Sajan Varghese and R. Ajith Kumar v. State of Kerala and CBCID Police, Thiruvananthapuram; Addl. R3 Mujeeb Rahuman impleaded

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW** **WEDNESDAY, THE 12TH DAY OF APRIL 2017/22ND CHAITHRA, 1939** ## **Bail Appl..No. 2378 of 2017 ()** **------------------------------CRIME NO. 52/CR/OCW I/TVPM OF 2017 OF CBCID, THIRUVANANTHAPURAM.** **........** ## **PETITIONERS/ACCUSED 1 & 2:** **----------------------------------------------** **1. SAJAN VARGHESE, S/O. M.C. VARGHESE, AGED 51 YEARS, CHAIRMAN, MANGALAM TELEVISION, THIRUVANANTHAPURAM.** **2. R. AJITH KUMAR,** - **S/O. SANTHA RAGHAVAN, AGED 57 YEARS, CHIEF EXECUTIVE OFFICER, MANGALAM TELEVISION, THIRUVANANTHAPURAM.** **BY SRI.K.RAMAKUMAR, SENIOR ADVOCATE. ADVS. SRI.T.RAMPRASAD UNNI, SRI.S.M.PRASANTH, SMT.ASHA BABU.** ## **RESPONDENTS/STATE & COMPLAINANT:** **-------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **2. THE STATION HOUSE OFFICER, CBCID POLICE STATION, THIRUVANANTHAPURAM-695 001.** **.....2/-** **-: 2 :-** **Bail Appl..No. 2378 of 2017** ## *** ADDL. R3 IMPLEADED** **3. ADV. MUJEEB RAHUMAN, STATE PRESIDENT, NATIONALIST YOUTH CONGRESS, RESIDING AT CHAVIDI, THAMARAKULAM, MAVELIKKARA, ALAPPUZHA.** ## *** ADDL. R3 IS IMPLEADED AS PER ORDER DATED 07/04/2017 IN CRL.MA. NO.4029/2017 IN BA. NO.2378/2017.** **R1 & R2 BY PUBLIC PROSECUTOR SRI.SUMAN CHAKRAVARTHY. ADDL. R3 BY ADV. SRI.R.SUNIL KUMAR.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12-04-2017, ALONG WITH B.A. NO. 2377 OF 2017 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** rs. ## **K.ABRAHAM MATHEW, J.** ----- **-------------------------------------B.A.Nos. 2378,2379, 2380, 2539 and 2540 of 2017 ----------------------------------------------------------------------------Dated this the 12[th] day of April, 2017** ## **ORDER** Petitions filed under Sections 438 and 439 Cr.P.C. 2. The two cases namely Crime Nos.51/CR/OCW I/Tvpm and 52/CR/OCW I/Tvpm happen to be registered in relation to the same incident on the basis of information given by two different persons. These bail applications have been filed in both cases. But it is submitted by the learned State Public Prosecutor that the cases have been clubbed and they are treated as one case. There are 10 accused. The 9[th] accused is the Chairman of Mangalam Television of which the first accused is the Chief Executive Officer. The other accused are the staff of the company. The cases were registered for the offences under Section 120B IPC and Section 67A Information Technology Act. 3. The parties are referred to as they are now shown in the prosecution records. 4. On 26.3.2017 the channel of Mangalam Television telecast a part of a conversation between a former minister and a woman. The channel appears to have informed the public that the woman approached the minister with a petition. He is said to have made statements which are **B.A.Nos. 2378,2379, 2380, 2539 and 2540 of 2017 2** sexually explicit. The statements of the minister in the conversion were telecast. Later, the channel admitted that the woman to whom the minister allegedly made the statements was the 10[th] accused who is not a party in the petitions before this court. 5. Learned senior counsel appearing for the petitioners submits that Section 67A IT Act is not attracted. The Section is quoted below: Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees. 6. One of the essential ingredients of the section is that the publication should contain sexually explicit act or conduct. I have perused the transcript of the alleged statements of the minister made in the conversation with the 10[th] accused. There cannot be any doubt that they **B.A.Nos. 2378,2379, 2380, 2539 and 2540 of 2017** **3** are sexually explicit. 7. Now the question is whether the statements amount to an act or conduct. It is doubtful whether the statements alone would become an act. In AIR 1941 Allahabad 145 the court held that in certain circumstances the statements alone may become conduct. So at this stage it cannot be said that the statements telecast by the channel do not amount to conduct. It is a matter to be probed into later. 8. Learned senior counsel Sri.K.Ramkumar further submitted that sting operation is permitted and a journalist cannot be treated as an accused if the operation is published. He relies on the decision of the Supreme Court in _**R.K.Anand vs. Registrar Delhi High Court (2009 (8) SCC 106**_ ). On the other hand, the learned State Prosecutor brings to my notice the decision of the Supreme Court in _**Rajat Prasad vs. CBI (2014) 6 SCC 495**_ . In Paragraph 11 of the judgment in Rajat Prasad's case the three Judge Bench has made the following observations: “ sting operation carried out in public interest has had the approval of this court in _**R.K.Anand vs. Registrar, Delhi High Court (2009 (8) SCC 106**_ ) though it will be difficult to understand the ratio in the said case as an approval of such a method as an acceptable principle of law enforcement valid in all cases.” Towards the end of the judgment the Supreme Court has **B.A.Nos. 2378,2379, 2380, 2539 and 2540 of 2017** **4** ## observed: “Nonetheless, the question that arises in the present case is what would be the position of such operations if conducted not