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2005 DIGILAW 376 (KER)

State of Kerala v. V Anilkumar

2005-06-15

R.BASANT

body2005
ORDER R. Basant, J. 1. The respondents herein are accused Nos. 22 and 23 in Crl. 116 of 2003 ofNemom Police Station. Serious allegations were raised against the accused inthe case of violation of the provisions of the Kerala Abkari Act. Both therespondents were granted anticipatory bail as per common order dated13-05-2005 by another Bench of this court. The relevant directions in theoperative portion are extracted below :- "In the result, I direct the petitioners to surrender before the Magistrateconcerned positively in 7 days. On such surrender and on their making depositof an amount of Rs. 50,000/- each by way of cash security and each of themexecuting bail bond for Rs. 50,000/- with two solvent sureties each for the likesums to the satisfaction of the Magistrate, the Magistrate shall enlarge themon bail. On such release they shall report before the investigating officerbetween 10 a.m. and 11 a.m. on all days for a period of one month, on everyalternate days thereafter for a period of next two months and thereafter on allTuesdays and Fridays only, till investigation in the case is over and final reportis laid. It is made clear that grant of anticipatory bail shall not stand in the wayof the Magistrate giving the petitioners in police custody for the purpose ofinterrogation in case they so ask for and the Magistrate deems fit to grant. It isfurther ordered that on release the petitioners shall not move out of theterritorial limits of the State of Kerala; that they shall furnish the detailedaddress of their abode to the investigating agency in writing with the telephonenumbers and mobile numbers for contact by the investigating agency: thatthey shall always be available for the investigating agency for the purpose ofinterrogation and that no room shall be given by them for complaint that theyare absconding. Violation of any of the above conditions shall result incancellation of anticipatory bail so granted. These bail applications are disposed of as above. (emphasis supplied) 2. Accordingly the respondents/accused appeared before the learnedMagistrate having jurisdiction on 19-5-2005 and were enlarged on bail onexecution of bonds/complying with conditions on that date. Thereafter theywere expected under the terms of the order extracted above to report beforethe Investigating Officer between 10 am and 11 am on all days for a period ofone month. (emphasis supplied) 2. Accordingly the respondents/accused appeared before the learnedMagistrate having jurisdiction on 19-5-2005 and were enlarged on bail onexecution of bonds/complying with conditions on that date. Thereafter theywere expected under the terms of the order extracted above to report beforethe Investigating Officer between 10 am and 11 am on all days for a period ofone month. The common order clearly shows that the respondent/complaintwas "State of Kerala, represented by Hareesh Kumar, Circle Inspector ofPolice, City Police Control Room, Thiruvananthapuram". After their release,the petitioners were expected to report before the Investigating Officer on alldays for a period of one month. Admittedly the petitioners did not report beforeSri. Hareesh Kumar, C.I. of Police, during the period 20-5-2005 to 26-5-2005.They did however start reporting before him admittedly from 27-5-2005. Theseapplications for cancellation of anticipatory bail under S.439(2) Cr.P.C. arefiled by the State on 26-5-2005 on the allegation that the conditions imposedhave not been complied with during the period, 20-5-2005 to 26-5-2005. 3. The respondents have entered appearance through counsel. They contendthat the prayer for cancellation of bail is misconceived. It is purely an ego clashbetween the C.I. referred above and the Assistant Commissioner of Police,Sankumugham who has been legally put in charge of supervision of theinvestigation by a valid order of the DGP. They contend that when they wereenlarged on bail, they were issued a memo (produced by the respondents asAnnexure R1) addressed to the Assistant Commissioner of Police. In thesecircumstances, they had appeared before the said Assistant Commissioner ofPolice, Sankumugham from 20-05-2005 to 26-05-2005 in obedience to thedirections of this court. They had apprised the Assistant Commissioner of thedirections of the Court and had faithfully reported before him on all days from20-05-2005 to 26-05-2005. He had acknowledged such appearance and hadalso wanted/permitted them to sign the register maintained at his office intoken of their having appeared before him from 20-05-2005 to 26-05-2005. 