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High Court of Kerala
K.T. SANKARAN
M.T. Hemachandran @ Kamalesh, Kozhikode & Others
Versus
Sub Inspector of Police, Chevayoor Police Station, Kozhikode & Another
Bail Appl.No. 8187 of 2011
Decided on : 24-10-2011
Criminal Procedure Code, 1973 - Sections. 439 and 437 - Prevention of Damage to Public Property Act 1984 - Sections. 5 and 6 - Bail Application - When bail may be taken in case of non- bailable offence - Special powers of High Court or Court of Session regarding bail - A condition for deposit of loss sustained to Government as a condition for granting bail to accused would be justified under Ss. 437 and 439 - Whether S.439 restricts the power of High Court or Court of Session to impose a condition other than the conditions which could be imposed under S.437(3) ? Whether the decision in requires reconsideration ? Whether a condition for deposit of loss sustained to Government as a condition for granting bail to accused would be justified under Ss.437 & 439 ? Held, Section 439 of the Code of Criminal Procedure does not restrict the power of the High Court or Court of Session to impose a condition other than the conditions which could be imposed under sub-section (3) of Section 437. What Section 439 provides is that the High Court or Court of Session may impose any condition which it considers necessary. But imposing such condition should be for the purposes mentioned in sub-section (3) of Section 437. In other words, for the purposes mentioned in Section 437(3), any condition can be imposed by the High Court or Court of Session while allowing an application for bail under Section 439. Section 439 does not say that the High Court or Court of Session can impose only those conditions which could be imposed under Section 437(3). Under S.437 of the Code of Criminal Procedure, a Court other than the High Court or Court of Session may impose, in the interests of justice, such other conditions as it considers necessary. This is in addition to the conditions mentioned in clauses (a) to (c) therein. The words 'and may also impose' make it clear that the court has power not only to impose the conditions as mentioned in clauses (a) to (c), but it has power to impose other conditions as well - The PDPP Act was enacted with a view to curb acts of vandalism and damage to public property, including destruction add damage caused during riots and public commotion. The PDPP Act is an Act to provide for prevention of damage to public property and for the matters connected therewith. The scheme of the PDPP Act when considered alongwith S.437 of the Code of Criminal Procedure, it would be clear that in the matter of granting bail, a rigorous approach is contemplated when the offences alleged are under the PDPP Act. Such rigorous approach is required in the matter of imposing conditions for granting bail also. A condition for deposit of the loss sustained to the Government as a condition for granting bail to the accused would be justified under Ss.437 and 439 of the Code of Criminal Procedure. Destruction of public property cannot always be compensated in terms of money. For example, if the documents kept in a Village Office, Taluk Office, Collectorate or Surveryor's office are destroyed, the public would be put to untold misery. Even the civil courts would find it difficult to decide the civil disputes between parties if such documents are destroyed. The after effect of such destruction would last even for several decades. The actual loss caused by such destruction could not be estimated in terms of money. A rigorous approach is required in the matter of granting bail and also in the matter of imposing conditions while granting bail, in the cases involving destruction of public property. Otherwise, the object sought to be achieved by the PDPP Act would become illusory - Bail Application is allowed
1. This is an application for bail under Section 439 of the code of Criminal Procedure, filed by accused Nos. 1 to 7 in Crime No.490 of 2011 of Chevayur Police Station, Kozhikode District.
2. The offences alleged against the accused are under Sections 143, 147, 148, 332, 333, 326, 506 (i), 307 read with Section 149 of the Indian Penal Code and Section 3 (2) (e) of the Prevention of Damage to Public Property Act (hereinafter referred to as the PDPP Act).
3. The prosecution case is the following: On 20-9-2011 while the Sub Inspector of Police and two civil police officers were on law and order duty, at about 5.20 P.M., one Sudeep was arrested for drunken rash driving of a motor bike. Sudeep was taken for medical examination. While the police officers were returning from the hospital, the police jeep had to be stopped at Kakkoti Bazaar due to a traffic block. At that time, about 25 persons belonging to DYFI rushed towards the police party shouting “kill those dogs” and attacked them with stones, bricks and sticks. One of the police officers sustained grievous injuries and others sustained minor injuries. Sudeep, who was in the police jeep was also assaulted by the accused persons. The DYFI activists had conducted a protest march at Kakkoti, protesting against the police lathi charge which occurred at Kozhikode on the same day morning. The DYFI activists, while returning after the protest march, committed the offence as mentioned above. They also destroyed the police jeep. The loss to the Government on that account was assessed at `18,200/- by the Assistant Motor Vehicles Inspector, Kozhikode.
4. Accused No.1 was arrested on 21-9-2011 and the others were arrested on 26-9-2011.
5. Sri. P.V. Kunhikrishnan, the learned counsel for the petitioners submitted that the petitioners are entitled to be released on bail. The counsel also submitted that in view taken in Hemanth Kumar and Others v. Sub Inspector of Police : 2011 (4) KLT 288 that where public property is destroyed, the accused should be directed to deposit the amount of loss or even more as a condition for granting bail to them, requires reconsideration. The counsel submitted that the decision in Hemanth Kumar’s case is against the dictum laid down in several decisions of the Supreme Court, Kerala High Court and other High Courts.
6. In Hemanth Kumar’s case, I had occasion to hold thus:
“Destruction of public property is to be viewed very seriously. Very often, under the guise of strikes, hartals and other political adventures, public properties are being destroyed unmindful of the consequences. Public property means the property belonging to the public. Every citizen has a right in the public property. It cannot be destroyed by anybody under the guise of strike or protest, whatever may be the reason for the strike or protest. Even if the strike or protest is for a genuine cause, nobody can say that destruction of public property would be part of that genuine cause. There can be no justification for destruction of public property, whatever may be the cause sought to be espoused for the same.
7. … …..
8. I am of the view that in cases where public property is destroyed, the value of the same or even more should be directed to be deposited by the accused as a condition for granting bail to them. Otherwise, the loss sustained to the State would not be realized at all. Courts cannot be mute spectators to the wanton destruction of public property. Nobody should be allowed to destroy public property and claim success of the strikes on the basis of the quantum of loss sustained to the State. It is easy to destroy; but it is no so easy to make.
9. If the accused are found not guilty and they are accordingly acquitted, they would be entitled to get refund of the amount deposited by them. If the court comes to the conclusion that the accused are liable to pay any fine, the amount in deposit can be utilized for payment of fine.”
7. Sri. P.V. Kunhikrishnan, the learned counsel
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