N Vijaya Kumar v. State of Kerala; Thomas J Vayalat v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **MONDAY, THE 15TH DAY OF FEBRUARY 2021 / 26TH MAGHA,1942** ## **Bail Appl..No.8035 OF 2020** **CRIME NO.2/2020 OF VACB, ERNAKULAM , Ernakulam** ## **PETITIONER/S:** **N VIJAYA KUMAR 1295, POORNIMA EAST PALLIYARAKAVU, KOCHI 682002 BY ADV. SRI.K.A.SALIL NARAYANAN** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031 R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI.A.RAJESH-SPL.PP VIGILANCE** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 14.1.2021, ALONG WITH Bail Appl..8038/2020, THE COURT ON 15.02.2021 PASSED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **MONDAY, THE 15TH DAY OF FEBRUARY 2021 / 26TH MAGHA,1942** ## **Bail Appl..No.8038 OF 2020** **CRIME NO.V2/2020/CRE/2020 OF VACB, ERNAKULAM , Ernakulam** ## **PETITIONER/S:** **THOMAS J VAYALAT AGED 52 YEARS MANAGER, COCHIN COLLEGE, KOOVAPADAM, KOCHI 682002 BY ADV. SRI.BALU TOM** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031** **R1 BY SRI.A.RAJESH-SPL.PP VIGILANCE** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 14.1.2021, ALONG WITH Bail Appl..8035/2020, THE COURT ON 15.02.2021 PASSED THE FOLLOWING:** BA 8035 & 8038/2020 3 ## **COMMON ORDER** **[ Bail Appl..8035/2020, Bail Appl..8038/2020 ] Dated this the 15th day of February 2021** Applications for anticipatory bail under Section 438 Cr.P.C. The applicant in B.A 8035/2020 is the 2nd accused while the applicant in B.A 8038/2020 is the 3[rd] accused in Vigilance Crime 02/2020 of Vigilance Anti Corruption Bureau, Central Range, Ernakulam for having allegedly committed offence punishable under Section 7 of the Prevention of Corruption Act ('PC Act' for short). 2. The prosecution case, in brief, is thus: The 1[st] accused who was working as a clerk in the office of Cochin College, Mattanchery, an aided college, allegedly demanded ₹135,000/- from the de facto complainant as capitation fee to admit his daughter to B.A. Economics Course in the management quota. The de facto complainant was asked BA 8035 & 8038/2020 4 to reach near the college premises with the money and the duly filled up application form on 13/10/2020. The de facto complainant informed the Vigilance authorities in consequence to which a trap was laid and the 1[st] accused was caught redhanded from K.B. Jacob Road while accepting 5000/- in cash₹ and a cheque for 130,000/- from the de facto complainant.₹ Search was conducted by the Vigilance authorities in the rented residence of the 1[st] accused and they seized unaccounted cash of 412,000/-, and several application forms for admission to₹ different courses in the college. The 3[rd] accused is the Manager of the College while the 2[nd] accused is the Secretary to the Manager. The allegation against them is that the capitation fee allegedly accepted by A1 was for and on behalf of the management and hence, the applicants who had received the amounts were also responsible and liable. 3. The applicants state that the they are not paid employees of the college and are not getting any remuneration from the college. They deny having got any capitation fee for BA 8035 & 8038/2020 5 admission of students. The College is managed by a registered society known as Cochin College Educational Society, registered under the Travancore Cochin Literary Scientific and Charitable Societies Act, 1955. The Board of Management of the Society consists of more than 11 elected and four exofficio members consisting of the Mayor and Deputy Mayor of Cochin as also the President and Vice President of the Cochin Chamber of Commerce. The Manager is the Chairman of the Governing Body. Regarding the conduct of elections to the Board of Management of the Society, there were certain disputes between the Members. The said dispute is pending consideration before the Munsiff's Court, Cochin as OS No. 193/2019. The disgruntled persons who failed to get admitted as Members of the Society filed fictitious complaints. A Writ Petition is also pending before the High Court with regard to the dispute between the Members. It is submitted that Section 7 of the PC Act contemplates taking of illegal gratification by a public servant and the applicants are not public servants BA 8035 & 8038/2020 6 coming within the purview of Section 7. They cannot therefore be proceeded against. The applicants state that no decision was taken by the management to receive the donation from the candidates seeking admission to various courses and that no one has been authorised or instructed to receive donation for and on behalf of the management. The applicants were called to the office of the Vigilance Department at Cochin. They were subjected to extensive interrogation. They have not accepted any amount as either capitation fee or donation. Since they apprehend arrest, they seek anticipatory bail. 4. Heard the learned Senior Counsel, Sri Ramesh Chander, for the applicant in B.A. 8038/2020 and Advocate Sri K.A. Salil Narayanan for the applicant in B.A. 8035/2020 and also Sri A.Rajesh, the learned Special Public Prosecutor for the Vigilance. Documents produced by the applicants and Case Diary perused. 5. The applicants are intended to be proceeded against under Sections 7 and 13 (1) (d) of the P.C. Act. The argument BA 8035 & 8038/2020 7 of the learned Senior counsel Sri Ramesh Chander is that there are no materials to proceed against the applicants for an offence under the P.C. Act. It is also stated that the applicants are not public servants getting remuneration from the Government so as to be held responsible for illegal gratification under the provisions of the Act. Section 2 (c) of the P.C. Act defines a "public servant"; Section 2 (c) (xii) states that "any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority." There is no doubt that Cochin College, Mattanchery is an aided college receiving financial assistance from the Central Government or any State Government. A3 is the Manager of the Society running the college and A2 is his Secretary. There is no dispute about this. Under the circumstances, I find that the applicants cannot shirk their responsibility from being "public servants" BA 8035 & 8038/2020 8 under the purview of the Act, in case they committed an offence under the Act. Going by the accusations, if it is sustainable, offence under Sections 7 and 13 (1) (b) of the P.C. Act would be attracted. But it is to be determined whether from the materials collected so far by the investigating officer, an offence under the aforesaid provisions is made out as against the applicants. 