(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 Chevayoor 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). The prosecution case is the following: On 20/09/2011 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 Bazar 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 Rs. 18,200/- by the Assistant Motor Vehicles Inspector, Kozhikode.

(3) Accused No.1 was arrested on 21/09/2011 and the others were arrested on 26/09/2011.

(4) 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 the view taken in Hemanth Kumar and Others v. Sub Inspector of Police 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 re-consideration. 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.

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.

xxxx xxxx xxxx 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 not so easy to make. 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."

(5) Sri. P. V. Kunhikrishnan, the learned counsel for the petitioners su