Bail - Campus Violence - Damages to Property - Deposit loss caused [CASE LAW]

Prevention of Damages to Public Property Act, 1984 - S. 3 (2) - Penal Code, 1860 - Ss. 143, 147, 148 & 427 r/w 149 - Bail - College campus was turned into a war zone by a group of students - total loss sustained as Rs.2,55,000 - the applicants are entitled to conditional bail only upon deposit of the proportionate quantified loss caused due to such violence.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

WEDNESDAY,THE 31ST DAY OF OCTOBER 2018 / 9TH KARTHIKA, 1940

Bail Appl..No. 7021 of 2018

CRIME NO. 656/2018 OF MANNARKKAD POLICE STATION, PALAKKAD DISTRICT

PETITIONERS/ACCUSED NOS.1 AND 2

SHANIF K. AND 1 ANOTHER

BY ADV. SRI.BABU S. NAIR

RESPONDENTS/STATE & COMPLAINANT

1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN-682 031.

2 THE SUB INSPECTOR OF POLICE, MANNARKKAD POLICE STATION, PALAKKAD DISTRICT, PIN-678582.

BY SR. PUBLIC PROSECUTOR SRI. C N PRABHAKARAN

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

O R D E R

The applicants herein are the accused Nos.1 and 2 in Crime No.656 of 2018 registered at the Mannarkkad Police Station under §§143, 147, 148 and 427 r/w §149 of the IPC and §3(2) of the Prevention of Damages to Public Property Act, 1984.

2. The applicants were arrested in connection with the aforesaid crime on 6.10.2018 and they remain in custody. They seek regular bail.

3. The prosecution records reveal that disciplinary action was initiated by the Principal of the MES College, Kalladi, Mannarkkad against certain students for indulging in ragging and for collecting money without receipts. This was questioned by a group of students owing allegiance to a particular students organisation. The Principal, however, did not budge to their strong arm tactics. Instead of pursuing their grievance in a legal manner, the accused Nos.1 to 5 formed an unlawful assembly and in prosecution of their common object, trespassed into the college premises and went on a rampage at noon on 28.09.2018. They destroyed glass panes of about 75 windows and brought down the notice boards installed in the college campus. The Public Address microphone and equipments, two computer monitors, two desktop computes, LED display boards and a modem were destroyed. They then targeted their attention to two cars which were parked inside the college, one of which was of the college Principal. After causing wanton destruction, they left the campus. The Principal of the college gave a statement to the Station House Officer of the Mannarkkad Police Station, who registered the crime. In his statement, the informant also stated that the college had approached this Court by filing Writ Petition seeking Police Protection and the applicants herein were arrayed as the party respondents in the Writ Petition. There was an order directing the applicants not to enter the college campus or to cause any interference in the academic activities. It was by violating the directions of this Court that they had entered the college campus and unleashed mayhem.

4. The learned counsel appearing for the applicants submitted that applicants are innocent. According to the learned counsel, the agitation was conducted by the students of the college against the refusal of the Principal in initiating action against a teacher, who had sexually harassed a student. This issue was taken up by the college union of the party to which the applicants owe allegiance. According to the learned counsel, the applicants were roped in solely because they were the respondents in the Writ Petition and as they occupy leadership position in the college union. The learned counsel urges that the agitation was peaceful and no loss was caused. It is further submitted that the applicants were arrested on 6.10.2018 and having regard to the long period of incarceration undergone by them, it is only just and proper that they be released on bail. The learned counsel would also contend that the only non bailable offence alleged against the applicants are under Act 3 of 1984, but the said penal provision would not have any application in the instant case as the property allegedly destroyed cannot be categorised as public property as defined under §2(b) of the Act. The learned counsel would then place reliance on the judgement of the Apex Court in Dataram Singh v. State of Uttar Pradesh [AIR 2018 SC 980] and contended that a humane attitude is required to be adopted while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody, more so, when the accusations against them remain in the realm of accusations.

5. The learned Public Prosecutor has refuted the contentions advanced by the learned counsel. It is submitted that the applicants herein are not even students of the college in question and they had no business to enter inside the college campus, unleash violence and cause destruction. He also referred to the peremptory orders passed by this Court restraining the party respondents in the Writ Petition from committing breach of peace inside the campus. It is submitted that the Investigating Officer had filed a report before the learned Magistrate estimating the total loss sustained as Rs.2,55,000/-, which would show the high-handedness of the acts committed by the applicants and others. Some of the accused are yet to be arrested and the allegations are extremely grave, is the submission.

6. I have anxiously considered the submissions advanced by both sides and have gone through the materials made available.

