Dismissed

Inspector of Police, CBI Scb v. Prakasan @ Vettukuttan

Kerala HC14 Dec 2016Crl.MC/5928/2016

Case brief

AI extract

What is this about?

The Court dismissed petitions filed by the State seeking cancellation of bail granted to three accused persons in a murder case. Despite allegations of witness intimidation and bar-driven issues, the Court found no sufficient evidence to justify canceling the granted liberty.

What did the court decide?

Petitions for cancellation of bail dismissed; trial court directed to proceed with matter in accordance with law.

Inspector of Police, CBI Scb Vs Prakasan @ Vettukuttan — Bail and Remand | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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WEDNESDAY, THE 14TH DAY OF DECEMBER 2016/23RD AGRAHAYANA, 1938

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Crl.MC.No. 5928 of 2016 ()

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SEEKING TO CANCEL ORDER IN BA 7736/2011 DATED 4.10.2011 OF THIS COURT.

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PETITIONER/COMPLAINANT:

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STATE REPRESENTED BY

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INSPECTOR OF POLICE, CBI SCB THIRUVANANTHAPURAM (BY STANDING COUNSEL FOR CBI, HIGH COURT OF KERALA).

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BY ADV. SRI.P.CHANDRASEKHARA PILLAI, C.B.I.

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RESPONDENT/A1:

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PRAKASAN @ KUTTAN@VETTUKUTTAN

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S/O.LATE SHRI SASIDHARAN, PALAKKAL VEEDU, PATTATHANAM, KOLLAM, (R/O.GEETHANJALI, K.R.NAGAR, PALKULANGARA, KALLUMTHAZHAM, KILIKOLLUR, KOLLAM

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R1 BY ADV. SRI.B.RAMAN PILLAI (SR.) R1 BY ADV. SRI.R.ANIL R1 BY ADV. SRI.M.SUNILKUMAR R1 BY ADV. SRI.SUJESH MENON V.B. R1 BY ADV. SRI.T.ANIL KUMAR R1 BY ADV. SRI.THOMAS ABRAHAM (NILACKAPPILLIL) R1 BY ADV. SRI.M.VIVEK R1 BY ADV. SRI.A.RAJESH R1 BY ADV. SRI.B.KRISHNA KUMAR

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14-12-2016, ALONG WITH CRMC. 6038/2016, CRMC. 6120/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 5928 of 2016 ()

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APPENDIX

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PETITIONER'S ANNEXURES:

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ANNEXURE-1: ORDER IN BA 7736/2011 DATED 04.10.2011 OF THE HON'BLE HIGH COURT.

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ANNEXURE-2: TRUE COPY OF THE CONFIDENTIAL PRELIMINARY INTERNAL ENQUIRY REPORT OF THE CBI.

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ANNEXURE-3: TRUE COPY OF FIR NO.2953 DATED 29.11.2015 AND FIS.

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ANNEXURE-4: TRUE COPY OF THE FIR NO.1703/2016 DATED 15.8.2016 ALONGWITH FIS OF CW74 SUNIL DUTT REGISTERED AT KILIKOLLUR P.S.

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ANNEXURE-5: COPY OF THE INTERIM ORDER DATED 18.8.2016.

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RESPONDENT'S ANNEXURES:

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ANNEXURE R1(a): COPY OF THE DEPOSITION OF PW45 IN SC 244 OF 2016.

TRUE COPY

P.A. TO JUDGE.

RAJA VIJAYARAGHAVAN.V., J

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Crl.M.C. Nos. 5928, 6038 & 6120 of 2016

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- - - - Dated 14^th December, 2016

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ORDER

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1.These petitions are filed by the Inspector of Police, CBI SCB, Thiruvananthapuram under Section 482 read with Section 439(2) of the Code of Criminal Procedure seeking

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to set aside Bail granted to the respondents.

