Rejimon C.B. and Others v. Central Bureau of Investigation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **TUESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA, 1941** ## **Bail Appl..No.1398 OF 2020** **AGAINST THE ORDER/JUDGMENT IN CRMP 543/2020 DATED 20-022020 IN CRIME NO. RC 01 (S) 2020/CBI/SCB/THIRUVANANTHAPURAM OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE, ERNAKULAM** **CRIME NO.349/2019 OF Peerumedu Police Station , Idukki** ## **PETITIONER/S:** **1 REJIMON C.B. AGED 48 YEARS S/O.BHASKARAN, NAVAMI VEETIL, BLOCK NO.112, THOOKUPALAM BHAGAM, KALLAR KARA, KARUNAPURAM VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT, KERALA-685 553.** **2 NIYAS.S., AGED 33 YEARS S/O.SAIDU HASSAN, PUTHANVEETIL, NEAR LIC OFFICE, NEDUMKANDAM KARA, KALKOONTHAL VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT, KERALA-685 553.** **3 SAJEEV ANTONY, AGED 42 YEARS S/O.ANTONY JOSEPH, MULANGASSERIL HOUSE, MANJAPPETTY BHAGAM, NEDUMKANDAM KARA, KALKOONTHAL VILLAGE, IDUKKI DISTRICT, KERALA685 553.** -: 2 :- ## **Bail Appl..No.1398 OF 2020** - **4 JAMES.K.M., AGED 52 YEARS** - **S/O.MATHEW, KONNAKKAL VEETIL, NEAR RPM SCHOOL, CHOTTUPARA, UDUMBANCHOLA, IDUKKI DISTRICT, KERALA-685 588.** - **5 JITHIN K.GEORGE, AGED 31 YEARS** - **S/O.GEORGE.K.C., KUNNEL HOUSE, KALAYANTHANI KARA, ALAKKOD, THODUPUZHA TALUK, IDUKKI DISTRICT, KERALA-685 588.** - **6 ROY P.VARGHESE, AGED 54 YEARS S/O.MAMACHAN, KUZHIMALAYIL VEETIL, MUNIYARA BHAGAM, KONNATHADY VILLAGE, IDUKKI DISTRICT, KERALA-685 571.** **BY ADVS. SRI.K.GOPALAKRISHNA KURUP (SR.) SRI.K.S.ARUNDAS SRI.ABHISHEK KURIAN SMT.ANUROOPA JAYADEVAN SHRI.ASHRUTH NASER** ## **RESPONDENT/S:** - **1 CENTRAL BUREAU OF INVESTIGATION SPECIAL CRIMES BRANCH, T.C.76/1757/5, MUTATHARA VALKKADAV P.O., THIRUVANANTHAPURAM-695 008, REPRESENTED BY SPECIAL PROSECUTOR CBI, HIGH COURT OF KERALA, ERNAKULAM-682 031.** -: 3 :- ## **Bail Appl..No.1398 OF 2020** **2 ADDL.R2.M.VIJAYA AGED 46 YEARS W/O.LATE RAJKUMAR,KASTHURI BHAVAN, WARD NO.XVI OF ELAPPARA GRAMA PANCHAYATH, KOLAHALAMEDU.P.O, IDUKKI DISTRICT-685501, KERALA STATE** **( ADDL.R2 IS IMPLEADED AS PER ORDER DATED 25.02.2020 IN CRL.M.A.1/2020).** **R2 BY ADV. YASH THOMAS MANNULLY R2 BY ADV. SRI.SOMAN P.PAUL R2 BY ADV. SHRI SANTHOSH JACOB R2 BY ADV. SMT.NISHY THOMAS MANNULLY** ## **OTHER PRESENT:** **SRI. SASTHAMANGALAM S. AJITHKUMAR, SPL.PP FOR CBI,** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.02.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** -: 4 :- ## **Bail Appl..No.1398 OF 2020** ## **ORDER** **The petitioners are accused Nos. 2 to 7 in RC 01 (S)/2020/CBI/SCB/TVPM of CBI (Crime No. 390/CB/IDK/R/ 2019 of CBCID) registered for the offences punishable under Sections 343, 348, 323, 324, 330, 331 and 302 read with Section 34 IPC.** **2. The petitioner Nos. 2, 3, 4 and 6 were granted bail by this Court as per Annexure Nos. A2 to A4 orders and** **petitioner Nos. 1 and 5 were granted bail by the Sessions Court as per Annexure – A1 order. Initially, the bail was granted at the time, when the case was under** **investigation by the Crime Branch. Thereafter, the case was transferred to CBI** -: 5 :- **Bail Appl..No.1398 OF 2020** **for investigation. Annexure – A6 FIR was registered by CBI on 24.01.2020. The petitioners were required to appear before the present Investigating Officer on 18.02.2020. Accordingly, all the petitioners appeared before the Investigating Officer on that date. The Investigating Officer arrested the petitioners and produced them before the Chief Judicial Magistrate Court, Ernakulam. The learned Magistrate, as per Annexure–A10 order, dismissed the application for bail filed by the petitioners and remanded the petitioners to custody.** **3. Heard the learned Senior Counsel for the petitioners Advocate Sri.K.Gopalakrishna** -: 6 :- **Bail Appl..No.1398 OF 2020** **Kurup, the learned Retainer Counsel for CBI, Advocate Sri. Sasthamangalam S. Ajith Kumar and the learned Counsel for the second respondent, Advocate Sri. Yash Thomas Mannully.