Criminal liability requires specific statutory provision for vicarious liability; contractual relationships do not automatically impose criminal guilt.

The application is filed under Sec.438 of the Code of Criminal Procedure, 1973 (‘Code’ for short) for an order of prearrest bail.

2. The petitioner is the fifth accused in crime No.254/2024 of the Nedumkandam Police Station, Idukki, registered against the accused ( five in number), for allegedly committing the offences punishable under Secs. 286, 308 and 304 read with Sec.34 of the Indian Penal Code ( for short, IPC ) and Secs. 5 and 3 of the Explosive Substances Act .

3. The gravamen of the prosecution allegation is that: on 9.3.2024, at around 18.30 hours, the accused, in furtherance of their common intention, without any licence or permission from the statutory authorities and knowing fully well that the use of explosive substances could lead to death, the first and second accused, on the instructions of the third accused, used explosive substances to dig a bore well in the property belonging to Continental Estate at Kamakshi Vilasam, which is owned by the 5th accused. But the explosives got detonated, and the first and second accused got seriously injured in the blast. They were initially treated at the Nedumkandam Medical Trust Hospital and were later shifted to the Pala Marsliva Hospital, Kottayam. Yet, the first accused succumbed to the fatal burn injuries. The fourth accused, who was also at the place of occurrence, fled from there . The fifth accused abetted in committing the offences. Thus, the accused have committed the above offences.

4. Heard; Sri.Sasthamangalam S. Ajith Kumar, thelearned Senior Counsel appearing for the petitioner and Smt.Seetha. S, the learned Public Prosecutor.

5. The learned Senior Counsel for the petitioner vehemently argued that the petitioner is totally innocent of the accusations levelled against him. None of the offence will stand attracted against the petitioner. The petitioner is only the owner of the Estate, who had awarded the contract to the third accused to dig a bore well in his Estate. The third accused, who is an independent contractor, had accepted the contract.

Normally, bore wells are dug using specialized machinery and equipments. It is without the knowledge or consent of the petitioner, that the accused 1 to 4 had allegedly used the explosives. In fact, the petitioner was under the bona fide belief that the 3rd accused would only use machineries. It is only due to the wilful laches and negligence on the part of the accused 1 to 4 that the explosion took place, but the petitioner cannot be mulct with vicarious criminal liability. The third accused is an independent contractor. His liability cannot be fastened on the petitioner. The petitioner’s only responsibility was to ensure that the independent contractor had the requisite permission to dig the bore well. Since the third accused is a recognised contractor, it was not within the domain of the petitioner to have ensured that the third accused did not use explosive substances. The third accused had used the explosive substances at his own risk and peril, and he alone can be mulct with the vicarious criminal liability. To prove the act of negligence, the burden is on the prosecution to establish that the death was caused due to the negligence of the accused.

There is absolutely no breach of duty on the part of the petitioner. The petitioner hails from a respectable family. He is the owner of an estate. He does not have any criminal antecedents. His custodial interrogation is not necessary and no recovery is to be effected from him. The petitioner is also ready and willing to co-operate with the investigation and abide by any stringent condition that may be imposed by this Court. The learned Senior Counsel relied on the decisions of this Court in Johny Padikala vs. Hassan [2024 KHC Online 1071], Latha vs.T.V Sahadevan [2023 KHC 772] and Anil Kumar vs. State of Kerala [2024 KHC Online 1110] and the decision of the Madras High Court in Sumanth Ramamoorthy and another vs. State and another [2020 KHC 3225] to fortify his