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1978 DIGILAW 147 (KER)

PULLACHI CHANDU v. STATE OF KERALA

1978-06-19

P.SUBRAMONIAN POTI

body1978
Judgment :- 1. In this application for enlarging the petitioner on bail one of the questions argued was whether the offence is bailable or not. It is contended for the petitioner that Clause.2 of the Public Property (Prevention of Destruction and Loss) Ordinance, 1978 (hereinafter referred to for the sake of convenience the Ordinance) does not create a new offence but only prescribes a punishment for an aggravated form of mischief defined in S.425 of the Indian Penal Code. It is therefore said that the offence is not one under "any other law" but under the Indian Penal Code and if so it does not fall within Part II of First Schedule to the Code of Criminal Procedure. In this view it is said that the petitioner is entitled to bail as a matter of course. 2. Having heard the counsel for the petitioner as well as the Government counsel I think the matter is of considerable importance and requires further and closer examination. Therefore I am posting the case for further hearing on 26th June 1978. Since I feel it necessary to consider whether any interim relief has to be granted in view of the urgency of an application for bail, I am passing this interim order to be in force subject to the decision on the main petition. In this context I am considering mainly whether assuming the offence to be non-bailable the accused should be released on bail pending the disposal of the main petition. 3. The petitioner was arrested by the Police on the accusation that, as a participant in the strike of the employees of the Kerala State Electricity Board which is on, be indulged in an act of sabotage concerning a 11 K. V. electric line at Taliparamba. He was arrested by the Taliparamba Police on the morning of 12th May 1978 and produced before the Additional Judicial First Class Magistrate, Tellicherry on 20th May 1978. He has been in custody ever since. The applications for bail moved before the Magistrate and later before the Sessions Judge were rejected. The petitioner's case is that the case has been registered against him only because he is a member of the C.I.T.U. and and the case alleged against him is absolutely false having been concocted by the police so as to involve the petitioner. The petitioner has been in custody now for nearly a month. The petitioner's case is that the case has been registered against him only because he is a member of the C.I.T.U. and and the case alleged against him is absolutely false having been concocted by the police so as to involve the petitioner. The petitioner has been in custody now for nearly a month. The eye witnesses are said to be policemen themselves and the other witnesses questioned are officers of the Board. There is no serious progress in the investigation for the last few days and when I put it to counsel for the State as to what other witnesses have to be questioned further, there is no specific case that the investigation calls for questioning any further witnesses. There is no likelihood of the petitioner tampering with the evidence of the witnesses nor is the accused likely to run away as he is an employee and the incident is, according to the State, a part of the agitation of the employees. Even according to Government counsel the reason justifying retention of the petitioner in custody pending investigation and trial is that once released the accused who is a striking employee may indulge in similar acts again. It is to prevent such recurrence that retention in judicial custody is sought. The offence of mischief is punishable under S.426 19C. with imprisonment of 3 months or with fine or with both and is a bailable offence. It is Clause.2 of the Ordinance which prescribes a higher punishment for the offence of mischief in relation to public property. 4. Many a person accused of crime rightly entitled to bail and to breathe free air have languished in judicial custody because of misdirection of courts in approaching the question of grant of bail. The object of keeping a person accused of a crime in judicial custody pending investigation, inquiry or trial is quite often lost sight of. It is more so when the court feels morally indignant because of the nature of the crime. This quite often blinds the court even to the need of proper examination of the material available at that stage to reasonably connect the accused with the offence charged, an examination relevant in the matter of grant of an application for bail. 5. Detention of a person accused of a crime in judicial custody pending trial is not to be a punitive measure. 