Bail Applications Nos. 4093 & 4127 of 2011

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933 Bail Appl..No. 4093 of 2011() ----------------------------- CRIME NO. 251 OF 2010 OF PALAKKAD TOWN NORTH POLICESTATION RENUMBERED AS CRIME 259/CR/HHW-II/CBCID/EKM AND REGISTERED AS R.C. NO.34/2010 (S) 0008/CBI,TVPM. .................... PETITIONERS - ---------- 1. T.N.UNNIKRISHNAN,S/O.NARAYANAN OFFICER QUARTERS NO.40,G BLOCK, KUNNATHURMADU, PALAKKAD 2. SYMA PRASAD, S/O.PARAMESWARAN, - "SREE KASSYAP",NEAR SIVA TEMPLE, PIRAYARI P.O., PALAKKAD BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI RESPONDENT(S): --------------- 1. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM KOCHI-682031 2. CENTRAL BUREAU OF INVESTRIGATION, THIRUVANANTHAPURAM REP.BY SUPERINTENDENT OF POLICE ## STANDING COUNSEL FOR CBI ## SRI. P. CHANDRASEKHARA PILLAI THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 30-5-2011 ALONG WITH B.A. NO. 4127 OF 2011, THE COURT ON 01/06/2011 PASSED THE FOLLOWING: ## V. RAMKUMAR, J. ....................................... Bail Application Nos. 4093 & 4127 of 2011 ........................................ Dated: Ist June 2011 ## ORDER In these applications filed under Sec. 439 Cr.P.C. the petitioners who are accused Nos. 1, 2 and 9 seek their enlargement on bail. The petitioners were arrested on 24-32011. 2. All the petitioners were arrested by the Central Bureau of Investigation (“C.B.I.” for short) on 24-03-2011. The petitioners are police officers and, they among others, are accused in the custodial murder of one Sampath in the night of 29-03-2010. The case was originally registered as Crime No. 251 of 2010 of Palakkad Town North Police Station. Subsequently, the investigation of the case was handed over to the Crime Branch Police which re-registered the case as Crime No. 259/CR/HHW-II/CBCID, Ernakulam. Consequent on this Court entrusting the investigation with the C.B.I., the case was again re-registered as R.C. No. 034 - 2010 - S Bail Application Nos. 4093 & 4127 of 2011 -:2:- 0008 /CBI/TVPM. Altogether there are 32 accused persons. The offences involved are those punishable under Sections 120 B, 302, 218, 201, 465, 471 and 348 I.P.C. 3. I heard Sr. Adv. Sri. K. Rama Kumar appearing for the petitioners (A2 & A9) in B.A. 4093 of 2011, Advocate Sri. B. Raman Pillai, the learned counsel appearing for the petitioner (A1) in B.A. 4127 of 2011 Adv. Sri. P. Chandrasekhara Pillai, the learned Standing Counsel for the C.B.I. who opposed the applications. I also perused the case diary files. ## ARGUMENTS OF THE ACCUSED 4. (A) Sri. K. Ramakumar, the learned Senior Advocate appearing for A2 and A9 made the following submissions before me:- A2 and A9 were only obeying the orders of their superiors. No overt acts have been attributed to A2 and A9 in the gruesome murder of Sampath. They had nothing to do with the said incident except that they were serving police officials in the Town Bail Application Nos. 4093 & 4127 of 2011 -:3:- South and Town North Police Station at the relevant time and were present at the riverside cottage. They have been questioned after their arrest. They have been in custody for more than two months. Investigation of the case has been carried on for the past one year. The petitioners could influence the witnesses if they really wanted to do so. But the C.B.I. has no case that A2 and A9 had influenced the prosecution witnesses. A2 and A9 are not responsible for the C.B.I. not arresting some of the accused persons. This Court has already granted bail to A14 a co-accused in the case. B. Advocate Sri. B. Raman Pillai appearing for A1 made the following submissions before me:After tying both the hands of Sheela of Puthur in Palakkad, the front portion of her neck was split by none other than deceased Sampath. His complicity in Sheela Murder Case has already been proved during the trial of that case. Sampath was allegedly killed while in police custody during the investigation of Crime No. 246 of 2010 (Sheela Murder Case) of Bail Application Nos. 4093 & 4127 of 2011 -:4:- Town North Police Station, Palakkad. The petitioner and 13 other police officers were arrayed as accused by the Crime Branch Police alleging that they were responsible for the brutal murder of Sampath while in police custody. The petitioner was always available at his residence and in his locality both before and after he was suspended from service. He was attending as a witness in various courts in Palakkad district pursuant to summons received by him from the respective courts. Even the C.B.I. did not summon the petitioner or ask him to appear before them at any point of time. It was all on a sudden during the wee hours of 24-3-2011 that a group of C.B.I. officials barged into his residence and took him into custody after waking him up . The petitioner had no role at all in the investigation of Sheela murder case. He was not even a witness for the prosecution. The allegation that the petitioner also had physically tortured Sampath from a river side cottage at Malampuzha is a false allegation. The petitioner had not taken into custody Sampath or any of his co-accused. The Bail Application Nos. 4093 & 4127 of 2011 -:5:- petitioner has been in custody for more than 60 days. There is no case for the C.B.I. that the petitioner is influencing the investigation. ## JUDICIAL EVALUATION 5. I am afraid that I cannot agree with the submissions made on behalf of the petitioners. The petitioners herein are police officers and they along with the other accused persons are alleged to have tortured 26 year old Sampath to death on 28-03-2010 and 29-03-2010. Third degree methods of the most inhuman nature are said to have been practiced on the hapless detenue either to extract a confession or to silence him forever, presumably to prevent Sampath from revealing vital information which certain vested interests did not want him to divulge. After a manhunt for Sampath, he was taken into custody in the night of 