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1984 DIGILAW 17 (KER)

SUPDT. OF POLICE v. VIJAYARAGHAVAN

1984-01-20

U.L.BHAT

body1984
Judgment :- 1. This is a petition filed under S.439(2) of the Code of Criminal Procedure to cancel the bail granted to respondents 1 to 7 by the Sessions Judge, Tellicherry in Crl. M.P. No. 804/83. 2. Soman, Sub-Inspector of Police, Panoor Police Station, died of revolver bullet injuries at about 11.55 a.m. on 12-3-1981. He sustained the injuries when he was sitting in his chair inside the premises of the Police Station. He was removed to the local Government Hospital where the Doctor examined him and found him dead. We are not concerned now with the controversy whether he was actually dead or was breathing his last breath when the doctor saw him. He was taken to the hospital by the police personnel of the station including some of the accused-respondents. Respondents 1, 2, 6 and 7 were Head Constables of Police and the other respondents were police constables attached to the station at that time. The F.I.R. was registered by the 1st respondent, presumably at 12.15 p.m. The case was registered as a case of unnatural death. Immediately the superior officers were informed and Sri. Kuttappan, Circle Inspector of Police, Kuthuparamba took up the investigation. He held inquest on the same day and found three bullet injuries on the left side of the chest. Post-mortem was held on the same evening by Dr. Mrs. Bhagya Lakshmi. She did not recover any of the bullets. The body was taken to Trivandrum. But the near relations of Soman insisted on a fresh post-mortem at the Trivandrum Medical College Hospital and declined to take charge of the body without a fresh postmortem. Accordingly post-mortem was held in that hospital by Dr. V. K Raman Kutty in the presence of Professor of Forensic Science Dr.Balagopalan. He noted three entry wounds on the left side of the chest and an exit wound on the back side. He was able to find two bullets in the body. In his opinion, two of the bullet wounds were fatal. He stated that he could give an opinion only after an examination of the clothes and skin removed during the first post-mortem. The additional post-mortem report submitted by Dr. V. K. Raman Kutty shows evidence of peppering and a hollow of blackening around one of the three holes in the shirt, but without any evidence of burning. He stated that he could give an opinion only after an examination of the clothes and skin removed during the first post-mortem. The additional post-mortem report submitted by Dr. V. K. Raman Kutty shows evidence of peppering and a hollow of blackening around one of the three holes in the shirt, but without any evidence of burning. There were three holes in the skin portion but without signs of burning etc. The Circle Inspector of Police came to the conclusion that it was a case of suicide. 3. Meanwhile there was an agitation by the relations of Soman and members of his community and the Government instituted an enquiry by Sri. Zakaria Mathew IAS. The investigation was handed over to Sri. T. N. Vasudeva Kurup, Detective Inspector, CBI., CID., Cannanore. The enquiry Commissioner was unable to come to any conclusion on the question whether it was a case of suicide or homicide and suggested investigation by an expert agency. The second investigator did not agree with the theory of suicide. Then Sri. T. N. V. Kurup was replaced by Sri. P. P. Chandrasekharan. He supported theory of suicide. It was under these circumstances that by appropriate notifications of the State and the Central Government, investigation was handed over to the Central Bureau of Investigation (CBI). A case was registered by the CBI. and investigation proceeded. On the morning of 11-11-1983 the CBI. officers arrested the respondents on the basis that it was a case of homicide for which they were responsible, and produced them before the Chief Judicial Magistrate, Ernakulam on the same day and asked for remand. They were remanded to judicial custody. They were also allowed to betaken to New Delhi for questioning with the aid of scientific equipments such as polygraph. Remand was being extended in due course. The Magistrate declined to grant bail also. On an earlier occasion the respondents approached this Court for bail in Crl. M. P. No. 776/83 and withdrew the petition with the submission that they would move the Sessions Court, Tellicherry. They moved the Sessions Court, Tellicherry for bail. The learned Sessions judge after hearing both sides granted bail on condition that the respondents execute bond for an amount of Rs. 25.000/- and furnish two solvent sureties in the like amount to the satisfaction of the Chief Judicial Magistrate, Ernakulam. They moved the Sessions Court, Tellicherry for bail. The learned Sessions judge after hearing both sides granted bail on condition that the respondents execute bond for an amount of Rs. 25.000/- and furnish two solvent sureties in the like amount to the satisfaction of the Chief Judicial Magistrate, Ernakulam. They were also directed not to leave the Cochin Corporation limits until final report is filed or until otherwise ordered. They were further directed to inform the CBI. their place of residence on release and keep informing the CBI. every time they change residence. They were also required to present themselves before the CBI for interrogation as and when required. The bail so ordered by the learned Sessions Judge is sought to be cancelled by the CBI. in this petition. 