Public Prosecutor v. Moidu Haji — 1989 DIGILAW 249 (KER)

Judgment :- 1. Dead body of one Nambodankandy Hameed, aged 26 years S/o. Kunhammad, was seen lying on the road near the shop of Tharavattathu Kumaran in the morning of 26-3-1985. Kumaran reported the matter to the Sub Inspector of Police, Kuttiadi Police Station. The Sub Inspector registered crime 33/85 of his police station. Names of the assailants were not known to the police. The investigation initiated by the Sub Inspector of Police, Kuttiadi was taken over by the Crime Branch, C.B.C.I.D., Kozhikode. Later the investigation was taken over by the Special Squad under the direct supervision of the Inspector General of Police (Crimes) and Deputy Inspector General of Police (Crime Investigation) with effect from 1-12-1988. 2. As per the investigating agency the deceased was returning home on the date of occurrence after seeing a film on a bicycle. Accused way laid him. One of them inflicted a cut on the neck of the deceased. The deceased managed to escape from the clutches of the assailants and ran off. He tried to take shelter in a two Storeyed building which was situated hardly 130 metres away from the place of occurrence. The assailants who were chasing him, pulled him down from the stare-case and gave one more cut on the same portion of the body where the first injury was inflicted. Hameed succumbed to the injury then and there. The assailants, it is alleged, had gone to the place of occurrence for the commission of the offence in a jeep belonging to one of the accused. 3. On 15-1-1989 Chekkan alias Chekkutty, first accused in the case, was arrested. He was produced before the Judicial First Class Magistrate's Court, Nadapuram, on 16-1-1989. The learned Magistrate remanded him to judicial custody. While under judicial custody he gave a confession statement to the Magistrate from which it was revealed that the respondents herein who are accused 2 and 4 and two other persons were involved in the commission of the offence. 4. First accused Chekkan is the brother in law of 2nd accused, first respondent herein. Third accused, 2nd respondent herein, is the son of first respondent. Third respondent who is accused No.4 is the brother of Andru Haji who married Razeena, daughter of first respondent. 5. The motive for the murder, according to the learned Public Prosecutor, is as follows: The deceased was in love with Razeena, D/o. first respondent. Third accused, 2nd respondent herein, is the son of first respondent. Third respondent who is accused No.4 is the brother of Andru Haji who married Razeena, daughter of first respondent. 5. The motive for the murder, according to the learned Public Prosecutor, is as follows: The deceased was in love with Razeena, D/o. first respondent. Even-after her marriage with the brother of 3rd respondent, Hameed continued to have his infatuation for her. After the marriage Razeena and her husband were in Saudi Arabia. At the time when the incident in this case took place, she was in her native village in connection with delivery. She was to go to Saudi Arabia for joining her husband. Hameed had also been in Gulf countries. After return he was working as a coolie in a provision store. He obtained visa for going to Saudi Arabia. He was planning to leave for Saudi Arabia within 3 or 4 days of the incident. Though he was very distantly related to first respondent, he was very poor. 6. At the time when the inquest was prepared the first respondent (A2) was also questioned by the police. Though he was not a close relative of the deceased and was not summoned by anybody to the place, he gave statement to the police. It was stated therein that his son, 2nd respondent (A3) was away in Mysore on the date of occurrence. The investigation revealed that first respondent deliberately got his statement recorded and gave false statements to mislead the police officers. 7. While the investigation was in progress, respondents filed petitions under S.438 of the Code of Criminal Procedure for anticipatory bail. At that time the police had no information about the complicity of respondents 1 to 3 in the commission of the offence. The investigating officer filed counter affidavit stating that respondents 1 to 3 are neither accused nor have the police any intention to arrest them. Still the learned Sessions Judge granted their prayer. 