Hyderali, S/O Moideenkutty Haji vs State Of Kerala, Represented on 5 August, 2008
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Kerala High Court
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 4274 of 2008()
1. HYDERALI, S/O MOIDEENKUTTY HAJI,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED
... Respondent
2. THE STATION HOUSE OFFICER,
3. THE CIRCLE INSPECTOR, CBCCID, ERNAKULAM. For Petitioner :SRI.K.RAMAKUMAR
(SR.)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :05/08/2008
O R D E R
K. HEMA, J.
----------------------------------------------- Bail Appl.No. 4274 of
2008
----------------------------------------------- Dated this the 5th
day of August, 2008.
ORDER
This petition is filed by the 9th accused for anticipatory bail.
Facts briefly:
2. According to prosecution, huge amount of money, running to crores was
misappropriated by several persons from government exchequer, by using certain
forged documents. The crime was detected when the first accused was arrested
and interrogated by the Sub Inspector of Police. He allegedly created fake
bills purported to be issued to several persons for the purchase of bitumen
(tar) from the Bharath Petroleum Corporation Ltd ('BPCL', for short) and
Indian Oil Corporation (`IOC', for short). Those persons include government
contractors, engineers, office bearers of District Panchayath, Grama Panchayath
etc. Such bills were presented by several persons and to claim huge amount of
money from the government and the money was paid also.
[B.A.No.4274/08] 2
3. The petitioner is one of such government contractors, who was in
possession of such forged bills created by the first accused and knowing the
same to be forged and intending that the same shall be fraudulently or
dishonestly used as genuine. He made a claim for more than Rs.11 lakhs from the
government, on the strength of such forged bills created and supplied by first
accused, purporting to be issued by Bharath Petroleum Company or Indian Oil
Company for the purchase of bitumen. The investigation is proceeded against 9
accused for offences under sections 465, 468, 471, 474, 20, 511 of 420, 420
read with 34 of IPC.
4. Petitioner's contentions: According to learned counsel for the
petitioner, petitioner is absolutely innocent of the allegations made. The
petitioner, as a government contractor, had taken up a contract for road-work
and he also submitted bills before the Executive Engineer's office for
purchase of tar. The physical verification of the tar used for the work was
done by Engineers and those are entered in a measurement book also. The bills
produced by him were duly countersigned by the officials concerned after
verification and upon satisfaction that the tar is used. The bills are accepted
only thereafter.
[B.A.No.4274/08] 3
5. It is also submitted by learned counsel for petitioner that other
similarly placed accused in this crime were granted anticipatory bail by
different benches of this Court, as per different orders issued on their
applications for anticipatory bail and hence, petitioner is also entitled to
get the same relief from this court. It is also pointed out by him that even
the third accused who allegedly obtained more than Rs.40 lakhs also was
granted anticipatory bail, but the petitioner has not even obtained the money
but only made a claim. Therefore, the High Court cannot speak in two voices, he
added.
6. In a case of this nature, the guilt or involvement of the petitioner
can be proved by documentary evidence and a custodial interrogation of the
petitioner may not be necessary and if at all it is required, it can be done,
even after granting anticipatory bail, learned counsel for petitioner
submitted. According to him, if anticipatory bail is not granted, it will only
ensure custodial torture by the police by using third degree method and, hence,
the prayer for anticipatory bail may be granted by this Court.
7. Respondent's contentions: Learned Director General of Prosecution
vehemently opposed this bail application. He submitted that when the first
application for anticipatory bail was [B.A.No.4274/08] 4
filed in this case by the third accused, he had vehemently opposed the
application and this fact was recorded also, in the order. It was pointed out
that huge loss of money, to the tune of crores, was caused to the Government,
in connection with the construction and maintenance of road by the use of fake
bills and this was detected only when the first accused was arrested and
questioned.
8. Learned Director General of Prosecution also brought to my notice that
he had addressed the authorities concerned and vigilantly taken steps to alert
the Government on the oral observations made by this Court during the pendency
of this petition, and accordingly, a special team of investigators headed by
senior police officials in the State is constituted, as per the immediate
orders issued by the Director General of Police. A thorough investigation is
being conducted into the crime and petitioner is required for custodial
interrogation for an effective investigation in this case. Therefore, it may
not be proper to grant anticipatory bail to the petitioner in an offence of
this nature.
9. However, regarding the question, whether anticipatory bail can be
refused to petitioner alone, since other co-accused were granted the same
relief, learned Director General of [B.A.No.4274/08] 5
Prosecution submitted that he can only agree with the submissions made by
learned counsel for petitioner on this score. Thus, resultantly, both sides
would agree that anticipatory bail can be granted to the petitioner, since
three different Benches of this court granted anticipatory bail to the co-
accused who are also contractors.
10. But, can I agree? Heard both sides in detail. Perused the case
diary consisting of as many as seven thick volumes. This includes the case
diary relating to the crime registered as crime no. 999/2007 of the same
station, in connection with "unnatural death" of first accused and the "work
file" also. On going through the case diary and on consideration of the
arguments advanced by both sides, I find that I shall not mechanically act on
the unanimous submissions made by both sides and grant anticipatory bail to
petitioner on the ground that other accused were granted the same relief.
