- Secs.143, 147, 148 and 302 r/w 149 IPC and under Secs.120(B), 109, 118, 201 and 212 IPC and also under Secs.3 & 5 of Explosive Substance Act.
- D.K.Basu’s Case [1997 SCC (Cri) 92]
- Moti Ram v. State of M.P. [(1978) 4 SCC 47]
- Vaman Narain Ghiya v. State of Rajasthan [(2009) 2 SCC 281]
- Siddharam Satlingappa Mhetre v. State of Maharashtra [(2011) 1 SCC 694]
- Sanjay Chandra v. Central Bureau of Investigation [(2012) 1 SCC 40]
- Prahlad Singh Bhati v. NCT, Delhi and another [(2001) 4 SCC 280]
- Kalyan Chandra Sarkar v. Rajesh Ranjan [(2004) 7 SCC 528]
Penal Code, 1860 – S. 143, 147, 148 & 302 r/w 149 & 120(B), 109, 118, 201 & 212 – Explosive Substance Act, 1908 – Ss. 3 & 5 – conspiracy – Matters to be considered by the court while granting or refusing bail – Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; nature and gravity of the accusation; severity of the punishment in the event of conviction; danger of the accused absconding or fleeing, if released on bail; character, behaviour, means, position and standing of the accused; likelihood of the offence being repeated; reasonable apprehension of the witnesses being influenced; and danger, of course, of justice being thwarted by grant of bail are some of the matters to be considered by the court while granting or refusing bail.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
N.K. BALAKRISHNAN, J.
B.A. Nos.3632, 3650 & 3900 of 2012
Dated this the 2nd day of July 2012
C.M.P.NO.3171/2012 OF J.F.C.M., VATAKARA CRIME NO.433/2012 OF VATAKARA POLICE STATION, KOZHIKODE DIST.
FOR PETITIONER/ACCUSED NO.15 : BY ADVS.SRI.M.K.DAMODARAN (SR.); SRI.ALAN PAPALI; SRI.SOJAN MICHEAL; SRI.GILBERT GEORGE CORREYA; SRI.V.S.BOBAN; SRI.A.VELAPPAN NAIR, FOR RESPONDENT/COMPLAINANT : BY ADVOCATE GENERAL SRI.K.P.DANDAPANI
O R D E R
These are the bail applications filed by accused Nos.15, 16 and 3 respectively in Crime No.433/2012 of Vadakara Police Station, Kozhikode District. The offences alleged against them and other accused are under
# Secs.143, 147, 148 and 302 r/w 149 IPC and under Secs.120(B), 109, 118, 201 and 212 IPC and also under Secs.3 & 5 of Explosive Substance Act.
2. It is alleged that on 4.5.2012 at 10.15 PM at a place called Vallikkad, the motorcycle ridden by Mr.T.P.Chandrasekharan, the leader of a local party – Revolutionary Marxist Party (RMP) was hit by the Innova Car used by the assailants and when he fell down he was brutally murdered by the persons who reached there in the Innova Car by hacking Mr.Chandrasekharan with swords. It is further alleged that in order to create an atmosphere of terror so as to desist other persons approaching the scene, the assailants exploded bombs also and thereafter the assailants escaped from the scene.
3. The prosecution contends that T.P.Chandrasekharan was earlier a local leader of CPI(M). Because of some differences of opinion, it was stated that, the deceased T.P.Chandrasekharan and others were expelled or they severed their connection with CPI(M). Thereafter they formed a party – Revolutionary Marxist Party (RMP). It is further alleged that the persons and sympathisors beloning to CPI(M) of that locality began showing allegiance to RMP being influenced/attracted by Mr.T.P.Chandrasekharan. According to the prosecution, a conspiracy was hatched by local leaders belonging to CPI(M) to murder Mr.T.P.Chandrasekharan. It is stated that the petitioners, especially A15 and A16 were some of the conspirators and it was pursuant to that conspiracy Mr.Chandrasekharan was hacked to death.
4. Petitioners were arrested by the police on 15.5.2012 and since then they have been in custody.
5. Learned Senior Counsel Sri.M.K.Damodaran, appearing for A15 and A16 and learned counsel for A3, Sri.T.G.Rajendran and also the learned Advocate General have been heard.
6. Learned Senior Counsel appearing for the petitioners vehemently argued that the investigating team is dancing to the tune of the leaders of a political party in power and that the names of leaders of CPI(M) are supplied by the leaders of the party in power and it is at the behest of the ruling party, the members of CPI(M) are being arrested. It is also argued that while arresting the petitioners, the directions issued by the Hon’ble Supreme Court in
# D.K.Basu’s Case [1997 SCC (Cri) 92]
were flouted by the police officials.
