SUNIL A & ANR vs STATE OF KERALA & ANR

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

The 2nd petitioner is the Manager of a Kadamboor Higher Secondary School, Kadamboor and the 1st petitioner is the driver of the school bus.

They have been arrayed as the accused in Crime No.39 of 2018 of Kannur Town Police Station, registered alleging offence punishable under

Sections 353 and 34 of the IPC.

The allegation is that, on 10.01.2018 at 12.05 p.m., the de facto complainant, who is the Motor Vehicle Inspector attached to the R.T.O,

Kannur received intimation that a bus bearing KL-13/C-36 was being plied in an altered condition. The Motor Vehicle Inspector went to the spot

and ordered the petitioners not to ply the vehicle. It is alleged that the petitioners herein ignored the directions of the officer and thus deterred the

public servant from discharging his official duty.

The learned counsel appearing for the petitioners submitted that the allegations are untrue. According to the learned counsel, the students of the

Kadambur Higher Secondary School had secured prize in a National level competition held at Bhopal and a reception was organized for

welcoming the students at the Kannur Railway Station on their arrival. The bus, which was altered to the present form as per the directions of the

District Educational Officer for using the same in the State Youth Festival for displaying a tableaux, was used to parade the students. According to

the learned counsel, the bus as altered has been used during the Republic Parade by various departments and has never been used for transporting

students to school. It is further urged that the allegations that the petitioners had deterred the officer from performing his duty is without basis. The

learned counsel has also referred to Annexures-II and III to substantiate his submissions. The learned counsel also relied on the decision of the

Apex Court in Bhadresh Bipinlal Sheth v. State of Gujarat and Another [2016 (1) SCC 152] to contend that Section 438 of the Code is

conceptualised under Art.21 of the Constitution which relates to personal liberty and as such call for liberal interpretation.

The learned Public Prosecutor has opposed the prayer. It is submitted that the petitioners have ignored the directions of the public servant who

had intervened to ensure the safety and security of the students who were made to travel in the said altered bus. It is further submitted that the

alteration carried out was without obtaining any licence or permit from the lawful authority and that being the case, the petitioners cannot now

contend that they are innocent.

I have considered the submissions advanced and have gone through the case diary. Prima facie, it appears that in the euphoria of winning a

National level competition students were paraded in an open bus with much fan fare. The photographs in the news report, which is produced as

Annexure-II, clearly reveals what had transpired on their arrival from Bhopal. The petitioners have no case that they had obtained permits from the

Road Transport Authority. A detailed evaluation of the facts are not warranted at this stage. Though the acts of the petitioners cannot be

approved, while exercising jurisdiction under Section 438 of the Code of Criminal Procedure, the question is whether their confinement in custody

is required for an effective investigation. In the instant case, the prosecution has no case that the petitioners are persons with prior criminal

antecedents. There is no reason to suspect that the petitioners will flee from justice or that their presence cannot be ensured at the stage of trial.

Having considered all the relevant aspects and in the light of Bhadresh (supra), the custodial interrogation of the petitioners does not appear to be

necessitous for an effective investigation. Necessary conditions can be imposed to ensure that the petitioners cooperates with the investigating

agency.

In the result, this petition will stand allowed. The petitioners shall appear before the investigating officer within ten days from today and shall

undergo interrogation. Thereafter, if they are proposed to be arrested, they shall be released on bail on their executing a bond for a sum of

Rs.40,000/- (Rupees forty thousand only) each with two solvent sureties each for the like sum. The above order shall be subject to the following

conditions.

i)The petitioners 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 one month or till final report is filed, whichever is earlier.

ii)The petitioners 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.

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

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.