11. According to me, power under section 438 of the code is not
intended to be invoked on the basis of any compromise or consensus of opinion
expressed by both sides. It shall also not be exercised on any concession
extended to an accused by the opposite opposite party, either. The court shall
not grant the relief on the mere request for it. Of course, it may
[B.A.No.4274/08] 6
appear on an apparent reading of sub-section (1) of section 438 of the code
that anticipatory bail can be granted, if the twin factors in the section exist
viz., i) that a person has reason to believe that he may be arrested ii) that
such arrest may be on an accusation having committed a non-bailable offence.
But, such an allegation can be made by any person who is an accused in a case
involving a non-bailable offence and hence, granting of anticipatory bail does
not depend upon satisfaction of the above twin conditions alone.
12. Then, when can it be granted? It is only if the court "thinks fit"
that the court may grant the relief, as referred to in the provision. How can
this satisfaction be arrived at? For reaching a conclusion whether it is a fit
case or not to grant anticipatory bail, the court shall keep in mind, various
aspects. These include, the nature of offence or the allegations made against
the accused. Another factor is the need for custodial interrogation by the
police. There are, of course, various other factors also, which even the
legislature could not or did not elaborate in the provision but left to the
discretion of the court to decide on the facts of each case when anticipatory
bail can be granted and when the court can "think fit" to allow the
[B.A.No.4274/08] 7
relief. It is held in Bharat Chaudhary v. State of Bihar, ((2003) 8 SCC 77), as
follows: "
"The gravity of the offence is an important factor to be taken
into consideration while granting such anticipatory bail so also the need for
custodial interrogation."
13. Nature of offence: I shall first consider the nature of offence
allegedly involved in this case. The case diary reveals various shocking
instances, how huge amount of money running to crores could be dishonestly and
fraudulently siphoned off from the government exchequer by various government
contractors, Engineers, officials of PWD, Grama Panchayath, District
Panchayaths etc. etc. This was done by using fake bills supplied by first
accused. The case diary also shows that just like the first accused there were
some other persons also who were engaged in similar activity of fabricating
bills and supplying the same to various persons who are in need of the fake
bills to claim huge money from government.
14. In many cases, on the strength of each of such fake bills (which are
purported to be issued for supply of bitumen (tar) from BPCL and IOC), more
than two lakhs were claimed and disbursed by government to various government
contractors and other persons. This mode of misappropriation and forgery was
carried on, since a very long time past at least from 1995 [B.A.No.4274/08] 8
onwards. The first accused prepared the bills with the help of his computer,
lap top etc. He also got some bills printed at a Press and many persons
approached him to get such fake bills. He charged an amount of Rs. 2000 to Rs
5000 for each bill and supplied them to various persons including Engineers
working in PWD.
15. The first accused gave the details of many persons, local
authorities, engineers in the PWD etc. etc. during custodial interrogation.
More details were collected from his lap top, computer, pen drive, forged bills
etc., which were siezed from the house and office of first accused, pursuant to
the information given by the first accused to the Sub Inspector under section
27 of the Evidence Act. He had, in his lap top and pen drive, the names and
details of various persons who were involved in the offence. Several forged
bills were also seized from his possession which contain the details of several
engineers, contractors etc. A rough estimate itself reveals that a huge
financial loss to the tune of crores of rupees is caused to the government.
16. The first accused was questioned on more than one occasion. Several
valuable information regarding the persons who were involved in the offence was
received from the first [B.A.No.4274/08] 9
accused. He was scheduled to be questioned on 27.12.2007 by the Crime Branch
officials. He must be expected to divulge much more details about the persons
who were involved in the crime. But, he was found missing on the evening of
26.12.2007 and his dead body floated in the river on 29.12.2007. When learned
Additional Chief Judicial Magistrate released him to police custody and also
when he was released on bail, he cautioned the State about the safety of the
fist accused by making specific observations in this regard. But, a very
valuable source is 'left to be lost' for ever and the cause of death is still
under investigation.
17. In such circumstances, no doubt, no court can overlook the
seriousness and gravity of the offence and the nature of allegation made. State
itself is the aggrieved in this case and this court cannot ignore the interest
of the State. The larger interests of the public or the State is certainly one
of the factors to be taken into account while an application for anticipatory
bail is considered. Therefore, the gravity and nature of offence committed, the
specific allegations made against petitioner, the societal interest are all
factors which only dissuade this Court from granting anticipatory bail to the
petitioner.
[B.A.No.4274/08] 10
18. Need for custodial interrogation: As already referred to by me
earlier, Supreme Court has made it clear that the need for custodial
interrogation is a factor to be looked into in an application for anticipatory
bail. According to learned counsel for the accused, even if petitioner is
required for custodial interrogation, it is enough if a condition is imposed
that petitioner shall make himself available for interrogation. With due
respect, I can only disagree with this.
19. Custodial Interrogation means? "Custodial interrogation" does not
mean mere questioning of the accused by the police. It has a different
connotation in law. To constitute "custodial interrogation", there must be: (i)
"custody" of the accused by police and also (ii) "interrogation" by the police.
If an accused is released on bail, he is set at liberty by the court and he is
not under anybody's custody. When bail is granted, custody ceases. The question
of police custody does not arise thereafter, unless the bail is cancelled. By
granting bail, accused is absolutely released from police custody and it may
not be proper to say that the accused is in "custody" of police, after he is
released on bail. If there be any interrogation by the police while on bail, it
cannot be termed to be "custodial interrogation" it is mere "interrogation"
without police custody. [B.A.No.4274/08] 11
This is clear from what the Constitution Bench of the Supreme Court held in
Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565) thus :
"to grant bail, as stated in Wharton's LAW LEXICON, is to `set at liberty
a person arrested or imprisoned, on security being taken for his appearance'.
