Kerala High Court
Santhosh Kumar.A.S vs State Of Kerala on 2 November, 2015
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
TUESDAY, THE 27TH DAY OF JUNE 2017/6TH ASHADHA, 1939
WP(C).No. 30307 of 2015 (K)
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S.C.NO. 1357/2013 OF THE SPECIAL COURT, CBI, THIRUVANANTHAPURAM
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PETITIONER(S) :
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SANTHOSH KUMAR.A.S, AGED 43 YEARS,
S/O.V.S.ANANDAN, H.NO.138, SANTHOSH BHAVAN,
MANGALAM NAGAR, MANGAD VILLAGE, KILIKOLLUR, KOLLAM.
NOW RESIDING AT FLAT NO.1-A, KAYALORAM APARTMENT,
THEVARA FERRY, THEVARA, ERNAKULAM DISTRICT.
BY ADVS. SRI.T.K.RAJESHKUMAR
SMT.T.N.BINDU
SMT.APARNA SOMARAJAN
RESPONDENT(S) :
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1. STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
SECRETARIAT, DEPARTMENT OF HOME,
THIRUVANANTHAPURAM-695 001.
2. CB CID,
ASHRAAMAM (EOW-1 OFFICE), KOLLAM UNIT-691 002.
3. CENTRAL BUREAU OF INVESTIGATION
SCB CHENNAI UNIT, A WING, IIIRD FLOOR, RAJAJI BHAWAN,
BESANT NAGAR, CHENNAI-600 090,
REPRESENTED BY ITS DIRECTOR.
4. CENTRAL BUREAU OF INVESTIGATION,
SCB THIRUVANANTHAPURAM UNIT,MALABAR HOUSE,
KESTOM ROAD, TC 11/304, VELLAYAMBALAM,
THIRUVANANTHAPURAM-695 003,
REPRESENTED BY ITS DIRECTOR.
5. THE DIRECTOR,
CENTRAL BUREAU OF INVESTIGATION, PLOT NO.5-B,
CGO COMPLEX, LODHI ROAD, NEW DELHI-110 003.
..2/-
..2..
WP(C).No. 30307 of 2015 (K)
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6. SRI.K.J.DARWIN, INSPECTOR OF POLICE,
CBI, SCB, THIRUVANANTHAPURAM-695 003.
7. SRI.K.T.THOMAS, INSPECTOR OF POLICE,
CBI, SCB, THIRUVANANTHAPURAM-695 003.
8. SRI.ABDUL RASHEED, DY.S.P., DISTRICT CRIME RECORDS
BUREAU, THIRUVANANTHAPURAM CITY-695 001.
9. SRI.SANTHOSH NAIR,
S/O.PGM NAIR, SREEPADMAM, MANAYILKULANGARA,
NEAR VELLAYITTAMBALAM, KOLLAM-691 012.
10. V.BABU UNNITHAN @ V.B.UNNITHAN,
S/O.K.VASU KURUP, AGED 42 YEARS, RESIDING AT MATTATHU
(PANCHAKSHARI), AYIKKUNNAM, SASTHAMKOTTAPOST,
KOLLAM DISTRICT-690 521.
11. SRI.BABU KUMAR,
S/O.THANKAPPAN, RESIDING AT KESHVANIWAS,
ASHRAMAM WEST, KOLLAM-691 002.
12. SRI.SAM CHRISTY DANIEL, PRESENTLY WORKING AS DIRECTOR,
KERALA WOMEN'S COMMISSION, NEAR LOURDES CHURCH,
P.M.G., PATTOM P.O., THIRUVANANTHAPURAM-695 004.
13. THE UNION OF INDIA,
DEPARTMENT OF ADMINISTRATIVE REFORMS AND PUBLIC
GRIEVANCES, 5TH FLOOR, SARDAR PATEL BHAVAN,
PARLIAMENT STREET, NEW DELHI-110 001,
REPRESENTED BY ITS JOINT SECRETARY (AT & A).
* ADDITIONAL R14 IMPLEADED
14. DEPARTMENT OF PERSONNEL AND TRAINING MINISTRY
OF PUBLIC GRIEVANCES AND PENSIONS, 5TH FLOOR,
SARDAR PATEL BHAVAN NORTH BLOCK NEW DELHI,
PIN CODE- 110 001, REPRESENTED BY ITS PRINCIPAL SECRETARY
* ADDITIONAL R14 IS SUO MOTO IMPLEADED AS PER ORDER DATED 02.11.2015
R1 & R2 BY PUBLIC PROSECUTOR SRI. AMJAD ALI
R3 TO R7 BY ADV. SRI.P.CHANDRASEKHARA PILLAI, C.B.I.
