PULLACHI CHANDU Vs. STATE OF KERALA

JUDGEMENT

(1.) IN this application for enlarging the petitioner on bail one of the questions argued was whether the offence is bailable or not. It is contended for the petitioner that Clause. 2 of the Public Property (Prevention of Destruction and Loss) Ordinance, 1978 (hereinafter referred to for the sake of convenience the Ordinance) does not create a new offence but only prescribes a punishment for an aggravated form of mischief defined in s. 425 of the INdian Penal Code. It is therefore said that the offence is not one under "any other law" but under the INdian Penal Code and if so it does not fall within Part II of First Schedule to the Code of Criminal procedure. IN this view it is said that the petitioner is entitled to bail as a matter of course.

(2.) HAVING heard the counsel for the petitioner as well as the Government counsel I think the matter is of considerable importance and requires further and closer examination. Therefore I am posting the case for further hearing on 26th June 1978. Since I feel it necessary to consider whether any interim relief has to be granted in view of the urgency of an application for bail, I am passing this interim order to be in force subject to the decision on the main petition. In this context I am considering mainly whether assuming the offence to be non-bailable the accused should be released on bail pending the disposal of the main petition.

(3.) DETENTION of a person accused of a crime in judicial custody pending trial is not to be a punitive measure. Accusation against a person does not render him less privileged. Ultimately he may be found to be innocent or guilty and only when he is found guilty can the penalty for the offence operate on him and that in accordance with the law as applied to him. The object of detaining the person in judicial custody prior to the verdict in the case is not with any one of the objects traditionally associated with imprisonment, but merely in the interests of expediency which may, in the opinion of the court, render such detention absolutely necessary Once this principle is lost sight of by courts they may unwittingly be instrumental in unrighteously depriving persons of the valuable freedom they are entitled to as members of the human race. Hence it would be good to show proper concern at the stage an application for bail comes up before a court for its consideration. The Magistrate and the judge should have anxious moments before they decide to continue the detention of a person in judicial custody refusing the request for bail.