by a State agency but by a private individual and the liability, not of the principal offender honey trapped into committing the crime, but that of the sting operator who had stained his own hands while entrapping what he considers to be the main crime and the main offender. Should such an individual i.e the sting operator be held to be criminally liable for commission of the offence that is inherent and inseparable from the process by which commission of another offence is sought to be established ? Should the commission of another offence is sought to be established ? Should the commission of the first offence be understood to be obliterated and extinguished in the face of claims of larger public interest that the sting operator seeks to make, namely to expose the main offender of a serious crime injurious to public interest ? Can the commission of the initial offence by the string operator be understood to be without any criminal **B.A.Nos. 2378,2379, 2380, 2539 and 2540 of 2017** **5** intent and only to facilitate the commission of the other offence by the “main culprit” and its exposure before the public ? These are some of the ancillary questions that arise for our answer in the present appeals and that too at the threshold of the prosecution i.e before the commencement of the trial.” 9. A person like a minister leading public life takes the risk of his life being exposed. A journalist may expose him in public interest and not in private interest or with malicious intention. The former is bound to disclose the whole truth to the public. He shall not edit the statement, or give his own version about the incident, nor shall he suppress the facts. 10. In this case only the statements of the former minister made in the conversion between him and the 10[th] accused were telecast. The statements of the 10[th] accused were not telecast. In other words they were suppressed. If the channel wanted the public to know the truth about the former minister, it should have made the whole statement public. The statements of the 10[th] accused are integral part of the statements made by the former minister. Admittedly, the version given by the channel is an edited one. The investigating officer recorded the statement of the person who edited the conversation. He has disclosed that it was at the instance **B.A.Nos. 2378,2379, 2380, 2539 and 2540 of 2017 6** of the first and second accused the editing was done; it was they who take the initiative to telecast the incident. The unedited statement was in the possession of the first accused, perhaps of the second accused also. The first accused in the course of the investigation made a complaint to the police officer concerned that the laptop and the pendrive containing the unedited version of the incident were stolen from his car in the course of a journey. It means that they are not in a position to produce the unedited version of the incident. The story of theft can be accepted only with a pinch of salt. It also cannot be believed that the accused are not in the custody of a copy of the unedited version. Accused 1 to 5 have been in judicial custody since their arrest on 4.4.2017. It is necessary for the investigation that the unedited version of the incident is obtained. If accused 1 and 2 are released the recovery will become impossible. On the other hand, release of accused 3 to 5, it appears, may not affect the recovery. So I am inclined to grant the prayer of accused 3 to 5 to grant them bail under Section 439 Cr.P.C. The prayer of accused 1 and 2 cannot be granted for the reasons stated above. 11. Accused 6 to 9 are petitioners in the applications which are being dealt with. Having regard to the inconspicuous role allegedly played by them in the incident I am inclined to grant their prayer for anticipatory **B.A.Nos. 2378,2379, 2380, 2539 and 2540 of 2017** **7** bail. In the result, these applications are disposed of as follows: i. Accused 3 to 5 will be released on bail on their executing a bond for Rs.50,000/- (Rupees Fifty thousand only) each with two solvent sureties each for the like sum to the satisfaction of the lower court concerned. ii, Accused 6 to 9 shall be released on bail after interrogation on their executing a bond for Rs.50,000/- (Rupees Fifty thousand only) each with two solvent sureties each for the like sum if they are arrested by the investigating officer in connection with this case. iii. They shall appear before the investigating officer for interrogation on the 7[th] and 14[th] days of their release and thereafter, as and when their presence is required by the investigating officer. iv. They shall not intimidate or attempt to influence the witnesses, nor shall they get **B.A.Nos. 2378,2379, 2380, 2539 and 2540 of 2017 8** themselves involved in any other criminal case. v. They shall surrender their passports before the lower court concerned or if they do not have one they shall file an affidavit to that effect within five days of their release. v. The accused who have been granted bail shall cooperate with the investigation. In case of violation of any of the above conditions, the lower court concerned is empowered to cancel the bail in accordance with the law. The prayer of accused 1 and 2 is rejected. **K.ABRAHAM MATHEW JUDGE** pm