Purushan Eloor v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 14TH DAY OF FEBRUARY 2018 / 25TH MAGHA, 1939 Bail Appl..No. 216 of 2018** **CRIME NO.634/2017 OF VARAPUZHA POLICE STATION, ERNAKULAM DISTRICT --------------** ## **PETITIONER/2ND ACCUSED:** **PURUSHAN ELOOR, AGED 51 YEARS, S/O.VELAYUDHAN, VAILOKUZHY HOUSE, ELOOR NORTH, UDYOGAMANDAL P.O., PIN - 683 501.** **BY ADVS.SRI.K.K.ASHKAR SMT.ASHIRA MOHAMED ASHROF** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** ## ***ADDL.R2 IMPLEADED** ***ADDL.R2: N.AJITH, S/O.T.N.NARAYANAN KARTHA, AGED 60 YEARS, RESIDING AT SATHI VILASAM, MUNDAVOOR.P.O., MOOVATTUPUZHA, ERNAKULAM DISTRICT.** ***ADDL.R2 IS IMPLEADED AS PER ORDER DATED 14/02/2018 IN CRL.M.A.NO.378/2018.** **BY PUBLIC PROSECUTOR SRI.SAJJU.S. ADDL.R2 BY ADVS. SRI.BABU S. NAIR SRI.P.GOPINATH** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14-02-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **RAJA VIJAYARAGHAVAN V., J** = = = = = = = = = = = = = = = = = = ## B.A. No.216 of 2018 = = = = = = = = = = = = = = = = = = Dated this the 22[nd] day of January, 2018 ## **ORDER** 1. The petitioner herein is the 2[nd] accused in Crime No.634 of 2017 of the Varapuzha Police Station, registered alleging offences punishable under Sections 120B, 193, 196, 468 and 471 r/w. Section 34 of the IPC. 2. The aforesaid Crime was registered on a complaint filed by the Chief General Manager of M/s. Cochin Minerals and Rutiles Limited. The 1st accused in the crime is Shibu Manual, an Environmental activist, and the 3rd accused is one Chitra Kumari, an Environmental Engineer, with the Pollution Control Board. The 3[rd] accused was in charge of the Environmental Surveillance Centre, Eloor. 3. According to the complainant, the Company of which he is the General Manager, is one of the top Companies in Kerala and employs more than a 1000 people. A writ petition was instituted by the 1[st] accused before this Court with the State, the Pollution Control Board, Statutory authorities and some Companies as respondents. The prayer was to direct the respondents to ensure that the Periyar River in and around **-:2:-** BA.216/18 the Eloor Area are cleared of Pollutants and for incidental reliefs. According to the de facto complainant, the accused in the crime hatched a conspiracy with certain officers of the Pollution Control Board and forged a fake report titled “Report regarding the discolouration of river Periyar” as if it was made by a responsible officer of the Pollution Control Board. This was with intent to secure orders by misleading this Court that the River Periyar was being polluted by the effluents discharged by M/s.CMRL Ltd. The report so produced is unsigned and unsealed and was brought into existence in a fraudulent manner with the sole intent to tarnish the reputation of the Company and to see that it is shut down. 4. Heard the learned counsel appearing for the petitioner, the learned counsel appearing for the de facto complainant, who has entered appearance, and the learned Public Prosecutor. 5. The learned counsel appearing for the petitioner submitted that the 1[st] accused in the crime is an environmental activist and the Secretary of Green Action Force, an **-:3:-** BA.216/18 environmental organisation. He had filed a writ petition before this Court seeking a direction to ensure that the river Periyar is free of all pollutants discharged by companies, which is doing business in that area. According to the learned counsel, the Chairman, Kerala State Pollution Control Board, had convened a meeting of environmental activists, trade union leaders and others on 12.8.2011 at the Ernakulam Regional Office of Pollution Control Board to discuss on the mounting public complaints regarding discolouration of the river. The petitioner herein as the research co-ordinator of Periyar Malineekarana Virudha Samithi also participated in the said meeting. The 3[rd] accused placed the details of the Board instructions and reports regarding discolouration caused in river Periyar during 20.7.2011 to 9.8.2011 which was meant to be submitted before the Member Secretary, Kerala State Pollution Control Board. The said report was handed over to him on his request. The learned counsel refers to AnnexureA6 minutes of the meeting to substantiate that he had attended the meeting on 12.8.2011. The covering letter **-:4:-** BA.216/18 contained the signature of the 3[rd] accused, but the report was not signed. The learned counsel would further submit that the said report was handed over by the petitioner herein to the 1[st] accused, who in turn, produced the same before this Court as an exhibit in the writ petition filed by him. The learned counsel would urge that he had later submitted a request under the Right to Information Act requesting for a certified copy of the discolouration report prepared by the Environmental Engineer and also the covering letter dated 12.8.2011. It is submitted that a true copy of the report was issued to the petitioner by the Environmental Engineer as is evidenced by Annexure-A8. It is submitted that Annexure-A8 furnished by the Environmental Engineer, ESC, Eloor, is exactly the same report which was produced by the 1[st] accused in the writ petition. Referring to the endorsement in Annexure-A8, it is submitted that even in the document which was in the files of the Pollution Control Board, the signature of the Environmental Engineer who signed the report is absent. The learned counsel would further invite the attention of **-:5:-** BA.216/18 this Court to the endorsement made by the Environmental Engineer who issued the report, wherein he has endorsed that the said report was not signed by the Environmental Engineer who prepared it, but since it is seen in the file which is in the office, the unauthenticated report was being issued on the request of the applicant. 