Allowed

V.Shaji v. State of Kerala

Kerala HC22 Oct 2019Bail Appl./6778/2019

Case brief

AI extract

What is this about?

The High Court of Kerala granted anticipatory bail to the petitioner, who allegedly caused the death of mahouts during an accidental collapse of a building. The court found no prima facie intention or knowledge on the part of the accused to attract Sections 304/308 IPC, noting the substantial investigation progress.

What did the court decide?

Application allowed; applicant to undergo investigation on Saturdays and execute bail bond for Rs. 1,00,000 with sureties.

V.Shaji Vs State of Kerala — Bail and Remand | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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TUESDAY, THE 22ND DAY OF OCTOBER 2019 / 30TH ASWINA, 1941

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Bail Appl..No.6778 OF 2019

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CRIME NO.742/2019 OF Paravur Police Station, Kollam

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PETITIONER/ACCUSED:

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V.SHAJI AGED 57 YEARS S/O.LATE VISWAMBHARAN, RESIDING AT KAVERI, PUTHENKULAM JUNCTION, POOTHAKKULAM VILLAGE, KOLLAM DISTRICT.

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BY ADV. SRI.V.VENUGOPALAN NAIR

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RESPONDENTS/STATE AND COMPLAINANT:

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1 STATE OF KERALA, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031.

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2 THE SHO (CIRCLE INSPECTOR OF POLICE), PARAVUR POLICE STATION, KOLLAM DISTRICT, PIN691301.

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OTHER PRESENT:

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SRI B JAYASURYA SR PP

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.10.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Bail Appl..No.6778 OF 2019

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ORDER

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This application is filed under Section 438 of the Code of Criminal Procedure.

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The applicant herein is the accused in Crime No. 742 of

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2019 of the Paravur Police Station, Kollam District registered on 06.09.2019 under Sections 308 and 304 of the IPC.

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The applicant is the owner of several captive Elephants and for their care and management, he had employed several mahouts. The accommodation for the mahouts were allegedly provided in a dilapidated building situated near to his residential home. On 06.09.2019, at about 3 a.m, due to massive rains, the eastern wall of the building caved in and the mahouts were trapped under the debris. The investigation revealed that laterite stones were unloaded outside the eastern wall and due to the rains, the stones became wet and the transferred weight was too much for the Eastern wall to support. Two of the mahouts suffered fatal injuries and their lives could not be saved.

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Three of the mahouts had suffered serious injuries. Based on the

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Bail Appl..No.6778 OF 2019

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information furnished by one of the mahouts, the subject crime was registered.

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Sri.V. Venugopalan Nair, the learned counsel appearing for

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the applicant, submitted that the applicant is innocent of the allegations and he had no role to play in the unfortunate incident which took place on 6.9.2019. According to the learned counsel, the mahouts were provided accommodation elsewhere and it was without his knowledge that they had stayed in the office of an auditorium building. According to the learned counsel, in order to attract the offence under Section 304 of the IPC, it has to be shown prima facie that the applicant had intention to commit the offence or it was committed with the knowledge that death would ensue. Even to make out an offence under section 304A of the IPC, it has to be shown that the death had occurred due to any negligent act or reckless act on the part of the accused. According to the learned counsel, there is no element of knowledge or intention on the part of the applicant. To bolster his submissions, the learned

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counsel has referred to the decisions in State of Rajastan v. Chittarammal¹ , Mahadev Prasad Kasushik v. State of Uttar

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1 2007 (10) SCC 792

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Bail Appl..No.6778 OF 2019

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..4..

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Pradesh and Another² , Tarseem Chand v. State [Delhi Administration]³ , Cheruban Gregory v. State of Bihar⁴ and Baldev Raj Kapur v. State⁵ . He would take pains to point out that the instant is a pure case of accident and the applicant had no role to play.

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The learned Public Prosecutor, on the other hand,

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submitted that the employees of the applicant had met with an unfortunate death and it was due to the laches of the applicant that the incident had taken place. According to the learned Public Prosecutor, the witnesses had stated that the accommodation provided to them was in the building which had caved in and therefore, knowledge of the consequences has to be attributed to the applicant.

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I have considered the submissions advanced and have

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perused the records. Admittedly, two of the employees of the applicant suffered fatal injuries resulting in their death and three others suffered

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serious injuries when the building in which they were provided accommodation by the applicant collapsed during rains. The applicant

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2 [AIR 2009 SC 125]

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3 1985 (2) Crimes 948]

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4 [AIR 1964 SC 205]

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5 [2009 CriLJ 1418]

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Bail Appl..No.6778 OF 2019

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is now sought to be proceeded against under Sections 304 and 308 of the IPC. Section 304 of the IPC provides for punishment for culpable homicide not amounting to murder and Section 308 of the IPC punishes a person who attempts to commit culpable homicide. A plain reading of section 304 of the IPC makes it clear that it is in two parts. The first part of the section is generally referred to as section 304 part I whereas the second part as 304 Part II. The first part applies where the accused causes bodily injury to the victim with intention to cause death; or with intention to cause such bodily injury as is likely to cause death. Part II, on the other hand, comes into play when death is caused by doing an act with knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. In other words, unless such intention or knowledge can be culled from the materials, the offence will not be attracted. In the same manner, the provision contained in section 308 of the IPC postulates doing of an act with such intention or knowledge and under such circumstances that by such act he causes death, he would be guilty of culpable homicide not amounting to murder.

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Testing the facts of the instant case, in the light of the

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Bail Appl..No.6778 OF 2019

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settled propositions, I find that the building had caved in due to heavy rain exacerbated by the load exerted by the laterite stones placed adjacent to the eastern wall. Though the incident is unfortunate, in the facts and circumstances, prima facie, I do not think that the applicant can be attributed with either intention or knowledge. There is no case for the prosecution that the applicant is involved in any other crimes. No apprehension is expressed by the prosecution that it would be difficult to secure his presence for the purpose of investigation or trial. Furthermore, the case records reveal that substantial part of the investigation is over. Having considered the entire facts, I do not think that the custodial interrogation of the applicant is necessitous for an effective investigation. However, it is made clear that any expression of opinion for the purpose of deciding this bail application shall not be regarded as an expression on merits of the case.

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In the result, this application will stand allowed. The applicant shall appear before the Investigating Officer within ten days from today and shall undergo interrogation. Thereafter, if he is proposed to be arrested, he shall be released on bail on his executing a bond for a sum of Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties each

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Bail Appl..No.6778 OF 2019

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for the like sum. The above order shall be subject to the following conditions:

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i) The applicant shall co-operate with the investigation and shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 11 a.m., for two months or till final report is filed, whichever is earlier.

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ii) He shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/ her from disclosing such facts to the court or to any police officer.

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iii) He shall not commit any similar offence while on bail.

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In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law.

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Sd/RAJAVIJAYARAGHAVAN. V JUDGE

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/True Copy/

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kkj

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P.A. To Judge

V.Shaji v. State of Kerala

Case brief

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V.Shaji v. State of Kerala

Case brief

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