R13 & ADDL.R14 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
BY ADV. SRI.SUVIN R.MENON, CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 08-02-2017, ALONG WITH W.P(C).NO. 30308 OF 2015 AND
CONNECTED CASES, THE COURT ON 27-06-2017 DELIVERED
THE FOLLOWING:
Msd.
WP(C).No. 30307 of 2015 (K)
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APPENDIX
PETITIONER(S)' EXHIBITS :
EXHIBIT-P1: A TRUE COPY OF THE 164 STATEMENT OF THE PETITIONER
DATED 31.03.2012 BEFORE THE CJM COURT, KOLENCHERY
ALONG WITH TRUE ENGLISH TRANSLATION.
EXHIBIT-P1(A): A TRUE COPY OF THE 306 STATEMENT OF THE PETITIONER
DATED 10.05.2012 BEFORE THE CJM COURT, ERNAKULAM
ALONG WITH TRUE ENGLISH TRANSLATION.
EXHIBIT-P2: A TRUE COPY OF THE FINAL REPORT SUBMITTED BY
THE 3RD RESPONDENT (WITHOUT DOCUMENTS) ON 03.07.2012 IN
UNNITHAN'S CASE.
EXHIBIT-P3: A TRUE COPY OF THE FINAL REPORT ORIGINALLY FILED BY
THE 2ND RESPONDENT (WITHOUT DOCUMENTS) ON 12.09.2011 IN
HAPPY RAJESH MURDER CASE.
EXHIBIT-P4: A TRUE COPY OF THE JUDGMENT DATE 20.12.2012 IN
W.P.(C) NO.16408/2011 FILED BY MRS.BINDU,
W/O.LATE HAPPY RAJESH FOR CBI INVESTIGATION.
EXHIBIT-P5: A TRUE COPY OF THE FRESH FINAL REPORT FILED BY
THE 6TH AND 7TH RESPONDENTS IN HAPPY RAJESH MURDER
CASE.
EXHIBIT-P6: A COPY OF THE QUICK REFERENCE SHEET PREPARED BY
THE PETITIONER, DATED NIL, IN HAPPY RAJESH MURDER CASE.
EXHIBIT-P7: A TRUE COPY OF THE FINAL REPORT FILED BEFORE THE CJM
COURT, ERNAKULAM BY THE 4TH RESPONDENT, IN BABU KUMAR
MURDER ATTEMPT CASE, ON 21.11.2014.
EXHIBIT-P8: A COPY OF THE QUICK REFERENCE SHEET PREPARED BY
THE PETITIONER IN BABU KUMAR MURDER ATTEMPT CASE,
DATED NIL.
EXHIBIT-P9: A TRUE COPY OF THE PETITION FILED BY THE 4TH RESPONDENT
INTIMATING THE FURTHER INVESTIGATION IN BABU UNNITHAN
CASE.
EXHIBIT-P10: THE CRUX OF THE DETAILS CONTAINED IN THE FINAL REPORT
FILED BY THE 3RD RESPONDENT ON 03.07.2012 IN
BABU UNNITHAN'S CASE.
EXHIBIT-P11: A TRUE COPY OF THE FURTHER INVESTIGATION PETITION
SUBMITTED BY BABU UNNITHAN DATED 21.10.2013.
WP(C).No. 30307 of 2015 (K)
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EXHIBIT-P12: A TRUE COPY OF THE REPRESENTATION SUBMITTED BY
THE PETITIONER DATED 17.07.2015 (WITHOUT DOCUMENTS) TO
THE 5TH RESPONDENT.
EXHIBIT-P12(A): A TRUE COPY OF THE COMMUNICATIONACKNOWLEDGEMENT
LETTER DATED 11.08.2015 SENT FROM THE 13TH
RESPONDENT.
EXHIBIT-P13: A TRUE COPY OF THE BAIL APPLICATION NO.1846
DATED 10.08.2015 FILED BY THE PETITIONER (WITHOUT
ANNEXURES) BEFORE THE SPECIAL COURT, CBI,
THIRUVANANTHAPURAM.
EXHIBIT-P14: OBJECTION FILED BY THE 4TH RESPONDENT DATED 24.08.2015 IN
B.A.NO.1846.
RESPONDENT(S)' EXHIBITS :
NIL
//TRUE COPY//
P.A.TO JUDGE.
Msd.
"CR"
SUNIL THOMAS, J.
=================
W.P(C).Nos.30307, 30308, 30309 of 2015 and
Crl.M.C.No.1554 of 2016
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Dated this the 27th day of June, 2017
COMMON JUDGMENT
Three different crimes, stated to be intricately connected to each other, are the subject matter of the present proceedings. Hence, it is essential to deal with the facts involved in each case in brief, for an appreciation of the issues involved.