Thus, bail is basically release from restraint, more particularly, release from
the custody of the police. The act of arrest directly affects freedom of
movement of the person
arrested by the police, and speaking generally, an order of bail gives
back to the accused that freedom on condition that he will appear to take his
trial".
20. So, strictly speaking, there will not be any "custodial interrogation"
by police, once the accused is released on bail. If a police officer
interrogates the accused in a case, after his release on bail, it will not
amount to "custodial interrogation", because the police cannot claim his
"custody". He is an absolutely free person upon his release on bail, being not
under anybody's custody, much less, the police custody.
21. Custodial interrogation is legal: It is also relevant to note that
"custodial interrogation" is not forbidden by law. On the other hand, it is
legal and recognized by the statute. Under section 167(2) of the code, the
Magistrate is empowered to release the accused to "police custody" and such
custody is allowed, mostly for the purpose of interrogation. During such
[B.A.No.4274/08] 12
period, an accused is interrogated by the police in police custody and recovery
may also be effected. But, even such custody cannot be given to the police,
after expiry of the first fifteen days of remand. That is the settled legal
position. Therefore, the custodial interrogation at the early stage of
investigation after the arrest has some statutory importance.
22. The police has the right to keep the accused in their custody for some
time after the arrest and it is enough that the accused is produced before
Magistrate within 24 hours. During this period, between arrest and production,
the accused is subjected to some restraint and he will be under the physical
control by the police. His movements will be restricted and it can then be said
that he was in "police custody". It is during such custody that he is subjected
to "custodial interrogation" and recovery of various material objects are
effected through him.
23. Custodial interrogation - purpose. Thus, "custodial interrogation"
appears to have a specific purpose which is recognized by law also. The
confession, statement or information given to the police officer while in
police custody is given certain amount of sanctity also, as per law. Such
statements are admissible under section 27 of Evidence Act under certain
circumstances. Section 26 of the Evidence Act [B.A.No.4274/08] 13
also indicates that confession made by an accused while in custody of a police
officer, in the immediate presence of a Magistrate, may be proved against an
accused. Thus, statement or confession made by an accused in police custody can
be proved against him, as per law. The confession made by an accused to a
police officer in police custody is admissible under certain enactments like
TADA Act etc.
24. Thus, the police can, in law, procure or elicit confession,
statement or information, which is admissible in law or not, by interrogation
of the accused in police custody. Such interrogation is ordinarily referred to
as "custodial interrogation". The court may accept or reject the materials
collected during such custodial interrogation, after putting them to judicial
scrutiny.
25. Denial of custodial interrogation if proper? But, it may not be
proper to deny an investigator an opportunity for "custodial interrogation" of
an accused, in fit cases. Unless there are strong reasons to avoid an accused
being subjected to "custodial interrogation", the court shall not stand in the
way of the police discharging their official duty, which is sanctioned by law.
It must be remembered that investigating agency also plays a very vital role in
criminal justice system. The evidence- [B.A.No.4274/08] 14
collection is a part of investigation, as per law. The aggrieved or the victim
ordinarily approaches the police and not the court, for redressing their
grievance, immediately after an offence is committed.
26. As per the provisions of the code, when a crime is committed
against him or her, he may move the police first, unless otherwise prescribed.
On doing so, the investigator may proceed to collect evidence relating to such
crime. The accused may also be subjected to custodial interrogation, especially
in cases where certain facts whether incriminating or not are in his exclusive
knowledge. Such materials are collected legally by interrogation of the accused
in "police custody". There is no illegality in "custodial interrogation". But
it is legally recognized by statute.
27. So, when the investigator alerts the court on the need for
custodial interrogation, the court must pay due attention to the need expressed
and if the court finds that his request is reasonable, the court shall not
refuse the same and deny the opportunity to "custodial interrogation", as
permitted by law. It must be remembered that it is based on the materials
collected by the investigator, which includes evidence through custodial
interrogation also, that he forms an opinion whether there is a
[B.A.No.4274/08] 15
case to place the accused before the court for trial or not by filing of a
charge-sheet under Section 173.
28. Referring to "investigation", the Supreme Court in Union of India
v. Prakash P. Hinduja, (2003) 6 SCC 195 held as follows:
"Section 2(h) CrPC defines "investigation" and it includes all the
proceedings under
the Code for the collection of evidence
conducted by a police officer or by any
person (other than a Magistrate) who is
authorised by a Magistrate in this behalf. It ends with the
formation of the opinion as
to whether on the material collected, there is a case to place the
accused before a
Magistrate for trial and if so, taking the necessary steps for the
same by filing of a charge-sheet under Section 173."
The purpose of "custodial interrogation" is also thus, a factor which has to be
borne in mind.
29. Interrogation means? The word, "interrogate ", as per dictionary
means, "to ask somebody a lot of questions over a long period of time,
especially in an aggressive way" (vide Oxford Dictionary). Such
'aggressiveness' within a reasonable limit may not amount to torture, because
the very expression "interrogation" itself is attached with some sort of
aggressiveness. Therefore, any allegation of a possible aggressiveness in
questioning by police may not be a sufficient ground to deny to the police,
their opportunity to have "custodial [B.A.No.4274/08] 16
interrogation" of the accused. This is intended for collecting evidence and to
redress the grievance of the victim by bringing the accused before law. When
the police officer confronts a guilty person, needless to say, he may not
readily give answers to all the queries made. He may be reluctant to avoid the
inconvenient truth and hence it may require sustained questioning of the
accused over a long period and in some cases, in an aggressive manner also.