4. What then is the violation? The learned DGP was requested to get anaffidavit to be filed by the Assistant Commissioner of Police, Sankumugham asto whether these assertions of the respondents are correct. Accordingly, anaffidavit has been filed by the Asst. Commissioner concerned wherein it iscategorically admitted that he was ordered to be in charge of supervision ofthe investigation by the team lead by the C.I. referred above. He furtherconfirmed that both the accused had appeared before him from 20-05-2005 to26-05-2005 and were permitted to sign the register concerned. Accordingly, anaffidavit has been filed by the Asst. Commissioner concerned wherein it iscategorically admitted that he was ordered to be in charge of supervision ofthe investigation by the team lead by the C.I. referred above. He furtherconfirmed that both the accused had appeared before him from 20-05-2005 to26-05-2005 and were permitted to sign the register concerned. 5. One would have expected the State to graciously withdraw fromprosecuting these petitions. But the State continues to proceed with thesepetitions asserting that there has been contumacious violation of theconditions imposed by this court while granting bail and such violations mustresult in cancellation of the anticipatory bail granted to the respondents. 6. The learned Director General of Prosecutions has advanced detailedarguments. It is first of all contended that notwithstanding the provisions ofS.41 A of the Kerala Abkari Act, this court had taken a very lenient view andpetitioners have abused the liberty granted to them by this court which took avery lenient view. The order of anticipatory bail has become final now and it isnecessary to even refer to the question whether under S.41A anticipatory bailcould have been granted or not. The learned DGP hastens to submit that hedoes not want to say anything about the grant of anticipatory bail but hiscontention is only that indulgence shown by the court has been abused by therespondents. 7. There is no dispute and it is agreed that S.439(2) will apply to all bailsgranted under Chap.33 of the Cr.P.C, including anticipatory bail granted underS.438 Cr.P.C. There is no serious dispute about the quality of considerationthat a count should undertake when it is called upon to exercise the powersunder S.439(2) Cr.P.C. The decision in Dolat Ram and others v. State ofHaryana ( 1995 (1) SCC 349 ) is the leading decision on the point. In para.4 ofthe said decision the position of law is stated in the following words:- "Rejection of bail in a non bailable case at the initial stage and the cancellationof bail so granted, have to be considered and dealt with on different basis.Very cogent and overwhelming circumstances are necessary for an orderdirecting the cancellation of bail, already granted. Generally speaking, thegrounds for cancellation of bail broadly (illustrative and not exhaustive) are;interference or attempt to interfere with the due curse of administration ofjustice or evasion or attempt to evade that due course of justice or abuse ofthe concession granted to the accused in any manner. 8. Generally speaking, thegrounds for cancellation of bail broadly (illustrative and not exhaustive) are;interference or attempt to interfere with the due curse of administration ofjustice or evasion or attempt to evade that due course of justice or abuse ofthe concession granted to the accused in any manner. 8. An innocent violation of any condition imposed by the court will not ipsofacto lead to cancellation of bail under S.439(2) Cr.P.C. The crucial and vitalquestion is whether there has been deliberate, contumacious and unjustifiedinfraction of the conditions imposed by the court. While considering thatcontention it is vital now to note that admittedly respondents were appearingbefore the Assistant Commissioner of Police, Sankumugham on the relevantdates, that is on 20-05-2005 and 26-05-2005 on which days they are nowalleged to have committed violation of the directions. Was he the InvestigatingOfficer at the relevant time? There can be no doubt that the investigation wasbeing conducted by a team led by the C.I. referred above. But there is nodispute regarding the fact that the Assistant Commissioner of Police,Sankumugham was the official who was assigned with the responsibility ofsupervising the investigation the respondents, instead of appearing before theC.I. who headed the team of investigation, appeared before a Superior Officerwho was as per valid orders entrusted with the duty of supervising theinspection, it can by no stretch of supervising the inspection, it can by nostretch of imagination be held that such accused/respondents wereintentionally, deliberately and with contumacious intent, violating the directionsof the court. 