Kerala High Court
Mathew M.M vs State Of Kerala on 12 April, 2024
Author: C.S.Dias
Bench: C.S.Dias
1
BA No.2143 of 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
BAIL APPL. NO. 2143 OF 2024
CRIME NO.254/2024 OF Nedumkandam Police Station, Idukki
PETITIONER/S:
MATHEW M.M,
AGED 64 YEARS
S/O MATHAI , RESIDING AT MYLADIATHU(H), ANAKKARA P.
O., 8TH MILE, IDUKKI DISTRICT, PIN - 685512
BY ADVS.
V.S.THOSHIN
SATHEESH MOHANAN
SREEJITH S. NAIR
AKHIL SUSEENDRAN
MAHIMA
RESPONDENT/S:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
OTHER PRESENT:
Sr PP Smt Seetha S
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
BA No.2143 of 2024
C.S.DIAS,J
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BA No.2143 of 2024
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Dated this the 12th day of April, 2024
ORDER
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 submissions. He prayed that the
application may be allowed.
6. The learned Public Prosecutor seriously opposed the
application. The Investigating Officer has filed a bail objection
report. The Investigating Officer has, inter alia, stated that, in
the investigation conducted so far, it has been revealed that the
first and second accused, on the instructions of the third
accused, having full knowledge that they do not have the
licence or permission from the statutory authorities, used the
explosives for digging the bore well and the same exploded.
The fourth accused, who also got injured in the incident,
escaped from the spot in his car. A detailed investigation in the
case is necessary. The petitioner is an abettor of the above
offences. Therefore, all the accused have committed the above
offences. The application is meritless and is only liable to be
dismissed.
7. On an evaluation of the prosecution case, it can be
deduced that the principal allegation is against the third
accused - the independent contractor - who was entrusted with
the work to dig the bore well. It is he who had instructed the
accused 1 and 2 to use explosives to dig the bore well without
any licence or permission. The accused 1 and 2, following the
instructions of the third accused, used the explosives which got
detonated and the first accused tragically succumbed to fatal
burn injuries and the second accused suffered third degree
burns. The fourth accused, who was also present at the scene
of occurrence, took to his heels after the incident. A careful
reading of the prosecution allegation prima facie shows that
the fifth accused (the petitioner) was nowhere at the scene of
occurrence. The only overt act alleged against him is that he
had entrusted the work to the third accused, an independent
contractor. Other than from being the owner of the estate, there
is no other material to substantiate the petitioner's involvement
in the crime.
8. Dealing with criminal vicarious liability, the Hon'ble
Supreme Court in Sham Sundar vs State of Haryana [ (1989)
4 SCC 630] has categorically held that criminal liability under
a penal provision is not a civil liability. The penal provision
must be strictly construed in the first place. There is no
vicarious liability in criminal law unless the statute takes it
within its fold.
9. Subsequently, in Hira Lal Hari Lal Bhagwati vs
C.B.I., New Delhi [ (2003) 5 SCC 257] the Hon'ble Supreme
Court has again reiterated the observations made in Sham
Sundar (supra) that there is no concept of vicarious criminal
liability, unless the statute covers the same.
10. This Court while dealing with the question ofvicarious
criminal liability, in an illuminating judgment rendered by
Dr.Justice Kauser Edappagath, in Manual vs State of Kerala
and another [2022 (2) KHC 142] has reiterated the law in
Sham Sundar and Hira Lal Hari Lal Bhagwati (supra) and
held that vicarious criminal liability can be fastened only by
reason of a provision in a statute and not otherwise.
11. In the instant case, as already observed in the
preceding paragraphs, the only allegation against the petitioner
is that he entrusted the contract work of digging the bore well
to the third accused, who in turn instructed the accused 1 and 2
to use explosives without any licence. There is no other
specific allegation attributed against the petitioner in using the
explosives, the same getting detonated or the accused 1 and 2
suffering the burn injuries.
12. After bestowing my anxious consideration to the facts,
the rival submissions made across the Bar and the materials
placed on record, particularly on being prima facie satisfied
that there is no specific overt act alleged against the petitioner,
other than him entrusting the work to the third accused to dig a
bore well and there being no duty cast upon him to have seen
that the third accused did not use explosives for doing the
work, and there is no other material to show his involvement in
the crime, I hold that the petitioner is entitled to an order of
pre-arrest bail, but subject to the condition that he co-operates
with the Investigating Officer. Hence, I am inclined to allow
the application.
In the result, the application is allowed on the
following conditions:
i) The petitioner is directed to surrender before the
Investigating Officer within one week from today.
ii) In the event of the petitioner's arrest, the
Investigating Officer shall produce him before the
jurisdictional court on the date of surrender itself.
iii) On such production, the jurisdictional court shall
release the petitioner on bail on him executing a bond for
Rs.1,00,000/- (Rupees One Lakh only) each with two
solvent sureties for the like amount each, to the
satisfaction of the jurisdictional court;
iv) The petitioner shall co-operate with the
investigation and make himself available for interrogation,
as and when directed by the Investigating Officer;
v). The petitioner shall not intimidate witnesses or
interfere with the investigation in any manner;
vi) The petitioner shall surrender his passport, if any,
before the court below at the time of execution of the bond.
If he has no passport, he shall file an affidavit to the effect
before the court below on the date of execution of the
bond;
vii). The petitioner shall not get involved in any other
offence while on bail.
viii). In case of violation of any of the conditions
mentioned above, the jurisdictional court shall be
empowered to consider the application for cancellation of
bail, if any filed, and pass orders on the same, in
accordance with law.
ix) Applications for deletion/modification of the bail
conditions shall also be filed before the court below.
(x) Needless to mention, it would be well within
thepowers of the Investigating Officer to investigate the
matter and, if necessary, to effect recoveries on the
information, if any, given by the petitioner even while he is
on bail as laid down by the Hon'ble Supreme Court in
Sushila Aggarwal v. State (NCT of Delhi) and another
[2020 (1) KHC 663].
(xi) Any observations made in this order is only for
thepurpose of deciding the application and the same shall
not be construed as an expression on the merits of the
case, which is to be decided by the Court(s).
sks/12.4.2024 C.S.DIAS, JUDGE
