B.A. 1623/2020

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V MONDAY, THE 30TH DAY OF MARCH, 2020/10TH CHAITHRA, 1942** **B. A. No. 1623 of 2020** **(RC1(S)/2020/CBI/SCB/THIRUVANANTHAPURAM – ORIGINALLY CRIME NO. 349/2019 OF PEERMADE POLICE STATION WHICH IS RENUMBERED AS CRIME NO. 390/CB/IDK/R/19/IDUKKI DISTRICT)** **PETITIONER/1ST ACCUSED:** **K.A. SABU, AGED 46 YEARS, S/O. ANTONY, KURUPPASSERY HOUSE, PERUMPILLY KARA, MANJAPETTY, NJARACKAL VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT.** **BY ADV. THOMAS J. ANAKKALLUNKAL** **SR. ADV. SRI. P. VIJAYABHANU** **RESPONDENTS:** **CENTRAL BUREAU OF INVESTIGATION,** **SPECIAL CRIMES BRANCH, T.C.76/1757/5, REPRESENTED BY SPECIAL PRSECUTOR CBI,** **HIGH COURT OF KERALA, ERNAKULAM – 682031.** **ADDL. R2 IMPLEADED** **ADDL. R2 : M. VIJAYA, W/O. LATE RAJKUMAR,** **AGED 46 YEARS, KASTHURI BHAVAN,** **WARD NO. XVI OF ELAPPARA GRAMA PANCHAYATH, KOLAHALAMEDU P.O., IDDUKI DISTRICT-685 501, KERALA STATE.** **ADDL. R2 IS IMPLEADED AS PER ORDER DATED 11.3.2020 IN CRL. M.A. NO. 1/2020 IN B.A. 1623/2020.** B.A.1623/2020 2 **R1 BY ADV. SASTHAMANGALAM S. AJITH KUMAR FOR CBI ADDL. R2 BYU ADV. YASH THOMAS MANNULLY** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.03.2020, THE COURT ON 30.03.2020 PASSED THE FOLLOWING:** B.A.1623/2020 3 ## **SHIRCY V, J. ---------------------B.A. NO. 1623 OF 2020 ---------------------DATED THIS THE 30TH DAY OF MARCH, 2020** Application for Regular Bail. 2. The Petitioner is the 1[st] Accused in RC 1(S)/2020/CBI/SCB/ Thiruvananthapuram registered for the offences punishable under Sections 343,348, 323, 324, 330,331,302 and 34 of Indian Penal Code. 3. The Prosecution allegation is that, this petitioner the 1[st] accused (then Sub Inspector of Police, Nedumkandam Police Station, Idukki District) along with his team (A2 to A7) had taken custody of one Raj Kumar, an accused in Crime No. 302/2019 of Nedumkandam Police Station on 12.06.2019 and kept him in illegal custody till 15.06.2019. He was subjected to physical torture, cruelty and brutual harassment while he was in illegal detention. He was produced before the Jurisdictional Magistrate B.A.1623/2020 4 on 16.06.2019 with remand report as if he was arrested only on 15.06.2019. The learned Magistrate remanded him to Sub-Jail,Peerumedu on 16.06.2019. Thereafter he had to undergo treatment before the Taluk Hospital, Peerumedu,Idukki, as well before the Medical Hospital, Kottayam as he was brutally tortured while he was under illegal custody. On 21.06.2019 at 10:20 a.m, he was again brought to Taluk Hospital because of the complications developed but, he died at 10:30 a.m. on the very same day. Thus the case was registered by Crime Branch as Crime No 390/CB/IDK/R/2019 against the petitioner and the co-indictees for custodial death of Raj kumar. 4. Firstly, the investigation was taken up by Crime Branch and this Petitioner was arrested on 03.07.2019, on the allegation that he had kept Raj Kumar in illegal custody and his death was as a result of the barbaric and diabolic torture suffered by him while under illegal custody of the petitioner. Crime was registered on the basis B.A.1623/2020 5 of the complaint lodged by the Assistant Prison Officer,Peerumedu, Sub-Jail. Later as per the direction of this Court, the case was taken up by the CBI after re-registering the crime as above. 5. This Court, as per an order dated 13.08.2019, granted bail to the Petitioner. The State of Kerala challenged the said order before the Hon'ble Supreme Court. Then, as per an order dated 16.12.2019 the order of this Court was set aside. The said order reads as follows :- "Heard the learned counsel for the Parties. Leave granted. Considering the nature and the number of injuries to be 22 and considering the fact that the accused was in police custody and the previous report indicates that there was no such injury on his person, in the facts and circumstances of the case, we feel that the High Court has illegaly granted the privilege of bail to the accused persons. Since the case was registered under section 302 IPC with respect to custodial death, it is not a case were the benefit of bail could have been granted to the accused persons. Hence, we have no hesitation in setting aside the impugned order passed by the High Court. Ordered accordingly. Without commenting on the mertits of the case, the B.A.1623/2020 6 impugned order is set aside and the appeal is allowed. Let the police officers concerned be arrested forthwith. Pending interlocutary application(s) if any is/are disposed of. " 6. Thereafter, this petitioner was arrested on 16.02.2020 and he was given in police custody for five days and now the investigation of the case is going on. 7. Heard Sri. P. Vijaya Bhanu, the learned Senior Counsel for the Petitioner, and Sri. Sasthamangalam S. Ajith Kumar, the learned Standing Counsel for CBI .Additional Respondent No 2, the wife of Raj Kumar, the deceased, filed statement opposing the bail application. 