9. Of course I find merit in the submission of the learned DGP thatrespondents must have known that the C.I. was in direct, immediate charge ofinvestigation. But that cannot lead to the further conclusion that appearancebefore the superior officer entrusted with the supervision of investigationamounts to contumacious violation of the conditions. 10. The course adopted by the State is surprising because there appears tobe a gap in communication between the C.I. referred above and his superiorwho was admittedly entrusted with the responsibility of supervising theinvestigation. I do also note that the officers do not appear to be on takingterms. If the respondents did not appear before the C.I. it passes onescomprehension how he could have gone to the extreme step of applying forcancellation of bail without and before consulting or informing his superiorofficer the Assistant Commissioner of Police, Sankumugham. Obviously thereappears to be some discord between the two officers concerned. If the respondents did not appear before the C.I. it passes onescomprehension how he could have gone to the extreme step of applying forcancellation of bail without and before consulting or informing his superiorofficer the Assistant Commissioner of Police, Sankumugham. Obviously thereappears to be some discord between the two officers concerned. At any ratethe respondents cannot be made the scapegoats for such disagreement ordiscord between the officers concerned. It may not have been proper or moralfor them to taken advantage of the perceived want of congruity between theC.I. and the ACP. But the crucial question is only whether there wasintentional, deliberate and contumacious violation of the conditions imposed. Itis very evident that the respondents did not attempt to flee from justice. Theywere continuing to report before a Superior Officer on all relevant dates. 11. It will not be inapposite in this context to note that an application forcustody was filed by C.I. in charge of the investigation on 20-05-2005.According to the respondents, this was filed on 21-05-2005. What is ofrelevance to note is that even in that petition, the C.I. has not made anallegation that the respondents have violated the condition by not appearingbefore him on 20-05-2005. It must also be noted that the court in the ordergranting anticipatory bail had directed the accused persons to furnish thetelephone numbers, mobile numbers, etc. If as a matter of fact till 27-05-2005,the respondents did not appear before the Investigating Officer and hesuspected foul play it would only have been reasonable to expect him to try tocontact the respondents to find out if they are absconding and they had filedfrom justice. But what we find is that the C.I. comes forth with this applicationonly on 26-05-2005 and till then makes no attempt to contact the respondentsor his immediate superior entrusted with the responsibility of supervision tofind out whether the respondents are absconding or are reporting before thesuperior officer. 12. The State should have, according to me taken a definite stand. The Statehas no case that the Assistant Commissioner who was filed the affidavit is notspeaking the truth about the respondents reporting before him. If he were notspeaking the truth or had knowingly permitted the accused to report beforehim to save the respondents of their obligation to report before the C.I. theState must have taken a firm stand and the ACP must have been visited withthe necessary consequences. If he were notspeaking the truth or had knowingly permitted the accused to report beforehim to save the respondents of their obligation to report before the C.I. theState must have taken a firm stand and the ACP must have been visited withthe necessary consequences. The State cannot skirb the issue by merelyclaiming to cancel the bail granted to the petitioners. In these circumstances, itmust be held that the respondents have not been shown to be guilty of anydeliberate, intentional and contumacious violation of the conditions so as topersuade this court to invoke the extra ordinary powers available underS.439(2) Cr.P.C. 13. The learned DGP submits that it is the burden of this court to ensure thatthe directions issued by invoking the extra ordinary jurisdiction under S.438Cr.P.C. are complied with strictly and are not avoided and evaded byingenious explanations offered by the respondents. I am in total agreementwith the learned DGP but must say that sufficient materials are not placedbefore me to conclude that there has been deliberate and contumaciousviolation of the conditions by the respondents. 14. These petitions are in these circumstances, dismissed.