Ismail @ Francis Ismail v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.UBAID** **WEDNESDAY, THE 27TH DAY OF JULY 2016/5TH SRAVANA, 1938** **Bail Appl..No. 4442 of 2016 () ------------------------------CRIME NO. 1795/2015 OF CHAVAKKAD POLICE STATION, THRISSUR** **---------** **APPLICANT(S)/3RD ACCUSED: -------------------------** **ISMAIL @ FRANCIS ISMAIL,AGED 36 YEARS, S/O.SIDDQUE, PUTHANPURAYIL HOUSE, KADAPPURAM VILLAGE, MATTUMAL DESOM,, CHAVAKKAD TALUK, THRISSUR DISTRICT.** **BY ADVS.SRI.SANTHOSH P.PODUVAL SMT.R.RAJITHA SMT.VINAYA V.NAIR** **RESPONDENT(S)/STATE/COMPLAINANT: --------------------------------** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SR.PUBLIC PROSECUTOR SRI C.RASHEED.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08-07-2016, THE COURT ON 27-07-2016 PASSED THE FOLLOWING:** **K.V.** **CR** **P.UBAID, J. --------------------------------------B.A No.4442 of 2016 ---------------------------------------** Dated this the 27[th] day of July, 2016 ## **O R D E R** The petitioner herein is the third accused in Crime No.1795/2015 of the Chavakkad Police Station, registered under Sections 120B and 115 of the Indian Penal Code. A criminal conspiracy to kill a political leader, by name Gopaprathapan, is the subject matter of this crime. The murder of one Haneefa, a political activist, created some public protest against the said Gopaprathapan, within his own political party. The said public protest developed to the extent of some activists within the same party hatching a conspiracy to do away with Gopaprathapan. It is alleged that the accused Nos.1 and 2 in this crime hatched such a conspiracy and they decided to have it carried out by engaging somebody on payment. The petitioner herein was accordingly contacted. When the petitioner consented, the accused Nos.1 and 2 confirmed the deal, and accordingly the petitioner accepted the task for an amount of ₹10 lakhs. An amount of 10,000/- was paid in advance to the₹ 2 B.A No.4442 of 2016 petitioner by the accused Nos.1 and 2 in November 2015. The petitioner herein is a previous convict. He has more than two convictions to his credit in different cases including the one initiated by his own wife, and he was also a detainee under the KAAPA. The second accused is also a previous convict. The alleged conspiracy was finalised on 24.11.2015 at the Ottayini Beach, Chavakkad. When the petitioner herein later approached the accused Nos.1 and 2 for instructions regarding the modalities to carry out the criminal design, the first accused asked him to wait for sometime, and then the petitioner herein smelt that he was being suspected or avoided by the others. In such a situation, he had a rethinking, and accordingly he divulged everything to the said Gopaprathapan. The petitioner even handed over a CD to Gopaprathapan, containing some conversions between the three accused concerning the criminal design hatched by them. On the basis of such definite materials, Gopaprathapan made a complaint against the three accused. 2. All the three accused were arrested by the police during investigation. This petitioner has been in judicial custody since 21.4.2016. It is submitted that the other accused 3 B.A No.4442 of 2016 are on bail. Pending the investigation the petitioner herein became an approver, and accordingly he accepted tender of pardon under Section 306 Cr.P.C. When he thus gained the status of a witness on acceptance of tender of pardon, he made an application before the learned Judicial First Class Magistrate, Chavakkad for bail under Section 437 Cr.P.C. The learned Magistrate dismissed the said application on 23.5.2016, in view of the prohibition contained in Section 306(4)(b) Cr.P.C. Now he is before this Court for bail under Section 439 Cr.P.C. 3. Two legal questions are involved in this application. Of course, when the accused has gained the status of approver, on acceptance of tender of pardon, his application for bail cannot be entertained under Section 439 Cr.P.C. Application for bail under Section 437 Cr.P.C or under Section 439 Cr.P.C can be filed only by an accused. By acceptance of tender of pardon, the petitioner herein has legally and practically ceased to be an accused temporarily, and he has gained the status of a witness, subject of course, to the legally authorised detention under Section 306(4)(b) Cr.P.C. One question of law involved in this case is whether the petitioner can be released under Section 482 Cr.P.C by this Court, if not 4 B.A No.4442 of 2016 under Section 439 Cr.P.C, and the other question is, as to what are the circumstances in which the High Court can exercise the discretion under Section 482 Cr.P.C to release an approver on bail. 