4. The respondents raised a preliminary objection to the effect that the petition for cancelling bail under S 439(2) of the Code cannot be entertained unless the respondents are actually released on bail as per the orders of the Sessions Court. V. Bhaskaran Nambiar, J who heard the arguments on the preliminary objection, overruled the objection and directed the petition to be heard on the other contentions. 5. In this petition the CBI. has raised two contentions, namely, that the Sessions Court, Tellicherry has no jurisdiction to grant bail and that it is only the Sessions Court at Ernakulam which has such jurisdiction and that the bail order is vitiated by infirmity and bail ordered deserves to be cancelled. Though on the question of jurisdiction arguments were addressed at some length, learned Public Prosecutor who appeared for the CBI. finally submitted that the court need not record any finding regarding jurisdiction, and submitted that the CBI will reserve this contention to be raised on a future occasion. Therefore I do not propose to deal with the objection of want of jurisdiction on the part of the Sessions Court, Tellicherry. 6. The learned counsel for the respondents submitted that unless there is preponderance of probability established by appropriate evidence in the shape of affidavits or otherwise that the respondents have actually attempted to tamper with the witnesses or the investigation, this Court cannot exercise its jurisdiction in cancelling bail. The learned Prosecutor and the learned counsel have referred to two decisions of the Supreme Court in Gurcharan Singh v. State, AIR. 1978 SC. 179 and in Delhi Administration v. Sanjay Gandhi, AIR. The learned Prosecutor and the learned counsel have referred to two decisions of the Supreme Court in Gurcharan Singh v. State, AIR. 1978 SC. 179 and in Delhi Administration v. Sanjay Gandhi, AIR. 1978 SC. 961. I shall briefly refer to the same. 7. Gurcharan Singh's case arose out of what was known as Sunder Murder case, in which highly placed police officers were implicated as accused. The Sessions Court granted bail in August 1977 and thereafter final report was laid and the State moved for cancellation of bail in the High Court after the middle of September 1977. The High Court set aside the order of bail and the matter came up in appeal before the Sessions Court. In the course of the decision the Supreme Court noticed the special powers of the Sessions Court and the High Court in the matter of bail found in S.439. It was pointed out that where the Sessions Court has granted bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under S.439(2). When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court. The overriding considerations are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which cannot be exhaustively set out. The question of cancellation of bail under S.439(2) of the Code is different from admission to bail under S.439(1). The question of cancellation of bail under S.439(2) of the Code is different from admission to bail under S.439(1). Ordinarily the High Court will not exercise its discretion to interfere with a bail granted by a Sessions Judge in favour of the accused. When such an opportunity arises, as pointed out in Para.26 of the judgment, "We will have to see whether that order was vitiated by any serious infirmity for which it was right and proper for the High Court, in the interest of justice, to interfere with his discretion in granting the bail". 8. Ultimately the Supreme Court found that the High Court was justified in interfering with the order passed by the Sessions Judge, because: "... it is seen that he did not take into proper account the grave apprehension of the prosecution that there was a likelihood of the appellants tampering with the prosecution witnesses. In the peculiar nature of the case revealed from the allegations and the position of the appellants in relation to the eye-witnesses it was incumbent upon the Sessions Judge to give proper weight to the serious apprehension of the prosecution with regard to tampering with the eye-witnesses, which was urged before him in resisting the application for bail. The matter would have been different if there was absolutely no basis for the apprehension of the prosecution with regard to tampering of the witnesses and the allegation rested only on a bald statement." The order passed by the High Court cancelling the bail was confirmed by the Supreme Court. 9. According to the learned counsel for the respondents law in this regard has been laid down differently in Sanjay Gandhi's case. In that case anticipatory bail had been given to the accused and pending trial in the Sessions Court, the Administration filed an application for cancellation of bail under S.439(2) of the Code. The same was dismissed by the High Court and dismissal was challenged in the Supreme Court. The Supreme Court discussed the difference between an order granting bail and an order of cancellation of the bail in the following manner: "Rejection of bail when bail is applied for is one thing, cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over the objective fact that witnesses have turned hostile must be shown to bear a casual connection with the subjective involvement therein of the respondent. Without such proof, a bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won over by the accused. It is therefore necessary for the prosecution to show some act or conduct on the part of the respondent from which a reasonable inference may arise that the witnesses have gone back on their statements as a result of an intervention by or on behalf of the respondent." (emphasi s supplied) The Supreme Court proceeded to observe that where cancellation of bail is sought in an application, the prosecution has to prove its allegation by preponderance of probabilities. In the words of the Supreme Court: "Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail." The Supreme Court also uttered the following warning: "The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extra-ordinary nature, is meant to be exercised in appropriate cases when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. Refusal to exercise that wholesome power in such cases, few though they may be, will reduce it to a dead letter and will suffer the Courts to be silent spectators to the subversion of the judicial process." 