Madras High Court
R.Subbiah vs State Of Tamil Nadu
CRL.O.P.Nos.1571, 1610, 1635 and 2098 of 2013 R.SUBBIAH, J., Petitioners, who have been arrayed as A1, A4, A5, A6 and A7, were arrested for the alleged offences punishable under section 120(B) of I.P.C. and Sections 7, 12 and 13(2) read with 13(1)(d) of Prevention of Corruption Act in R.C.No.1 of 2013 on the file of respondent, have come forward with these petitions, seeking for bail.
2. Since the petitioners, viz., Dr.S.Murukesan A1 (Crl.O.P.No.1571 of 2013);
K.Ramabadran } R.Karunanidhi } A4 & A5 (Crl.O.P.No.1610 of 2013);
T.Palani A6 (Crl.O.P.No.1635 of 2013) and
Dr.Gunaseelan A7 (Crl.O.P.No.2098 of 2013)
are accused in the same R.C.No.1 of 2013 on the file of the respondent, namely, Deputy Superintendent of Police, CBI., Chennai, all the petitions are taken up together for consideration.
3. Case of the prosecution is that A2 M/s.Adhiparasakthi Dental College and Hospital, Melmaruvathur had applied for Post Graduation Dental Course with Dental Council of India (DCI), New Delhi in the year 2012. In pursuance of which, DCI, New Delhi had conducted Pre-verification inspection on 05th October, 2012, in order to ascertain the requisite norms for starting PG Dental Course. During the said inspection, DCI observed certain deficiencies and instructed the Principal of M/s.Adhiparasakthi Dental College and Hospital, Melmaruvathur to comply with the same.
4. While so, the respondent received a reliable information that the management of Adhiparasakthi Dental College had deputed A4 K.Ramabadran, Administrative Officer to approach A1 Dr.S.Murukesan, DCI Member, Tamil Nadu, for getting approval from DCI, New Delhi for the PG course and A1 had demanded Rs.one Crore for taking up the matter and getting approval from DCI, New Delhi. It was also reliably learnt on behalf of the Management, A4 had discussed and bargained with A1 and in pursuance of the same, A1 demanded a sum of Rs.25 lakhs to be paid initially as advance on 07.01.2013 at about 18.30 Hous at his clinic i.e.M/s.Cranio Facial Clinic, No.A-1, 167, Lloyds Road (Avvai Shanmugam Salai), Royapettah, Chennai-14.
5. Based on the above information, a team of officers of the respondent along with independent witness kept surveillance of the above clinic on 07.01.2013 and observed A5 R.Karunanidhi, Trustee of Adhiparasakthi Charitable Medical Educational and Cultural Trust, who was in possession of a carry bag, and A6 T.Palani, arriving at the clinic and entering the cabin of A1. After some time, A4 also joined the above accused persons in the said cabin. When A5 and A6 came out of the cabin, without the carry bag in possession of A5, the CBI team and the witness intercepted the accused persons and took them back to the cabin where A1 and A4 were still occupying. On questioning them, it was revealed that on the instructions of A3 S.Srilekha, Managing Director, M/s.Adhiparasakthi Dental College and Hospital, Melmaruvathur, A5 along with A4 and A6 had handed over Rs.25 lakhs to A1 on 07.01.2013 at about 18.00 Hours for the purpose of getting DCI approval for PG Dental course, without carrying out the rectification of deficiencies mentioned during the Pre-verification inspection conducted by DCI on 05.10.2012. The said carry bag was opened and currency notes were counted and it was to the extent of Rs.25 lakhs. Based on the proceedings, the same was seized and a case was registered under section 120-B IPC and Sections 7, 12 and 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 against the accused on 08.01.2013.
