O R D E R

This is an application for anticipatory bail filed under Section 438 of the Code of Criminal Procedure, 1973.

2. The petitioner is the accused in crime No.1378 of

2021 of Erattupetta Police Station. The offence alleged is under Section 3 of the Prevention of Damage to Public Property Act, 1984.

3. The allegations are that at about 12.45 hours on

16.10.2021 the accused, who was driving the KSRTC bus bearing Reg.No.KL-15-9599 with passengers in it from Kaippally to Erattupetta, ventured to drove it through an inundated road, near St.Mary's Church, Poonjar. As a result of the said act, the bus was substantially submerged in water resulting in damage to the bus to the tune of Rs.5,30,000/-.

4. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

5. The petitioner has filed Crl.M.P.No.1737 of 2021 before the Sessions Court, Kottayam seeking anticipatory bail. The Sessions Court as per ordered dated 03.11.2021 dismissed the application observing thus,-

'There is nothing before the Court to indicate that the accusation against the accused is actuated by malafides or that there was any extraneous consideration on the part of the Investigating Officer in taking steps for the arrest of the accused. Therefore, on a careful consideration of the serious nature of the allegation against the accused and the larger interest of the public, I find that this is not a fit case to grant anticipatory bail and that the appropriate course is to allow the concerned Magistrate to deal with the same on the basis of the materials before the Court, in case the accused is arrested.'

6. The learned counsel appearing for the petitioner would contend that the alleged act cannot be termed as a purposeful one so as to satisfy the definition of 'mischief' as defined under Section 425 of the I.P.C. As long as the act does not amount to an act of mischief, no offence under Section 3 of the PDPP Act would get attracted. The learned counsel further would contend that in the nature of allegations, custodial interrogation of the petitioner, at any rate, is not a necessity, and therefore, this is a case where anticipatory bail is liable to be granted.

7. The learned Public Prosecutor has placed on record a report of the investigating officer, a copy of the report of inspection of the bus conducted by the Motor Vehicle Inspector attached to the Sub Regional Transport Office, Pala and the note estimating the loss prepared by the Depot Engineer. The learned Public Prosecutor would submit that considering the gravity of the offence and as the act by its nature would be a challenge to the social conscience, the application for anticipatory bail may be dismissed.

8. The offence alleged against the petitioner is under Section 3 of the PDPP Act. The basis for alleging such an offence is that by driving the KSRTC bus across such a level of flood and by ignoring the fact that the road has been inundated making plying of the bus impossible, the petitioner caused serious damage to the bus. No doubt, he should not have, at any rate, ventured to drive the vehicle ignoring such a high level of water on the road. The contention of the petitioner is that the act does not amount to mischief as defined in Section 425 of the I.P.C. That is a matter to be decided on the basis of the evidence to be adduced at the trial. There is no question of the identity of the accused in this case. There is no difficulty for the investigation officer to collect evidence in order to complete the investigation and submit a final report in the matter even without the petitioner being arrested and committed to jail. I am therefore, of view that custodial interrogation and detention during the period of investigation is not a necessary requirement in this case. Moreover, the offence is punishable with less than 7 years of imprisonment. From the materials on record it does not appear that any of the conditions enumerated in Section 41(1)(b) of the Code exists so as to hold that arre