8. The Prosecution allegation is that, Raj Kumar, the deceased, was brutually tortured by this Petitioner and other accused after taking him into custody on 12.06.2019. The records would reveal that he was produced before the jursidictional Magistrate only on 16.06.2019 at about 8:50 pm as per the remand application dated 16.06.2019. Prima facie he was in the illegal custody of the B.A.1623/2020 7 petitioner for few days. The medical examination report of Raj Kumar, issued by the medical officer produced along with the remand report shows that he had no visible injuries. As he was remanded by the jurisdictional Magistrate, he was admitted in the Sub-Jail in the early morning of 17.06.2019. On 18.06.2019, Raj Kumar was taken to Taluk Hospital, Nedumkandam, and also to the Medical College Hospital, Kottayam by the jail authorties as he had some complications and brought back to jail. But, when the complications developed again, at 10.20 a.m. on 21.06.2019 he was taken to the Taluk Hospital, Peerumedu but he died at 10.30 a.m. on the same day. His Post Mortem examination was conducted on 22.06.2019 by the Forensic experts attached to Medical College Hospital, Kottayam. The Post Mortem certificate would reveal that he had sustained 22 (Anti-Mortem) injuries. The cause of death is stated as follows :- "Post Mortem findings are consistent with death due to Pneumonia, a disease of lung. The deceased had sustained blunt force injuries." B.A.1623/2020 8 9. The learned Senior Counsel for petitioner submitted that the petitoner was given in police custody for 6 days initally and after setting aside the order of bail by the Hon'ble Supreme Court, again he was given to the custody of the investigating officer of CBI. Therefore, he contends that further detention of this petitioner is absolutely unnecessary. It was further argued that the entire allegations leveled against him are absolutely false and baseless and the death of Raj kumar was due to Pneumonia as per the Post Mortem certificate and so he is entitled to be released on bail. It is significant to note that the prosecution allegation is that Raj Kumar was brutually tortured by this petitioner and the other accused while he was in the illegal custody of this petitioner. In a brief outline of the material aspects, it may be noticed that the petitioner and the co-indictees are charged with imputation of custodial death of Raj Kumar. The investigation of B.A.1623/2020 9 the case by CBI is only in progress. The CBI opposed the application for the reason that the bail granted by this court was set aside by the Hon'ble Supreme Court . The 2[nd] respondent ,the wife of the deceased has vehemently opposed the application by filing a detailed statement contending that, granting of bail to the petitioner, an influencial police officer, will adversely hamper a fair and effective investigation . 10. It is well settled by a catena of decisions that the discretionary power of the court in granting bail has to be exercised in a most judicious manner and there exists no straight jacket formula to allow or reject an application for bail. **[** See **State of U.P.** v. **Amarmani Tripathi** [(2005) 8 SCC 21], **Rajesh Ranjan Yadav alias Pappu Yadav** v. **CBI through its Director** [(2007) 1 SCC 70] and **Gobarbhai Naranbhai Singala** v. **State of Gujarat** [(2008) 3 SCC 775] **].