Kerala High Court
Stibin vs State Of Kerala on 6 August, 2020
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
BA No.1366/2020 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 06TH DAY OF AUGUST 2020 / 15TH SRAVANA, 1942
Bail Appl..No.1366 OF 2020
CRIME NO.26/2020 OF Udayamperoor Police Station , Ernakulam
PETITIONER/ACCUSED NO.4:
STIBIN,
AGED 34 YEARS,
S/O. STEPHEN, XXI/464, CHAKKATAIL HOUSE,
VELLANCHIRA P.O.,
IRINJALAKUDA, THRISSUR
BY ADVS.
SRI.IEANS.C.CHAMAKKALA
SRI.B.RAMAN PILLAI (SR.)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY S.H.O. OF POLICE,
UDAYAMPEROOR POLICE STATION THROUGH THE PUBLIC
PROSECUTOR HIGH COURT OF KERALA,
COCHIN - 682 031
SRI.RENJITH.T.R., PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
06.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
BA No.1366/2020 2
O R D E R
Dated this the 6th day of August 2020 This Bail Application filed under Section 438 of Criminal Procedure Code (Cr.P.C) was heard through Video Conference.
2. Petitioner is the 4th accused in Crime No.26/2020 of Udayamperoor Police Station. The above case is registered against the petitioner alleging offences punishable under Sections 188 and 308 r/w 34 IPC. The offence under Section 3 of the Explosives Substances Act and Section 39(1) r/w Section 121 of the Kerala Police Act is also alleged.
3. The prosecution case is that the 1 st accused N.K.Unnikrishnan, the Secretary of Nadakavu Bhagavathy Temple obtained orders from this Court and based on the same the District Collector, Ernakulam issued LE6 License for public display of fire works. The temple committee gave contract to the petitioner, who is the 4th accused in this case. LE6 license was granted on 28.1.2020 and the fireworks was on 29.1.2020. The case of the prosecution is that the police people started to remove the spectators to a safe distance before starting fireworks. While they were engaged in removing spectators, accused No.4 lit the BA No.1366/2020 3 fireworks. Accused No.4 who was the main arranger of the fireworks had carelessly arranged the iron frames holding a set of "Amittus" towards the end of the display. Accused No.4 had not taken care to firmly fix the fireworks to the ground. Because of this, the frame toppled after firing. Several "Amittus" flew towards the spectators and exploded. Seventeen of them were injured. Two of them sustained grievous hurt. One of the injured had to amputate her leg during treatment. Hence the case was registered.
4. Heard the learned counsel for the petitioner and the Public Prosecutor.
5. The counsel for the petitioner submitted that all other accused in this case are released on bail. Even the licensee was released on bail under Section 438 Cr.P.C. The counsel submitted that evenif the entire allegations are accepted, the offence alleged against the petitioner are not made out. The counsel conceded that an unfortunate incident happened. But the counsel submitted that there is no intentional act on the part of the petitioner. The counsel submitted that the allegation against the petitioner is not correct and he is ready to abide any condition, if this Court grant bail to the petitioner.
6. The learned Public Prosecutor seriously opposed the BA No.1366/2020 4 bail application. The Public Prosecutor produced the written instruction submitted by the Assistant Commissioner of Police, District Crime Branch, Kochi city. The Public Prosecutor submitted that there is serious allegation against this petitioner. The custodial interrogation of the petitioner is necessary.
7. After hearing both sides, I think, this is not a fit case, in which orders under Section 438 of the Cr.P.C.can be issued. I perused the written instruction submitted by the Assistant Commissioner of Police, District Crime Branch, Kochi city. The Public Prosecutor made available an agreement executed by the petitioner and the temple authorities which will show the involvement of this petitioner. After going through the statement and after going through the agreement produced by the Public Prosecutor, I think, custodial interrogation of the petitioner is necessary in this case. The prosecution case is that the petitioner is the main accused in this case. In such circumstances, I am not in a position to pass any orders under Section 438 Cr.P.C. Therefore, the petitioner is not entitled to the orders under Section 438 Cr.P.C.
8. Moreover, the jurisdiction to grant bail under Sec.438 Cr.P.C has to be exercised on the well settled principles laid BA No.1366/2020 5 down by the Hon'ble Supreme Court in Chidambaram P v Directorate of Enforcement (AIR 2019 SC 4198). The anticipatory bail is not to be granted as a matter of rule and it has to be granted only when court is convinced that exceptional circumstances exists to resort to the extraordinary jurisdiction.
9. It is true that, there is no hard and fast rule regarding grant or refusal to grant anticipatory bail. Each case has to be decided on the basis of the facts and circumstances of that case. In the light of the general principles laid down in the above judgment and considering the facts and circumstances of this case, I am of the opinion that this is not a fit case in which the petitioner can be released on bail under Sec.438 Cr.P.C. Hence this Bail Application is dismissed.
At this stage, the learned counsel for the petitioner submitted that the petitioner will surrender before the investigating officer. There may be a direction to the investigating officer to produce the petitioner before the Magistrate concerned immediately after interrogation if any. If the petitioner surrender before the investigating officer within ten days from today, the investigating officer will interrogate him and thereafter produce before the Magistrate court concerned BA No.1366/2020 6 on that day itself. Before the Magistrate court if a bail application is filed by the petitioner, after giving prior notice to the Prosecutor concerned, the Magistrate will pass appropriate orders in that bail application on the date of filing the petition itself.
Sd/-
P.V.KUNHIKRISHNAN JUDGE ab