6. Thereafter, A1, A4, A5 and A6 were arrested on the same day and produced before the Court and they were remanded to judicial custody till 22.01.2013. During custodial interrogation, it was revealed that A4 had contacted A7 Dr.Gunaseelan, another DCI Member, who had sent A1 to A2 College for the said purpose and hence, the said Dr.Gunaseelan was arraigned as A7 in this case. Thereafter, A7 was arrested on 17.01.2013, who confessed that he had received Rs.75 lakhs from A1 in the matter of arranging approval for Dental Colleges from DCI. Based on which, the said amount of Rs.75 lakha was recovered.
7. A3, Srilekha, was absconding since 08.01.2013 and filed an application for anticipatory bail and this Court had ordered for police custody of A3 for two days on 28.01.2013 and 29.01.2013 from 7.30 AM to 6.30 PM only. Thereafter. A3 was granted interim bail. The bail applications filed by A1, A4 to A6 before the Court of Principal Special Judge for CBI Cases, Chennai, were dismissed on 18.01.2013. Hence, the present petitions.
8. Respondent filed a counter reiterating the case of the prosecution, stating that further investigation had revealed that A1 had demanded bribe from other dental colleges in Tamil Nadu, Andhra Pradesh, Kerala etc. During investigation, searches were conducted at M/s.Thai Mugambikai Dental College, Chennai, M/s. JKK Nataraja Dental College, Namakkal, Hitkarini Dental College, Jabalpur, M/s. Asan Memorial Dental College, etc., and seized plethora of incriminating documents and material objects and are being scrutinised. At this juncture, if bail is granted, the accused persons would tamper the evidence and hamper the investigation.
9. Respondent has filed additional counter stating that though A3 appeared before the investigating officer, as directed by this Court, she did not co-operate with the investigation. She claimed that Administrative Officer K.Ramabadran (A4) and Trustee R.Karunanidhi (A5) along with CEO are, in fact, managing the Dental College and as such, more evidence needs to be collected against this statement coupled with the confession made by A7. If, at this juncture, bail is granted to the accused petitioners, it would be travesty of justice.
10. Mr.N.R.Chandran, learned Senior Counsel appearing for the petitioner in Crl.O.P.No.1571 of 2013 - A1, Dr.S.Murukesan, submitted that the petitioner is falsely implicated in the above case. As per the first information report, there was no demand made by the petitioner. A1 was in police custody for four days and investigation is also over. Though it has been stated in the counter that A1 had demanded bribe from other dental colleges in Andhra Pradesh, Karnataka, etc., the same cannot be clubbed with the present complaint since it cannot be the subject matter of the present complaint. After the occurrence on 07.01.2013 at 6.30 PM., necessary proceedings were prepared by the respondent and the same were signed by six police officials and one independent witness. The 7th person is an independent witness working as a Senior Ticket Examiner in Southern Railway. Six police officers have signed the proceedings at each page whereas the independent witness who was said to have been present in the place of occurrence signed in the last page, which would give a clear inference that the independent witness might not have been present at the place of occurrence and his signature in the last page should have been obtained at a later point of time. Therefore, prima facie no case is made out against A1 and hence, there is no need for continuation of judicial custody of A1.
11. Mr.K.S.Dinakaran, learned Senior Counsel appearing for the petitioners in Crl.O.P.No.1610 of 2013 - A4 and A5, by inviting the attention of this Court to the proceedings of the CBI, Chennai dated 07.01.2013, submitted that A5 came to the clinic of A1 at 18.30 Hours whereas A6 came from the different direction. Later, A6 joined with A4 and both of them came to the clinic. There is no material to show that A4 to A6 came to the clinic with a common intention to pay Rs.25 lakhs to A1, as alleged by the respondent. Moreover A4 is only an employee (Administrative Officer) in the A2 College and he cannot have any say in the administration of the 2nd respondent college. Except the confession statement of the accused, no other incriminating materials are available to implicate these accused with the offence. Though in the proceedings, it has been stated that they proceeded to lay a trap, no trap was laid and as such, there is no scientific evidence in this case and that apart, serial numbers of the currency notes were not recorded. It is not known that when the respondent officials are having a chance of getting witnesses nearer to the clinic of A1, they have not chosen to do so and they have not explained as to the necessity of bringing independent witnesses along with them to the clinic of A1. Learned Senior Counsel has relied on the decision reported in JAYALAKSHMI AND OTHERS .vs. STATE OF TAMIL NADU, REP.BY INSPECTOR OF POLICE (CDJ 2011 MHC 2659) in support of his contentions.