** **4. The first question to be considered is as to whether the arrest of the petitioners by the Investigating Officer on 18.02.2020 was justified or not. It is not disputed that Annexure Nos. A2 to A4 orders passed by this Court and Annexure – A1 order passed by the Sessions Court were not challenged before the Hon'ble Apex Court. The bail granted to the petitioners by this Court and the Sessions Court was not challenged before this Court or before the Hon'ble Apex Court.** -: 7 :- **Bail Appl..No.1398 OF 2020** **As per Annexure – A5, the bail granted by this Court to the first accused was cancelled by the Hon'ble Apex Court. It can be seen from Annexure – A5 that the application for cancellation of bail was filed by the prosecution against the first accused alone. It appears from Annexure – A5 that the question of cancellation of bail granted to the petitioners was not under consideration by the Hon'ble Supreme Court in Annexure – A5 order. It is clear from** **Annexure – A5 order that the Hon'ble Supreme** **Court cancelled the bail granted to the first accused alone as per the above said order. Thus, it can be seen from Annexure – A5 that the bail granted by this Court or** -: 8 :- **Bail Appl..No.1398 OF 2020** **the Sessions Court to the petitioners was not cancelled by the Hon'ble Apex Court as per Annexure – A5 order. In the said circumstances, the bail granted by this Court and the Sessions Court to the petitioners was in force at the time when they were arrested by the Investigating Officer on 18.02.2020. Even then, the petitioners were arrested by the present Investigating Officer without any lawful authority. The learned Magistrate in-charge of the learned Chief Judicial Magistrate remanded the petitioners.** **5. It is settled law that once bail is granted to a person, that bail will be in force until and unless it is cancelled by** -: 9 :- ## **Bail Appl..No.1398 OF 2020** **the Court granting the bail or by the superior court. In this case, it is admitted by the learned Retainer Counsel for the CBI that no application was filed by the Investigating Officer for cancelling the bail, already granted to the petitioners. Thus, it appears that the petitioners were arrested by the Investigating Officer during the period when the bail granted by this Court was in force. The Investigating Officer ought to have approached the Court for cancellation of the bail granted to the accused by this Court in the light of the observations in Annexure-A5 order before arresting the petitioners. However, that can be done even now.** **6. The Investigating Officer ought to have obtained permission from the Court, which granted bail to the petitioners before** -: 10 :- ## **Bail Appl..No.1398 OF 2020** **arresting the petitioners. The learned Magistrate, who was in-charge of the learned Chief Judicial Magistrate, should have also** **properly guided the Investigating Officer in** **this matter. However, since it appears that the Investigating Officer and the learned Magistrate had acted without any malice, this Court does not propose to initiate any action against them.** **7. It has been submitted that the application for police custody, filed by the Investigating Officer, is presently pending consideration by the Chief Judicial Magistrate Court. Ordinarily, if any application for custody is pending, it is not proper to grant bail to the accused** ## -: 11 :- **Bail Appl..No.1398 OF 2020** **persons without disposing of the said application, as the Court has to consider whether the custodial interrogation of the accused persons is necessary before releasing them on bail. However, in this case, most of the petitioners were in custody for more than 30 days before they were released on bail as per Annexures A1 to A4 orders after their first arrest. The police custody was also given at that time.** **8. The sub-section 2 of Section 167 provides that the Magistrate to whom an accused person is forwarded under Section 167 Cr.P.C., may from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit,** -: 12 :- **Bail Appl..No.1398 OF 2020** **for a term not exceeding fifteen days in the whole. It is clear from the above provision of law that the police custody cannot be given for a term exceeding 15 days from the date of first remand.