Kerala High Court
Dated This The 8Th Day Of June vs Commissioner Of Police on 8 June, 2012
Author: N.K. Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
WEDNESDAY, THE 8TH DAY OF JUNE 2012/16TH JYAISHTA 1934
Bail Appl..No. 1940 of 2012 ()
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CRIME NO: RC.2(S)/2008/CBI/SCB/CHENNAI
ACCUSED(S)/ACCUSED:
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1. KARAYI RAJAN
S/O.POKKAN, THAZHAPUTHIYA VEEDU, PULLYODE
KADIROOR.P.O., THALASSERY TALUK.
2. KARAYI CHANDRASEKHARAN, AGED 57 YEARS
S/O.KUNHIRAKAN, KUNIYIL HOUSE, KUTTIMAKOOL
POST THIRUVANGAD, THALASSERY, KANNUR DISTRICT.
BY ADVS.SRI.M.K.DAMODARAN (SR.)
SRI.SOJAN MICHEAL
SRI.ALAN PAPALI
SRI.M.SASINDRAN
SRI.GILBERT GEORGE CORREYA
COMPLAINANT(S)/COMPLAINANT:
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CBI
(RC.2(S)2008/CBI/SCB/CHENNAI)
REPRESENTED BY THE STANDING COUNSEL FOR CBI
HIGH COURT OF KERALA, COCHIN-31.
BY ADV. SRI.P.CHANDRASEKHARA PILLAI, SC, C.B.I.
BY ADV. SRI.SUNNY MATHEW
BY PUBLIC PROSECUTOR SRI. N.SURESH
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
08-06-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
JJJ
N.K. BALAKRISHNAN, J.
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B.A. No:1940 of 2012
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Dated this the 8th day of June, 2012
O R D E R
Apprehending arrest by the C.B.I. officials in crime no.RC.2(S)/2008/CBI/SCB/Chennai, the petitioners have filed this petition for anticipatory bail.
2. It is contended that a few months ago as they were informed over phone by the CBI officials that they wanted to question the petitioners in connection with 'Fasal Murder Case', they appeared before the CBI officials and were questioned. It is contended that they had then told the officials that they had no knowledge of the assailants who committed the murder. It is stated by the petitioners that notices are issued to the petitioners again to appear before the CBI officials. So they apprehend that once they appear before the CBI officials they will be arrested, falsely implicating them as the accused in the aforesaid murder case.
B.A. No: 1940/2012 -2-
3. The petitioners are stated to be the prominent leaders of the CPI(M). The 1st petitioner is stated to be the Secretary, CPI(M) Area Committee and the 2nd petitioner is stated to be the Secretary, CPI(M) Local Committee. It is alleged that the murder of Fasal took place on 22.10.2006 at about 3.30 AM. Crime was registered by Thalassery Police as no. 442/2006 against unidentified persons. Later the investigation was handed over to CBCID, Kannur. Special investigation team was constituted. Later the investigation was handed over to CBCID, SIG III, Kozhikode. During their investigation, three accused persons were arrested and recoveries were also stated to have been effected. The petitioners contend that no recovery is to be effected from them and no further custodial interrogation is also necessary.
4. The deceased Fasal was a resident of Madapeedika, Kodiyeri. He was a worker of National B.A. No: 1940/2012 -3- Development Front (NDF) and an agent of Thejus newspaper. He was hacked down to death by the assailants who reached there on motorcycles. The incident took place near Jaganath Temple Road in front of Liberty quarters at Thiruvangad Amsom. It is contended by the respondent - CBI that the investigation revealed that the petitioners 1 and 2 hatched out a deep seated criminal conspiracy to murder Fasal on account of the fact that he shifted his allegiance from CPI(M) to NDF and that he was subscribing persons for Thejus newspaper which was the newspaper published by or having allegiance to NDF. According to the prosecution the deceased used to lure youngsters of CPI (M) to join NDF and so in prosecution of the common object a criminal conspiracy was masterminded, designed and planned to eliminate Fasal and accordingly the petitioners executed the crime by employing hardcore criminals of their party. It is stated that a group of eight persons were B.A. No: 1940/2012 -4- employed for that purpose and in pursuance of the conspiracy so hatched it was executed by about eight persons who reached that spot on three motorcycles and lynched down Fasal to death by inflicting about 30 deep cut injuries, to which Fasal succumbed on the spot. According to the prosecution the investigation reveals that the petitioners are the principal conspirators of the above crime.