12. Mr.N.R.Elango, learned Senior Counsel appearing for the petitioner in Crl.O.P.No.1635 of 2013 A6 submitted that the petitioner is no way connected with the A2 college. He was implicated in the case only based on the statement of A5. The statement of A5 is hit by section 25 of the Evidence Act. Except this statement, no other material is available against A6. All the accused were given police custody for five days and custodial interrogation was also over. Under section 167 of Cr.P.C., the Court can give custody for 15 days. Since all the materials were seized and custodial interrogation was over, the contention with regard to judicial custody is not warranted. Learned Senior counsel has also relied upon the judgments reported in JOGINDER KUMAR .vs. STATE OF U.P.AND OTHERS ((1994) 4 SCC 260) and SANJAY CHANDRA .vs. CENTRAL BUREAU OF INVESTIGATION ((2012) 1 SCC 40).
13. Mr.Gopinath, learned Senior Counsel appearing for the petitioner in Crl.O.P.No.2098 of 2013 A7 submitted that A7 was implicated in the case only based on the confession statement of other accused. Though it is the case of the prosecution that a sum of Rs.75 lakhs was seized from A7, the same is not connected with the offence, for which complaint was registered. Even when the search was conducted in the premises of A7, the respondent had recovered only 3 promissory notes, which are relating to the year 2007 and the same are no way connected with the present case.
14. Learned Special Public Prosecutor for CBI cases vehemently opposed to grant bail to the petitioners mainly on two grounds; (i) if the petitions are allowed, the petitioners, being highly influenced persons, would hamper the investigation and tamper the evidence; and (ii) during investigation, searches were conducted at different dental colleges and they seized many incriminating documents and materials, which would show that A1 had demanded bribe from other dental colleges at Andhra Pradesh, Karnataka, etc. Further, the learned Special Public Prosecutor submitted that one more case has been registered as against A1 and A7 under Prevention of Corruption Act in connection with Asan Memorial Dental College and under such circumstances, they have to make further investigation with regard to the involvement of offence under Prevention of Corruption Act by A1 and A7 in respect of another dental college also. Thus, he opposed for granting of bail to the petitioners; however, when this Court posed a question about the investigation, learned Special Public Prosecutor submitted that so far as the present case is concerned, custodial interrogation was over and all the material documents were seized.
15. Heard the learned counsel for the parties and perused the materials available on record.
16. Though the learned counsel appearing for both sides have made elaborate arguments pointing out various allegations contained in the complaint, this Court is not inclined to deal with those submissions since the finding that is going to be rendered by this Court may have a repercussion on the trial pending before the trial court. Hence, the only question that has to be decided is, whether the petitioners are entitled to be released on bail ?
17. The gist of the prosecution is that A1 demanded Rs.one crore from the A2 College for getting DCI approval for PG Dental Course from the DCI, New Delhi. In this regard, A3 to A6 took participation in handing over a sum of Rs.25 lakhs as advance to A1. A1, A4 to A6 were arrested on 08.01.2013. Subsequently, A7 was arrested on 17.01.2013 based on the confession statement given by A4. Even according to the prosecution, custodial interrogation was over and incriminating materials were seized. The only apprehension of the respondent is that if the petitioners come out on bail, they will tamper the evidence.
18. In my considered opinion, it is admitted by the respondent themselves that the custodial interrogation was over and most of the incriminating documents were seized. When such being the position, there is a duty cast upon the prosecution to produce material evidence to support their contention that if they come out on bail, they would hamper the investigation. Merely making a bald statement that if the petitioners come out on bail, they would hamper the investigation, is not sufficient to reject the petitions filed by the petitioners, particularly in the circumstances when custodial interrogation was over and most of the material documents were seized. In this regard, a reference could be placed in the judgment reported in (2012) 1 SCC 40 (supra) and the relevant paragraph is extracted hereunder:
"24. In the instant case, we have already noticed that the "pointing finger of accusation" against the appellants is "the seriousness of the charge". The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is a possibility of the appellants tampering with the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: the other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather "recalibrating the scales of justice"".