7. It is submitted on behalf of the prosecution that the investigation is being conducted by the Special Investigation Team. Three Dy.S.Ps; Mr.K.V.Santhosh Kumar, Mr.Josy Cherian and Mr.Shoukath Ali are the main investigating officers. The contention that the directions contained in D.K.Basu’s case were violated have been assailed by the prosecution pointing out the entries in the case diary regarding the notices issued to the petitioners and also as to how the formalities were complied with. It is also pointed out that the arrestees were got examined by the Medical Officer within every 24 hours and that the near relatives of the arrestees were also duly informed. Further, the assistance of a legal aid counsel was also provided but as the petitioners had engaged there own counsel, the service of the legal counsel was not necessary. I could not see any patent illegality or unfairness in the investigation so far conducted.
8. Now, the main question is whether the petitioners are entitled to be released on bail at this stage. It is strenuously argued by the learned Senior Counsel Mr.M.K.Damodaran that A15 and A16 were arrested solely on hear-say information and the alleged confession statements of the co-accused. A15 and A16 are the local leaders of that political party. It is argued by the learned Advocate General that there were reports from the Intelligence Wing of the police that slogans were shouted and public speeches were made by the accused persons. The learned Senior Counsel for the accused points out the inadmissibility in evidence of the Intelligence Report and the statement regarding the slogans shouted by some persons. It is submitted by the learned Senior Counsel that conspiracy is always hatched in secrecy and that no conspiracy can be inferred from the speeches made in public meetings. In order to constitute a criminal conspiracy, two or more persons must agree to do or cause to be done an illegal act or an act, which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.
9. Referring to the remand reports filed by the investigating officer (when the aforesaid petitioners were arrested and produced before the court) it is argued by the learned Senior Counsel appearing for the petitioners that even according to the prosecution, the conspiracy alleged to have been hatched in 2009 was aborted and so, the prosecution must atleast prima facie show when actually the new conspiracy was hatched so as to cause the murder of Mr.Chandrasekharan. In this connection, it was also pointed out by the learned Senior Counsel appearing for the petitioners that even before getting clue as to who were the assailants, certain leaders of the ruling party had declared as to who committed the murder and it was in tune with that the police officers acted and that much publicity was given to such statements which prejudiced the investigation and hence, according to the learned counsel, what has been now projected by the investigating agency is only a distorted or tailored version. That is denied by the prosecution.
10. It is also argued by the learned Senior Counsel that on 23.5.2012 the Sub Inspector of Police, Chombala Police Station required A15 to contact the local Dy.S.P. and so, A15 contacted the Dy.S.P. and as the accused was told that he has to give some details, he along with his friends met the investigating officer and immediately he was detained in the police station. Had there been anything to hide or suppress, A15 would not have gone to the police station when he was required to meet the Dy.S.P. and hence that would show that he has co-operated with the investigating officer, it is further argued.
11. A15 and A16 would contend that their arrest is politically motivated and that no material has been collected by the investigating agency to prove the alleged criminal conspiracy. The prosecution projects the speeches made by A15 and A16. It was stated that A16 had used certain words indicating that the deceased (T.P.Chandrasekharan) would be finished off in such a way that his skull and brain would be smashed and shattered and it was in that fashion, Chandrasekharan was murdered. The learned Senior Counsel submits that no person who is a party to a criminal conspiracy would make a public speech that a person would be done away with in a particular fashion or manner and therefore, that speech can never be treated as a link in the alleged criminal conspiracy. CWs.175, 176, 177 and 178 were stated to have given statements pertaining to the speeches made by A15 and A16.
12. I have gone through the case diary (9 volumes) made available to me. Each volume contains hundreds of papers. It appears as to why and how the conspiracy was hatched, what were the actions taken pursuant to the conspiracy, who were all monitoring the progress in the attack intended to be mounted on the deceased were seen in the statements given by A6. It appears that there were telephone calls between the accused persons during the relevant time, that is from 1.4.2012 to 2.5.2012. As the criminal conspiracy is hatched in secrecy, it is not possible to adduce direct evidence. The conspiracy can be proved largely from the inferences drawn from acts or illegal omissions committed by the conspirators in pursuance of a common design. Once conspiracy to commit an illegal act is proved, the act of one conspirator may become the act of the other. It would be lawful for the court to admit in evidence the statements, acts, declarations and conduct of one conspirator in reference to the common intention of all.
13. The prosecution contends that the present conspiracy is to be differentiated from the previous conspiracy; even though some of the conspirators may be common, new members were recruited to the conspiracy to achieve the common object; to finish off Mr.Chandrasekharan and so, whether the new one was a continuation of the earlier conspiracy or a separate one may not be of much consequence.
