Bail Application No. 2002 of 2017 (Adv. Dr. P. Krishnadas, on behalf of Nehru College of Educational & Charitable Trust v. State of Kerala and S.P. Rural, Thrissur)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW** **THURSDAY, THE 23RD DAY OF MARCH 2017/2ND CHAITHRA, 1939** **Bail Appl..No. 2002 of 2017 () -------------------------------** **CRIME NO.204/2017 OF PAZHAYANNOOR POLICE STATION, THRISSUR DISTRICT.** **........** ## **PETITIONER/ACCUSED:** **-------------------** **ADV.DR.P.KRISHNADAS, AGED 42 YEARS, S/O.P.K.DAS, CHAIRMAN & MANAGING TRUSTEE, NEHRU COLLEGE OF EDUCATIONAL & CHARITABLE TRUST, 451 D, PALAKKAD MAIN ROAD, KANIYAMUTHUR, COIMBATORE.** **BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE** ## **RESPONDENTS/STATE/COMPLAINANT:** **-----------------------------** **1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031, (CRIME NO.204/2017 OF PAZHAYANNOOR POLICE STATION, THRISSUR DISTRICT).** **2. SUPERINTENDENT OF POLICE (RURAL), OFFICE OF THE DISTRICT POLICE CHIEF, THRISSUR DISTRICT.** **BY SRI.K.V.SOHAN STATE ATTORNEY** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** ## **K.ABRAHAM MATHEW, J.** ## **---------------------------------------** ## **B.A.No.2002 of 2017** **------------------------------------------Dated this the 23[rd] day of March, 2017** ## **ORDER** Petition filed under Section 439(1) Cr.P.C. 2. The Nehru College of Educational and Charitable Trust has in its ownership and administration 19 education institutions situated in Kerala as well as in Tamil Nadu. One of the institutions is Nehru Law Academy situated at Lakkidi in Palakkad District and another is Nehru College of Engineering and Research Centre situated at Pampadi in Thrissur District. The petitioner is the Acting Chairman and Managing Trustee of the Trust. In Crime No.204 of 2017 of Pazhayannoor Police Station he was arrested on 20.3.2017 and since then he has been in judicial custody. 3. The train of events that led to the filing of this is as follows: On 06.01.2017 one Jishnu Pranoy, a first semester student of the Nehru College of Engineering and Research Centre, was allegedly caught for malpractice at the examination. He was taken to the room of the Vice Principal, where the Vice Principal and some others threatened him into striking off his answers and executing a letter of apology. It is said that the allegation against B.A.No.2002 of 2017 2 Jishnu Pranoy was falsely raised by the college authorities. On the very same day he committed suicide in the hostel attached to the college. The police registered Crime No.19/2017 of Pazhayannoor Police Station under Section 174 Cr.P.C. Later, the police sent a report to the learned Magistrate informing him that commission of the offences under Sections 120B, 201, 306, 323, 384, 465, 468 and 471 IPC was revealed in the investigation. The petitioner was the first accused. The allegation against him was that it was because of his harassment and of other officers of the college, Jishnu Pranoy committed suicide. On 16.2.2017 a student of Nehru Law Academy Shaheer Shoukath Ali gave a statement to the investigating officer in that case that on 3.1.2017 the petitioner in this case assaulted him in a room attached to the Engineering College because he had sent a complaint to the Chief Minister with regard to certain irregularities in the Law College. His statement under Section 164 Cr.P.C. was recorded by a Magistrate. By the order dated 7.3.2017 in B.A. No.1071 of 2017 filed in that case this Court observed that there was no material in the case diary to show that the petitioner committed the offence under Section 306 IPC and accordingly, he was granted anticipatory bail. On 27.2.2017 at 9.25 p.m. the police again B.A.No.2002 of 2017 3 recorded Shoukath Ali's statement - which is said to be First Information Statement in this case - with regard to the allegation of the assault of the petitioner on 3.1.2017, and registered this case, Crime No.204 of 2017, for the offences under Sections 341, 323 and 506 IPC. The petitioner alone was the accused. On 13.3.2017, the District Police Chief entrusted the investigation to Dy.S.P., District Crime Branch, who took over the investigation on the very same day. He recorded the statement of the victim on 14.3.2017. On the next day he sent a report to the learned Magistrate stating that the reason for the delay in informing the police was accidentally omitted in the F.I.R and it should be incorporated in Column No.8 in the F.I.R. The case diary reveals that on 16.3.2017 the investigating officer prepared a document stating that the offences under Sections 342, 365 and 384 IPC also were committed and another document that six more persons-accused 2 to 7 - also are involved in the commission of the offences. On the next day he seized certain articles, for which he prepared a mahazar. The petitioner and accused 3, 5, 6 and 7 were arrested on 20.3.2017. The application filed by the petitioner for bail was dismissed by the learned Magistrate. 4 B.A.No.2002 of 2017 4. Heard the learned counsel for the petitioner, the learned senior counsel appearing for the victim and the learned State Attorney. 