Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN TUESDAY, THE 8TH DAY OF JANUARY 2013 18TH POUSHA 193 Bail Appl..No. 9777 of 2012 () ------------------------------ (CRIME NO.RC 2(S)/2008/CBI/SCB CHENNAI0 PETITIONER/ACCUSED NOS. 7 & 8 : -------------------------------------------------- 1. KARAYI CHANDRASEKHARAN, AGED 5 YEARS S/O. KUNJIRAMAN, KUNIYIL HOSUE, KUTTIMAKOOL POST THIRUVANGAD, THALASSERY, KANNUR DISTRICT.
2. KARAYI RAJAN, AGED 5 YEARS S/O. POKKAN, THAZHAPUTHIYA VEEDU, PULLYODE KADIROOR.P.O., THALASSERY. BY ADVS.SRI.M.K.DAMODARAN (SR.) SRI.ALAN PAPALI SRI.SOJAN MICHEAL SRI.GILBERT GEORGE CORREYA SRI.V.S.BOBAN RESPONDENT/COMPLAINANT : ------------------------------------------- INSPECTOR OF POLICE, CBI/SCB THIRUVANANTHAPURAM REPRESENTED BY THE STANDING COUNSEL FOR C.B.I. HIGH COURT OF KERALA, KOCHI-682031. BY ADV. SRI.P.CHANDRASEKHARA PILLAI, C.B.I. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01-01-2013, THE COURT ON 08-01-2013 PASSED THE FOLLOWING: P. BHAVADASAN, J.
- - - - - - - - - - - - - - - - - - - - - - B.A. No. 9777 of 2012 - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of January, 2013. ORDER Undaunted by the failure to get bail on earlier occasions, accused Nos.7 and 8 in S.C. No.405 of 2012 on the file of IV Additional Sessions Judge, Ernakulam have again approached this court seeking bail.
2. This court had occasion to consider a similar application filed by the petitioners as B.A. 6468 of 2012 and that application was dismissed by an elaborate order dated 28.9.2012. In the said order the facts have been narrated in detail and the reasons for denying bail to the petitioners at that particular stage are also available from the said order. It is therefore unnecessary to traverse the same grounds again.
3. Shri.M.K.Damodaran, learned Senior Counsel appearing for the petitioners raised two contentions. The first among them being that the court below as well as this B.A.9777/2012. 2 court has held that since further investigation has been ordered and is being carried on and since the police custody of the petitioners could be given under Section 167 of the Code of Criminal Procedure, that Section has to be applied as a whole to the proceedings and if that be so, the final report already filed could not be treated as final and if the final report as a result of the further investigation is not filed within the statutory period made mention of in Section 167(2)(a)(ii) Cr.P.C., the petitioners are entitled to statutory bail. It is pointed out that the petitioners have been in custody from 22.6.2012, the date on which they surrendered before the court concerned, and since the final report in pursuance to the further investigation has not been laid within 90 days, they are entitled to be released on bail. The other contention taken is that at any rate the continued custody of the petitioners is not necessary and the normal rule is grant of bail and jail is an exception. The petitioners have been detained in custody for a long period and in fact B.A.9777/2012. 3 they were subjected to custodial interrogation and there is nothing more to be done in relation to the petitioners and they are unnecessarily being detained in custody.
4. Shri.P.Chandrasekhara Pillai, learned counsel appearing for the C.B.I., on the other hand contended that the contention based on Section 167(2)(a)(ii) Cr.P.C. has no legs to stand on in the light of the decision reported in Dinesh Dalmia v. C.B.I. (AIR 200.SC 78). As per the principle laid down in the said decision, the learned counsel went on to contend that the mere fact that police custody is given during further investigation does not wipe away the final report already filed and after the police custody on arrest during further investigation, though may be under Section 167, his further remand can be treated only under Section 309 Cr.P.C. and if that be so, the claim based on statutory bail has necessarily to fail. As regards the other contention, learned counsel went on to point out that though bail is the rule, there are exceptions to the said rule and B.A.9777/2012. 4 the present case is one which falls under one of such exceptions. Relying on the decisions reported in Abdulla Kunhi v. C.B.I. (2010(4) KHC
626) and Ash Mohammad v. Shiv Raj Singh ((2012) 4 Crimes 144), learned counsel went on to point out that in these decisions the principle regarding granting of bail has been elaborately considered and it has been held that the nature of the offence, the manner in which the offence is committed, the possibility of influencing the witnesses etc., have a bearing while considering whether bail is to be granted to an accused on not. Applying the principle in the above decisions, the present case falls under the category of one of those cases where bail is necessarily to be denied to the petitioners since if released on bail, it is likely that the petitioners may influence the witnesses and make the trial a mockery.