14. The prosecution now mainly rests upon the alleged statements of the accused persons given to the police which, according to the learned Senior Counsel, cannot be the foundation for proof of criminal conspiracy or for proof of any of the offences alleged against the petitioners. Besides perusing the statements of the witnesses mentioned earlier, I have gone through the statements of CW22, CW25, CW105 and other witnesses also. It is not proper for the court now to say whether those statements would be sufficient to prove the criminal conspiracy.
15. As regards the complicity of A3 is concerned, it is pointed out that there are also statements of two witnesses recorded under Sec.164 Cr.P.C. which would prima facie show that he had assisted the assailants in supplying the swords which were earlier concealed at a particular place. It is stated that the 3rd accused had actually accompanied the other assailants in the Innova Car and at that time, the gunny bag containing the swords was being kept in the Innova Car mentioned above. It is not proper to state further regarding those statements recorded by the learned Magistrate under Sec.164 Cr.P.C. and other factors relating to the same.
16. Learned Senior Counsel appearing for the petitioners submits that Hon’ble Supreme Court has time and again stated that bail is the rule and committal to jail is only an exception and that refusal of bail is restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution. The decisions of the Supreme Court in
# Moti Ram v. State of M.P. [(1978) 4 SCC 47]
# Vaman Narain Ghiya v. State of Rajasthan [(2009) 2 SCC 281]
# Siddharam Satlingappa Mhetre v. State of Maharashtra [(2011) 1 SCC 694]
and the latest decision in
# Sanjay Chandra v. Central Bureau of Investigation [(2012) 1 SCC 40]
have been relied upon in support of his submission.
17. Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; nature and gravity of the accusation; severity of the punishment in the event of conviction; danger of the accused absconding or fleeing, if released on bail; character, behaviour, means, position and standing of the accused; likelihood of the offence being repeated; reasonable apprehension of the witnesses being influenced; and danger, of course, of justice being thwarted by grant of bail are some of the matters to be considered by the court while granting or refusing bail.
18. Learned Advocate General has relied upon the decision in
# Prahlad Singh Bhati v. NCT, Delhi and another [(2001) 4 SCC 280]
in support of his submission that the larger interest of the public should also be taken into consideration by the court and that at the stage of considering the bail application it is not necessary to have the evidence establishing guilt of the accused beyond reasonable doubt. The decision in
# Kalyan Chandra Sarkar v. Rajesh Ranjan [(2004) 7 SCC 528]
has also been referred to by the learned Advocate General to fortify his submission that it is too premature for the court to enter a finding as to whether the alleged confession of the co- accused is admissible or not. It is also argued that the nature of the offence is also one of the basic considerations for granting of bail.
19. The investigation is still in progress. I am not making any observation as to the admissibility or acceptability of the materials produced by the prosecution lest it should prejudice the prosecution or the defence.
20. Considering the gravity of the offence, I am not inclined to grant bail to A3 and A16 (petitioners in B.A.Nos.3900/12 & 3650/12) and hence, those two petitions are dismissed.
21. Considering all the aspects and the period of detention already undergone, A15 (petitioner in B.A.No.3632/12) is granted bail subject to the following conditions :-
a. The accused shall execute a bond for Rs.2,00,000/- (Rupees Two Lakhs only) with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. If in case the Magistrate has any doubt about the genuineness or correctness of the tax receipts produced by the sureties, the learned Magistrate can insist for production of the attested photo copies of the original title deeds of the sureties.
b. The accused shall make himself available for interrogation by the Investigating Officer as and when required and that he should appear before the Investigating Officer on all Mondays and Fridays between 9.30 AM to 11.30 AM until further orders.
c. The accused shall produce his original passport before the learned Magistrate. If he is not having any valid passport, he should file an affidavit regarding the same before the Magistrate.
d. The accused will also file affidavit that he will abide by all the conditions as mentioned above and that he will not commit any offence similar to the offence involved in this case and that he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.
e. Petitioner shall not enter the limits of Kozhikode and Kannur Districts except for compliance of condition No.b.
f. Petitioner shall furnish to the Investigating Officers his mobile phone number and landline number of the house/building where the petitioner intends to stay while on bail. He shall be available to the Investigating Officer over phone.
g. Petitioner shall not directly or indirectly contact any of the other accused involved in this case or the witnesses in this case.
h. The accused shall not leave the State of Kerala without permission of the court.
i. The learned Magistrate will also ensure the identity of the sureties by insisting production of electoral photo identity cards/Driving licence etc.