5. The main argument that has been advanced by the learned senior counsel appearing for the petitioners is that though the petitioners were earlier questioned by the CBI officials they were not arrested evidently because nothing could be collected by them to implicate the petitioners as accused in that case. But now, because of recent change of political situation, the CBI officials are dancing to the tunes of some political executives and thus the CBI officials are bent upon implicating the petitioners as accused with no materials whatsoever to prove their B.A. No: 1940/2012 -5- involvement as conspirators or otherwise. This submission made by the learned senior counsel is resisted by the Special Prosecutor for CBI, who would submit that earlier the petitioners were questioned by the CBI officials to cross check and verify the correctness of certain statements which were given by other witnesses and accused who were questioned by the CBI and at that point of time sufficient materials were not obtained to implicate the petitioners as accused. It is further submitted that it is not the practice of CBI officials to arrest and implicate persons as accused without collecting sufficient materials to secure a verdict of conviction. It is further submitted that only after getting sufficient materials the persons used to be implicated as accused. It is contended that during subsequent investigation it could be revealed that a conspiracy was actually hatched and it was pursuant to that criminal conspiracy the cold blooded murder was carried out. It is B.A. No: 1940/2012 -6- further submitted that only after evaluation and assessment of the materials so far collected, it could be discerned that sufficient materials are there to show the complicity of these petitioners in the aforesaid murder.
6. Notices were issued to the petitioners to appear before the CBI officials to question the accused with regard to all materials so far collected. That cannot be stalled stating that since they were questioned once they should not be questioned again. The contention raised by the learned senior counsel that as the petitioners were questioned earlier and as there was nothing to recover and nothing more to be said by them they should not be questioned again or that they should not be arrested, cannot be accepted. The Court cannot interfere with the investigation. It is the duty and privilege of the investigating officers to question all persons who are supposed to have knowledge regarding the commission of B.A. No: 1940/2012 -7- crime or persons suspected to be having involvement in the commission of the crime. One cannot simply escape from being interrogated by stating that he has no knowledge about the crime or that he has nothing to state. According to the prosecution, revelations made by the co-accused and the statements made by other witnesses, show the active involvement of the petitioners in the murder of Fasal.
7. It is argued by the learned senior counsel that when this application was earlier pending before another bench, the Case Diary was perused and some opinion was expressed stating that there are no sufficient materials. The Court may express opinions or point out certain factors so as to elicit more answers or clarifications from the counsel appearing for the parties. Such expressions or opinions made at the time of argument is not decisive nor can it be said that the Court had come to a conclusion one way or the other. The final conclusion will be had only at the time of B.A. No: 1940/2012 -8- pronouncement of the order/judgment. Therefore, it is not proper to say that some opinions or expressions were made earlier and so the petitioners are entitled to get anticipatory bail.
8. The learned counsel for the petitioners has also relied upon Sibbia Case (1980) 2 SCC 565, Bhagwant Singh V. Commissioner of Police, Delhi (1983) 3 SCC 344, Joginder Kumar V. State of U.P. and Others 1994 SCC (Cri) 1172, Siddharam Satlingappa Mhetre V. State of Maharashtra and others (2011) 1 SCC 694 and Sanjay Chandra V. Central Bureau of Investigation (2012) 1 SCC 40 in support of his submission that arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the B.A. No: 1940/2012 -9- accused and whether those allegations are corroborated by other material and circumstances on record.
9. The prosecution points out that the petitioners are implicated as accused not on the ground that they actually caused the murder of Fasal but on the ground that they were the principal conspirators and it was at the instigation or direction of these petitioners the crime was committed. It is also pointed out that the statement of a conspirator against a co-conspirator can be accepted in view of section 10 of Evidence Act. The normal rule prevents the statement of one co-accused being used against another. But that may not apply in the trial of conspiracy in view of section 10 of the Evidence Act. It is also contended by the prosecution that in order to prove conspiracy it is not necessary that the conspiracy must have been hatched at a particular place itself. In other words it is not necessary that all the conspirators must sit at one place and hatch the conspiracy, B.A. No: 1940/2012 -10- for, it is possible that one person sitting at one place and another conspirator sitting at another place can contact over phone and hatch out a conspiracy.