2. One Santhosh Kumar was engaged in the container transshipment business at Cochin. He was the native of Kollam. In the course of his business, he got acquainted with several prominent persons, including police officers. On 13.10.2009, a newspaper item was published in a prominent malayalam daily, by one Babu Unnithan, who was the staff reporter of that newspaper, at Kollam. The report alleged that few police officers including one Santhosh Nair, who was a police officer in the rank of DySP in the Kerala police, had attended an evening party held on 12.10.2009, arranged by an abkari contractor, at the Government guest house at Kollam. There was a vague indication that it was attended by few female TV artists also. It appears that in the course of that party, some untoward incident happened and one Babu Kumar, who was a W.P(C).Nos.30307, 30308, 30309 of 2015 and Crl.M.C.No.1554 of 2016 of 2017 2 police constable attached to the special squad of SP/CI of Kollam, intimated about it immediately to the crime branch office and the control room. This newspaper item seems to have provoked the DySP, who was involved.
3. In December 2010, same newspaper published another news item published at the instance of the same Babu Unnithan. The above news revealed that Santhosh Nair DySP and another police officer in the rank of DySP by name Abdul Rasheed, with their respective families and Santhosh Kumar had gone on a pleasure trip to Goa. While they were returning by train, when it reached Kollam Station,DySP Abdul Rasheed allegedly pulled the chain of the train, to stop the train at Kollam, to enable him to alight at Kollam. That train did not normally have a stop at Kollam. It was stated that when this was enquired by the railway authorities, he threatened them and left the place in a police jeep. The said Abdul Rasheed was the President of the Kerala police officers association.
4. The above two newspaper reports, though unconnected to each other, is stated to have provoked the police officers, who were referred to in the above reports. They allegedly decided to retaliate. Santhosh Nair and Abdul Rasheed solicited the assistance of their common friend SanthoshKumar. They hatched a W.P(C).Nos.30307, 30308, 30309 of 2015 and Crl.M.C.No.1554 of 2016 of 2017 3 conspiracy and engaged one 'Happy Rajesh' who was a local goonda. Happy Rajesh and his gang were given the quotation to attack Babu Unnithan. Accordingly, on 16.04.2011, Happy Rajesh and his gang attacked Babu Unnithan with weapons, who sustained near fatal injuries. He had to undergo treatment in hospital for several days. Crime was registered by the Sasthamcottah police as Crime No.441 of 2017 for offences punishable under sections 143, 147, 148, 324, 326 and 308 r/w 149 of the Indian Penal Code. Later, investigation was taken over by the crime branch. Subsequently, alleging that the incident involved two senior police officers of the Kerala police force and that they were exerting pressure on the investigating agency to sabotage the investigation, Babu Unnithan approached this Court for a direction to the CBI to take over the investigation. This Court directed CBI to take over the investigation, Accordingly, CBI registered the case as RCI(S)/ 2012/CBI/SCB/CHENNAI. In the course of investigation, involvement of Santhosh Kumar, Santhosh Nair and Abdul Rasheed were brought out and their complicity established. However, to prove the guilt against the accused, CBI thought it fit to take evidence of Santhosh Kumar as an approver. Accordingly, his statement under section 164 Cr.P.C was recorded by the Judicial W.P(C).Nos.30307, 30308, 30309 of 2015 and Crl.M.C.No.1554 of 2016 of 2017 4 First Class Magistrate Court, Kolencherry. Thereafter, his statement under section 306 Cr.P.C was recorded by the Chief Judicial Magistrate, Ernakulam. By order dated 07.05.2012 in Crl.M.P.No.1447 of 2012, CJM granted pardon to the 5th accused, Santhosh Kumar, on condition of making full and true disclosure of the whole of the circumstances and facts within his knowledge relating to the offence and every other persons concerned. After investigation, final report was laid against five persons including Santhosh Kumar and 2 DySP's. The case was taken on file by the CBI court, Thiruvananthapuram as S.C.No.1357 of 2013.