7. It is clear from the case diary that the college campus was turned into a war zone by a group of students on 28.09.2018. Wanton destruction was committed and this fact is evident from the contemporaneous mahazar prepared by the Investigating Officer. The contention of the applicants that they were not inside the campus cannot be accepted in view of the overwhelming materials collected against them. However, the applicants have been in custody from 6.10.2018 and as the investigation has substantially progressed, no purpose would be served in keeping them under incarceration for a further period.

8. At the same time, the fact that the applicants and the Union they represent are responsible for initiating, promoting and instigating the violence inside the campus persuades me to impose a condition directing them to deposit a portion of the quantified loss caused due to such violence. Necessary directions and guidelines have been issued by the Apex Court in Destruction of Public and Private Property, In re v. State of Andhra Pradesh and Others [(2009) 5 SCC 212] with a view to put an end to the rampant destruction of public and private properties in the name of agitations, bandhs, hartals, etc. In continuation thereto, in Kodungallur Film Society v. Union of India [2018 SCC Online 1719], the Apex Court had issued guidelines to govern the measures that are required to be taken in addition to the recommendations/ directions in In re: Destruction of Public and Private Properties (supra). For the purpose of this application, it would be profitable to extract portions of paragraphs 19 and 20 of Kodungallur (supra), which reads as follows:

19. There are overlapping areas of directions which albeit apply to the situations referred to in the concerned decision. For the purpose of the present writ petition, we have no hesitation in observing that the dispensation can be similar to the one decided recently in Tehseen Poonawalla (supra), for which reason the guidelines delineated in the said decision must apply proprio vigore in respect of peaceful protests turning into mob violence, causing damage to public and private properties.

20. A.. Ex abundanti cautela, we may hasten to clarify that similar interim measures will operate in respect of any peaceful protest turning into mob violence, causing loss of life or damage to public and private properties, including violence designed to instill fear in the minds and terrorise the common man, in the absence of any law to that effect. The recommendations / directions elucidated hereunder are not exhaustive but only to set out broad contour of the measures required to be taken and are in addition to the recommendations/directions given in In Re: Destruction of Public and Private Properties (supra): 

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C. Liability of person causing violence 

a) xxxxxxxxxxxxxxxxxxx 

b) xxxxxxxxxxxxxxxxxxx 

c) A person arrested for either committing or initiating, promoting, instigating or in any way causing to occur any act of violence which results in loss of life or damage to property may be granted conditional bail upon depositing the quantified loss caused due to such violence or furnishing security for such quantified loss. In case of more than one person involved in such act of violence, each one of them shall be jointly, severally and vicariously liable to pay the quantified loss. If the loss is yet to be quantified by the appropriate authority, the judge hearing the bail application may quantify the amount of tentative damages (which shall be subject to final determination thereof by the appropriate authority) on the principle stated in paragraph 15 of the decision in In Re:Destruction of Public and Private Properties (supra), after hearing the submissions of the State/agency prosecuting the matter in that regard.

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E. Compensation 

a) The person/persons who has/have initiated, promoted, instigated or any way caused to occur any act of violence against cultural programmes or which results in loss of life or damage to public or private property either directly or indirectly, shall be made liable to compensate the victims of such violence.

9. Thus there cannot be any doubt that the applicants herein are entitled to conditional bail only upon deposit of the proportionate quantified loss caused due to such violence. The total loss has been tentatively calculated by the Investigating Officer as Rs.2,55,000/- as is evident from the order passed by the learned Magistrate. After going thorough the materials, I concur with the tentative calculation of the loss and it appears to be reasonable. The amount deposited as aforesaid can be used to mitigate the loss and damages caused to the college as per the provisions of the Code at the appropriate stage. The F.I.R in the instant case shows that five persons have been arrayed as the accused. The applicants are thus bound to deposit a sum of Rs.50,000/- each before the jurisdictional court.

In the result, this application will stand allowed. The applicants shall be released on bail on their executing a bond for Rs.1,00,000/- (Rupees One lakh only) each with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction. The above order shall be subject to the following conditions:

1). The applicants shall deposit a sum of Rs.50,000/-each before the court having jurisdiction. If after trial, they are acquitted of all charges, the amount shall be refunded or else the amount will be at the disposal of the court trying the case for payment of compensation and for mitigation of damages.

2). They shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 11 a.m., for three months or till final report is filed, whichever is earlier.

3). They shall not intimidate or attempt to influence the witnesses; nor shall they tamper with the evidence.

4). They shall not enter the limits of Mannarkkad Police Station for a period of three months except for complying with condition No.(1) of this order.

5). They shall not enter the MES Kalladi College for any purpose whatsoever till the conclusion of the trial in this case.

6). The applicants shall not leave India without the permission of the Court and if having passport, shall deposit the same before the Trial Court within a week; If release of the passport is required at a later period, the applicant shall be at liberty to move appropriate application before the Court having jurisdiction.

7). They shall not commit any similar offence while they are 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.