5. A preliminary objection to the maintainability of the petition was raised by the learned senior counsel appearing for the victim. The objection is that as the petitioner filed an application under Section 437 Cr.P.C. in the court of the learned Magistrate and this application under Section 439 Cr.P.C. in this Court, this petition shall not be entertained. As noted above, the application filed before the learned Magistrate has already been dismissed. For the mere reason that the petitioner happened to file an application in the court of the Magistrate, this application cannot be dismissed. 6. The main argument of the learned counsel for the petitioner is that it was with malicious intention the investigating officer prepared a report stating that commission of the offences under Sections 342, 365 and 384 IPC also was revealed and the arrest itself is illegal. 7. The learned State Attorney more than once has brought to my notice the decision of the Hon'ble Supreme Court in **State of Bihar v. Rajballar Prasad [2007 (2) SCC 178]** in support B.A.No.2002 of 2017 5 of his argument that while considering a bail application the court is not supposed to consider the merits and demerits of evidence. I am fully conscious of it. But if consideration of certain materials available in the case diary is necessary to dispose of the application in a just manner, there is no law prohibiting it. 8. There are four statements of the victim available in the case diary. Apart from these statements, a report of the university which enquired into the allegations against the Nehru college authorities finds a place in the case diary. It reveals that the victim gave a statement to the university with regard to the incident involved in this case. I have perused each of these statements carefully. There are material contradictions and omissions which any investigating officer could have taken notice of. There were several reasons for the investigating officer to doubt that there was a conscious effort to rope in certain persons as accused. In the statements given by the victim in the F.I.Statement given to the police and the subsequent statements given to the university authorities his case was that some of the persons who are now shown as accused only witnessed the incident. But in the subsequent statements there is an allegation that they also took part in the incident. 6 B.A.No.2002 of 2017 9. In the memo given to the brother of the petitioner after the arrest of the petitioner informing him about the proposed production of the petitioner before the Magistrate the offences mentioned are only bailable ones. The submission of the learned counsel is that at the time of the arrest the case diary revealed commission of bailable offences only and that itself shows the dishonesty of the investigating officer. The learned State Attorney submits that it is an innocent mistake committed by the investigating officer and the necessary ingredients of the nonbailable offences are available in the F.I.Statement. As mentioned earlier, five accused including the petitioner were arrested on 20.3.2017. The petitioner was arrested first. The time of arrest was 11.30 a.m. The last man was arrested at 3.15 in the evening. The report about the commission of the offences under Sections 342, 365 and 384 IPC was sent to the learned Magistrate only at 3.30 in the evening. It follows that the above offences were incorporated only after the accused were arrested. In other words, _prima facie,_ the submission of the learned counsel that at the time of the petitioner's arrest the case diary revealed commission of bailable offences only appears to be correct. It is also pertinent to note that the report stating that additional accused 2 to 7 also B.A.No.2002 of 2017 7 were involved in the incident was not sent to the learned Magistrate even when the report incorporating additional offences was sent to the learned Magistrate. That report was handed over to the learned Magistrate at her residence when the accused were produced before her at about 9 in the night. _Prima facie,_ I cannot accept the submission of the learned State Attorney that it was an innocent mistake committed by the investigating officer. There was a deliberate attempt on the part of the investigating officer to deny the accused the rights they are entitled to under the Constitution of India and the Criminal Procedure Code. He was very particular that the accused should not get the opportunity to approach the court concerned for any relief. 10. In **Joginder Kumar v. State of U.P. [AIR 1994 SC 1349]** the apex court observed: “No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for exercise of it is quite another ..... No arrest should be made without reasonable satisfaction reached after some investigation as to the genuineness and _bona fides_ of a complaint and a reasonable belief both as to the person's complicity and even as to the need to effect arrest. Denying a person of his liberty is a serious B.A.No.2002 of 2017 8 matter.” Thereafter, Section 41 Cr.P.C. was amended. Now it is mandatory for the investigating officer to satisfy himself that the conditions mentioned in the section exist before the arrest of an accused, involved in a case which is punishable with imprisonment upto seven years. Moreover, he shall