5. In the meanwhile, on 28.04.2011, Happy Rajesh, who was stated to be involved in the murder attempt on Babu Unnithan, was found dead inside his autorikshaw, parked on the roadside. He was found in a sitting posture on the rear seat of the autorikshaw. Crime No.484 of 2011 was registered by the Kollam East Police for various offences including one under section 302 IPC. Initially, investigation was conducted by the local police. Thereafter, the case was entrusted with the CBCID, which registered the case as Crime No.114/CR/FOW1/KLM/2011, for offences punishable under sections 302, 201, 120B and 34 of the Indian Penal Code. In the meanwhile, alleging that Happy Rajesh was murdered at the W.P(C).Nos.30307, 30308, 30309 of 2015 and Crl.M.C.No.1554 of 2016 of 2017 5 instance of senior police officers and that, they were exerting undue influence and pressure on the police to sabotage the investigation, widow of Happy Rajesh moved this Court in W.P(C).No.16408 of 2011. It was alleged that there was close connection between Unnithan murder attempt case and Happy Rajesh's murder case. It was further alleged that Rajesh was murdered to silence him from disclosing the complicity of main accused, who were the perpetrators of the crime and to ensure that the investigation into Unnithan murder attempt case did not reach high ranking police officers. By order of this Court, the investigation was entrusted to the CBI, which re-registered the case as RCI(S)2013/SCB/TVPM. Investigation revealed that Santhosh Kumar who was involved in Unnithan murder attempt case had engaged one Penty (second accused) and one Prakash @ Vettukuttan (first accused), notorious criminals, to silence Happy Rajesh. They murdered Rajesh on 27.04.2011 and the body was kept in the autorikshaw. Crime branch had arrayed 5 persons as accused. After the CBI took over the investigation, they included Santhosh Kumar and DySP Santhosh Nair as accused 6 and 7. In the meanwhile, Santhosh surrendered on 17.05.2011 and Santhosh Nair was arrested on 21.05.2011. Abdul Rasheed was arrested in the course of the W.P(C).Nos.30307, 30308, 30309 of 2015 and Crl.M.C.No.1554 of 2016 of 2017 6 investigation into the Unnithan murder attempt case. In Happy Rajesh murder case, after investigation, final report was laid on 09.01.2015, for offences punishable under sections 120B, 302, 201 r/w 34 of the Indian Penal Code. 127 witnesses have been arrayed in the list of witnesses. The case was committed to the CBI Court on 08.06.2017 and is now pending as S.C.No.212 of 2015.
6. In the meanwhile, on 11.01.2011, Babu Kumar, who had informed the control room and the crime branch about the infamous guest house incident was also attacked by a gang. He sustained stab injuries. Crime No.55 of 2011 was registered by the Kollam east police against 5 persons. It was alleged that Babu Kumar was stabbed by one Jinda Ani, who was arrayed as the 6th accused. It was alleged that Santhosh Kumar and Santhosh Nair wanted to retaliate for the role played by the Babu Kumar in the guest house incident. Hence, Santhosh engaged Jinda Ani, who along with Happy Rajesh, while he was alive, had stabbed Babukumar. Pending the investigation, Babu Kumar approached this Court by filing W.P(C).No.18031 of 2012 alleging that the persons involved were attempting to sabotage the investigation and sought for investigation by CBI. It was alleged that attack on him was closely connected with the Babu Unnithan murder attempt case. This W.P(C).Nos.30307, 30308, 30309 of 2015 and Crl.M.C.No.1554 of 2016 of 2017 7 Court directed the investigation to be handed over to the CBI. It registered the case as RC13(S)/2013/CBI/SCB/TVPM. The final report was laid on 21.11.2014 for offences punishable under sections 120B, 307, 326 and section 201 of the Indian Penal Code and is now pending as S.C.No.412 of 2015. 7 persons were named as accused. Jinda Ani was arrayed as the first accused, Santhosh Kumar as the second accused and DySP Santhosh Nair as the sixth accused.
7. Santhosh Kumar who stands accused in all the above crimes has preferred WP(C).Nos.30307 of 2015, 30308 of 2015 and 30309 of 2015 seeking reliefs to quash the final reports in S.C.No.412 of 2015 and S.C.No.212 of 2015. There is a further prayer that since all the crimes involved a larger conspiracy, which had not been completely investigated by the CBI and that a distorted version was laid by the investigating agency, to shift all investigation, progressing/pending, to a special investigation team for investigation. In WPC.No.30307 of 2015, he also challenged Ext.P9 statement filed by the CBI in S.C.No.1357 of 2013 informing that they proposed to conduct further investigation.
8. CBI has preferred Crl.M.C.No.1554 of 2016 to quash Annexure-A9 order, by which the Chief Judicial Magistrate granted W.P(C).Nos.30307, 30308, 30309 of 2015 and Crl.M.C.No.1554 of 2016 of 2017 8 pardon to Santhosh Kumar. CBI has now taken a stand that Santhosh Kumar is the main perpetrator of all the three crimes and the main culprit involved, who deceived the investigating agency by feigning ignorance regarding the facts involved in Happy Rajesh murder case and Babu Kumar murder attempt case. He also played deception on the investigating agency by concealing his deep involvement in above two cases and thereby procured the order granting pardon under section 306 Cr.P.C. It was alleged that he did not make full disclosure of all main facts concerning his involvement in the Happy Rajesh murder and BabuKumar murder attempt case. He also deceptively refrained from making full disclosure of the crimes and with the malafide intention to exculpate himself and his gang members from legal punishment, gave a distorted version to the court. It was alleged that his deep involvement in two other serious crimes were not noted by the CBI and hence they sought permission for granting pardon. Public interest and social interest demands that such a person, who is the perpetrator of three crimes, shall not be granted pardon.
