O R D E R

This is an application filed by the accused in crime No.229/2021 of Sulthan Bathery police station, which was initially registered alleging offence under Section 286 IPC and Section 9B(1)(d) of the Explosives Act, 1884. The genesis of the crime is a very tragic incident that had happened on 22.04.2021 in a shed adjacent to House No.XIV/522 in Sulthan Bathery Municipality area near Sagar theatre at Karakkandy. The said house belongs to one Radhakrishnan, who is presently employed abroad in Bahrain. During 2017-2018 that house was leased out to the petitioner Ajith Kumar who was running a hotel and business in crackers and explosive substances in Sultan Bathery. The prosecution alleges that, as part of his business he had stored explosive items in the shed. Even though he had vacated the house and stopped the business, he failed to remove the explosive items stored there and the three teenage boys namely, Firoz, Ajmal and Murali who happened to enter into the shed and one of them had ignited a matchbox which led to the setting of fire of the crackers and an explosion took place and all of them sustained grievous burn injuries. Later they succumbed to the injuries. All the three boys died in the incident.

2. During the course of investigation Section 304 of the IPC also has been incorporated and now apprehending arrest the petitioner has moved this Court.

3. Earlier he had moved an application under section 438 of the Cr.P.C. before the Sessions Court, Kalpetta, which was dismissed by order dated 31.05.2021 and seeking the very same relief he has moved this Court.

4. I heard the learned counsel on both sides.

5. According to the learned counsel for the petitioner, in order to attract Section 304 of the IPC it is imminent that the facts should come within the scope of Section 299 of the IPC and there must be overt act on the part of the accused that he had done something with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, then only culpable homicide will be attracted, here even the prosecution does not have a case that the petitioner had not done any overt act so as to attract the offence alleged against the petitioner.

6. The learned Public Prosecutor has opposed the application.

According to the senior Public Prosecutor Sri. Santhosh Peter, even though the petitioner had been stocking explosive substances in the shed where the explosion had happened, in spite of insistence by the house owner, the petitioner failed to remove the explosive items from the shed and that led to the sad incident in which three valuable lives were lost.

7. I have also gone through the case diary. The crime was originally registered alleging offence under Section 286 and 9B(1)(d) of the Explosives Act. There no one has been named as accused. During the course of investigation, it came out that the said the building belongs to one Radhakrishnan who is presently working abroad; he is working in Bahrain from 2004 onwards, he had purchased this building and 12 cents of land along with the shed but had never resided there. The building was leased out to Ajith Kumar, the petitioner in 2017. He occupied the building till 2018 and vacated the premises in November 2018. During the period he had kept all his items in the shed including explosives. The children happened to get inside the shed on the fateful day in the pretext of consuming some juice and then one of the diseased, Murali had ignited a matchbox and accidentally the explosives which were kept there caught fire and an explosion took place and all the three boys were burnt in the incident. Out of pain, they ran out of the shed and jumped into a pond in the paddy field. In fact, such an act of the children had aggravated the burn injuries and later they succumbed to the injuries.

8. As rightly pointed out by the learned counsel for the petitioner, in order to attract an