record the reasons for effecting the arrest. I have perused the entire case diary in this case. I could not find even a whisper in it about the necessity of arresting the accused. The learned State Attorney submitted that there are sufficient grounds to believe that the accused committed the offences. That may or may not be true. But as observed by this court that alone is not sufficient. It is the bounden duty of the investigating officer to record in the case diary the reasons for his belief that it was necessary to arrest the accused. That has not been done in this case. The provisions in Section 41 are not an empty formality. In **Arnesh Kumar v. State of Bihar [AIR 2014 SC 1349]** the Supreme Court has observed that if the provisions in Section 41 Cr.P.C. which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed. The court emphasised that the practice of mechanically reproducing in the B.A.No.2002 of 2017 9 case diary all or most of the reasons contained in Section 41 Cr.P.C. for effecting arrest shall be discouraged and discontinued. A caution has been administered to the Magistrates before whom accused are produced on arrest: “Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrates do not authorise detention casually and mechanically”. The investigating officer has not even reproduced the what is stated in Section 41 Cr.P.C. 11. In the above case, after issuing certain directions the Supreme Court has observed: “failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction”. 12. In **Dr. Reni Johar and another v. State of M.P. and others [AIR 2006 SC 2679]** the Supreme Court had occasion to consider the question again. It has observed “......... liberty which is basically the splendor of beauty of life and bliss of growth, cannot be allowed to be frozen in such a contrived winter”. “In such a situation the public law remedy which has been postulated in **Nilabati Behera v. State of Orissa AIR 1993 SC 1960, Sube** B.A.No.2002 of 2017 10 **Singh v. State of Haryana [AIR 2006 SC 1117] and Hardeep Singh v. State of M.P. [AIR 2012 SC 1751]** comes into play. The constitutional courts taking note of suffering and humiliation are entitled to grant compensation.” 13. When the investigation of the case was entrusted with the present investigating officer, the District Police Chief directed him to conduct a fair and just investigation, but the investigation in this case has been unjust and unfair. The arrest was effected during day time. The accused including a young lady aged 40 and an old man aged 80 were produced before the learned Magistrate at her residence at 9 in the night only to be thrown into the jail at midnight. Malice is evident. What was the necessity of this surgical strike? 14. The learned State Attorney submitted that there is a likelihood of the petitioner destroying or tampering with the evidence. This has not been recorded in the case diary. Moreover, in the order passed on B.A.No.1071 of 2017 in Crime No.19 of 2017 this court has restrained the petitioner from entering the premises of Nehru College of Engineering and Research Centre, Pampady which is the place of occurrence in this case also. So the prosecution cannot be heard to say that his arrest B.A.No.2002 of 2017 11 was necessary to prevent him from destroying the evidence. The Board Room where the incident took place and the almirah and the shelfs are locked and sealed. The present investigating officer took over the investigation on 13.3.2017. The petitioner and others were arrested on 20.3.2017. During these days the investigating officer did not think it proper even to inspect the room. 15. As noted above, the investigating officer sent a report to the Magistrate requesting him to incorporate in the F.I.R. the reason for the delay in informing the police about the incident. This is unheard of in the history. How can a Magistrate, or for that matter anyone, make an alteration in an F.I.R. Does not the investigating officer know this simple thing. 16. It is true that mere irregularities may not be sufficient to grant bail to an accused. But when the illegalities-several-are patent and the court is satisfied that there has been a conscious effort on the part of the investigating officer to deny the constitutional and statutory rights of the accused, it will certainly grant him the relief of bail without any hesitation. In the result, this application is allowed. B.A.No.2002 of 2017 12 - i. The petitioner shall be released forthwith on his executing a bond for Rs.1,00,000/- (Rupees one - lakh only). - ii. He shall not intimidate or attempt to influence the witnesses. - iii. He shall not leave India without the previous permission of the court of enquiry or trial court, as the case may be. - iv. If his presence is necessary for investigation, the investigating officer shall issue him a notice in writing. - v. If the assistance of any officer or employee of the college is necessary to help the personnel from Cyber Cell of the investigating team, the petitioner shall ensure it. - vi. He shall not enter the premises of the Engineering College and the Law College. - vii. He shall co-operate with the investigation. Sd/- ## **K.ABRAHAM MATHEW, JUDGE** /True copy/ ln P.A. to Judge