28-03-2010 from Gounderpalayam in Coimbatore in Tamil Nadu after a man-hunt by a team of police officers . Sampath was then brought to Palakkad without recording his arrest and was then sequestered and kept under illegal detention in a river side cottage at Malapuzha without producing him before a Magistrate and without complying Bail Application Nos. 4093 & 4127 of 2011 -:6:- with any of the formalities of arrest as enjoined by the Apex Court in D.K. Basu v. State of W.B. - (1997) 1 SCC 416. Sampath was brutally tortured by various means which were most foul and inhuman. He had 63 injuries on various parts of his body. Sampath succumbed to the ferocious savagery unleashed by the bloodthirsty policemen. Unable to withstand the torture Sampath breathed his last around the midnight of 29-03-2010. The tell-tale pages of the case diary reveal that beastly animals in human form and clad in kakki are among our police personnel whose prime duty is not to indulge in manslaughter but to protect the lives and limbs of those who are in distress. The role played by the petitioners, among others, in the “operation torture” of Sampath was unequivocally admitted before this Court even by the Crime Branch Police in the Writ Petition filed by the brother of Sampath seeking investigation by the C.B.I. The case diary reveals that after brutally torturing Sampath to death steps were hurriedly taken to manipulate records such as the General Diary, Sentry Relief Book , Prisoners Search Register etc. at the behest of the police superiors to make it appear that Sampath was directly brought to the North Police Station only in the night of 29-3-2010 and that while in Bail Application Nos. 4093 & 4127 of 2011 -:7:- custody he developed chest pain and died on the way to the hospital. A1 and A2 had vital role in breaking the ribs of Sampath. A9 also had brutally tortured the detenue. 6. Policemen either directly or indirectly indulging in the barbarous atrocity of torturing detenues in their custody has been condemned in very strong language by the Supreme Court. (See State of M.P. v. Shyam Sunder Trivedi - (1995) 4 SCC 262; Sahadevan v. State - (2003) 1 SCC 534; Munshi Singh Gautam v. State of M.P. - (2005) 9 SCC 631 and Haricharan and Others v. State of M.P. (2011) 4 SCC 159). Those who indulge in the heinous act of custodial torture deserve condign punishment. Custodial death is one of the worst crimes in a civilized society governed by the rule of law. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. The rights inherent in Articles 21 and 22 (1) of the Constitution of India require to be jealously and scrupulously protected . If the functionaries of the Government become law-breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself Bail Application Nos. 4093 & 4127 of 2011 -:8:- thereby leading to anarchism . No civilized nation can permit that to happen. A citizen does not forfeit his fundamental right to life the moment a policeman arrests him. The right to life of a citizen cannot be put in abeyance on his arrest. These are questions touching the spinal cord of human rights jurisprudence. (See D.K. Basu v. State of West Bengal- AIR 1997 SC 610). Going by the recent ruling of the Apex Court in Mehaboob Batcha v. State (represented by Superintendent of Police) - 2011 (1) KLD 704 (SC) murder by policemen in police custody falls under the category of the “rarest of the rare case” deserving the extreme penalty of death sentence . 7. Whether it was due to abscondence on the part of the petitioners or the protective gesture on the part of the State Police bound by the ties of brotherhood (as observed in Shyamsunder Trivedi's Case (supra), the fact remains that none of the accused police officers (numbering more than two dozens) was arrested until the C.B.I. made the start in that direction towards the end of March, 2011. Going by the parameters laid down by the Apex Court in Ravindra Pal Singh v. Ajit Singh - (2011) 4 SCC 238 the petitioners do not deserve bail. Investigation of the case is Bail Application Nos. 4093 & 4127 of 2011 -:9:- still under progress. The petitioners are not ordinary lawbreakers . They are police men who are expected to know their legal and constitutional obligations and functional limitations. The precious life of an unarmed and defenceless detenue who implored to the cruel and savage policemen for his life was mercilessly taken away through continuous torture . Persons with such cruel and wicked propensities cannot be let loose among the unsuspecting public. It is true that C.K. Ramachandran, the then Deputy Superintendent of Police , Palakkad who is a co-accused in the case and who was arrested along with the petitioners, has already been granted bail by this Court with effect from 6-62011 as per the order passed in B.A. 3786 of 2011. But that was after taking into account the fact that he had no direct role in the “ operation torture” of Sampath . The petitioners are not entitled to those considerations. Factors such as the accused has undergone long period of incarceration or the trial of the case is not likely to be taken up or concluded in the near future etc. are hardly sufficient for enlarging the petitioners on bail when the gravity of the offence alleged is severe and the apprehensions of the prosecution that the petitioners may influence and intimidate the witnesses, are, Bail Application Nos. 4093 & 4127 of 2011 -:10:- real . It is true that the liberty of an individual is precious and is to be zealously protected by the Courts. But such protection cannot be absolute in all situations. In cases like, the present, the collective interest of the community at large may outweigh the right of personal liberty of the individual accused person. (Shahzad Hasan Khan v. Ishtiaque Hasan Khan and Another - (1987) 2 SCC 684 and Mansoor v. State of U.P. - (2009) 14 SCC 286). These applications are, accordingly dismissed. Dated this the 1[st] day of June, 2011. ## V. RAMKUMAR, JUDGE. ani/