4. As regards the first legal question, the position stands settled by a learned Single Judge of this Court in **Saidevan Thampi v. State of Kerala and others** (2013(4) ILR 496). Section 306(4)(b) Cr.P.C provides that every person accepting a tender of pardon made under Sub Section (1) shall be detained in custody until the termination of the trial, unless he is already on bail. It may appear that this provision contains some discrimination between persons who are already on bail and persons who are in judicial custody. The provision clearly shows that if an accused already on bail has accepted tender of pardon, he cannot be detained in custody under Clause (b) of Section 306(4) of Cr.P.C. This provision can be applied only in the case of an accused who has been in judicial custody, and has accepted the tender of pardon. The purport of the provision contained in Clause (b) is only that an accused person in judicial custody shall not be mechanically released by the court on the ground that he has ceased to be an accused and has gained the B.A No.4442 of 2016 5 status of a witness. In short this particular provision does not contain any total prohibition, that such an accused, who has accepted tender of pardon while in judicial custody, shall not in any circumstance be released. The prohibition contained in Clause (b) of Section 306 (4) Cr.P.C is not discriminatory at all. The benefit of bail availed by the other accused can very well be given to the remand prisoner also on acceptance of tender of pardon, and he can be released on bail by the High Court in exercise of the powers under Section 482 Cr.P.C, if not under Section 439 Cr.P.C, in appropriate and justifiable circumstances. On a consideration of the various legal aspects, and also the various precedents on the point this Court held in Saidevan Thampi's case, that even a remand prisoner who has accepted tender of pardon can be released by the High Court under Section 482 Cr.P.C in justifiable circumstances. The present application is made by the petitioner under Section 439 Cr.P.C. Of course, if the court finds that he is entitled to be released, or that he has justifiable reasons to seek orders under Section 482 Cr.P.C, this Court can very well treat the application as one under Section 482 Cr.P.C and release him. 6 B.A No.4442 of 2016 5. In Saidevan Thampi's case the learned Singe Judge of this Court laid down the following propositions as regards the exercise of discretion by the High Court, in view of the prohibition contained in Section 306(4)(b) of Cr.P.C. - i) Section 306(4)(b) Cr.P.C is an enabling provision which empowers the authorities concerned to detain a person who has been tendered pardon. - ii)The authorities mentioned in Section 306 Cr.P.C are precluded from releasing the person who has been tendered pardon, from custody. - iii)In view of the fact that a person tendered pardon stands discharged, and occupies the status of a witness, Sections 437 and 439 Cr.P.C are not available to release him from custody. - iv)Section 306(4)(b) Cr.P.C cannot be taken as an absolute prohibition or fetter on the inherent power of the High Court under Section 482 Cr.P.C in appropriate cases to release the approver from detention on such conditions as the court deems fit. 6. As regards the scope and purport of the prohibition contained in Section 306(4)(b) Cr.P.C and the 7 B.A No.4442 of 2016 powers of the High Court under Section 482 Cr.P.C to release approvers, I am fully in agreement with the learned Single Judge, and the propositions settled in Saidevan Thampi's case. But I feel that it requires to be explained, in what all circumstances the High Court shall not exercise such discretion to release an approver under Section 482 Cr.P.C. 7. The object of Section 306(4)(b) Cr.P.C is two fold. One is to ensure that the approver does not cross over to the other side due to pressure or influence or threat, and the other object is to protect the approver from all possible threats to his person and life. The law must be always anxious to protect such a person who has come forward to help the prosecution or to divulge the truth before the court, when he continues in custody involuntarily. The law need not have such concern or anxiety in the case of a person who is at large on bail, and who has his kith and kin to protect him. It is this concern and anxiety that is reflected in Clause (b) to Section 306(4) Cr.P.C. 8. When an application from an approver comes under Section 482 Cr.P.C on acceptance of tender of pardon, to release him on bail, the High Court will have to consider so B.A No.4442 of 2016 8 many aspects. One is the possible suspicion regarding the reliability of the approver, due