** **9. The Hon'ble Apex Court in Central Bureau of Investigation, Special Investigation Cell – I v. Anupam J.Kulkarni [AIR 1992 SC 1768] held that the police custody after the expiry of first 15 days cannot be permitted. The Hon'ble Apex Court in Satyajit Ballulbhai Desai and Others v. State of Gujarat [2014 KHC 2511= (2014) 14 SCC 434] held that there cannot be any detention in police custody after the expiry of the first 15 days even in a case where** -: 13 :- **Bail Appl..No.1398 OF 2020** **some more offences either serious or otherwise committed by the accused in the same transaction come to light at the later stage. However, it is settled law that this bar does not apply, if the same accused is involved in a case arising out of a different transaction. The above discussion would make it clear that the police custody is impermissible after the expiry of the first fifteen days of remand of the accused after his first arrest in the crime. Therefore, the present custody application cannot be legally sustained. Therefore, there is no bar in granting bail to the accused in this case, ignoring the said custody application.** **10. The Hon'ble Apex Court in Manoj** -: 14 :- ## **Bail Appl..No.1398 OF 2020** **Suresh Jadhav and Others v. State of Maharastra [2018 (2) KHC 848] held that the accused, who is on bail, cannot be rearrested even by adding new offences to the section of offences, even if the said offences are serious offences and the option of the Investigating Officer is to move to the Court seeking for cancellation of the bail already granted.** **11. The Hon'ble Apex Court in Pradeep Ram v. State of Jharkhand and Another [AIR 2019 SC 3193] held that even if new offences are added after granting bail, the accused cannot be arrested without getting permission from the court which granted bail.** -: 15 :- ## **Bail Appl..No.1398 OF 2020** **12. The Constitution Bench of the Hon'ble Apex Court in Sushila Aggarwal v. State (NCT of Delhi) [2020(1) KLT 545(SC)] considered various decisions of the Apex Court and held that the anticipatory bail granted can, depending on the conduct and behaviour of the accused, continue after the filing of the chargesheet till the end of the trial.** **13. The above discussion would make it clear that even if a more serious offence is added to the Section of offences after granting bail to the accused, the accused can be arrested only with the leave of the court granting bail. If that be the settled position, merely transferring the case to** -: 16 :- **Bail Appl..No.1398 OF 2020** **another agency for investigation and the registration of the crime by that agency will not empower that agency to arrest the accused, who is already on bail, without getting permission from the court which granted the bail.** **14. The learned counsel for the second respondent relied on the decision of the Hon'ble Apex Court in State of M.P. v. S. Trivedi [1995 KHC 484] and argued that the court should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach, while dealing with the cases of custodial crime.** **15. It is settled law that the court should be more cautious and more sensitive** -: 17 :- **Bail Appl..No.1398 OF 2020** **in dealing with the cases of custodial crime. However, in this case, the main question to be considered is as to whether the arrest of the petitioners without cancelling the bail/obtaining the leave from the court which granted the bail, was legal or not.** **16. The above discussion would make it clear that the arrest of the petitioners by the present Investigating Officer and the consequent remand of the petitioners by the learned Magistrate cannot be justified. In the said circumstances, the petitioners shall be released on bail on the same conditions as imposed in Annexures-A1 to A4 orders.** -: 18 :- **Bail Appl..No.1398 OF 2020** **In the result, this Bail Application stands allowed as above.** **I make it clear that this order will not stand in the way of the Investigating Officer in applying for cancellation of bail and seeking the custody of the petitioners/accused, in accordance with law.** **I further make it clear that no observation in this order shall be construed as adverse remark against the learned Magistrate or the Officer concerned.** **Sd/-** **B. SUDHEENDRA KUMAR, JUDGE** RK/STK