5. As already stated, this court had occasion to elaborately consider the case of the petitioners while disposing of B.A. 6468 of 2012 filed by the petitioners. The B.A.9777/2012. 5 materials collected by the investigating agency against the petitioners have been elaborately narrated and discussed in the said order. In the said order, the contest between personal liberty and social interest was also considered and it was held that considering the social interest and the social impact and the threat caused to the society, it did not appear appropriate to release the petitioners then on bail.
6. The date of incident is 22.10.2006. The C.B.I. took over investigation on 5.4.2008. The petitioners had approached this court for anticipatory bail on 23.3.2012. To the said application, the C.B.I. filed a counter on 18.4.2012 without disclosing that the petitioners have been arrayed as accused. The petitioners filed a reply affidavit on 14.5.2012 pointing out that till then they had not been arrayed as accused. When that fact was disclosed in the reply affidavit, the C.B.I. filed a report before the Chief Judicial Magistrate arraying the petitioners as accused. The anticipatory bail application filed by the petitioners was dismissed on B.A.9777/2012”
8. 6.2012. The C.B.I. filed a final report in the court on 12.6.2012 showing the petitioners as absconding. On the same day, cognizance of the offence was taken by the Chief Judicial Magistrate Court concerned and process was issued. The petitioners surrendered before the court on 22.6.2012.
7. Thereafter, the C.B.I. began further investigation taking aid of Section 173(8) of Cr.P.C. and bringing the said fact to the notice of the court concerned. During further investigation, C.B.I. sought the custody of the petitioners. The petitioners pointed out that since cognizance of the offence has been taken, custody of the petitioners under Section 167 Cr.P.C. cannot be given to the C.B.I. Negativing the contention so raised by the petitioners, custody was ordered by the Chief Judicial Magistrate Court concerned. That was challenged by the petitioners before this court which resulted in the decision reported in Karayi Chandrasekharan v. Inspector of Police (2012(3) K.L.T. 401). This court had held that since the petitioners had B.A.9777/2012. 7 surrendered before the court and the police did not have the opportunity to interrogate the petitioners in custody and since further investigation was being carried on, it is possible in law to grant custody of the petitioners to C.B.I. under Section 167(2) Cr.P.C. or in other words this court held that the mere fact that the cognizance was taken did not preclude the court from granting police custody of the petitioners when they were subsequently arrested.
8. The issue as to whether police custody can be given once cognizance is taken therefore is concluded as against the petitioners. Of course, the petitioners had carried the matter before the Apex Court and the Apex Court had observed that all the legal questions raised by the petitioners are left open to be urged at the appropriate stage.
9. In view of the decision reported in Karayi Chandrasekharan's case (supra), which placed reliance on several decisions of the Apex Court and had come to the B.A.9777/2012. 8 conclusion that police custody under Section 167(2) can be granted even after cognizance has been taken, that issue does not arise for consideration. There is some doubt regarding the fact whether the petitioners were formally arrested after further investigation was started. In cases dealt with by the Apex Court wherein it was held that police custody could be given even after cognizance was taken, it could be seen from a reading of those decisions that there was formal arrest of the petitioners concerned during further investigation. Any how, this aspect need not detain this court for the simple reason that this court has already held that police custody can be given under Section 167(2) Cr.P.C.
10. The next question that arises for consideration is whether in view of the decision reported in Karayi Chandrasekharan's case (supra), wherein it was held that police custody of the petitioners can be granted under Section 167(2) Cr.P.C. , on failure to file final report in B.A.9777/2012. 9 furtherance of the further investigation within the statutory period, Section 167(2) (2)(a)(ii) Cr.P.C. is attracted.
11. It was very vehemently contended on behalf of the petitioners that in view of the finding of this court that Section 167(2) applies during further investigation, it follows that the entire section applies and if that be so, the final report after further investigation having not been filed within the statutory period, the petitioners are entitled to statutory bail.