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2.The respondent in Crl.M.C.No.5928 of 2016 is the 1^st accused, the respondent in Crl.M.C.No.6038 of 2016 is the 3^rd accused and the respondent in Crl.M.C.No.6120 of 2016 is the 7^th accused in S.C.No. 244 of 2016 on the file of the Special Judge ( SPE/CBI) , Thiruvananthapuram.

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3.During the crime stage, while the investigation was being conducted by the CBCID, this Court had granted bail to the accused No 1 and 3 by the orders produced as

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Crl.M.C. Nos. 5928, 6038 & 6120/ 2016 -2-

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Annexure 1 in Crl.M.C. No.5928 of 2016 and Crl.M.C. 6038 of 2016 bail. Insofar as the 7^th accused is concerned, he was enlarged on Bail by the Sessions Judge, Ernakulam after the investigation was taken over by the CBI. Since identical issues are involved, all these petitions are taken up and disposed of together.

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4.In the aforesaid Sessions Case, the petitioners are being prosecuted for committing the murder of a person by name Happy Rajesh.

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5.Initially, crime was registered by the Kollam East Police Station as Crime No.484 of 2011 based on the information furnished by a friend of deceased Happy Rajesh. Investigation was conducted and final report was laid before the jurisdictional court. The case was committed to the Court of Sessions for trial.

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6.While so, the wife of the deceased preferred W.P.(C).

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Crl.M.C. Nos. 5928, 6038 & 6120/ 2016 -3-

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No.16408 of 2011 praying for handing over of the investigation to CBI and by order dated 20.12.2012, the final report was quashed and investigation was handed

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over to the CBI.

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7.CBI took over investigation and on its completion final report was laid against the petitioners herein and certain others.

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8.Trial commenced as per schedule and as many as 45 witnesses were examined. According to the petitioner, the material witnesses who were examined as PWs 12, 13 , 14 , 15 , 19 , 25 , 26 , 28 , 32 , 34 and 36 were forced to depose against the prosecution by threat and intimidation. Even the family members of the deceased were not spared. After the unusual incident of the witnesses turning en masse hostile, a confidential preliminary inquiry was conducted. The report revealed

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Crl.M.C. Nos. 5928, 6038 & 6120/ 2016 -4-

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that the accused were extending threats to the witnesses to prevent them from deposing the truth. The respondent in Crl.M.C. No. 5928 of 2016 had misused the liberty granted to him by Annexure-1 and assaulted a person by name Prabu resulting in the registration of Crime No.2953 of 2015 by the Kollam East Police. The respondent along with accused Nos. 3 and 7 wrongfully restrained CW 74, Sunil Dutt and extended threats to prevent him from deposing the truth. Based on his complaint, Crime No. 1703 of 2016 was registered at the Kilikolllur Police Station. Further more, CW 74 had approached this Court and had preferred WP (C) No. 27348/2016 seeking police protection and this Court had granted interim relief to the said person. According to the petitioner, the respondents are hardened criminals and the trial will be reduced to a mockery if they are permitted to interfere with the administration of justice.

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Crl.M.C. Nos. 5928, 6038 & 6120/ 2016 -5-

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9.Heard the learned Counsel appearing for the petitioner and the learned Senior Counsel appearing for the respondent in all the cases.

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10.The learned counsel appearing for the petitioner highlighted the fact that the respondents are hardcore criminals who are involved in numerous cases. It is contended the respondents have put the prosecution witnesses in fear and if they are permitted to carry on with their illegal acts, the whole trial proceeding will be reduced to a farce. Their acts have created anarchy and disorder and the prosecution case cannot be saved if they are permitted to remain at large. The learned Counsel painstakingly drew the attention of this Court to Annexure 1 to 5 to highlight the devious ways of the respondent in interfering with the administration of justice . The learned Counsel also relies on the decision of the Apex Court in

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Gurbachan Singh V Delhi Administration (1978 (1)

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Crl.M.C. Nos. 5928, 6038 & 6120/ 2016 -6-

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SCC 118) to bring home his point that the bail is to be cancelled if there are incontrovertible material to conclude that the accused had tampered with the evidence and intimidated the witnesses thus affecting a fair trial.