8. From the confession statement of the first accused recorded by the Magistrate the complicity of respondents 1 to 3 in the incident was revealed. The Investigating Officer then filed a report before court incorporating names of respondents 1 to 3 as accused 2 to 4 in the array of the accused. The prosecution moved the Sessions Court for cancellation of the anticipatory bail. The Investigating Officer then filed a report before court incorporating names of respondents 1 to 3 as accused 2 to 4 in the array of the accused. The prosecution moved the Sessions Court for cancellation of the anticipatory bail. The learned Sessions Judge refused to grant that prayer. There upon this court was moved by filing Criminal M.C.237/89. This court after hearing both sides, cancelled the anticipatory bail granted by the Sessions Court. There-after the respondents surrendered before the Judicial First Class Magistrate, Nadapuram. The learned Magistrate remanded them to judicial custody. On 12-4-1989 the Investigating Officer requested the Magistrate to give the respondents to police custody for interrogation u/s. 161 of the Code. The learned Magistrate passed orders on 18-4-1989 giving the respondents to police custody for interrogation. The learned Magistrate directed that the questioning should be in the presence of Advocate Sri.C. Ahammed Sheriff for first respondent, Advocate Sri.P.K.Ahammed Kutty for 2nd respondent and Advocate Sri.T.K.Kunhabdulla for third respondent. The police who took the respondents under custody as per the above order of the learned Magistrate, reproduced them before court on the same day because questioning of the accused in the presence of their counsel will not help the investigating officer to elicit facts. 9. Respondents filed petitions before the Sessions Court for bail. Learned Sessions Judge dismissed the petitions. Later these respondents moved for bail again. Those petitions were heard and disposed of by a common order dated 25-5-1989 granting bail to them. That, order is under challenge now. The prosecution requests this court to cancel the bail and order re-arrest of these respondents. 10. The incident in this case took place as far back as on 25-3-1985. Various investigating agencies enquired into the cause of death, but without any noticeable result. Mother of the deceased then moved this court u/s.482 of the Code of Criminal Procedure by filing Crl.M.C.1128/88 for ordering investigation through C.B.I. According to her, Hameed was done to death by very powerful elements of the locality. When this court was moved by the mother of the deceased, a special team headed by Inspector General of Police (Crimes) took over the investigation. The Inspector General and Deputy Inspector General supervised the further investigation. That led to the arrest of Chekkan. From his confession, the investigating, team came to know of the involvement of respondents 1 to 3. When this court was moved by the mother of the deceased, a special team headed by Inspector General of Police (Crimes) took over the investigation. The Inspector General and Deputy Inspector General supervised the further investigation. That led to the arrest of Chekkan. From his confession, the investigating, team came to know of the involvement of respondents 1 to 3. According to the learned Public Prosecutor, Chekkan who made the confession retracted from it because of the influence exerted on him by the respondents through advocates who were visiting him in jail. It is argued that unless the respondents are arrested and detained, it will not be possible for the Investigating team to bring the perpetrators of this gruesome murder to justice. 11. The learned counsel representing the respondents vehemently opposed this application. According to them, the respondents surrendered before court on 10-4-89 and the police got their custody for interrogation. Without questioning them they were returned to judicial custody. The Investigating team did not succeed in bringing new facts to light for detaining the respondents in custody. While granting bail, learned Sessions Judge had imposed the following conditions: 1) Each of the petitioners shall execute a bond for Rs. 10,000/- with two solvent sureties each for the like amount to the satisfaction of the Judicial Magistrate of First Class, Nadapuram. 2) The petitioners shall stay confined to the jurisdictional limits of Museum police station, Vellayambalam, Trivandrum, until further orders. 3) The petitioners shall report before the Headquarters of the Crime Branch C.I.D. Trivandrum on all Sundays, Tuesdays and Thursdays between 9AM and 11 AM. 4) The petitioners shall not, in any manner, influence or intimidate the prosecution witnesses nor shall they attempt to tamper with the evidence for the prosecution. 5) The petitioners shall make themselves available for interrogation as and when required by the respondent subject of course to the condition imposed by the High Court, unless the same is varied either by the High Court or by the Supreme Court. 6) The petitioners shall not attempt to influence or establish any contact or communication with Palandiyil Chekkan, the first accused in the case. According to counsel, the police now wants re-arrest of the respondents for questioning them without the presence of advocates of their choice. 6) The petitioners shall not attempt to influence or establish any contact or communication with Palandiyil Chekkan, the first accused in the case. According to counsel, the police now wants re-arrest of the respondents for questioning them without the presence of advocates of their choice. It is further submitted that no sufficient ground has been brought out by the prosecution for cancelling the bail granted by the Sessions Court. 