9. CBI had further alleged that when Santhosh Kumar and Santhosh Nair found that the crime branch investigation into the Unnithan Murder attempt case was about to reach them, they W.P(C).Nos.30307, 30308, 30309 of 2015 and Crl.M.C.No.1554 of 2016 of 2017 9 conspired to eliminate Happy Rajesh and engaged criminals to execute it. It was further alleged that Santhosh Kumar had conspired to injure Babukumar and to execute it, engaged Jinda Ani and gang and quotation was given, with the full knowledge of Santhosh Nair. According to the CBI, the investigation evidence, FSL reports and the call details of persons involved in all the three crimes ruled out the truth of confession of Santhosh and established his culpability in all the above three crimes. His attempt was alleged to screen himself and to conceal his role as the true conspirator in the Babu Kumar murder attempt case and Happy Rajesh murder case. He also did not completely disclose his involvement in Unnithan murder attempt case. He attempted to divert the attention of the prosecution. The then investigating officer believed the version of Santhosh and CBI could not visualize the damage caused by procuring such a confession.
10. On the other hand, Santhosh Kumar contended that he had given a complete, truthful and full disclosure of the entire facts relating to the case, which were within his knowledge. He asserted that his involvement in Unnithan murder attempt case has been completely disclosed and he had no role in the Happy Rajesh murder case as well as in Babu Kumar murder attempt case. He W.P(C).Nos.30307, 30308, 30309 of 2015 and Crl.M.C.No.1554 of 2016 of 2017 10 further alleged that he has been framed by the CBI into the above two cases without any legal basis and also to screen other persons, who were actually involved in the case. It was further alleged that during the crime branch investigation into the cases of Unnithan and Happy Rajesh, DySP Abdul Rasheed was found involved, but, he was not implicated. After the CBI took over the investigation, Abdul Rasheed tried to contact CBI and its investigating officers, through his friend one Salim Sahib, who was also an inspector in the CBI and also the colleague of the investigating officer in the present cases. They ensured that Rasheed was not an accused in Happy Rajesh and Babu Kumar case. After making a full disclosure under section 306 Cr.P.C, CBI was asking for a further investigation. It was alleged that the attempt was to erase the confession given by Santhosh Kumar which implicated Abdul Rasheed and to disturb the statement of the petitioners as an approver, in an attempt to save Abdul Rasheed from his culpability. When the wife of Happy Rajesh moved writ petition before this Court, one of the main ground alleged was that senior police officers were involved in the murder case. Even in the judgment in W.P(C).No.16408 of 2011, there was a specific reference regarding the alleged involvement of senior police officers. Santhosh Kumar also relied on Ext.P11 in W.P(C).Nos.30307, 30308, 30309 of 2015 and Crl.M.C.No.1554 of 2016 of 2017 11 O.P.No.30308 of 2015 which is a copy of CMP No.158 of 2013 filed by Unnithan raising allegations about the unholy nexus between the criminals and the police officers and he sought for a further investigation. CBI has refuted the above allegation in reply. Even though there is a specific allegation that, attempts are being made to save some of the accused, at present, I am not inclined to make any comment, since the court below is sufficiently empowered with judicial powers to ensure that the prosecution proceeds properly and to ensure that real culprits are tried and also that, accused are not protected.
11. In all the writ petitions, the accused had sought an identical relief to quash the respective final reports and to constitute a special investigation team for conducting an investigation into the larger conspiracy allegedly involved in the crimes. Regarding the final report, petitioner is relying on the factual allegations. Similar contentions are set up in all of the cases that the investigation was not proper and the conclusions arrived at by investigating agency regarding the complicity of the accused were not proper.
12. It appears that a contention is raised in all the three cases that the prosecution was intending to frame the petitioner W.P(C).Nos.30307, 30308, 30309 of 2015 and Crl.M.C.No.1554 of 2016 of 2017 12 alone as the main culprit. It appears that investigating agency had undertaken a detailed investigation. Records regarding the course of investigation, statements of the witnesses and the other materials are on record. Hence, I feel that a comparative evaluation of the role played by each of the accused and whether the materials indicate the possible complicity of other persons are matters of appreciation of evidence, exclusively within the domain of the trial court. Having considered this, I am not inclined to accept the request of the petitioner to quash the final report on the basis of the above contentions. Further, the prayer for constituting a special investigation team to investigate into the crime as suggested by the petitioner herein also does not appear to be warranted, since different agencies have already undertaken extensive investigation. Writ petitions are not sustainable to that extent.
