703/2016 is the accused No.29, the petitioner in B.A No.3207/2016 is the accused No.26, the petitioner in B.A No.3440/2016 is the accused No.35 , the petitioners in B.A No.3542/2016 are the accused Nos.32 and 33, and the petitioners in B.A 3530/2016 are the accused Nos.41 and 42. B.A No.3020/2016 is the application for pre-arrest bail brought B.A Nos.3086 of 2016 and connected cases 3 by the accused Nos.4 and 5 before their arrest. In view of the their application for regular bail, this application for pre-arrest bail is only to be closed.
2. Initially, the F.I.R was registered under Sections, 188, 304, and 308 of Indian Penal Code, Section 3 of the Explosive Substances Act, and under Section 39 (1) read with Section 121 of the Kerala Police Act. Later, the police proceeded under Section 302 I.P.C, and now the investigation is proceeding in this case mainly under Section 302 I.P.C, and under the provisions of the Explosive Substances Act. Most of the petitioners before this Court are the office bearers of the Managing Committee of the Temple. The others, except two, are the workers who actively participated in the alleged fire works demonstration. The accused Nos.28 and 29 are only dealers having licence under the Explosives Act. They were arraigned as accused on the ground that they had sold some substances to the fireworks contractors in February, 2016. Their criminal liability must be only under the provisions of the Explosives Act (Section 9 B). Simply because they had sold some B.A Nos.3086 of 2016 and connected cases 4 explosive substances to the contractors or other licensees one or two months prior to the alleged incident, they cannot be prosecuted under Section 304 I.P.C. The persons who actually caused the explosion, or who facilitated the explosion are now being proceeded against under Section 304 or 302 I.P.C. Such a criminal liability cannot be fastened on the accused Nos.28 and 29 just because they had, on some previous occasion, sold some substances to the contractors. Thus, I find that the circumstances of these two accused are entirely different, and their criminal liability, at the most, can only to be under the Explosives Act. and not even under the Explosive Substances Act.
3. The petitioners are very much on the investigation now being conducted under Section 302 I.P.C. On a perusal of the case diary and the report submitted by the Investigating Officer on 20.5.2016, I find that effective investigation is in progress, and that many more things remain to be done by the police as part of investigation. The police report shows that many witnesses remain to be questioned and some more accused remain to be arrested. B.A Nos.3086 of 2016 and connected cases 5 The concern of the prosecution is very much on the possibility of the material witnesses being threatened or influenced, or otherwise won over by the accused, if they are released at this stage. I find some substance in the objection raised by the prosecution, that the accused will obstruct the investigation, if they are now released.
4. On a perusal of the entire prosecution records, I gather the following facts:
In February, 2016, two licensees having licence under the Explosives Act were given a contract by the Temple Committee, for a competitive fireworks demonstration at the temple premises on 10.4.2016. The two contractors took up the works for a consideration of 4,50,000/- each. On 22.2.2016, the temple committee led by the 1st accused made an application before the Additional District Magistrate for permission to conduct a ceremonial fireworks demonstration. The Additional District Magistrate got report from various sources that a competitive fire works demonstration was being arranged by the temple committee. In such a circumstance, the Additional District B.A Nos.3086 of 2016 and connected cases 6 Magistrate denied permission by order dated 8.4.2016. On the next day, the temple committee people made another representation that they would not conduct any competitive fire works display, and that only one licensee would conduct only a ceremonial fire works demonstration. The said licensee is the accused No.4. The accused No.5 is her husband who actually did everything including the explosion on behalf of the 4th accused. The other contractor who took up the work along with the 4th accused, is the 6th accused, who died pending the proceeding. The accused No.31 is the other licensee on behalf of whom, the deceased accused took up the fireworks display. When the temple committee people made the second application on 9.4.2016, the Additional District Magistrate was not present at his office, and the District Collector was also away from station. In such a circumstance, the temple committee people made the police officers believe that they had obtained an oral permission from the Additional District Magistrate to conduct a ceremonial fireworks demonstration, and made a request for permission by the police. The police report dated B.A Nos.3086 of 2016 and connected cases 7 20.5.2016 shows that the Circle Inspector of Police, South Paravoor believed the words of the temple committee people, and without in any manner verifying whether the Additional District Magistrate had given such an oral permission, submitted report accordingly to the Assistant Commissioner of Police, Chathannoor, who in turn sent recommendation to the Commissioner of Police, Kollam, for sanction. Thus, the police granted silent permission to conduct fireworks display as requested by the temple committee. Under the guise of this permission obtained from the police officers for ritualistic fireworks demonstration, the temple committee conducted a competitive fireworks display.
5. I find that the temple committee people caused the alleged explosion involving huge quantity of more than 5000 kgs of explosive substances, without actually obtaining any permission from the concerned authority. Of course, they had made a second application on 9.4.2016, but the Additional District Magistrate was away from the office at that time. Without and before getting any B.A Nos.3086 of 2016 and connected cases 8 permission from the Additional District Magistrate, the temple committee people made the police officers believe that they had obtained permission from the Additional District Magistrate for conducting a ceremonial fireworks demonstration. The police officers including the Circle Inspector of Police, South Paravoor, the Assistant Commissioner of Police, Chathannoor, and the Commissioner of Police,Kollam, did not in any manner verify whether there was any such oral or written permission by the Additional District Magistrate. They just irresponsibly allowed the temple committee people to conduct the fireworks display. These three police officers, who grossly erred in their duty must be appropriately dealt with by the Government. Had they verified whether there was any permission from the Additional District Magistrate, this tragedy would not have occurred.
