K.K. Shaji & Ors. vs State Of Kerala & Ors.

C.S.Dias, J.

The petitioners are the accused 1 to 28, 31 and 32 in CC No.788/2023 on the file of the Court of the Judicial Magistrate of First Class, Ranni (‘Trial Court’), which has originated from Crime No.263/2021 registered by the Ranni Police Station, Pathanamthitta alleging the commission of the offences punishable under Sections 143, 144, 147, 148, 427 and 447 read with Section 149 of the Indian Penal Code and Section 5 of the Kerala Prevention of Damage to Private Property and Payment of Compensation Act, 2019 (‘Act’, for short).

The petitioners have filed the Criminal Miscellaneous Case to quash the FIR, the Final Report and all further proceedings in the above case on the assertion that, even if the allegations in the above documents are taken on their face value and in their entirety, the same would not attract the offences alleged against the petitioners.

The prosecution case, in a nutshell, is that, on 27.08.2020 at 16.00 hours, the accused persons, in prosecution of their common intention, formed an unlawful assembly and, with the help of two excavators, demolished the compound wall of the property of the de facto complainant (third respondent) and the destroyed the coconut and pepper plantations in the property and caused a loss of Rupees Four Lakh to the third respondent.

I have heard the learned Counsel for the petitioners and the learned Public Prosecutor.

The learned counsel for the petitioners submits that, as the petitioners have received summons from the Trial Court, they are prepared to appear before the said court and seek bail. Therefore, the petitioners would be satisfied if this Court directs the Trial Court to consider the petitioners’ bail applications, without insisting on any deposit as contemplated under Section 8 of the Act.

The above submission necessitates an examination of the scope and ambit of Section 8 of the Act, which postulates a special condition governing the grant of bail to persons accused of offences punishable under Sections 5 and 6 of the Act. As the question essentially revolves around the interpretation of the said provision, it is profitable to extract the same, which reads as follows:

Equally relevant are the definitions in Section 2 of the Act, which reads thus:

A reading of the above provisions makes it evident that the Act is intended to provide an effective mechanism for protecting private property from damage caused during communal disturbances, hartals, demonstrations, processions and similar assemblies, while simultaneously ensuring that the victims of such acts receive appropriate compensation. However, the allegations must disclose a “damaging act” as defined under Section 2(a), resulting in damage to “private property” within the meaning of Section 2(c), and such damage must have occurred in the course of one of the acts specified under Section 2 (a). It is only upon the existence of these attributes that the offence under Section 5 gets attracted and, consequently, Section 8 comes into play. Nonetheless, the condition prescribed under Section 8 is inextricably linked with the applicability of the substantive provisions of the Act, for which there should be a prima facie judicial assessment that the allegations disclose an offence under the Act. The provision cannot be construed as authorising the mechanical imposition of a monetary condition, as the police have included Section 5. If such an interpretation is permitted, it would become inconsistent with the scheme of the Act and undermine the fundamental principles governing the exercise of judicial discretion in matters concerning personal liberty.

The statutory framework governing the determination of compensation also assumes significance in the present context. Section 9 of the Act provides the mechanism for quantifying and awarding compensation consequent upon a conviction under the Act. The provision reads thus:

In exercise of the powers conferred under Section 11 of the Act, the Government of Kerala has framed the Kerala Prevention of Damage to Private Property and Payment of Compensation Rules, 2022. Rule 3, which prescribes the procedure for the assessment of loss, reads as follows:

A harmonious reading of Section 9 of the Act and Rule 3 of the Rules leaves little room for doubt that the Legislature has contemplated a structured mechanism for the determination of compensation. The assessment of damage is not intended to rest upon a subjective estimate or a mere assertion made by the investigating agency. On the contrary, the statute mandates the preparation of a formal report by a police officer not below the rank of an Inspector, who is authorised, where felt so, to obtain expert opinion from the Government Department.

Equally significant is the fact that Section 9 contemplates the determination and recovery of compensation upon conviction of the accused. Although Section 8 authorises the Court to insist upon the deposit of not less than one-half of the assessed value while considering a bail application, such a requirement is only a provisional statutory safeguard. It cannot be equated with a final determination contemplated under Section 9.