30. A few observations made by the Supreme court may be relevant in this
context. While setting aside an order of anticipatory bail granted by Andra
Pradesh High court, rejecting the plea for "custodial interrogation", the
Supreme Court in State rep. by the CBI v. Anil Sharma, (1997) 7 SCC 187 held as
follows:
"We find force in the submission of the CBI that custodial
interrogation is qualitatively more elicitation-oriented than questioning a
suspect who is well ensconced with a
favourable order under Section 438 of the
Code. In a case like this effective interrogation of a suspected person
is of
tremendous advantage in disinterring many
useful informations and also materials which would have been concealed.
Success in such interrogation would elude if the suspected person knows that he
is well protected and insulated by a pre-arrest bail order during the time he is
interrogated. Very often interrogation in such a condition would
reduce to a mere ritual. The argument that [B.A.No.4274/08] 17
the custodial interrogation is fraught with the danger of the person
being subjected to
third-degree methods need not be countenanced, for, such an argument
can be advanced by all accused in all criminal cases. The Court has to presume
that responsible
police officers would conduct themselves in a responsible manner and
that those entrusted with the task of disinterring offences would not conduct
themselves as offenders".
31. The ground realities have to be understood by the courts and it
shall not be impractical, especially when the investigation is at the initial
stage. It must be remembered that it is the duty of the investigating agency to
collect sufficient materials and place them before court. So, in short the
court has to strike a balance between the right of a victim to be protected by
law and also the freedom or liberty of the accused which shall not be
interfered with, except in accordance with law. While the liberty of a citizen
is of grave concern of the court, that alone must not be the concern. The court
must see the other side of the coin as well, and justice must be delivered to
both sides equally.
32. In the above circumstances, the argument by learned counsel for
petitioner to the effect that it would suffice, if a condition is imposed while
granting anticipatory bail that he shall subject himself to interrogation by
police cannot be accepted.
[B.A.No.4274/08] 18
33. Interrogation Vs. Custodial Interrogation: I have already
elaborated on what "custodial interrogation" is. It will be clear from the
discussion made that any direction given to the accused as per a condition
imposed while granting bail to subject himself to "interrogation" may not, in
strict terms, constitute "custodial interrogation". Because, in such cases,
there is no submission of the accused to "police custody" because he is free,
well-protected and insulated by order for an anticipatory bail. "Bail is
basically release from restraint, more particularly, release from the custody
of the police", as the Supreme Court held in Gurbakh Singh Sibbia's case.
Hence, interrogation effected by police while the accused is on anticipatory
bail cannot be termed as "custodial interrogation", especially since there is
no cancellation of bail, before the accused is so interrogated,in accordance
with or compliance of the condition imposed while granting bail.
34. It is true that sub-section (2) of section 438 of the code lays
down that a condition may be imposed that the accused shall make himself
available for "interrogation" by the police as and when directed. It is
relevant to note that the expression used is,"interrogation" and not
"custodial" interrogation. The legislature is aware that after granting bail,
[B.A.No.4274/08] 19
in the event of arrest, there cannot be any "custodial interrogation," though
mere "interrogation" may be possible.
35. At any rate, imposition of a condition arises only after the court
"thinks fit" to issue a direction under sub-section (1) of Section 438. The
court is empowered to impose certain conditions as stated in sub-section(2) of
section 438, only when the court makes a direction under sub-section(1) and,
not before. That means, the order passed under Section 438(1) takes effect
immediately in the event of arrest and the accused has to be released on bail
immediately thereafter. Therefore, any interrogation of the accused by the
police in cases where the accused is released on bail, as per an order issued
under Section 438(1) of the Code, will not constitute "custodial
interrogation.
36. It is worthy to bear in mind that anticipatory bail application is
filed by a person who wishes to evade arrest, custodial interrogation and
detention in custody also, whether "police custody" or "judicial custody". Such
a person may either be guilty or not guilty. But, the court presumes him to be
innocent, even if he is actually guilty and proceed on such presumption of
innocence. But, an investigator may not be able to proceed on any such
presumption because, from the [B.A.No.4274/08] 20
evidence collected during investigation, he will be able to form a reasonable
belief about the guilt of the person.
37. So, while exercising jurisdiction under section 438 of the code, at
the very early stage of investigation, that is, even before the arrest is
effected, it may not be proper, under all circumstances, to apply the
presumption of innocence blind-fold, and refuse the request for "custodial
interrogation". The court has to weigh the materials before it and consider the
request made by the Investigator for "custodial interrogation" and decide
whether it is a reasonable one and if such custodial interrogation will be
necessary to bring out the truth and also for an effective investigation.
38. The court's concern shall not, at that juncture be one- sided that
too, on the sole theory of presumption innocence of the accused or on any pre-
conceived notion that the accused will be subjected to custodial "torture". The
court shall be concerned about the victim also and his or her grievances, on
whose behalf the police acts and collects evidence. It is wise to remember that
police also has their own vital role to play. If the court interferes with such
role, without sufficient reason, the net result may be lawlessness in the
society. The victim of a crime may become yet another victim at the hands of
the [B.A.No.4274/08] 21
criminal justice delivery system also. In such circumstances, it is wise to
remind oneself that an order passed without application of mind may end up in
drastic results and the police will be prevented from collecting sufficient
materials and place them before the court to prove the alleged offence. The
court must be able to distinguish the genuine request and the fake one.