13. The grant of pardon to the Santhosh Kumar is the subject matter of Crl.M.C.No.1554 of 2016. Records reveal that prosecuting agency had requested the court below to record the statement of the said Santhosh Kumar and to declare him as an approver. This was accepted by the court below and pardon was granted. It was accepted by Santhosh Kumar. The specific premise W.P(C).Nos.30307, 30308, 30309 of 2015 and Crl.M.C.No.1554 of 2016 of 2017 13 on which challenge is made is on the ground that the Santhosh Kumar did not make a full and complete disclosure. This is countered by Santhosh Kumar, inter alia, by contending that there is a long delay in seeking this relief. The CBI Chennai unit took over the investigation of Unnithan murder attempt case on 05.01.2012. On 31.03.2012, section 164 Cr.P.C statement of the Santhosh Kumar was recorded. Thereafter, Crl.M.P.No.1447 of 2012 was filed by the CBI before the CJM, Ernakulam under section 306 Cr.P.C. By order dated 07.05.2012, it was allowed and Santhosh Kumar was permitted to give statement on a specific condition that he shall make full and complete disclosure of the entire circumstances regarding the case. Statement under section 306 Cr.P.C was recorded on 10.05.2012. The present Crl.M.C is filed only on 26.02.2016. The long delay of more than four years in approaching this Court with such a prayer is sought to be justified by the CBI, on the ground that, when the permission of the CBI Court to invoke section 306 Cr.P.C was sought, investigation into the Happy Rajesh murder case had not been entrusted with the CBI. The explanation regarding the delay does not appear to be sustainable for more reasons than one. Even in the statement of Santhosh Kumar recorded under section 306 Cr.P.C, there is a W.P(C).Nos.30307, 30308, 30309 of 2015 and Crl.M.C.No.1554 of 2016 of 2017 14 reference that the Happy Rajesh's case had some connection with Unnithan murder attempt case. Further, Happy Rajesh murder case was taken over by the CBI in 2012. With this materials, it is clear that atleast in 2012, investigation agency had sufficient notice about the alleged close connection between both the crimes and the CBI waited till 2016 to come up with such a prayer.
14. The law relating to granting pardon, the procedure contemplated under section 306 Cr.P.C and the consequence of non-compliance with the conditions for the granting of pardon has been explained and reiterated by several decisions of this Court as well as the Supreme Court and other High Courts. In Emperor v. Kothia Navalya Bhil (1906(8) Bombay LR 740), the Division Bench of the Bombay High Court had occasion to consider the scope of it. It was asserted that pardon is offered to accused with two main conditions, first that accomplice shall make full, second, a true disclosure of all he knows about the crime and the pardon is forfeited by his failure to comply with the two conditions. In Lt.Commander Pascal Fernandes v. State of Maharashtra and Ors. (AIR 1968 SC 594), Honourable Supreme Court had occasion to deal in detail, with this aspect, vis-a-vis the powers of the court to grant pardon. It was held that pardon is granted with W.P(C).Nos.30307, 30308, 30309 of 2015 and Crl.M.C.No.1554 of 2016 of 2017 15 the intention of obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to an offence. The pardon so tendered is also on a condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other persons concerned, whether as principal or abettor. The disclosure must be complete as to himself and as to any other person concerned, as principal or abettor.
15. This was reiterated by the Supreme Court in State v. Jagit Singh (1989 KHC 234). It was held that section 306 Cr.P.C clearly enjoined that the approver who was granted pardon had to comply with the condition of making a full and true disclosure of whole of the circumstances within his knowledge relative to the offence and to every other concerned whether as a principal or abettor, in the commission thereof. The question that came up before the Court in the above case was whether a request to grant pardon can be acceded, on the basis of request from the accused. Supreme Court held that normally such a request should come from the prosecution. However, that will not preclude pardon being granted, if the prosecution also joins with the request of the accused.