It is also important to consider the expression “the value of the property destroyed or damaged as may be determined by the court based on police report” in Section 8 of the Act.

The Legislature has consciously employed the words “determined by the court” and not “assessed by the police.” The language indicates that the police report constitutes only one of the materials before the Court. It is ultimately the Court which has to determine, on a prima facie consideration of the available materials, the value of the property alleged to have been damaged.

Importantly, before embarking upon the exercise of determining the quantum of damage, the Court must first satisfy itself that the allegations in the FIR, Final Report or complaint prima facie attract an offence under Sections 5 and 6 of the Act. The jurisdiction to invoke Section 8 arises only when the offence alleged falls within the ambit of the Act. Unless the ingredients constituting a “damaging act” under Section 2(a) and damage to “private property” under Section 2(c) are prima facie made out, the special condition prescribed under Section 8 cannot automatically come into operation. Thus, the exercise contemplated under Section 8 is two-fold. Firstly, the Court must independently assess whether the allegations, if accepted at their face value, disclose an offence punishable under the Act. Secondly, if the Court reaches such a prima facie conclusion, it must determine the value of the property alleged to have been damaged based on relevant materials, including—but not confined to—the police report. Both the above exercises require the application of the judicial mind.

Unfortunately, this Court is coming across several orders passed by the jurisdictional courts directing the accused persons to deposit one-half of the amount mentioned in the police report as a matter of course, without examining whether the statutory ingredients of the offence are prima facie attracted or whether the assessment of damage is supported by any material. The orders reproduce the figure mentioned by the investigating officer without recording any independent reasons or satisfaction. In some cases, the amounts assessed by the investigating agency run into lakhs of rupees. Persons with no financial means or capacity find it difficult to comply with such onerous conditions and indefinitely languish in judicial custody. The right to seek bail thereby becomes illusory, not because the Court has found their detention necessary for the administration of criminal justice, but solely because of their inability to mobilise the funds required to secure their release on bail.

Judicial discretion, particularly in matters affecting personal liberty, cannot be exercised in a ritualistic manner. The duty of a criminal court is not merely to enforce the literal words of a statute but to apply them in a manner consistent with constitutional principles and the broader objectives of criminal jurisprudence. It is, therefore, imperative that every court exercising jurisdiction under Section 8 of the Act records its prima facie satisfaction regarding the applicability of the Act, independently evaluates the materials relied upon for assessing the damage, and only thereafter determines whether the statutory condition regarding deposit deserves to be insisted upon in the facts and circumstances of the individual case. Only such an approach would preserve the delicate balance between safeguarding the rights of victims of property damage and protecting the fundamental right to personal liberty guaranteed to an accused until he is found guilty.

The above discussion leads to the broader question regarding the discretion of the Court while imposing conditions for the grant of bail. Although Section 8 of the Act incorporates a condition governing the release of an accused on bail, the exercise of power by the criminal court cannot ignore the constitutional mandate enshrined under Article 21 of the Constitution of India.

The law relating to bail is founded upon the equally well-established principle that every accused is presumed to be innocent until his guilt is proved in accordance with law. The object of granting bail is neither punitive nor compensatory. Bail serves a limited purpose— namely, to secure the presence of the accused during investigation and trial while preserving his fundamental right to liberty.

The Hon’ble Supreme Court in State of Andhra Pradesh v. Challa Ramkrishna Reddy and others [(2000) 5 SCC 712] has observed that the right to life is one of the basic human rights. A prisoner, be he a convict, undertrial, or detenu, does not cease to be a human being.

In Dataram Singh v. State of Uttar Pradesh and Another [(2018) 3 SCC 22], the Hon’ble Supreme Court has succinctly stated thus:

The above principle has been reiterated in Kunal Kumar Tiwari @ Kunal Kumar v. State of Bihar and another [(2018) 16 SCC 74] by the Hon’ble Supreme Court and by explaining the true ambit of the expression “interest of justice” occurring in Section 437(3) Code of Criminal Procedure. It is observed as follows:

The above exposition assumes considerable relevance while construing Section 8 of the Act. Although the Legislature has consciously imposed an additional statutory condition relating to deposit of compensation, such a condition cannot be interpreted in isolation from the settled principles governing bail jurisprudence.