12. The earlier applications of the respondents for bail were dismissed by the learned Sessions Judge observing thus: "After having given my anxious consideration to the entire facts and circumstances of the case and after perusing the case diary files relating to the matter, I am convinced that the submissions made on behalf of the Special Public Prosecutor have to prevail over the contentions advanced from the side of the petitioners. The case, as is prima facie revealed, is that the petitioners, Kunhabdulla Haji and Chekkan, with the aid of two hired assassins, followed deceased Hameed and committed murder of the said person in the dead of the night of 25-3-1985. The names and other details of the two assassins are yet to be obtained by the investigation. In these circumstances, I do not consider it expedient in the interest of justice to release the petitioners on bail at this stage." After the lapse of nearly two weeks the respondents moved Criminal M.Ps. 567/89 and 575/89. By order dated 25-5-1989 the learned Sessions Judge granted bail imposing the aforesaid conditions and observed thus: "The Case Diary files submitted before me does not disclose any fresh incriminating material against the petitioners subsequent to 30-4-1989 which fact, prima facie, induces me to believe that the prosecution has no more witnesses forthcoming for the purpose of questioning." 13. After perusing the entire case diary the learned Sessions Judge observed that the names and other details of the two assassins are yet to be obtained. The details of the two hired assassins can be got at only by questioning the respondents. The police had not questioned the respondents so far. The questioning was postponed by the police because, according to them, the questioning of the respondents in the presence of a batch of advocates will only be farce. So, they wanted to get clarification from higher courts. The police had not questioned the respondents so far. The questioning was postponed by the police because, according to them, the questioning of the respondents in the presence of a batch of advocates will only be farce. So, they wanted to get clarification from higher courts. This circumstance which was placed before the learned Sessions Judge was not properly appreciated and the prosecution was found fault with in not bringing out additional materials connecting the respondents with the incident. This approach was, on the facts and circumstances of the case, mis-directed. 14. It is well settled that the facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail. The incident in this case took place on 25-3-1985. Various investigating agencies enquired into the cause of death, but without any noticeable result. The mother of the deceased then moved this court by filing Crl.M.C.1128/88 for causing an investigation through the C.B.I. Then the Inspector General (Crimes) and Deputy Inspector General supervised the conduct of a detailed investigation which led to the arrest of Chekkan. He made a confession to the Magistrate which revealed the involvement of respondents 1 to 3. It has further come out that respondents 1 to 3 hired two professional assassins and they murdered Hameed. The details of the two hired assassins are known only to the respondents. It has to be got at from them. Chekkan who made the confession, it is alleged, has retracted because of the influence exerted on him by the respondents through visitors and advocates. While cancelling the anticipatory bail obtained by the respondents, this court observed: "Much more has to be gathered to unravel the full picture of a crime carefully planned and committed. Already, the investigation is handicapped by passage of time and other reasons. Safeguards suggested by respondents, are not safeguards enough. Considering these circumstances, bail granted to respondents must be cancelled as otherwise there is every chance of the investigation being prejudiced." The learned Sessions Judge, I am afraid, has not properly appreciated the facts and circumstances of the case and the above quoted observation made by this court. 15. As observed by Sukumaran, J., in Iyyu Alias Ashraff v. State of Kerala (1983 KLT 629) the application for bail cannot be considered in total isolation from hard realities that now confront public life in the State. 