Therefore, in the absence of any materials before this Court to substantiate the statement of the respondent, I am not inclined to accept the submission made by the learned Special Public Prosecutor that if the petitioners come out on bail, they will tamper with the witnesses since already custodial interrogation was over and all the material documents were seized.
19. It would be appropriate to rely the decision reported in (1994) 4 SCC 260), which gives a fitting answer to this issue. The Hon'ble Supreme Court has held that there must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Para 20 reads as follows:
"20. In India, Third Report of the National Police Commission at p. 32 also suggested:
"An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances:
(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror-stricken victims.
(ii) The accused is likely to abscond and evade the processes of law.
(iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint.
(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.
It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines......"
The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.
The said paragraph deals about the suggestions made in the "Third Report of the National Police Commission". By considering the said guidelines, the Hon'ble Supreme Court has held that the police officer must be able to justify the arrest apart from his power to do so; no arrest can be made in a routine manner.
20. So far as the instant case is concerned, A1 and A4 to A7 have been in custody for about a month from 08.01.2013. It is not in dispute that custodial interrogation was over and material documents were seized. Further I find that A1 and A7 are the doctors by profession and A4 and A5 are the employees of the 2nd respondent college. Now, A6 is the Ex.MLA., of Arcot Constituency. Therefore, I do not find any likelihood of absconding of the accused if they let out on bail. In this background, I am of the opinion that the bail applications of A1 and A4 to A7 could be allowed.
21. So far as the submission made by the learned Special Public Prosecutor that yet another case has been registered as against A1 and A7 under Prevention of Corruption Act in connection with Asan Memorial Dental College and the respondent police have seized some materials to show that A1 and A7 are involved in the offence in respect of another dental college, I am of the opinion that even if there is any demand of bribe from other colleges, that cannot be a subject matter of the present FIR. So far as this case is concerned, as observed earlier, custodial interrogation was over and materials were also seized and most of the witnesses are also police officials. The question that whether A1 Dr.S.Murukesan and A7 Dr.Gunaseelan, who have been arrested in connection with this case, have involved in any other cases in the similar nature of offence have to be investigated separately. Since the statement made in the present complaint registered as R.C.1/2013 does not speak about any involvement of A1 and A7 in other similar offences, they need not be kept in the judicial custody for the purpose of facilitating the respondent to make further investigation with regard to the involvement of the said accused in other cases. Therefore, the submission made by the learned Public Prosecutor cannot serve as a ground to keep the accused inside the prison when already custodial interrogation was over and material documents were seized in this case. If the respondent has seized the materials in those cases, the respondent has got opportunity to secure and to proceed against A1 and A7 in that case. Therefore, I am not inclined to accept the submission of the learned Additional Public Prosecutor that since A1 and A7 might have involved in many other cases of similar nature, the petitions are liable to be rejected. Hence, all the petitioners are entitled to get bail.
For the foregoing reasons, all the petitioners (A1, A4 to A7) are ordered to be released on bail, on each of them executing a personal bond for a sum of Rs.1,00,000/-(Rupees One lakh only) with two sureties each for a like sum, to the satisfaction of Principal Special Judge for CBI Cases, Chennai and on further condition that the petitioners shall report before the respondent daily at 10.30 AM., until further orders. The petitioners are also directed to surrender their passports to the Principal Special Court for CBI Cases, Chennai.
Index: Yes. 13.02.2013 Internet: Yes. Note to Office: Issue order copy today itself. gl R.SUBBIAH, J., Pre-delivery Common Order in Crl.O.P.Nos.1571, 1610, 1635 and 2098 of 2013 DATED: 13.02.2013