6. It is further submitted that later another Environmental Activist, Mr.K.K.Mohammed Iqbal had sought for information regarding the actions taken upon the report regarding discolouration of river and the public information officer of the Pollution Control Board had issued AnnexureA9 report. In his request for information, he had specifically requested for the report dated 12.8.2011, prepared by Smt.Chitra Kumari, the Environmental Engineer concerning the discolouration of the river. This report is exactly identical to the report issued to the petitioner under the Right to Information Act and produced as Annexure-A8. Further more, the same exact report was produced by the 1[st] accused in the writ petition. The learned counsel for the petitioner submitted that due to an inadvertent error at the **-:6:-** BA.216/18 time of filing of the bail application, the covering letter of the Environmental Engineer, who has been arrayed as the third accused, was annexed along with Annexure-A9 report, though it was not actually issued by the Information Officer of the Pollution Control Board. In otherwords, the contention of the learned counsel is that the petitioner has not brought into existence the said report but the same was handed over to him by the Environmental Engineer. The learned counsel would further submit that the allegation in the FIR that it was after filing of the report that the complainant company was impleaded as additional respondent is untrue. It is submitted that the complainant Company was impleaded as early as on 1.12.2011 whereas the 1[st] accused had filed the exhibit before court only on 2.11.2012. It is further submitted that the report is said to be fake and forged only on the specious allegation that it does not contain the signature and seal of the officer who had prepared it. However, Annexures-A8 and A9 would reveal that it was exactly the same report which was in the files of the office of the Pollution Control Board. It is further **-:7:-** BA.216/18 urged that the complainant had filed a suit against a Television Channel and the 3[rd] accused for publishing the alleged report in the Reporter channel. However, the said suit which was filed as O.S. No.130 of 2014 and pending on the files of the Sub Court, North Paravur, was later settled as evidenced by Annexure-A14. The learned counsel would also refer to certain news items which appeared in prominent dailies and produced as Annexures-A7, A10 and A12 to contend that after handing over the report to the petitioner herein, much effort was made by certain officials of the pollution control board to hush up the said report. According to the learned counsel, the report which he had handed over to the 1[st] accused was the one which was handed over to him by the 3[rd] accused, who is a responsible officer of the Pollution Control Board and the author of the report. In view of Annexures-A8 and A9, it is evident that the petitioner has not committed any offence whatsoever and prays that he be spared from the rigours of custodial interrogation. 7. The learned public prosecutor has vehemently opposed the **-:8:-** BA.216/18 submissions of the learned counsel. It was contended that the report handed over by the petitioner herein to the 1[st] accused is not an authenticated one. No such report was prepared by the environmental engineer and the contention now advanced that a copy of the said report was handed over by the Environmental Engineer to the petitioner herein has been found to be incorrect. According to the learned public prosecutor, a nine page report was forwarded by Smt.Chitra Kumari to the head office of the Pollution Control Board at Thiruvananthapuram, but the said report was signed on all nine pages. It is further submitted that the investigation so far conducted has revealed that by some mode, may be with the concurrence of some officers of the Pollution Control Board, the report was placed inside the file stealthily. The authenticity of the said report is still in doubt. The petitioner is not entitled to an order of prearrest bail is the submission. 8. The de facto complainant has entered appearance through - counsel. The learned counsel would support the submissions of the learned Public Prosecutor. The learned **-:9:-** BA.216/18 counsel would further content that this is a clear case of fabrication of false document and use of such document as genuine in a judicial proceeding. According to the learned counsel, the report in question was produced with a view to secure orders from this court and to ensure that the functioning of M/s.CMRL is brought to a standstill. It is emphatically urged that Annexure-A5 is a totally fabricated and concocted document. The same is not the report prepared by Smt.Chitra Kumari. Annexure-R2(a), copy of the despatch register would falsify the contention of the learned counsel that on 12.8.2011 the said report was forwarded by Smt.Chitra Kumari to the Member Secretary of the Pollution Control Board. The learned counsel would also refer to Annexure-R2(b), which is a copy of the mail register kept in the office of the Environmental Surveillance Centre. The learned counsel would further submit that in response to the application dated 9.1.2012, submitted by the 1[st] accused before the Environmental Engineer for a copy of the discolouration report, Annexure-R2(d) reply was issued wherein it has been stated that no authenticated **-:10:-** BA.216/18 report has been prepared regarding the discolouration during the said period by the Environmental Engineer. If that be the case, the 1[st] accused could not have produced the exhibit before this Court in the Writ Petition on 2.11.2012. The learned counsel would also submit that