15. As observed by Sukumaran, J., in Iyyu Alias Ashraff v. State of Kerala (1983 KLT 629) the application for bail cannot be considered in total isolation from hard realities that now confront public life in the State. Personal liberty must necessarily be preserved but certainly not in such a manner as to facilitate anti-social elements to destroy the very fabric of the democratic set up under the Constitution. Any attempt made to bring to a grinding halt the machinery entrusted with the maintenance of law and order has to be check-mated, when such attempts are made with unjustifiable and unlawful use of the 'sword or the purse'. In Chandrasenan v. State of Kerala (1983 KLT. 916) Bhat, J., observed: "The court cannot take an ivory tower approach in matters like this. The court must also play its own role in ensuring that the cause of public justice is not abandoned. Where the court is satisfied that grant of bail or anticipatory bail will seriously and adversely affect the investigation, that is a sufficient reason to deny bail and even anticipatory bail." 16. Learned Public Prosecutor moves this court for cancelling the bail granted by the learned Sessions Judge. According to the prosecution, the nature and gravity of the offence committed by the respondents, the position and status of the respondents with reference to the victim and the witnesses and the various steps taken by them to keep away from the clutches of law should be taken note of by this court. It is submitted that the respondents could mis-lead the investigating machinery for a pretty long time and could even influence the first for a pretty long time and could even influence the first accused who gave confession, to retract from it. According to the learned Public Prosecutor, the details of the two hired assassins could not be collected till date on account of the denial of opportunity to the investigating agency to effectively question the respondents. 17. Ss.160 and 161 of the Code of Criminal Procedure give ample power to the investigating agency to secure attendance of any person supposed to be acquainted with the facts and circumstances of the case and to examine him. 'Any person' found in these sections includes the accused in the case as well. In Nandini Sathpathy's case (AIR. 1978 SC. 17. Ss.160 and 161 of the Code of Criminal Procedure give ample power to the investigating agency to secure attendance of any person supposed to be acquainted with the facts and circumstances of the case and to examine him. 'Any person' found in these sections includes the accused in the case as well. In Nandini Sathpathy's case (AIR. 1978 SC. 1025) the Supreme Court held: "We hold that'any person supposed to be acquainted with the facts and circumstances of the case' includes an accused person who fills that role because the police suppose him to have committed the crime and must, therefore, be familiar with the facts. The supposition may later prove a fiction but that does not repel the section. Nor does the marginal note 'examination of witnesses by police' clinch the matter. A marginal note clears ambiguity but does not control meaning. Moreover, the supposition accused figures functionally as a witness. To be a witness', from a functional angle, is to impart knowledge in respect of a relevant fact, and that is precisely the purpose of questioning the accused under S.161 Cr.P.C. The dichotomy between witnesses' and 'accused' used as terms of art, does not hold good here." Thus the authority of the investigating officer to question the accused is unquestionable. S.161 of the Code entitles the police to examine the accused during investigation. The statement of the accused, if voluntary, is admissible, indeed, invaluable (See Nandini Sathpathy's case). According to Their Lordships, to erase involuntariness we must erect safeguards which will not'kill the goose'. With this objective the Supreme Court in the said decision referred to certain safeguards. Dealing with that Their Lordships observed: "The spirit and sense of Art.22(1) is that it is fundamental to the rule of law that the services of a lawyer shall be available for consultation to any accused person under circumstances of near-custodial interrogation. Moreover, the observance of the right against self-incrimination is best promoted by conceding to the accused the right to consult a legal practitioner of his choice." Lawyer's presence is a constitutional claim in some circumstances in our country also, and, in the context of Art.20(3), is an assurance of awareness and observance of the right of silence. The Miranda decision has insisted that if an accused person asks for lawyer's assistance, at the stage of interrogation, it shall be granted before commencing or continuing with the questioning. The Miranda decision has insisted that if an accused person asks for lawyer's assistance, at the stage of interrogation, it shall be granted before commencing or continuing with the questioning. We think that Art.20(3) and Art.22(1) may, in a way, be telescoped by making it prudent for the police to permit the advocate of the accused, if there be one, to be present at the time he is examined. Over-reaching Art.20(3) and S.161(2) will be obviated by this requirement. We do not lay down that the police must secure the services of a lawyer. That will lead to "police-station-lawyer" system, an abuse which breeds other vices. But all that we mean is that if an accused person expresses