10. Refusal to exercise that wholesome power in such cases, few though they may be, will reduce it to a dead letter and will suffer the Courts to be silent spectators to the subversion of the judicial process." 10. Having bestowed my serious consideration to the two decisions, I am not able to agree that there is any divergence of approach in the two cases or that the latter case by taking a different view must be deemed to prevail over the earlier case. All that can be said is that in the two cases the Supreme Court was dealing with two different sets of facts and the Court laid emphasis on two different aspects when dealing with applications for cancellation of bail. What came up for consideration before Court in Sanjay Gandhi's case was the prosecution allegation, that after the release of the accused on bail they influenced the witnesses. Naturally the question which arose for consideration was whether the Court would be satisfied that such a supervening conduct on the part of the accused can be taken to have been established. This does not mean that bail once granted can be cancelled only where such a supervening conduct or circumstance has been proved In fact in the passage extracted above from Para.13 of the judgment in Sanjay Gandhi's case, the Supreme Court was cautious in observing that cancellation of bail necessarily involves the review of the decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. The cautious note struck in this passage would clearly show that the Supreme Court was not laying down a definite proposition that bail can be cancelled only where supervening circumstances justify such an order. In the generality of the cases, of course, it must be so. But there may be cases where even in the absence of supervening circumstances the court would be justified in cancelling bail. Where supervening factors are alleged, the investigator can move the Sessions Court which granted bail or even the High Court. In the generality of the cases, of course, it must be so. But there may be cases where even in the absence of supervening circumstances the court would be justified in cancelling bail. Where supervening factors are alleged, the investigator can move the Sessions Court which granted bail or even the High Court. Where there are no circumstances that have cropped up, when the State is aggrieved by the order of the Sessions Court granting bail, it may be futile for the State to move the Sessions Court for cancellation of bail; it is competent to move the High Court for such relief. If the order is vitiated by any serious infirmity and interests of justice require, the High Court can and has to interfere. Of course the High Court will not ordinarily interfere with the exercise of discretion of the Sessions Court; where it is justified and necessary, the power of cancellation of bail has to be exercised. This is the position which emerges from the two decisions of the Supreme Court. 11. The order of the learned Sessions Judge proceeds on the basis that the CBI. did not make available for his perusal the case diary or any other records concerned with the case. The CBI filed a statement before the Sessions Court at the end of which it was stated that the case diary was submitted before court for its perusal. In his order the learned Sessions Judge has observed: "But the case diary has not been submitted. At the time of the arguments the learned Prosecutor for the CBI had referred to certain pages which he said were pages in his case diary and had also read out certain notifications. I suggest they could be flagged and the C.D. left with me for me to study the case. The learned Prosecutor agreed to do so. But the C.D. was not handed over." In Para.5 to 11 the learned Sessions Judge has commented on the failure of the CBI. to produce the C.D. or any other records. In Para.13 of the order the learned Sessions Judge has observed that the C. D. and the various reports and other records were withheld from the Court. But the C.D. was not handed over." In Para.5 to 11 the learned Sessions Judge has commented on the failure of the CBI. to produce the C.D. or any other records. In Para.13 of the order the learned Sessions Judge has observed that the C. D. and the various reports and other records were withheld from the Court. It may thus be seen that the decision of the learned Sessions Judge to grant bail rested on the circumstance that the case diary and the connected records were not laid before him for his perusal, and therefore the Court had no materials to make out what was the real nature of the case as revealed by the investigation, whether it was a case of suicide or homicide, and to come to the conclusion that the respondents are likely to tamper with evidence. 