Today, the bail order hurts many, including the bereaved families of the victims of this tragedy.

Kollam tragedy Why giving bail to the accused was not a good ideaFile photo
Voices Kerala Wednesday, July 20, 2016 - 09:38
Written by  Prity Kunwar

The July 11, 2016 order delivered by the High Court of Kerala granting bail to the 39 accused (two accused having been earlier released on bail vide order dated 27.05.2016), has ruffled feathers considering the public uproar after the tragic incident at the Puttingal Devi Temple (Kollam, Kerala) which claimed about 110 lives and left many injured.

A country of varied religious beliefs, India each year witnesses lakhs of devotees thronging to temples spread across various States. However, the administrative and security arrangement, as has been highlighted from time to time, by the concerned Temple Trust and the local administration, is meagre leading to accidents.

The Kollam tragedy is a public crime, a gross depiction of criminal negligence and callousness towards safety of lakhs of devotees. The latest bail order must be viewed from this perspective. It is critical to understand the “mitigating” and “aggravating” circumstances of the case, which ought to have been appreciated by the High Court while considering the Bail Application. Besides the “mitigating” and “aggravating” factors, it is also vital to understand the mandate of the Code of Criminal Procedure, 1973 with respect to grant of bail and the precedents laid by the Supreme Court of India in this regard.

The Code of Criminal Procedure (Cr.P.C) provides for cases in which bail under Section 436 and Section 437 i.e.; bailable and non-bailable offences, respectively, can be granted. Section 439 of the Code provides for “special powers of High Court or Sessions Court regarding bail”, which gives discretion to the said Courts to grant regular bail to the Accused by imposing conditions prescribed under Section 439(1) and Section 437(3), Cr.P.C. The Accused, in the Puttingal case, have been primarily charged under Section 308 (Attempt to commit culpable homicide), Section 304 (Negligence) and Section 302 (Murder) of the Indian Penal Code. Section 302 prescribes for a minimum punishment of life imprisonment and fine or a maximum, for death and hence, the degree of culpability is higher.

In the recent Bail Order, one of the primary reasons stated by Learned Single Judge, while granting bail to the Accused on July 11, 2016, was the delay by the investigating agency in filing the Charge-sheet within the statutory period. This power has been dealt with under Section 167(2) of Cr.P.C, which provides for default bail i.e. bail to be granted if charge-sheet is not filed within 90 days. In this case, the Accused had been arrested on various dates. The main Accused i.e. office bearers of the Temple Trust were arrested on April 12, 2016 and were thereafter, remanded to judicial custody. Statutory Bail under the said Section can be granted only if an Application has been made by the Accused under Section 167(2) of Cr.P.C and if the limitation of 90 days lapsed from the date of first remand order; and not the date of arrest. The grant of statutory bail under Section 167(2), Cr.P.C, has been dealt with by the Supreme Court of India in Sanjay Dutt Vs. State through CBI, (1994) 5 SCC 410 and Dr. Bipin Shantilal Panchal v. State of Gujarat (1996)1 SCC 718. Further, Section 439, Cr.P.C gives discretionary power to the Courts concerned to grant bail. The use of the word “shall” in Section 437(3), Cr.P.C makes it mandatory upon the Court hearing an Application for regular Bail under Section 439, to impose conditions stated in Section 437(3). Consequently, the Court has to direct all the Accused to not indulge, directly or indirectly in inducement, threat or promise to any person connected to the case.

The Learned Single Judge, in this case, has directed the Accused to surrender their passports and not leave the State of Kerala. The moot question that may arise is, considering the influential position of the Accused, are the conditions imposed by the Learned Judge, adequate to ensure fair and proper investigation?

Aggravating factors of the case

Today, the Bail Order hurts many, including the bereaved families of the victims of this tragedy. Interestingly, the first Application for regular bail of these Accused had been dismissed by the same Judge vide order dated May 27, 2016, on the ground that as major part of the investigation is yet to be completed and that custody of the Accused is necessary for just and proper investigation.

However, barely two months later, when the second Bail Application was preferred by the same Accused, they were enlarged on bail despite there being no change in circumstances justifying the release, except for the charge-sheet not having been filed within the statutory period. Infact, the prosecution had even detailed the reasons for the delay in filing the Charge-sheet i.e. magnanimity of the offence, time taken to peruse 2000 pages of witnesses’ statements and for preparing the final report for service upon each of the 43 accused (running into lakhs of pages).

The Prosecution also raised a categorical defence that the investigation would be affected in case bail is granted to the Accused, which ought to have been considered. The said averments of the Prosecution were not unfounded considering the fact that most among the Accused are Managing Committee members of the Puttingal Temple Trust, and thus hold a position from where they may in all likelihood, try to influence material witnesses and/or tamper with the evidence.

The additional fact that the Managing Committee of the Temple Trust conducted the fireworks in blatant disregard to the Additional District Magistrate’s order dated 08.04.2016, also proves that the offence was committed with the knowledge that it may cause death/injury to the public. Even the huge stock of fireworks, more than 5000 kgs, stored within the temple premise, exceeded the otherwise permitted/licensed amount of 30 kgs. Admittedly, some of the Accused even had the knowledge that the fireworks contained Potassium Chlorate, a banned compound. This shows the callousness and utter disregard of the Accused to human life. Surprisingly, the office-bearers of the Temple Trust even managed to mislead the devotees by falsely stating that the local government had granted permission for the fireworks’ display.

Now, that the persons involved are out on bail, and the investigation is still not completed, it is the duty of law enforcement agencies to ensure fair and proper trial. Considering the magnanimity of the offence and the high degree of criminality involved, it is expedient that the identity of the material witnesses is not disclosed, their interests are protected and the movement of all the Accused is monitored, regularly.

Prity Kunwar is an advocate at the Supreme Court of India.

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