10. The learned Special prosecutor submits that a perusal of the Case Diary would show certain relevant conduct of the petitioners, and also so many other aspects discernible from the statements of the witnesses recorded by the Investigating Officer to hold that there was a criminal conspiracy. Much was argued by the learned senior counsel appearing for the petitioners that the prosecution does not specifically say the time or place of meeting of the alleged conspirators. But the prosecution contends that an express agreement is not necessary to be proved nor actual meeting of two persons or actual words of communication is necessary.
11. It was held in Kehar Singh and Others V. State (Delhi Administration) (1988) 3 SCC 609 that the B.A. No: 1940/2012 -11- evidence as to transmission of thoughts sharing the unlawful design may be sufficient.
12. It is not necessary to state all these things in an application for bail, but only because the learned senior counsel for the petitioner has vehemently argued stating that sufficient materials have not been collected by the CBI to implicate the petitioners, it has been so mentioned. In Siddharam Satlingappa Mhetre's case cited supra it was held:
"The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any B.A. No: 1940/2012 -12- cognizable offence;
iii) The possibility of the applicant to flee from justice;
iv) The possibility of the accused's likelihood to repeat similar or other offences;
v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
vii) The courts must evaluate the
entire available material against the
accused very carefully. The court must
also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over-implication in the cases is a matter of common knowledge and concern;
B.A. No: 1940/2012 -13-
viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
13. It is argued on behalf of the wife of the deceased Fasal that a Writ Petition was filed before this Court by the wife of the deceased to hand over the investigation to the CBI but that petition was strongly opposed by the then B.A. No: 1940/2012 -14- Government in power. The petitioners belong to the party which ruled at that time. Though that writ petition was allowed by this Court, the then Government challenged the same before the Division Bench. The Writ Appeal was dismissed. As against the same the Government moved the Hon'ble Supreme Court. It is stated that the Special Leave Petition was dismissed by the Hon'ble Supreme Court. This, according to the learned Special Prosecutor, would show that the party of which the petitioners are acting workers or leaders wanted not to have the investigation conducted by the CBI. It is not necessary to consider all those aspects in this bail application.
14. The contention that no materials whatsoever could be collected by the CBI, to implicate the petitioners with the aid of section 120-B of IPC, cannot at this stage be accepted. Whether the witnesses who gave statements, where from the conspiracy is to be proved, will support the B.A. No: 1940/2012 -15- prosecution later or not is not something to be now said by this Court while considering the application for anticipatory bail.
15. I have gone through the Case Diary produced before me in two big volumes, running to several hundreds of pages. Statements of the witnesses indicating conspiracy or the role of the petitioners are seen marked by the CBI. The phone call lists are also seen in the Case Diary. What are the materials so collected by the CBI and how those materials are going to be linked together to prove the criminal conspiracy is not something which can be now disclosed by the prosecution, for, it will prejudice the prosecution and the defence. The conduct of the accused relevant under the provisions of the Evidence Act intended to be proved by the CBI can also be discerned from the Case Diary, the learned Special Prosecutor points out. B.A. No: 1940/2012 -16-
16. A report has already been filed by the CBI before the learned Magistrate stating that the petitioners have been arrayed as A7 and A8. The arraignment of petitioners as accused cannot be challenged in this application for anticipatory bail, the learned Special Prosecutor submits. The investigation is still in progress. Some more materials can be collected after petitioners are interrogated further by the CBI officials, the learned Special Prosecutor further submits. The nature of accusation and the severity of punishment in case of conviction and the materials collected in support of the allegations and the reasonable apprehension of the accused tampering the evidence and the apprehension of threat to the witnesses are matters to be gone into while considering the application for bail. It is submitted by the learned Special Prosecutor that petitioners are powerful persons who would interfere in the course of investigation and would tamper with the evidence and would B.A. No: 1940/2012 -17- also threaten or terrorize the witnesses which would hamper the smooth investigation.
Considering all the aspects, I am not inclined to grant anticipatory bail to the petitioners. Hence it is dismissed.
Sd/-
N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj/ds