to his antecedents, the other is the possibility of the approver being influenced or won over by the defence, the third one is the possible threat to his person and life, and the fourth one is the possibility of the approver fleeing from the process of law and the process of trial to rescue himself from the unpleasant situation of implicating his own crime partner. The above four factors are the main factors and circumstances which the High Court will have to consider when the High Court is called upon to exercise the discretion in favour of an approver, under Section 482 Cr.P.C. 9. Admittedly, the petitioner herein is a previous convict. He has more than two convictions to his credit. The second accused is also a previous convict, with whom the petitioner developed acquaintance while undergoing sentence in jail. In Saidevan Thampi's case, the learned Single Judge of this Court observed in paragraph 82 as follows: “There may be some doubt regarding the actual character of the person who is tendered pardon. Of course, the moment he is tendered pardon, he transforms into the position of a witness. But it is difficult to say that he altogether sheds the character of 9 B.A No.4442 of 2016 an accused. It will be appropriate to understand the position that the status of an accused, who is tendered pardon, his position as an accused remains under an eclipse as long as he adorns the character of a witness and satisfies the conditions of pardon”. 10. The circumstances where the discretion of this Court under Section 482 Cr.P.C cannot be exercised in favour of an approver, are the following. a. Some elements of doubt lingering in the mind of the court regarding the reliability of the person who accepted tender of pardon, in view of his antecedents including involvement in crimes or in illegal or immoral activities. b. The possibility of the approver crossing over to the other side due to pressures or influences. c. Possible threats to his person and life, from the other accused who will definitely have grudge against the crime partner who crossed over to other side to help the prosecution. d. The possibility of the approver fleeing from the process of law without making himself available for trial, with the object of rescuing himself from an unpleasant situation of implicating his crime partner. 11. In this case, there are some elements of doubt B.A No.4442 of 2016 10 regarding the reliability of the approver in view of his antecedents including previous convictions, and involvement in unlawful or criminal activities. Though he has gained the status of a witness, he cannot be fully believed till he fully satisfies the conditions of pardon as an approver. As observed by the learned Single Judge in Saidevan Thampi's case his position will always remain under an eclipse, and he will be under observation till he satisfies the conditions of pardon. Here I find that there are some reasons to doubt his reliability even though he has gained the status of a witness on acceptance of tender of pardon. 12. The second accused is also a previous convict. The way in which the other accused hatched a conspiracy with the junction of this petitioner shows unerringly that there will always be the possibility of the others trying to influence or win over the petitioner, for fear that, if he revealed the truth, they will be put in trouble, and they will have to go to jail. When such possibilities are there, the possibility of the petitioner crossing over to the other side, to help his crime partners cannot be ruled out. So also, there is another possibility in this case, that the other accused who hatched a design to kill a 11 B.A No.4442 of 2016 person may even make an attempt on the life of the approver. It must be the concern of the law to protect his person and life in the above circumstances. When put in such a circumstance of embarrassment and delicacy in view of influences or threats from the other side, and his own predicament and confusion as to why he should turn against his crime partners, it is quite possible that he will try to flee from the process of law, either to save himself or to avoid an unpleasant situation of implicating his crime partners. 13. In the present case, where I find many circumstances including some doubt regarding the reliability of the approver, the possibility of his fleeing from the process of law, or the possibility of his crossing over to the other side, I feel it inappropriate and unsafe to release the petitioner under Section 482 Cr.P.C. In the result, this application is dismissed, on the finding that the petitioner is not entitled to be released under Section 482 Cr.P.C. Sd/- **P.UBAID JUDGE** ab/ma //True Copy//