12. Dealing with the above aspect, in the present petition it is stated at pages 3 and 4 as follows: "The gist of the evidence so far collected was placed before the Sessions Judge. Unfortunately, the case diary could not be placed, as the Sessions Judge was not inclined to see the Public Prosecutor, CBI. in his chambers when he went there to submit the case diary. The Public Prosecutor wanted to submit the case diary in person because on earlier occasions the contents of the case diary came to be reported in the News Papers." The learned Public Prosecutor submitted before me that extracts of the case diary were read out in open court and the court suggested that the relevant pages may be flagged and submitted, that this process took some time and the CBI. was reluctant to hand over the case diary to the bench clerk or any other clerk and therefore the Prosecutor wanted to hand over the case diary personally to the Sessions Judge and for that purpose sought permission to meet him in his chambers, but the Sessions Judge was not inclined to grant permission. 13. This certainly reveals an unfortunate state of affairs. The Prosecutor, CBI. was certainly not justified in insisting on handing over the case diary personally to the learned Sessions Judge, whatever be the reason for such a procedure. If he so desired, the case diary could have been put in a cover and sealed and handed over to the Chief Ministerial officer of the court. The Prosecutor, CBI. was certainly not justified in insisting on handing over the case diary personally to the learned Sessions Judge, whatever be the reason for such a procedure. If he so desired, the case diary could have been put in a cover and sealed and handed over to the Chief Ministerial officer of the court. Case diary is submitted every time a bail petition is argued either in a Magistrate Court or in a Sessions Court or even in this Court. The CBI. cannot claim any particular privilege and insist on the judge personally receiving the case diary. At the same time this Court has to express its concern that the learned Sessions Judge disposed of the bail application without actually perusing the case diary. He could easily have insisted on the CBI producing the case diary in court. By not doing so, the learned Sessions Judge deprived himself of the opportunity of looking into the case diary. I have already indicated that practically the entire order rests on what the Sessions Judge described as failure of the investigator to produce C. D or other relevant records for his perusal. The case diary was available in fact. The learned Sessions Judge in bis order refers to the fact that the Prosecutor who argued before him was reading out "pages which he said were pages in his case diary". The remand extension reports also indicate that the case diary was submitted before the Magistrate concerned. The case diary was available when the matter was argued before the Sessions Court. It has been made available to me for my perusal. Thus it has to be seen that the order passed by the learned Sessions Judge is not an order passed after considering the materials available in the case diary. This is a serious infirmity in the order. 14. The order of Sessions Court granting bail in this case was passed without considering the relevant materials and without applying the judicial mind on the questions arising for consideration in the bail application. I have already indicated the circumstances which led to the unfortunate state of affairs. The CBI. This is a serious infirmity in the order. 14. The order of Sessions Court granting bail in this case was passed without considering the relevant materials and without applying the judicial mind on the questions arising for consideration in the bail application. I have already indicated the circumstances which led to the unfortunate state of affairs. The CBI. and its Prosecutor were certainly in the wrong in not producing the case diary before the court officer or the chief ministerial officer, and in insisting on handing over the same to the Sessions Judge himself; at the same time, when the learned Sessions Judge found that the case diary was not before him he should have insisted on the same being produced either by passing an order in that behalf or by issuing notice to the CBI. It is his right and duty to look into the materials available on the basis of which the bail application is opposed. His decision is thus vitiated by a serious infirmity and the bail granted in such circumstances deserved to to be cancelled. 15. This cannot be the end of the matter. Respondents must have the opportunity of pressing for bail. Justice requires that the Sessions Court should decide afresh the request for bail in the light of all the relevant materials. It is not necessary to compel the respondents to file a fresh application. The Sessions Court may pass an appropriate order afresh on the same petition after hearing the parties. It is made clear that it is open to both parties to urge all relevant contentions before the Sessions Court, including the contention relating to jurisdiction of the Sessions Court in the matter. In the result the bail granted to the respondents by the Sessions Court, Tellicherry in Crl. M P. No. 804/83 is cancelled and the Sessions Court is directed to pass orders afresh in Crl. M P. No. 804 of 1983. Parties are at liberty to file fresh affidavits before the Court. A copy of this order will be sent to the Sessions Court. Carbon copies of the order will be issued to both sides on usual terms.