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11.The learned Senior counsel appearing for the respondent in Crl.M.C. No. 5928 of 2016 and Crl.M.C. No. 6038 of 2016 countered the submissions and contended that the materials produced by the petitioner would not show that the respondents had misused the liberty granted to them at the time of granting bail. According to the learned Senior counsel, they have not indulged in any wrongful activity much less any criminal activity as alleged by the investigating agency. It is vehemently urged that the case of the prosecution when the witnesses were cross examined was that they had resiled from their earlier version because of their close connection with the accused and not because of any threat, intimidation or fear.

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Crl.M.C. Nos. 5928, 6038 & 6120/ 2016 -7-

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Referring to the contention of the learned counsel appearing for the petitioner that the respondents had violated the liberty granted by this Court by indulging in other crimes, it is pointed out that Crime No.2953 of 2015 of the Kollam East Police Station was registered at the instance of a person by name R. Rajesh Kumar. Referring to his FI statement which is produced as Annexure 4 it is contended that the 1^st informant did not even sign the 1^st information statement. According to the learned Senior counsel, this would knock the base of the assertion that a grave crime was committed by the respondent .It is further submitted that on the next day itself, the injured had submitted a representation before the Director General of Police complaining about the highhanded action of the police in registering a false crime. Insofar as the crime registered at the instance of CW 74 is concerned, it is contended that the said witness was examined as PW45

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Crl.M.C. Nos. 5928, 6038 & 6120/ 2016 -8-

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on 31/08/2016 much after the registration of the crime and referring to his deposition which is produced as Exhibit R1 (a) , it was argued that the prosecution had no case while he had tendered evidence that the respondent had ever threatened or induced him to speak against the prosecution version. On the other hand, the said witness had stated that he had known the respondent since his childhood. According to the learned Senior counsel, the inquiry report produced as Annexure 2 is self-serving and the said report would not reveal that any of the witnesses who had turned adverse to the prosecution were even questioned by the officer concerned. Insofar as the representation filed by the wife of the deceased is concerned, it is submitted that only vague allegations are raised which are not sufficient to cancel the bail already granted. Finally, it is submitted that the respondents were enlarged on bail by this court during the crime stage

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Crl.M.C. Nos. 5928, 6038 & 6120/ 2016 -9-

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when the investigation was conducted by the CBCID. Later, the final report was quashed and investigation was handed over to the CBI. The respondents in Crl MC No 5928 of 2016 and Crl. M.C. No.6038 of 2016 had then taken bail from the Chief Judicial Magistrate Ernakulam. In that view of the matter, Annexure-1 order granting bail has faded into insignificance, is the submission. Reliance is also placed on the decision of this Court in State represented by CBI V Moidheen Kunj @ Neelagiri

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Moidheen @ Moinji [2012 (1) KLD 10] to substantiate his contention.

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12.Heard the rival submissions and I have gone through the materials on record.

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13.It is by now settled that the grounds for cancellation under Sections 437(5) and 439(2) are identical, namely, bail granted under Section 437(1) or (2) or Section 439(1)

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Crl.M.C. Nos. 5928, 6038 & 6120/ 2016 -10-

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can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety etc. These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to.

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14.The power to take back in custody an accused enlarged on bail has to be exercised with care and circumspection.

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Crl.M.C. Nos. 5928, 6038 & 6120/ 2016 -11-

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As held in State (Delhi Administration) v. Sanjeev Gandhi [AIR 1978 SC 961], the prosecution will have to establish by showing on a preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses. Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of the bail. As cancellation of bail involves the review of a decision already made, it can be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. The fact that the prosecution witnesses have turned hostile cannot by itself justify the interference that the accused has won them over. It is therefore necessary for

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Crl.M.C. Nos. 5928, 6038 & 6120/ 2016 -12-

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the prosecution to show some act or conduct on the part of the respondent from which a reasonable inference may arise that the witnesses have gone back on their statement as a result of an intervention by on or behalf of the respondent.