5. Detention of a person accused of a crime in judicial custody pending trial is not to be a punitive measure. Accusation against a person does not render him less privileged. Ultimately he may be found to be innocent or guilty and only when he is found guilty can the penalty for the offence operate on him and that in accordance with the law as applied to him. The object of detaining the person in judicial custody prior to the verdict in the case is not with any one of the objects traditionally associated with imprisonment, but merely in the interests of expediency which may, in the opinion of the court, render such detention absolutely necessary Once this principle is lost sight of by courts they may unwittingly be instrumental in unrighteously depriving persons of the valuable freedom they are entitled to as members of the human race. Hence it would be good to show proper concern at the stage an application for bail comes up before a court for its consideration. The Magistrate and the judge should have anxious moments before they decide to continue the detention of a person in judicial custody refusing the request for bail. 6. What are the circumstances which make it expedient to refuse bail to an accused in custody? The likelihood of the person accused of the crime tampering with the evidence in the case and influencing witnesses is the paramount consideration. So is the case with likelihood of the accused absconding and thus being not available to receive the sentence in case he is to be punished ultimately or the accused being not available when required for the purpose of the trial. That these are the two prime considerations has been said by the Supreme Court in State v. Captain Jagjit Singh AIR. 1962 SC. 253 The gravity of the crime and the availability of material to connect the accused with the crime are relevant in the sense that this will have bearing on the question whether the accused is likely to jump bail. The mere fact that an accused feels free to commit an offence again if be is released cannot be a reason for detaining him in custody, for, such an approach will result in using the power to keep an accused in judicial custody for a different objective, that of preventive detention. The mere fact that an accused feels free to commit an offence again if be is released cannot be a reason for detaining him in custody, for, such an approach will result in using the power to keep an accused in judicial custody for a different objective, that of preventive detention. The provision enabling a citizen accused of a crime being kept in custody pending trial is a restriction on his fundamental right of freedom of movement and the provision can be justified only as a reasonable restriction required in public interest. It will be reasonable only it it is related to the object of detention and that object can only be the successful termination of the criminal proceedings. Preventive detention cannot be one of the objectives of detaining a person pending criminal trial. Of course there may be cases where exceptional circumstances may call for detention of the accused so that he may be effectively prevented from repeating the crime which, on the very materials before court, cannot be prevented otherwise than by keeping the accused in custody. That would not be the ordinary rule, but the rare exception. Therefore merely because the prosecution apprehends that the accused may repeat the crime there could be no justification to refuse bail to such a person. In fact there is indication in the provisions of the Criminal Procedure Code, 1973 that Parliament did not contemplate refusing bail merely on the ground that the accused may commit an offence similar to the offence with which he is accused of commission. The provision in S.437 (3) of the Code of Criminal Procedure enables a court to impose any condition which the court considers necessary to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected of in cases of offences falling under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code. Mischief is an offence falling under Chapter XVII of the Indian Penal Code. Mischief is an offence falling under Chapter XVII of the Indian Penal Code. There is a similar power conferred on the High Court under S.439 (1) (a) of the Code These provisions, it may be noted, ate new and did not find a place in the repealed Code It appears to me that it will be improper to refuse bail merely for the sake of achieving the objective of preventive detention of the person accused of the crime. Even at the risk of repetition I am reiterating that until a court finally finds a person guilty, he is to be deemed innocent and the restrictions to be imposed on him shall not exceed the absolutely expedient requirements of the situation. 8. I may observe that what the Supreme Court has said generally as to the circumstances under which bail should be refused, in the decision in Sura-charan Singh v State 1978 Crl. L J 129 (SC.) and State of Rajasthan v. Balchand 1978 Crl. L. J. 195 (SC.) roust govern the matter. But I do not read these decisions as laying down the rule that whenever the prosecution has a case that the accused is likely to commit the offence again if released on bail, bail has to be refused to an accused. In the facts of this case, I see no reason to keep the petitioner who has already been in detention for about a month any further and therefore I direct that he shall be released on bail on his furnishing two solvent sureties for his appearance in the sum of Rs. 3000 each to the satisfaction of the Additional Judicial Magistrate of the First Class No II, Tellicherry. He shall also report at the Taliparamba Police Station once weekly on the morning of every Monday. This order will be in force pending the disposal of the main petition.