6. The de facto complainant is a person named M.M.Anas who had allegedly paid illegal gratification to A1, the clerk of the College to secure admission for his daughter. In the complaint, there is no mention about the involvement of the applicants. A1 has allegedly given a statement regarding the involvement of the applicants in demanding capitation fee from students seeking admission. The de facto complainant has given a subsequent statement in which he has stated of having met the 2[nd] accused and made enquiries and he had informed him that there are seats available for B.B.A. course but no seats are available for B.A.Economics. A2 had asked him BA 8035 & 8038/2020 9 to meet A1. In his subsequent statement also the de facto complainant has stated that A2 had asked him to meet A1. It is only the statement of A1 that he has mentioned about the de facto complainant meeting A2 and his demanding capitation fee. Nowhere is there a mention about the management or A3 demanding capitation fee. Statements of the President, Secretary and Board Members of the Managing Committee have been recorded and none of them have stated regarding the managing committee deciding to take capitation fee or donation from the students for the purpose of admission. The Principal and the Professors have also not stated regarding the management taking a decision in the Governing Body meeting to demand capitation fee. 7. Taking into consideration the entire materials available at present, I find that there is substantial material against the 1[st] accused receiving capitation fee for admission but there are no materials available to indicate the complicity of the applicants herein. There was an interim direction by this BA 8035 & 8038/2020 10 Court to the applicants to appear before the investigating officer and cooperate with the investigation. The applicants did appear and subject themselves to questioning by the investigating officer. The investigating officer has however filed a report to the effect that the applicants were reluctant to reveal about the money they have collected as capitation fees from the parents of the students who took admission under management quota in the College during the academic year. It is for the prosecution to prove the receipt of capitation fee by the persons accused of the offence. The investigating officer in this case is attempting to get a confession from the applicants and for that purpose, they seek custodial interrogation. It is true that custodial interrogation is a part of investigation and in grave crimes and offences involving illegal gratification, custodial interrogation may be essential and the investigating agency cannot be deprived of that opportunity to subject the accused to such interrogation. But at the same time the accused persons can be subjected to custodial interrogation BA 8035 & 8038/2020 11 only if prima facie there are materials indicating the complicity of the accused. I have gone through the case diary made available by the prosecution. At present there is not a scintilla of evidence indicating the complicity of the applicants and hence custodial interrogation of the applicants in consequence to their arrest would only lead to extracting of confession by deploying third degree methods. Court cannot be part of such activity. The reports filed by the prosecution clearly indicates that even after repeated interrogation, the applicants are reluctant to reveal the details of the money which they had allegedly collected as capitation fee. Custodial interrogation for that purpose cannot be granted. The applicants do not have any criminal antecedents. There is no possibility of their absconding as they have in compliance with the direction of this Court appeared before the investigating officer for interrogation more than once. There is no possibility of their fleeing from justice or getting involved in offences of similar nature. BA 8035 & 8038/2020 12 ## 8. In Siddharam Satlingappa Mhetre v. State of Maharashtra and Others [2010 KHC 4952 : AIR 2011 SC 312] , the Apex Court held thus: “95. The gravity of charge and exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court. 96. It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. 97. A great ignominy, humiliation and disgrace is attached to the arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre - conviction stage or post - conviction stage. Whether the powers under S.438 CrPC are subject to limitation of S.437 CrPC.?” ## The court has laid down parameters for consideration of prearrest bail, and observed thus: “122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: BA 8035 & 8038/2020 13 i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences. v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of S.34 and S.149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 123. The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case.” BA 8035 & 8038/2020 14 Applying the parameters stated above, the applicants are entitled to pre-arrest bail. 9. In the result, the bail applications are allowed and the applicants are directed to appear before the investigating officer within two weeks. In the event of their arrest, they shall be released on bail on execution of bond for ₹ 1,00,000/(Rupees one lakh only) each with two solvent sureties for like amount each to the satisfaction of the arresting officer and on following conditions: 1. The applicants shall appear before the investigating officer on all Saturdays between 9 AM and 12 noon for a period of two months or till filing of the final report, whichever is earlier; 2. The applicants shall not tamper with evidence, influence or intimidate witnesses; 3. The applicants shall not get involved in offences of similar nature. Breach of the conditions stated above shall entail in BA 8035 & 8038/2020 15 cancellation of the bail on an application being filed by the prosecution before the jurisdictional Court. **Sd/-** **ASHOK MENON JUDGE** jg