12. Though the argument may look attractive and may appear to contain considerable force, in view of the decision reported in Dinesh Dalmia v. C.B.I. (AIR 200.SC
78) this contention has necessarily to fail. In the said decision, it was held that even though a final report is filed against the accused who is absconding and who later surrenders before court or is subsequently arrested during further investigation, police custody of the said person can be given notwithstanding that the court has taken B.A.9777/2012. 10 cognizance on the final report. The said decision also considered whether on failure to file a final report in pursuance of the further investigation, the accused can claim the benefit of statutory bail. In paragraphs 26 and 27 of the said decision it was held as follows: "26. In Dawood Ibrahim Kaskar (supra), this Court held : "11. There cannot be any manner of doubt that the remand and the custody referred to in the first proviso to the above sub-section are different from detention in custody under Section 167. While remand under the former relates to a stage after cognizance and can only be to judicial custody, detention under the latter relates to the stage of investigation and can initially be either in police custody or judicial custody. Since, however, even after cognizance is taken of an offence the police has a power to investigate into it further, which can be exercised only in accordance with Chapter XII, we see no reason whatsoever why the provisions of Section 167 thereof would not apply to a person who comes to be later arrested by the B.A.9777/2012. 11 police in course of such investigation. If Section 309(2) is to be interpreted - as has been interpreted by the Bombay High Court in Mansuri (supra) - to mean that after the Court takes cognizance of an offence it cannot exercise its power of detention in police custody under Section 167 of the Code, the Investigating Agency would be deprived of an opportunity to interrogate a person arrested during further investigation, even if it can on production of sufficient materials, convince the Court that his detention in its (police) custody was essential for that purpose. We are therefore of the opinion that the words "accused if in custody" appearing in Section 309 (2) refer and relate to an accused who was before the Court when cognizance was taken or when enquiry or trial was being held in respect of him and not to an accused who is subsequently arrested in course of further investigation. So far as the accused in the first category is concerned he can be remanded to judicial custody only in view of Section 309(2), but he who comes under the second category will be governed by Section B.A.9777/2012”
167. so long as further investigation continues. That necessarily means that in respect of the latter the Court which had taken cognizance of the offence may exercise its power to detain him in police custody, subject to the fulfilment of the requirements and the limitation of Section 167." 27. We had noticed the dicta of the Constitution Bench judgment of this Court. At this juncture, we may notice the dicta laid down by this Court in Sanjay Dutt v. State Through C.B.I., Bombay (II) [(1994) 5 SCC 410.wherein it was held : "53...(2)(b) The 'indefeasible right' of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167 (2) of the Cr.P.C. in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on B.A.9777/2012. 13 expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Cr.P.C. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage." 13. From the decision cited above, it follows that the remand to custody of an accused can be ordered either under Section 167(2)(a)(ii) Cr.P.C. or under Section 309 Cr.P.C. Whereas Section 167 comes into play at the pre-cognizance stage, Section 309 comes into play after taking cognizance. But the Apex Court held that in cases where the accused is absconding and final report is filed as against him and he is subsequently arrested, police custody can be given under Section 167(2) but after the period of B.A.9777/2012. 14 police custody, his remand could be treated only as one under Section 309 since cognizance of the offence has already been taken by the court and subsequent remand can be only under Section 309(2) Cr.P.C. In view of the principle so laid down by the Apex Court, the first contention has necessarily to fail.
14. The next question that arises for consideration is whether the continued custody of the petitioners is necessary.
15. The petitioners had surrendered before the court on 22.6.2012. At the time of disposing of the earlier application filed by the petitioners, this court had sought clarification from the learned counsel for the C.B.I. as to how long is it likely to take to complete the further investigation and file supplementary report before court. The reply given was four weeks.
16. Several months have elapsed since then. When asked, learned counsel for the C.B.I. was unable to say B.A.9777/2012. 15 as to when supplementary final report can be laid. It was pointed out by the learned counsel for the C.B.I. that the two accused persons for whom search is being made by the C.B.I. who were actively involved in the incident are being sheltered and protected by the petitioners. Learned counsel for the C.B.I. pointed out that this is a case in which the principle laid down in Abdulla Kunhi v. C.B.I. (2010(4) K.H.C.
626) squarely applies and therefore the petitioners may not be granted bail.
17. As already noticed in the earlier application, it was noticed that even though bail is the normal rule, there are exceptions to the same. This court had given reasons as to why the petitioners could not be released on bail then.
18. The present contention of the C.B.I. is that unless and until the principle witnesses in the case are examined, it may not be appropriate to release the petitioners on bail since they are very powerful persons of the party and there is every possibility that if released B.A.9777/2012. 16 on bail they will influence the witnesses and make the trial a mockery.