for reasons best known to the 1[st] accused, he persisted in filing yet another application on 22.1.2013 under the Right to Information Act and in response, the Environmental Engineer has given Annexure-R2(f) reply that there is a report in the file having nine pages but as the same has not been signed or sealed by the Environmental Engineer, the same cannot be said to be authentic and therefore it cannot be certified. On the basis of these contentions, the learned counsel submits that the 1[st] accused as well as the petitioner has brought into existence Annexure-A5 report and only a detailed investigation would reveal whether any officers of the Pollution Control Board is involved. The learned counsel would also rely on the decisions of the Apex Court in **Maruti Nivrutti Navale v. State of Maharashtra and Another** [2012(9) SCC 235], **State** BA.216/18 ## **-:11:-** **represented by the C.B.I. v. Anil Sharma** [(1997) 7 SCC 187] and **Bharat Chaudhary v. State of Bihar** [(2000) 3 SCC 77] to contend that the custodial interrogation of the petitioner cannot be dispensed with in a case of instant nature. 9. I have anxiously considered the submissions advanced and have gone through the case diary. 10. The specific contention of the petitioner is that the report which has been marked as Exhibit P17 in W.P.(C) No.30123 of 2017 was handed over to him by Smt.Chitra Kumari, who was the Environmental Engineer, ESC, Eloor. To prove his presence in the said meeting, the petitioner relies on Annexure-A6 Minutes and Attendance Sheet. The report regarding the discolouration of the river Periyar comprises of nine pages. There is also a covering letter which is numbered as PCB/ESC/CM-33/08 which is dated 12.8.2011 and a letter dated 22.7.2011, which is said to be a warning letter issued from the Environmental Engineer to M/s.CMRL. From Annexure-A8 letter dated 22.1.2013, issued by K.G.Sajeev, the Environmental Engineer to the 1[st] accused, **-:12:-** BA.216/18 Shibu Manuel, it is evident that the letter dated 22.7.2011 and letter dated 12.8.2011 which were produced by the 1[st] accused in the Writ Petition are genuine and the same has been signed by the Environmental Engineer. However, insofar as the report which is dated 12.8.2011 is concerned, though the Environmental Engineer states that the same relates to the discolouration of river Periyar and that too for the period from 20.7.2011 till 9.8.2011, he refuses to attest the same as it has not been signed on all pages by the Environmental Engineer. However, the same copy of the report was issued with an endorsement that it is not an authenticated report. In the last page, the endorsement is as follows: “This report was not signed by the Environmental Engineer who prepared it. But since it is seen in the file, this report is issued on request by Mr.Shibu Manuel. This report is not an authenticated report. (9 pages)” 11. From the said endorsement, what is evident is that such a report was in the file of the Pollution Control Board and the same was not signed by the Environmental Engineer. However, the covering letter and the warning letter which **-:13:-** BA.216/18 were issued along with is signed by the Environmental Engineer. No one has a case that such a report was not prepared. The State has no case that the entries are forged or are different. Even Smt. Chitra Kumari has no such case. It also appears that by Annexure-A9, Sri.K.K.Mohammed Iqbal had requested for information from the Public Information Officer of the State Pollution Control Board and Question No.18 was with regard to the discolouration of the river Periyar and also the report dated 12.8.2011 and he had also sought for a copy of the said report. In response, the same report signed by the Public Information Officer which contains nine pages was issued to Smt.Mohammed Iqbal from the Head Office at Thiruvananthapuram. The said report also does not contain the signature of the Environmental Engineer who prepared it. In that view of the matter, the contention of the State as well as the learned counsel appearing for the de facto complainant that the petitioner had forged and manipulated the report and it was handed over to the 1[st] accused for being produced before the Court as an exhibit cannot be, **-:14:-** BA.216/18 prima facie, accepted. I am of the considered view that the petitioner has made out a case for issuance of an order of pre-arrest bail. In order to safeguard the interest of the prosecution, sufficient conditions can be imposed to ensure that the petitioner joins the investigation and co-operates with the same. In the result, this petition will stand allowed. However, it shall be subject to the following conditions: (i)The petitioner shall appear before the Investigating Officer within ten days from today and shall undergo interrogation. Thereafter, if he is proposed to be arrested, he shall be released on bail on his executing a bond for a sum of Rs.50,000/- (Rupees Fifty thousand only) with two solvent sureties each for the like sum. (ii)The petitioner shall co-operate with the investigation and shall appear before the Investigating Officer on every Saturday between 10.a.m and 1 p.m for a period of one month or till the final report is filed whichever is earlier. (iii)The petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/ her from disclosing such facts to the court or to any police officer, nor shall he tamper with the evidence. (iv)The petitioner shall not commit any similar offence while on bail. (v)The petitioner shall not leave the country except with the prior permission of the court having jurisdiction. **-:15:-** BA.216/18 In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law. **Sd/-** **RAJA VIJAYARAGHAVAN V, JUDGE** ps/14/2/17 //True copy// PS to Judge