** The Apex Court in **Shri. P. Chidambaram** v. **Central Bureau of Investigation** (AIR B.A.1623/2020 10 2019 SC 5272) has considered the jurisdiction to grant bail in paragraph No.22, which reads as follows: **“22. The jurisdiction to grant bail has to be exercised on the basis of the well-settled principles having regard to the facts and circumstances of each case. The following factors are to be taken into consideration while considering an application for bail:- (i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses;(iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondance; (v) larger interest of the public or the State and similar other considerations (vide Prahlad Singh Bhati v. NCT, Delhi and another (2001) 4 SCC 280::2001 ICI 222). There is no hard and fast rule regarding grant or refusal to grant bail. Each case has to be considered on the facts and circumstances of each case and on its own merits. The discretion of the court has to be exercised judiciously and not in an arbitrary manner.......”** 11. Whether, an accused is entitled for bail depends on so many important and relevant factors such as; the nature and gravity of the offence B.A.1623/2020 11 committed and the severity of punishment in case of conviction and nature of supporting evidence, the criminal antecedents of the accused, reasonable chance to flee from justice causing obstacles to the investigation of the case,reasonable apprehension of tampering with the evidence or apprehension that the accused will influence or terrorise the witnesses using his dominating and powerful position ,prima facie satisfaction of the court in support of charge etc. It is equally well settled that while considering a bail application, the court should not go into the details of the evidence and the other facts involved in the case, meticulously as it is not relevant consideration and that too it may cause prejudice to the accused. Elaborate evaluation of each and every facts involved, on merits can not be taken into consideration at this stage and no doubt it is a matter for trial. But it is needless to say that while dealing with a bail application, a prima facie satisfaction of the court in support of charge and involvement or B.A.1623/2020 12 active participation of the accused, are the important and integral elements. Here, the materials so far collected by the investigating agency and the sequence events would prima facie indicate that a heinous crime was committed by the petitioner with the aid and assistance of the other accused. 11. Doubtless that the offence alleged against this petitioner is an affront to a decent and civilized society. It is pertinent to note that the petitioner was the Sub-Inspector of Police and hence holds a dominating and highly influencial position in the society. If granted with bail at this stage there is every likelihood of the petitioner, who is well connected according to the prosecution, to tamper with the evidence by influencing the witnesses to the prosecution and also by putting them under threat and coercion. Further, the allegation raised against this petitioner is one of custodial death, and thus it assumes much importance since the police force are B.A.1623/2020 13 entrusted with the power and responsibility to conduct investigations in a conscientious manner well within the limits of the law. Any kind of third degree torture is treated as illegal and custodial death is one of the worst crimes in a civilized society. Hence, the imputation raised against the petitioner cannot be treated lightly and in fact deeper scrutiny by the investigating agency is required. Serious questions have to be answered in investigation as the accused are police personnel. Therefore, the gravity of the allegation levelled against the petitioner is grave and serious in nature. As referred above, the petitioner being a police officer is in a position to intimidate and influence the witnesses. In my considered view a fair and impartial investigation may not be possible, if he is enlarged on bail at this stage. 12. There is startling revelation in the CD file that Raj Kumar was not having any injury at the time of taking him in custody by the petitioner and the injuries were sustained by him while B.A.1623/2020 14 he was in his illegal custody. The post mortem certificate would clearly indicate that in total he sustained 22 injuries including fracture of right and left II, III, IV, V ribs and fracture of sternum and that the injuries 18 to 21 denoted infliction of 'falanga' under detention. 13. Furthermore, as referred above, bail granted to this petitioner by this court was set aside by the Apex Court and thereafter he was arrested. Therefore, I find absolutely no justification in allowing this application and to release him on bail at this stage. Dismissed. Sd/- **SHIRCY V JUDGE** sb