39. Now, back to the facts: On going through the case diary and
considering the nature of allegations made, it appears to me that this is a
case where several facts relating to the offence may be within the exclusive
knowledge of the petitioner. Therefore, custodial interrogation of petitioner
may also be necessary for an effective investigation to elicit the various
details pertaining to the offence which are in the exclusive knowledge of the
petitioner. It is pertinent to note in this context that it is only because the
Sub Inspector interrogated the first accused in police custody that all the
basic materials relating to the offence could be collected at the very early
stage of the investigation itself.
40. Had the first accused not been interrogated, it would not have been
possible to get the very valuable information relating to the names and details
of persons who are associated with him in connection with the crime; to whom he
had supplied [B.A.No.4274/08] 22
the fake bills; who had used the forged bills prepared by him; how and where he
created the bills; where he had stored the details of the bills etc., etc. It
would not have been possible for the police to effect recovery of various
material objects, documents etc., on the very next day of the registration of
the crime.
41. The details of the bills used by the petitioner, the details of the
nature of work for which he used them, from where he obtained the bills and
through whom he obtained the same, whether he had obtained similar bills from
any other person and if so, his details etc. are all relevant details which
can be procured by custodial interrogation of the petitioner. If anticipatory
bail is granted at this stage, I am of view that it may result in permanent
loss of a source of valuable information relating to a serious offence like
this. If the police ever feels the need to interrogate petitioner in police
custody, I do not want to refuse such opportunity to them, in best the interest
of the State, which unfortunately does not appear to be the concern of the
State at present.
42. No cause for apprehension of torture: On the facts of this case, there
need not be any apprehension that petitioner will be subjected to any custodial
torture. Even the first accused [B.A.No.4274/08] 23
did not have any complaint of torture, though voluminous materials were
elicited by custodial interrogation through him. It appears to me that this is
a case where accused were favoured and cradled by the police, particularly the
higher officials. There is an inordinate delay in bringing several names to the
array of accused, even after getting sufficient materials to implicate various
persons as accused. Even now, no steps are taken against many persons against
whom the case diary contain sufficient materials to proceed against.
43. Interference on police by police ? There appears to be a deliberate
attempt on the part of the higher officials to divert the junior officials from
proceeding against a probable accused. It is clear form the case diary that the
Sub Inspector who detected the crime himself had collected sufficient
materials, as early as on the very next day of the registration of crime, ie.,
on 7.11.07, to establish that the bills issued in the name of Sri N.K. Abdul
Kader were forged. His full address and the details were shown in the First
Information Statement itself. It is also seen from the case diary that
anticipatory bail application filed by Sri.V. Mohanan, Perumbavur, Ernakulam on
2.6.2008 before this court as B.A.3765/2008. He is not yet arrested but, when
the Circle Inspector (CB CID) was proceeding [B.A.No.4274/08] 24
to investigate into the role of the contractors, a curious direction was issued
by the IG(Crimes).
44. At page 130 of case diary Volume V that there is a written
instruction from IG (Crimes) CB CID on 10.6.2008 thus: "only after all invoices
used for purchasing bitumen during the period under review are seized from the
offices of Executive Engineers of PWD all over Kerala especially in Malabar
area can they be scrutinised for identify false invoices". Accordingly, the
Circle Inspector (CB CID) recorded at page 132 and 133 of case diary volume V
that the investigation relating to the contractors was being temporarily
stopped and he was proceeding to inspect all offices of PWD(R) and collect all
details about all the bills submitted by the contractors, as directed by the
IG(Crimes).
45. Circle Inspector (CB-CID) kept away ? It is not understood why the
Circle Inspector was kept away from the investigation being conducted into the
involvement of the contractors against whom there were sufficient materials
even on the very next day of the arrest of the first accused. It appears that
the Circle Inspector, CBCID was almost prevented by the interference of the
higher officials from laying his hands on anybody against whom materials were
collected. It also appears that the instructions given were more to avoid the
investigators [B.A.No.4274/08] 25
from booking the culprits rather than aiding them to accelerate the progress in
investigation. The context in which the directions issued is certainly
conspicuous. It is pertinent to note that as per the case diary that Inspector
General Of Police (Crimes) CB CID himself had looked into the case file and
given instructions in connection with the investigation in this case.
Superintend of Police , Crime Branch CID had also been dealing with the case.
46. Still, after sending away the Circle Inspector for a roving search
into all the PWD offices for a "beat-about-bush", Superintend of Police , Crime
Branch CID prepared and signed a statement intended to be filed in court in
connection with the anticipatory bail application filed by Sri. Mohanan and
stated therein as follows: "till now, the petitioner is not included in the
array of accused, since the investigating officer has not got sufficient time
to go through the files concerned". How can he get any time ? The Circle
Inspector, Crime Branch CID, had by then started his long journey to the
various PWD offices in obedience of the direction issued by the IG(Crimes)
since he was directed to finish the work by 30.6.2008.
47. Thus, the Investigating officer was away from station for a period
of 20 days, not been able to do any thing fruitful. [B.A.No.4274/08] 26
The investigation by the Circle Inspector appears to have been diverted by
unwanted interference. Even now, the said Mohanan is not made an accused,
presumably, due to lack of time ? It is also curious to note that on the day on
which the dead body of the first accused was seen floating, Circle Inspector
was urgently relieved from duty to take up special duty at Sabarimala. The
Additional Sub Inspector conducted investigation into the "unnatural death" of
the first accused, and why the Sub Inspector who detected the crime did not
take up the issue is another mystery.