W.P(C).Nos.30307, 30308, 30309 of 2015 and Crl.M.C.No.1554 of 2016 of 2017 16
16. The question whether the Court can weigh pros and cons of consequence of granting pardon was considered by the Supreme Court in Jasbir Singh v. Vipin Kumar Jaggi and Others ((2001)8 SCC 289) . It was held that the grant of pardon by a Court is rooted in the premise that most criminals try to avoid detection. Crimes like smuggling, by definition, are carried on secretively. The persons involved in such criminal activity would obviously try to conceal and hide any evidence of their activities in as many ways as human ingenuity can devise. That is why the prosecution is often compelled to rely on the evidence of an accomplice to bring the most serious offenders to book. It was held that though the power to actually grant pardon is vested in the court, obviously, the court can have no interest, whatsoever, in the outcome nor can it decide for the prosecution whether particular evidence is required or not to ensure the conviction of the accused. That is the prosecution's job. Relying on the decision in Pascal Fernandes's case, it was held that, if prosecution thinks that the tender of pardon will be in the interests of a successful prosecution of the other offenders, whose conviction is not easy, without the approver's testimony, it will indubitably agree to the tendering of W.P(C).Nos.30307, 30308, 30309 of 2015 and Crl.M.C.No.1554 of 2016 of 2017 17 pardon. The Court should not undertake the task of determining the propriety of tendering pardon.
17. The scope of such disclosure was considered by Honourable Supreme Court in Lt.Commander Pascal Fernandes's case (referred to supra; at paragraph 11). In Dipesh Chandak v. Union of India (2004 KHC 1596), the Supreme Court had occasion to consider the question whether the pardon would operate to cover those cases under other statute also. That was a case, wherein, a person who was involved in several cases was granted pardon in one case. The Supreme Court held that under section 306 Cr.P.C, the pardon is granted in respect of offences for which he had been charged as an accused. A person may be charged with several offences under different statutes. A pardon need not be only in respect of an offence under IPC. The pardon would operate in respect of all offences pertaining to that transaction. However, it was held that the pardon does not operate in respect of a transaction or act entirely unconnected with the offence in respect of which pardon has been granted. It was held that the pardon granted in the case relating to misappropriation of funds will not extent to the prosecution under the Income Tax Act for filing false return. It was reiterated that, if W.P(C).Nos.30307, 30308, 30309 of 2015 and Crl.M.C.No.1554 of 2016 of 2017 18 a person had made disclosure in respect of some other felony which was not connected with the felony for which he was prosecuted, even though it was not covered by pardon, the Court should recommend that prosecution not to proceed in respect of that offence. The Supreme Court referred to its earlier decisions in State v. Hiralal G Kothari (1960(2) SCR 355) wherein it was held that the person to whom pardon is tendered is expected to state the whole truth including details of any other subsidiary offence which might have been committed in the course of the commission of offence for which pardon is granted.
18. The words employed in section 306 Cr.P.C is also clear and unambiguous that the person to whom pardon is tendered is bound to make "a full and true disclosure of the whole of the circumstances within his knowledge" relating to the offence and to every other person concerned, whether as principal or abettor and leaves no room for ambiguity about its scope. It makes clear that all facts, direct, indirect, incidental and ancillary to the offence, for which, he stands accused have to be disclosed with clear precision.
19. In CBI v. Ashok Kumar Aggarwal (2013)15 SCC
222), the Supreme Court reiterated the scope and ambit of the provisions under section 306 Cr.P.C and reaffirmed the legal W.P(C).Nos.30307, 30308, 30309 of 2015 and Crl.M.C.No.1554 of 2016 of 2017 19 principles mentioned above. The Supreme Court, relying on its earlier decision in Laxmipat Choraria v. State of Maharashtra (AIR 1968 SC 938) reminded that Court should not be oblivious of complex solution where accused who is granted pardon stands indicted in other criminal cases also. In the present case, the petitioner was given pardon in Unnithan murder attempt case, whereas according to the prosecution, the same person is an accused and has deep involvement in the two other crimes. According to Santhosh Kumar, he has no role in the two remaining crimes. The prosecution has a case that all of the three cases have a common thread connecting it. Even in the statement given by the Santhosh Kumar under section 306 Cr.P.C, he has referred to two other crimes, which also suggest the link between three crimes, though he feigned ignorance regarding the details. In the light of above, there cannot be any doubt that Santhosh Kumar was expected to make full and complete disclosure of the entire facts including those connecting him into remaining two crimes, if he had any role and not confined to Unnithan case alone.
20. According to Santhosh Kumar, he had made a full disclosure of the entire facts which were within his knowledge and he incriminated himself in Unnithan murder attempt case. W.P(C).Nos.30307, 30308, 30309 of 2015 and Crl.M.C.No.1554 of 2016 of 2017 20 However, the version of the CBI is that he not only did not disclose the entire facts relating to Unnithan murder attempt case, but, has not disclosed his prominent role in the two other crimes. Evidently, both sides are at divergence regarding the actual role played by Santhosh in the other two cases. What was the role played by Santhosh in those two cases and whether, he had failed to make a full disclosure while he gave statement under section 306 Cr.P.C depend on the materials to substantiate his role in the two other crimes. Though, the CBI projected that he had prominent role in both the other crimes, materials suggesting such role have not been placed before this Court, to substantiate it. Definitely, the onus is on the prosecution to show that such person has violated the terms on which pardon was granted. It seems to be a question of fact, which can more appropriately be considered by the court below.