19. It is significant to notice that some of the principle offenders, i.e., the persons who are instrumental in carrying out the attack which resulted in the death of the victim concerned have been released on bail. Of course, learned counsel for the C.B.I. has pointed out that the C.B.I. has moved an application for cancellation of the bail of those persons and it is pending.
20. It may be true that the petitioners are powerful persons in the party. But indefinite incarceration cannot be appreciated. They have been in custody from 22.6.2012 onwards. The courts below have observed that trial of the case could be conducted soon.
21. Learned Senior Counsel appearing for the petitioners pointed out that the observation so made by the trial court is baseless as unless and until the supplementary final report in pursuance to the further investigation is laid, B.A.9777/2012. 17 trial cannot be commenced. As the C.B.I. is not in a position to say when it would lay supplementary final report, it will not be possible to come to a conclusion that trial can be held in the near future.
22. As to whether before the supplementary final report is laid, the trial could commence or not is not an issue germane in these proceedings. Going by the claim of the C.B.I., two more accused persons who are actually involved in the attack of the victim are to be identified and recovery of motor cycle is yet to be made. In paragraph 10 of the order of the lower court, it is observed as follows: "10. As far as the petitioners and the other six accused persons are concerned investigation is completed and trial can be commenced subject of course to the priority basis of the court. But the fact still remains that further investigation of the case to identify and bring to book the other two unknown offenders is in progress for which the relevant witnesses are still to be traced and questioned and some vehicle used for commission B.A.9777/2012. 18 of the offence is also to be recovered. Though practically the further investigation now in progress is for distinct offences for the purpose of separate trial unconnected with the present case, since the occurrence is one and the same, no doubt petitioners are interested in the case under investigation as in the present case against themselves. Taking into consideration the political power held by petitioners, themselves being leaders of a prominent political party in the State, the influence or threat at their instance on or against the probable witnesses and its result in the further investigation and in the trial of the present case cannot at all be under estimated. This aspect has been clarified in all the orders dismissing the bail applications of petitioners. There is no change in circumstances whatever except the passage of some more time." 23. Therefore, it would appear that the lower court is of the opinion that trial could commence very soon.
24. In a recent decision reported in Ash Mohammad v. Shiv Raj Singh ((2012) 9 SCC 446), the B.A.9777/2012. 19 Apex Court quashed an order of bail granted by the High Court concerned and has noticed that the mere fact that the accused have been in custody for 7-8 months by itself is not a ground to grant bail. A number of other relevant factors like gravity of offence, the sentence that can be awarded on conviction, the possibility of influencing the witnesses etc., have considerable bearing on the issue of grant of bail.
25. This court had occasion to refer to the nature of the offence, the gravity of the offence, and the public interest involved etc., while disposing of the earlier application. In the light of the hope expressed by the trial court that trial can commence soon, the apprehension expressed by the prosecution that if released on bail, the petitioners are likely to influence the witnesses, will have to be duly considered.
26. But that does not mean that if the trial is indefinitely postponed, the petitioners should languish in jail. A balance will necessarily have to be struck between B.A.9777/2012. 20 individual liberty and larger social interest. Several months have elapsed since further investigation has commenced. Except for recording statements of some persons, nothing more appears to have been done. If the intention of the prosecution and investigating agency is to keep the petitioners in remand under some pretext or other, that certainly cannot be encouraged. Though some allowance has to be given to the investigating agency considering the nature of the case, they cannot take their own time to complete the investigation since valuable right of citizens are involved. It is felt a reasonable time can be given to complete further investigation. This court had already found that the apprehension expressed by the prosecution and the investigating agency in case the petitioners are released on bail is not totally baseless. But, at the same time, that cannot be made as a tool to let the petitioners languish in custody indefinitely. The cardinal principle of Criminal law B.A.9777/2012. 21 is "a man is presumed to be innocent unless proved otherwise." 27. After having considered the various aspects, it is felt that this application can be disposed of with the following direction: If the trial of the case, as observed by the lower court in its order dated 18.12.2012, cannot be commenced due to the reason that supplementary final report has not been laid in furtherance of the further investigation under Section 173(8) Cr.P.C. and also not due to the fault or acts of the petitioners or other accused persons, within two months from the date of this order, the petitioners shall be released on bail by the court below on such conditions as it deems fit. P. BHAVADASAN, JUDGE sb.