48. Contents of case diary highly disturbing: As a whole, the case diary
reveals a very deplorable and shocking state of affairs. I will be doing an
injustice to the society, if I fail to at least mention some striking instances
noted by me. This is essential also, to decide whether any monitoring by
Magistrate is required in this case in the light of the dictum laid down by the
Supreme Court in Sakiri Vasu v. State of Utter Pradesh and others ( (2008)2 SCC
409). As early as on 7.11.07, i.e., on the very next day of the detection of
the crime and arrest of the first accused, the Sub Inspector Hill Palace Police
Station collected very valuable materials in connection with the crime,
(including the names and details of the persons to whom the first accused
[B.A.No.4274/08] 27
supplied forged bills to claim more than Rs. 2 lakhs per bill) he did not do
anything on the next day. The investigation in this case came to almost an
abrupt stop, thereafter. The Sub Inspector did not do any thing on 8.11.2007,
not even a whisper on this case. His enthusiasm and vigour appear to have
vanished, within just hardly one and half days.
49. Investigation in a stand still ? The investigation practically came
to a stand still. The case diary depicts the picture of an enthusiastic Sub
Inspector who conducted a thorough investigation and found out materials within
a period of just one day being totally silenced. The reasons are obvious. It
is mentioned in the case diary that several agencies, Government contractors
and named persons, Panchayat, quasi- governmental organizations, private
persons etc., are all involved in the offence and certain lists were prepared,
C.D. etc. are kept in the file. After collecting all such details relating to
various contractors and other persons and also the details of the various fake
bills used by them, it is not likely that he would become inert by himself.
50. But what transpired? Some "strong invisible hands" presumably, from
the Police Department itself appear to have played their role in this case,
which stood adverse to the [B.A.No.4274/08] 28
progress of investigation. It appears that the Sub-Inspector was waylaid and
restrained him from proceeding any further. The Circle Inspector, his immediate
superior, at the early stage of investigation, wrote a letter to the Assistant
Commissioner to entrust the investigation in this case to another agency. That
is all what a senior officer like the Circle Inspector has contributed to this
file. He cannot be said to be ignorant of the importance of the matter, but he
appears to have given clear indications to the Sub Inspector. The signal seems
to be a red light and not indeed, a green one.
51. No enquiry about person mentioned in FIR: The fact that bills which
were prepared by the first accused for the use of one N. K. Abdulkader, Ponath
House, Koratty, Chalakkudy, Thrissur District (whose name and address were
given in the First Information Statement itself ) were forged was established
on 7.11.07 itself. For this purpose, the Sub Inspector questioned officials of
BPCL and IOC also and documents were also seized. Each bill issued in the name
of N. K. Abdulkader was for an amount of Rs.2,43,710/- . It is seen from the
contents of First Information Statement that those were fabricated by first
accused under instructions of one Rafique, attached to [B.A.No.4274/08] 29
P.B.Khabirkhan Transport Company. But, absolutely nothing till today, to trace
out any of these persons.
52. Any police officer, whether experienced or inexperienced, or even a
layman will be aware of the need to make an investigation into the involvement
of the persons who are named in the FIR. This is a State where investigation is
very often conducted by police to find out even persons who are not named in
the FIR and implicate them after collecting materials. But, it is surprising
that even though months have elapsed and the investigation is taken over by the
Crime Branch also, nothing is done so far to investigate into the involvement
of persons who are specifically mentioned in the FIR.
53. No steps against third accused: So also, bills issued in the name of
the third accused were found to be forged in the investigation conducted by the
Sub Inspector, as early on 7.11.07 itself, on the very next day of the first
accused's arrest. As per the case diary, he had claimed more than Rs.2 lakhs,
as per each bill and about 20 such bills were given to him by the first
accused. Such details are in the case diary on 7.11.07 itself. Documents were
also seized to prove that he used forged bills. But, the name of the third
accused was brought into the array of accused after a very long time.
[B.A.No.4274/08] 30
Later, anticipatory bail was granted to him also.
54. Others also not implicated: The case diary further reveals that just
like the first accused, certain other persons were also engaged in similar
activities and they had also fabricated bills in the same manner and given for
similar use. Their names and details also find a place in the case diary.
Though the Crime Branch has taken over the investigation, no attempts are made
even now to book them. Nobody seems to be interested in bringing the offenders
to light. Instead, there appears to be a deliberate attempt by an invisible
force, to protect them.
55. First confession statement, manipulated ? Even the evidence so far
collected appears to be manipulated. The first confession statement of the
first accused was recorded by the Sub Inspector on 6.11. 07, as seen from the
case diary. It is in this statement that the various details of the persons to
whom the first accused gave the forged bill were recorded. But, there appears
to be an erasure of three such names on the last page of the confession
statement (vide overleaf page 55 of case diary Vol.I). The first confession
statement of first accused is now seen at pages 49 to 55 in the case diary in
volume I. The erasure is visible even by a naked eye. This statement alone is
unsigned [B.A.No.4274/08] 31
by the Sub Inspector.
56. It is clear from the case diary that whenever the Sub Inspector
recorded a statement or prepared a Mahazar or the like, he had been affixing
his signature. At page 363 of volume-I of the case diary and overleaf, another
confession statement of the first accused is seen recorded by him on
19.11.2007. It is signed by the Sub Inspector. All the entries made by him are
seen signed, such as, mahazar, search list, search memo, statements of various
witnesses etc. etc. But the confession statement (at pages 49 to 55)alone
appears to be in a peculiar handwriting which is different from the hand
writing in other pages and it is unsigned also.