21. In Emperor's case (supra), it was held by the Division Bench of Bombay High Court that there is no provision under the Code for cancelling, revoking or withdrawing the pardon. The view taken by the Division Bench was that by the non-compliance of the conditions on which pardon was granted results in the accused who was so granted pardon rendering himself liable and forfeits the W.P(C).Nos.30307, 30308, 30309 of 2015 and Crl.M.C.No.1554 of 2016 of 2017 21 pardon either by giving false evidence or by not making a full and complete disclosure. However, Madras High Court in Anand v. State by Inspector of police (CRIMES II-1989(1) at page 270) had held that in exceptional cases invoking the jurisdiction of the High Court, pardon tendered can be cancelled. It was a case wherein an accused who was granted pardon, subsequently filed an application stating that as a result of coercion he had given the statement under section 164 Cr.P.C before the magistrate and he may be permitted to withdraw from his earlier statement. The Madras High Court relying on a earlier decision in N.Kasinathan and another (1969 LW 138) held that the relationship between the person who tendered the pardon and the person who accepted the pardon on condition, is of a contractual relationship. Before the performance of the contractual promise, it would be open to the person who accepted the pardon to resile from it and refuse to accept the pardon. Following that proposition, the Madras High Court held that the appellate court ought to have permitted him to resile, since he wanted to cancel the tender of pardon. Evidently, in exceptional cases like gross jurisdictional error invoking provision under section 482 Cr.P.C or under the writ jurisdiction, constitutional Court can interfere in the orders of granting pardon W.P(C).Nos.30307, 30308, 30309 of 2015 and Crl.M.C.No.1554 of 2016 of 2017 22 to meet the ends of justice. In case of pardon granted on a manifest mistake, it can be cancelled, held the Supreme Court in Epuru Sudhakar v. Government of A.P (AIR 2006 SC 3385). However, an allegation that the person did not comply with the terms of the pardon should necessarily fall within the ambit of the procedure contemplated under section 308 Cr.P.C.
22. The crucial question now arises is the stage of considering whether the accused had violated the pardon granted to him. In Bipin Bihari Sarkar v. State of West Bengal, the Supreme Court referring to the corresponding provisions under the old Code, held that once the tender is granted, section 337(2) of Code provided that the person who had accepted the pardon must be examined in the Court of magistrate taking cognizance of offence and in the subsequent trial, if any. It was only thereafter that the provisions of section 339 Cr.P.C come into play and the person who accepted the pardon be tried for the offence in respect of which pardon was tendered. The Honourable Supreme Court in State v. Jagit Singh's case (supra) had held that section 306(4) Cr.P.C clearly enjoined that the approver has to comply with the condition of making a full and true disclosure of the circumstances within his knowledge relative to the offence and to every other W.P(C).Nos.30307, 30308, 30309 of 2015 and Crl.M.C.No.1554 of 2016 of 2017 23 concerned whether as principal or abettor in the commission thereof. Because of this mandate, State cannot withdraw the pardon from the approver nor the Court can cast away pardon granted to him till he is examined as a witness by the prosecution both in the committing court as well as in the trial court. The ratio in Bipin Bihari Sarkar's case was approved by the Honourable Supreme Court in Dipesh Chandak's case (supra).
23. Definitely, this presupposes that the stage at which the question whether approver was granted pardon had complied with the mandatory conditions arises after his examination in the court. This does not prima facie denude the constitutional courts of its power to exercise, in an exceptional and appropriate case, its powers under the Constitution of India as well as under section 482 Cr.P.C to meet the ends of justice. Even though there cannot be any dispute that, notwithstanding the procedures under sections 306 to 308 Cr.P.C, still in exceptional circumstances invoking jurisdiction under 482 Cr.P.C, it can interfere that the grant of pardon by the trial court, I feel that the facts available in the present case do not justify invocation of power in the facts narrated earlier. It is a matter to be satisfied by the trial court with sufficient materials, in accordance with law. Hence, I am not W.P(C).Nos.30307, 30308, 30309 of 2015 and Crl.M.C.No.1554 of 2016 of 2017 24 inclined to exercise the jurisdiction under section 482 Cr.P.C. Necessarily, Crl.M.C has to fail.
In the result, W.P(C).Nos.30307, 30308 and 30309 of 2015 and Crl.M.C.No.1554 of 2016 stand dismissed.
Sd/-
SUNIL THOMAS Judge Sbna/ True Copy / P A to Judge