Detention pending trial should not be punitive, and preventive detention should not be the objective of bail refusal. Accused individuals are deemed innocent until proven guilty.

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 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