57. Death of first accused: It is relevant to note that the first
accused who gave such details to the Sub Inspector died under suspicious
circumstances. The investigation into that crime is also not free from
suspicion. It is seen from the two orders passed by the Additional Chief
Judicial Magistrate that learned Magistrate expressed his concern over safety
of the first accused. While granting bail to the first accused and also while
releasing him to police custody, the court expressed such concern. In the bail
order, he mentioned, "safety of the accused is the concern of the State". It is
not usual to make such [B.A.No.4274/08] 32
observations, unless the accused himself expressed such apprehension. But, no
investigation was directed into the source of any possible threat to the first
accused.
58. It is also to be noted that the accused was to appear before the
crime branch office on 27th of December. But, he was allegedly found missing
since the previous evening on 26th. Being on bail, it is unlikely that he will
anticipate any danger from the police during interrogation. But, whether any
persons who were involved in the crime feared exposure of their involvement at
the hands of the first Accused was not looked into. Nobody seems to be
interested in ascertaining such details and absolutely no investigation is done
in this line.
59. It is also to be seen that the dead body was found floating in river
with his hands lifted up, with his face upwards. No forensic expert is
questioned to find out whether such position of the body will indicate a
suicide or a homicide. Though he was missing from 26th onwards, and body was
recovered on 29th, the autopsy was conducted much later. Why there was a delay,
is unknown. The investigation is conducted into this crime by the Additional
Sub Inspector. It is not understood why the Sub Inspector who detected the
crime and arrested the accused did not take up the investigation or no
[B.A.No.4274/08] 33
steps were taken by the Circle Inspector to get that case also transferred to
the Crime Branch.
60. Judicial monitoring required ? There are various other glaring
facts which deserve to be commented upon, in relation to the investigation.
But, I would exercise judicial restraint at this stage of investigation though
I have to state the flaws and laches to some extent to consider whether
judicial monitoring is required. It is quite evident that both the cases did
not catch the attention which those deserved from the investigating agency. A
step-motherly attitude was shown to both cases, though the State is expected to
bestow more care and concern over those cases, since State itself is the
victim. There is no hope that the matters will improve any further. Still, the
court is not powerless, especially in the wake of the decision reported in
Sakiri Vasu v State of Utter Pradesh and others ( (2008)2 SCC 409).
61. On a consideration of the various facts I find that this is a fit
case in which powers of the Court is to be invoked to protect the interest of
the State, even though the State itself neglected its own cause. Appropriate
orders will have to be issued for a judicial monitoring of the investigation,
in the best interest of the society and public at large. There may not be
[B.A.No.4274/08] 34
any surprise if the society does not repose confidence in this type of
investigation. None can ever blame when society clamour for investigation by
other agencies. But the courts have their own limits, especially in a bail
application. Whatever possible as per law alone can be done and shall be done
by passing appropriate orders.
62. Petitioner if similarly placed ? Now, I shall deal with the last
question-- whether petitioner is entitled for anticipatory bail because it was
granted to other contractors. It was argued that petitioner and the other
accused (to whom anticipatory bail was granted) are government contractors.
Same offence was also alleged against them also. Therefore, having granted
anticipatory bail to the others, petitioner shall also be granted anticipatory
bail. On a first blush, it may sound a good argument. True, it may appear that
each of the accused are similarly placed and that is only because they are all
contractors and the offence for which they are proceeded against are also the
same.
63. But, on going deeper into the facts carefully, it is revealed from
the case diary that prima facie, each of accused committed distinct offences.
The date, time, place, the quantum of money involved, the nature of the work
done, the manner in [B.A.No.4274/08] 35
which the forged documents are obtained, the person through whom the bills are
obtained, the manner in which the offence is committed, are all different. If
three murders are committed by three different persons by using different
materials supplied by another accused, one by strangulating, another by
stabbing and yet another by poisoning on different dates, time and place,
those may constitute three distinct offences, though the section may fall under
section 302 IPC. But in such a case, the fact that one of the accused is
granted anticipatory bail may not be made a ground to grant the same relief to
the other.
64. The manner in which the offence is committed by each of the accused,
the witnesses relating to the offence, information which can be gathered from
each accused may also be different from each other. By questioning a particular
accused, whatever information can be gathered may not be the same when another
accused is questioned. He may have to speak regarding different factors . The
nature of his involvement in the offence and the modus operandi adopted by him
in the commission of offence may be different from other accused.
65. Considerations under Section 438 Cr.P.C different form those under
Section 439 Cr.P.C: Therefore, [B.A.No.4274/08] 36
the conventional rule that if an accused is granted bail similarly placed
accused shall also be granted bail may not apply in a fact-situation like this.
Post-arrest and pre-arrest bail differ substantially. Though in a case of post-
arrest bail, an accused may be entitled to be released on bail, on the ground
that a similarly placed accused is granted bail, it may not have universal
application in an application for anticipatory bail. That is for the reason
that the relevant considerations for grant of post-arrest bail and pre-arrest
bail differ. In the post-arrest stage, information would have already been
collected and recovery would also have been effected.