6. The learned counsel for the petitioners submitted that the present investigation under Section 302 I.P.C is quite unsustainable, and further submitted that this is at the most only a case of Section 304A I.P.C It is impossible to B.A Nos.3086 of 2016 and connected cases 9 accept the said contention that this is a sheer case of accident. Accidental incidents meant under Section 304A I.P.C always occur due to some rashness or negligence or due to some error of judgment. If any calamity or accident or tragedy occured due to some act of a person, which the person could have actually foreseen, it cannot be called an accident. Here, the prosecution records would reveal that more than 5000 kgs of explosive substances were used by the two contractors for making the competitive fireworks display at the temple premises. The total quantity permitted under the licence of each licensee is only 15 kgs. Thus, at the most, only 30 kgs of explosive substances could have been used for the demonstration. The persons who used that much quantity of explosive substances for fireworks display will definitely have the full knowledge of the inevitable consequence that such fire works display using that much huge quantity of explosives will definitely make dangerous explosion causing the death of human beings. This inevitable consequence can well be foreseen by any person dealing with such quantity of explosives. If a B.A Nos.3086 of 2016 and connected cases 10 massacre occurred due to the use of such quantity of explosives, that cannot be called a sheer accident. It is here, the prosecution under Section 304 I.P.C assumes importance. It is alleged that the persons who caused the explosion, and those who facilitated such explosion, as workers or otherwise, had the full knowledge of the inevitable consequence of the fireworks demonstration made by them by using huge quantity of explosives. I do not know why the learned counsel would contend that investigation cannot proceed under Section 304 I.P.C or that this is a sheer case of accident.
7. Of course, as regards the investigation now proceeding under Section 302 I.P.C, no observation can be made by this court at this stage. The prosecution is on clause (4) to Section 300 I.P.C. The purport of this clause is that, if any person committing any act knows, that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury, and any person died due to B.A Nos.3086 of 2016 and connected cases 11 the said act, he would be liable for prosecution for culpable homicide amounting to murder. Whether the present incident comes under clause (4) to Section 300 I.P.C, is a matter for decision by the trial court, on the basis of circumstances and materials forming legal and acceptable evidence. It would be too premature for this court to decide whether this is a case of Section 302 I.P.C.
8. On a perusal of the entire prosecution records, I find that the petitioners except the accused Nos.28 and 29 cannot be granted bail at this stage. The police report dated 20.5.2016shows that very many things remain to be done as part of effective investigation including interrogation of so many witnesses. The police has already collected some materials and properties including the explosive substances stored by the accused licensees at some places. Very many properties were forwarded for chemical examination, and the police has obtained report from the forensic laboratory. This report made available to me, shows that the very dangerous potassium chlorate was detected in many of the properties analysed in the laboratory. The unfortunate B.A Nos.3086 of 2016 and connected cases 12 tragedy occurred only because the contractors used potassium chlorate in the fireworks and other substances used for display.
9. Kerala has developed a very unhealthy culture and practice that every religious festival or ceremony must be glamorized by fireworks and elephant parade. It is high time we banned or controlled the use of fireworks, explosive substances, and elephant parade in connection with festivals and ceremonies. No religion will promote or sponsor such "explosive" ceremonies. We have sufficient laws to ban or control the use of explosives and other substances in connection with festivals and ceremonies. It is not that we do not have sufficient laws. We have the Explosives Act, 1884, and the Rules framed thereunder to regulate and control the manufacture, possession, use, sale, transport, import and export of explosives. We have also the Explosive Substances Act, 1908, and the Rules framed thereunder, to deal with crimes committed by means of explosive substances. We have a definite machinery under these laws to regulate and control the use of explosives. B.A Nos.3086 of 2016 and connected cases 13 But the machinery or the officers functioning under the laws do not have the guts, urge, and commitment to enforce the laws. That is why this sort of calamities or massacre happen. Our civil service including the police force is, to an extent maligned by political, communal and other interests. Our bureaucracy requires refinement. Our political executive also must be free from such remote control influences and "alien" pressures. Had the revenue officers and police officers having charge of the area been stern and firm in the matter of enforcement of the law, this unfortunate tragedy would not have occurred.
10. I find that the accused must continue in custody for a proper and effective investigation. Till substantial part of investigation is over, the question of releasing the accused cannot be thought of. I find that the applications submitted by the accused, except the accused Nos.28 and 29, are liable to be dismissed. The circumstances of the accused Nos.28 and 29 are entirely different. They are not the persons who caused the explosion, and they had no active or indirect role in causing the explosion. They simply B.A Nos.3086 of 2016 and connected cases 14 sold some substances to the contractors, and this sale was one or two months back. There is absolutely nothing to show that potassium chlorate was in fact sold by the accused Nos.28 and 29. They are being prosecuted simply on the basis of the statements given by the co-accused. The prosecution does not have any other material to implicate them. If at all they had kept or sold any explosive substance in excess of the quantity permitted under their licence, their liability can only be under the Explosives Act. Continued detention of these petitioners is felt not necessary in the present circumstances.
11. With the hope that the political executive would made earnest and honest efforts to refine our bureaucracy and the civil service, and to make them free from "alien" influences and pressures, these applications are disposed of as follows:
B.A No.3020/2016 is closed, in view of the application for regular bail. The petitioners in B.A Nos. 3805/2016 and 3703/2016 will be released on bail on their executing bond with two solvent sureties for 25,000/- B.A Nos.3086 of 2016 and connected cases 15 (Rupees Twenty five thousand only) each to the satisfaction of the learned Magistrate having jurisdiction. Bail is granted on condition that they shall make themselves available for further interrogation by the Investigating officer as and when required, and they shall not in any manner influence or intimidate the material witnesses. All the other applications for bail will stand dismissed. The request of those accused will be considered at later when major part of investigation is over.
Sd/-
P.UBAID JUDGE ma /True copy/ P.S to Judge