the wish to have his lawyer by his side when his examination goes on, this facility shall not be denied, without being exposed to the serious reproof that involuntary self¬crimination secured in secrecy and by coercing the will, was the project. Not that a lawyer's presence is a panacea for all problems of involuntary self-incrimination, for he cannot supply answers or whisper hints or otherwise interfere with the course of questioning except to intercept where intimidatory tactics are tried, caution his client where incrimination is attempted and insist on questions and answers being noted where objections are not otherwise fully appreciated. He cannot harangue the police but may help his client and complain on his behalf, although his very presence will ordinarily remove the implicit menace of a police station. We realize that the presence of a lawyer is asking for the moon in many cases until a public defender system becomes ubiquitous. The police need not wait more than for a reasonable while for an advocate's arrival. But they must invariably warn - and record that fact - about the right to silence against self-incrimination; and where the accused is literate take his written acknowledgment." The lawyer even if brought in cannot interfere with the course of questioning. The presence of lawyer will save the police from censure, on the basis that the interrogation was carried on by physical and psychic torture. 18. According to the investigating officer, the facts revealed in this case show, that the respondents engaged two professional assassins to murder Hameed. Details of those assassins can be elicited only from these respondents. Questioning under S.161 of the Code is meant to elicit facts. 18. According to the investigating officer, the facts revealed in this case show, that the respondents engaged two professional assassins to murder Hameed. Details of those assassins can be elicited only from these respondents. Questioning under S.161 of the Code is meant to elicit facts. It should not be treated as a formality. If the investigating officer is to interrogate the accused in the presence of a batch of advocates, as ordered by the learned Magistrate, the whole process would be reduced to a mere formality, if not a mockery. One must not forget the fact that crimes are growing and criminals are resorting to various techniques including employment of professional assassins. The details of those professionals can be brought out by questioning the persons who engaged them. If barriers are put up, tampering the process to bring out details of those professional assains and to make them face trial, it will undermine the very administration of justice. After creating such a situation, it will be idle to talk about human dignity and civilisation. Murderers who have taken the lives of others should be brought to court to face trial. In dealing with such situation the courts should not be carried away by populist catch words like personal liberty, freedom of citizen etc. 19. As stated earlier, the facts and circumstances of each case should govern the exercise of judicial discretion. On going through the case diary, it is revealed that Hameed had been done to death on account of his infatuation towards the daughter of first respondent, who was given away in marriage to the brother of the third respondent, by engaging professional killers. Respondents have to be effectively questioned by the investigating officers to bring the hired assassins to trial. Of course that process should be subject to the constitutional safeguards of the respondents, as stated above. But on the peculiar facts of this case, I am not inclined to permit advocates to be present by the side of the accused at the time of interrogation. Advocates may be present in some part of the building where the questioning of the accused takes place. 20. The learned Sessions Judge, for valid reasons refused bail to respondents 1 to 3 by his orders dated 6-5-1989 and 10-5-1989. Advocates may be present in some part of the building where the questioning of the accused takes place. 20. The learned Sessions Judge, for valid reasons refused bail to respondents 1 to 3 by his orders dated 6-5-1989 and 10-5-1989. After a lapse of two weeks by order dated 25-5-1989 the respondents were released without finding any chance of situation warranting their release. On a consideration of the entire facts and circumstances of the case, I am of the opinion that the bail granted to respondents 1 to 3 has to be cancelled and they should be ordered to be re-arrested. I do so. It is open to the investigating officers to interrogate them. 21. In the result, the order dated 25-5-1989 passed by the learned Sessions Judge granting bail to the respondents is quashed and the investigating agency is directed to take them into custody forthwith. This order will not prevent the respondents from moving for bail at a later stage. The Criminal M.C. is disposed of in the above terms.