66. But, on a pre-arrest stage, no recovery would have taken place. The
accused would not have been arrested. He would not have been interrogated in
custody. In such circumstances, the relevant facts which may stand scrutiny in
a pre-arrest bail under section 438 and a post -arrest bail under section 437
or 439 may materially differ. Therefore, anticipatory bail cannot be granted or
refused to an accused mechanically, without proper application of mind, on the
mere ground that another co-accused was granted the relief.
67. Regarding the difference in the relevant consideration
[B.A.No.4274/08] 37
in pre-arrest and post-arrest bail, the Supreme Court in Pokar Ram v. State of
Rajasthan, (1985) 2 SCC 597) held thus: "Relevant considerations governing the
court's decision in granting anticipatory bail under Section 438 are
materially different from those when an application for bail by a person who is
arrested in the course of
investigation as also by a person who is
convicted and his appeal is pending before the higher court and bail is
sought during the pendency of the appeal.........This is necessary to be stated
because the learned Judge in the High Court unfortunately fell into an error in
mixing up all the considerations, as if all the three become relevant in the
present situation".
I gain support from the above ruling also. Thus, while looking at the issue
from any angle, I find that the petitioner does not deserve anticipatory bail.
68. Before I conclude: But, before I conclude, I have to mention another
very important aspect, without which, this order will not be complete.
Different Benches of this Court on different dates granted anticipatory bail to
different accused who are all government contractors (vide orders in
B.A.Nos.1366,1948, 2463, 2755, 3689 and 4003 of 2008). The first order was
passed on 17.3.2008 in B.A.No.1366 of 2008.
69. Later, the second accused was granted anticipatory bail as per order
dated 31.3.2008 in B.A.No.1948/2008. The fifth, sixth, seventh and eighth
accused were also granted the same [B.A.No.4274/08] 38
relief, one after the other. Anticipatory bail was granted mainly on the ground
that both sides agreed that if anticipatory bail is granted to one accused in a
crime, similarly placed accused shall also be granted the same relief. Even a
person who is not yet implicated as accused also was granted anticipatory bail.
This Bench also granted bail to other co-accused on the same ground.
70. But, it is clear from all those orders that the case diary which now
runs to VIII volumes had not been placed before this Court while those
applications were heard by different Benches. But after having spent
considerable time on the huge volumes of case diary by myself now, by burning
much of the midnight oil, several disturbing facts have come to the notice of
this Court. The State did not take up the matter, either before this Court or
before the Supreme Court for cancellation of anticipatory bail to any of the
accused, but sailed along with the accused. After taking the strain to closely
go through the case diary (after calling for the same), this Court has now
pointed out the various facts which are disturbing. It is evident that the
investigation of this case as well as in the case of "unnatural death" is not
in safe hands.
71. Summing up my discussion, I hold that though it may appear to be
unusual to reject anticipatory bail to seemingly, [B.A.No.4274/08] 39
similarly placed accused, for the various reasons discussed in this order, I
find that nothing shall be a reason for this court to prevent miscarriage of
justice. There is a compelling necessity, on the facts and circumstances of
this case, in the larger interest of public justice, (which, unfortunately the
State does not seem to be concerned about) that the State considers whether the
case of the co-accused deserves to be looked into again for appropriate remedy,
especially in the light of the various facts pointed out by this court, after
going through the case diary at length. The learned Director General of
Prosecution who is also a Minister of Justice may advise the state
appropriately.
72. Preserve evidence: In the peculiar facts and circumstances of this
case, I also find that the evidence and data already collected in investigation
need be preserved. Unless some order is passed, it is likely that the evidence
so far collected may also be destroyed or manipulated by some "invisible
hands". Taking into consideration, the evident unwarranted interference of the
"invisible force" which diverts and controls the course of investigation in
this case, which appears to have been connived at by the State itself, I find
that a lawful interference of the judiciary is essential in this case, at the
investigation stage of the relevant two cases. Lest, I [B.A.No.4274/08] 40
strongly feel, public interest will be the causality and there will be no
point in lamenting later, at the stage of trial, about the poor plight of the
case. This is a typical case where the case diary reveals that in this 'God's
own country', there is 'accused's own police'.
Taking all the above facts into consideration, on the peculiar facts
and circumstances of this case, I pass the following order:
i) The prayer for anticipatory bail by the petitioner is rejected.
ii) The case diaries in Crime Nos. 819/07 and 999/07 shall be handed over
to the Director General of Police or a senior official specially deputed by
him on his behalf, to receive the same.
iii) Registrar General shall ensure that the attested photo copies of the
entire case diary are taken at the cost of the State and those are handed over
in sealed covers, to the Director General of Police or to a senior official who
is specially deputed by him to receive the same on his behalf from this court.
The attestation shall be done only by an official of the Registry of this
Court.
[B.A.No.4274/08] 41
iv) The Director General of Police is also directed to keep in safe custody,
the attested photo copies so handed over, to be produced in
court, as and when directed and if so required. v) The Additional
Chief Judicial Magistrate Court, Ernakulam is directed to monitor the
investigation in the two cases referred to in this order (Crime nos. 819/2007
and 999/07), by strictly following the dictum laid down in Sakiri Vasu v.
State of Utter Pradesh and
others, (2008)2 SCC 409), in accordance with law.
vi) The Director General of Prosecution shall alert the State on the various
striking facts pointed out regarding investigation and also the need to
consider whether any steps have to be
taken, in accordance with law, in the case of the accused who were
already granted anticipatory bail by the different Benches of this Court, in
the light of the facts now
emerged and as pointed out in this order.
This petition is disposed of accordingly.
K.HEMA, JUDGE
vgs/krs