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15.Four reasons are advanced by the petitioner to seek cancellation of the Bail. They are; (a) the report of the confidential inquiry conducted by the Investigating agency to ascertain the reason for the witnesses turning hostile (b) the complaint of the wife of the deceased that the accused have intimidated witnesses (c) registration of a crime against the 1^st accused for assaulting a person by name Prabhu and (4) threatening CW 74 to depose against the prosecution case .

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16.It has to be borne in mind that the case rests on circumstantial evidence. In so far as the preliminary

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Crl.M.C. Nos. 5928, 6038 & 6120/ 2016 -13-

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inquiry conducted by the CBI is concerned, it appears that none of the witnesses who had turned adverse were questioned. It is borne out from Annexure-2 report that none of the witnesses except Jinda Ani could be contacted by the Inspector of Police. After going through the report, it does not appear to me that the findings of the Inspector of Police, CBI, can be the basis to cancel the bail already granted to the petitioners. Furthermore, it is admitted across the Bar that the witnesses who were cited to prove the prosecution case which rested on circumstantial evidence have given their evidence and only the official witnesses remains.

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17.Insofar as the complaint filed by the wife of Happy Rajesh is concerned, she only doubts that the accused are the persons who were instrumental in persuading the witnesses to speak about the prosecution case. Insofar as Crime No. 2953 of 2015 is concerned, the registration of

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Crl.M.C. Nos. 5928, 6038 & 6120/ 2016 -14-

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the crime creates a shadow as the informant has refused to sign on the statement. Relying on the said Crime, this Court will not be justified in ordering the cancellation of the Bail. Insofar as Crime No. 1703 of 2016 registered at the instance of Sunil Dutt is concerned, it appears that the said witness was examined in Court as PW 45. I have gone through Annexure-R1(a) copy of deposition of the witness. Even in his chief examination, the prosecution has no case that he was either intimidated or threatened prior to giving of evidence. As submitted by the learned senior counsel appearing for the respondent, there is not even a remote reference or indication in his deposition about any act or any attempt on the part of the respondent in Crl.M.C.No.5928 of 2016 to intimidate or influence him. All that he says about the said respondent in Crl.M.C.No.5928 of 2016 is that he was having acquaintance with the respondent from a very young age.

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Crl.M.C. Nos. 5928, 6038 & 6120/ 2016 -15-

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18.I have bestowed my anxious consideration to the relevant precedents and also the apprehension expressed by the petitioner. However, as held in State (Delhi Administration) v. Sanjeev Gandhi ( Supra) , the fact that the witnesses had turned hostile to the prosecution cannot be a reason to cancel the bail once granted.

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19.There is also another aspect of the matter. What is under challenge in Crl.M.C. No.5928 of 2016 and Crl.M.C. 6038 of 2016 are the orders granting bail to the accused by this Court at the crime stage while the CBCID was investigating the matter. The investigation was conducted and final report was laid before the jurisdictional Court. It was at that juncture that the wife of deceased Rajesh had preferred W.P.(C).No.16408 of 2011 praying for handing over of the investigation to CBI and by order dated 20.12.2012, the final report was quashed and investigation was handed over to the CBI. According to

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Crl.M.C. Nos. 5928, 6038 & 6120/ 2016 -16-

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the learned Senior counsel appearing for the respondents, the respondents in the aforementioned petitions were released on bail by the Chief Judicial Magistrate, Ernakulam. However, the said order has not been produced before this Court.

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20.Be that as it may, after having considered the materials on record, I am of the considered view that the petitioner has not made out a case for cancellation of bail. These petitions will stand dismissed. All interlocutory applications will stand dismissed and the trial court is directed to proceed with the matter in accordance with law.

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Sd/- RAJA VIJAYARAGHAVAN.V., JUDGE

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kp/17.12.16

Inspector of Police, CBI Scb v. Prakasan @ Vettukuttan

Case brief

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Inspector of Police, CBI Scb v. Prakasan @ Vettukuttan

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