In Munish Bhasin & Others v. State (Government of NCT of Delhi) and Another [(2009) 4 SCC 45], the Honourable Supreme Court has categorically held that the Courts shall not impose freakish conditions in bail orders.

In a recent decision in Frank Vitus v. Narcotics Control Bureau and Others [(2024) 8 SCC 415], the Hon’ble Supreme Court has held that conditions imposed while granting bail cannot be arbitrary, fanciful or disproportionate and must remain confined to the purposes recognised under Section 437(3) of the Code of Criminal Procedure. The Court further emphasised that constitutional rights can be curtailed only to the minimum extent necessary for securing the administration of criminal justice.

Viewed in the above perspective, Section 8 of the Act cannot be understood as creating an inflexible mandate requiring every accused to deposit one-half of the amount mentioned in the police report irrespective of the facts of the case. Such an interpretation may prove counter-productive, giving undue weight to the investigating officer's opinion and resulting in the continued incarceration of the accused due to their financial incapacity.

This Court is conscious that the Legislature, while enacting Section 8, intended to discourage indiscriminate destruction of private property and to safeguard the interests of victims. The objective sought is salutary. Therefore, a careful balance has to be struck between preserving the liberty of the accused and protecting the legitimate interests of persons who have allegedly suffered loss or damage.

It is in the above backdrop that Section 8 requires to be applied. The provision obliges the Court to exercise an informed judicial discretion after independently satisfying itself regarding the applicability of the Act, the existence of prima facie material, and the correctness of the assessment relied upon for determining the value of the alleged damage. Only thereafter can the Court consider whether insistence on the statutory deposit is warranted in the facts of the particular case and whether alternative modes of securing the amount, consistent with the interests of justice, may appropriately be accepted.

In the present proceedings, prima facie, this Court is of the view that an interpretation of Section 8, which compels every accused, irrespective of the facts of the case or the materials supporting the assessment of damage, to deposit one-half of the amount mentioned in the police report as an inexorable condition for bail and may give rise to serious issues touching upon the infringement of Articles 14 and 21 of the Constitution. Since the vires of the provision is not under challenge in the present proceedings, the question is left open for consideration.

Having regard to the nature of the relief now sought, I do not consider it necessary to examine the merits of the allegations contained in the FIR or the Final Report or to express any opinion regarding the sustainability of the prosecution. Any observation on those aspects may prejudice either side at the trial. The controversy presently falls within a narrow compass, namely, the manner in which the Trial Court should exercise its jurisdiction under Section 8 of the Act while considering the bail applications.

In the facts of the present case, since the petitioners have already received summons from the Trial Court and have expressed their willingness to appear before the said Court and seek regular bail, the interests of justice would be adequately served by directing the Trial Court to consider their applications expeditiously in the light of the principles discussed above.

Accordingly, this Criminal Miscellaneous Case is disposed of permitting the petitioners to appear before the Trial Court on or before 30.07.2026 and file appropriate applications for bail. On such appearance, the Trial Court shall consider and dispose of the applications, preferably on the very same day, after affording the prosecution an opportunity of being heard and in accordance with law. If, upon an independent consideration of the materials on record, the Trial Court forms a prima facie opinion that the petitioners are required to comply with the requirements contemplated under Section 8 of the Act, it shall determine the amount in accordance with law, and shall also consider whether the interests of justice would be adequately safeguarded by permitting the petitioners to deposit the amount within a reasonable time period.

The Criminal Miscellaneous Case is ordered accordingly.

Annexure 1 TRUE CERTIFIED COPY OF THE FIR AND FIS IN CRIME NO.263/2021 OF RANNI POLICE STATION, THIRUVANANTHAPURAM DISTRICT DATED 24.03.2021

Annexure 2 TRUE CERTIFIED COPY OF THE FINAL REPORT OF THE 2ND RESPONDENT IN CRIME NO.263/2021 OF RANNI POLICE STATION, THIRUVANANTHAPURAM DISTRICT DATED 30.05.2022 ALONG WITH 161 STATEMENTS OF CWS 2 TO 4

Annexure 3 TRUE COPY OF THE KERALA PREVENTION OF DAMAGES TO PRIVATE PROPERTY AND PAYMENT OF COMPENSATION ACT, 2019 ALONG WITH ENGLISH TRANSLATED VERSION