(2012) 275 KLR 524

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN

TUESDAY, THE 9TH DAY OF OCTOBER 2012/17TH ASWINA 1934

Bail Appl..No. 6271 of 2012 ()

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(ARISING OUT OF CRIME NO.217/2006 OF THE CHENGAMANAD POLICE STATION WHICH IS CRIME NO.134/CR/SII/06 OF CBCID) ERNAKULAM DISTRICT)

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PETITIONER/ACCUSED:

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M.SRINIVASA RAO,AGED 53 YEARS, DEPUTY CENTRAL INTELLIGENCE OFFICER, INTELLIGENCE BUREAU, MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, BHOPAL, MADHYA PRADESH, LOCATED AT CHARIMLI, BHOPAL MADHYA PRADESH. RESIDING AT C-55, PALACE ARCHARD PHASE III & IV, KOLAR BHOPAL, MADHYA PRADESH.

BY ADV. SRI.KALEESWARAM RAJ

RESPONDENTS/COMPLAINANT:

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1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031. 2. CBCID, REPRESENTED BY THE SUPERINTENDENT OF POLICE, CBCID, ERNAKULAM, KOCHI-682 031.

BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01-10-2012, ALONG WITH BA.NO. 6272/2012, THE COURT ON 09-10-2012 PASSED THE FOLLOWING: sts

P. BHAVADASAN, J.

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B.A. Nos. 6271 & 6272 of 2012

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Dated this the 9th day of October, 2012.

Head Note:-

Criminal Procedure Code, 1973 - Section 438 - Anticipatory Bail - Arrest is the last option and it should be restricted to cases where arrest is imperative. If the person who applies for anticipatory bail is found to be fully co-operating with the investigation and there is no reason to believe that he will not do so in future also, the discretionary relief can be exercised in his favour.

O R D E R

The petitioner, at the time of the filing of these applications, was not arrayed as the accused in Crime No.216 of 2006 of Chengamanad Police Station, which, after the C.B.C.I.D. has taken over investigation, was re-numbered as Crime No.135/CR/SII/06 and in Crime No.217 of 2006 of Chengamanad Police Station, which, after C.B.C.I.D. took over investigation, was re-numbered as Crime No.134/CR/SII/06. These applications were filed on the basis that the petitioner bona fide believed that he would be made as an accused and arrested in these two cases.

2. The allegations against the petitioner in these two cases appear to be that he was responsible for stamping forged visa in the passports of three persons, who were made to pay huge sums on promise of getting a job in South Africa. There are other accused persons in these two cases. According to the allegations, the victims were promised job in a supermarket at South Africa, and one Preethy Mathew, who is the first accused and Vinod, the second accused, received huge amounts from them and they handed over the passports to the third accused, namely, Antish David. He in turn got in touch with the petitioner herein, who was working as the Deputy Central Intelligence Officer, and on making payments to him got the visa stamped in the passports of the respective persons. When those persons reached the Air Port at Johannesburg, they were detained on finding that their visas are forged and they were deported. Petitioner and others are alleged to have committed offences punishable under Sections 468 and 420 read with Section 34 I.P.C.

3. The petitioner, in these two applications, would point out that he has been unnecessarily dragged into the cases with ulterior motive. The petitioner is a Senior Police Officer, who has been working in the Intelligence Bureau, has rendered 26 years of unblemished service. He joined the service in 1985 and since then he has been the recipient of several awards recognizing his meritorious, sincere and honest service in the department. It is pointed out that in 2004 he was presented an encomium for the exemplary service rendered by him. According to him, at the relevant time, he and his family were residing in Delhi, though the petitioner was posted at Meerut, considering the education of his children, he had sought permission of the authority concerned to retain his official residence at Delhi and go for work at Meerut. At Meerut, the petitioner was working as Deputy Central Intelligence Officer.

4. According to the petitioner, a person by name Sambasiva Rao, who hails from the native place of the petitioner, namely, Andhra Pradesh, introduced one Ram Mohan to him. Sambasiva Rao happens to be a distant relative of the petitioner. Ram Mohan, who is stated to be a citizen of Muzambi, made the petitioner believe that he wanted to acquire skills in Software Engineering from some recognized institutions in New Delhi. Since the person had been referred by Sambasiva Rao, who is known to the petitioner, the petitioner made arrangements for him. A good relationship developed between the petitioner and Ram Mohan. Ram Mohan was allowed to use the bank account of the petitioner's daughter and her residential address for receiving communications by Ram Mohan. Certain amounts were withdrawn through that account by Ram Mohan. Petitioner would say that Ram Mohan had occasion to borrow certain amounts from him and finally Ram Mohan gave him a cheque for Rs.49,999/-, which he encashed and after taking Rs.33,000/- which was due to him from Ram Mohan, the balance was paid to Ram Mohan. Petitioner says that he did not know that the said Ram Mohan was involved in visa racket and that he was the member of a group involved in such fraudulent activities. Petitioner would point out that the encashment of the cheque given to him by Ram Mohan was prior to the deportation of the two persons from South Africa and that would show that he had no connection with the incident. The petitioner points out that he has been repeatedly questioned by the officers of the C.B.C.I.D. and he has revealed all that he knew and in fact the identity of certain persons who were wanted by the investigating agency in the case. The officers of the C.B.C.I.D. had visited the petitioner on various occasions at various places and questioned him.

5. Apprehending that the petitioner will be arrayed as an accused and he will be arrested, these applications have been laid.

6. Learned Public Prosecutor very vehemently opposed the applications. It was pointed out that the petitioner is not as innocent as he claims to be. The materials available would show his deep involvement in the incident and also that he was the person, who had caused the visa entries in the passports which were found to be forged. There are materials, according to the learned Public Prosecutor, to show that the petitioner had received huge amounts in return for the said favours done as mentioned above. It is true, according to the learned Public Prosecutor, that the petitioner has been questioned on several occasions. But the investigation is only progressing and it is seen that the involvement of the petitioner is becoming more and more clear and under such circumstances, if the petitioner is granted anticipatory bail, that would hamper the investigation.

7. The CDs were made available for perusal. Suffice to say, the initial allegations seems to be against three persons, namely, Preethy Mathew, Vinod and Antish David. The records indicate that the brother of Antish David, namely, Antony David, who had promised job to various persons and it was through the three persons above named that amounts were collected from various persons. The records also indicate that two of the persons, who reached Johannesburg Air Port, and, who were detained in the Air Port, had infact contacted Antony David, and he had promised to come and bail them out of trouble. Going by the records, he did not turn up and those two persons were deported. The allegation is that those two persons, along with another person paid nearly Rs.2,50,000/- each for getting visa to go to South Africa on the promise of job.

8. It is true that there seems to be some material on records to show that one Ram Mohan was involved in the incident and also that Antish David had contacted the petitioner. It is significant to notice that initially the role of the petitioner was not revealed. One cannot omit to note that the applicants, who were cheated and who have been deported attributed no role to the petitioner. The crimes were registered in 2006. In 2011, the C.B.C.I.D. comes up with certain materials which show the involvement of the petitioner. The materials now available against the petitioner is mainly the confession of the co-accused persons, namely, Antish David and Vinod, who were arrayed as third and second accused respectively.

9. It may not be possible to say at this point of time that the petitioner had no involvement in the incident. But what is significant now is that it was only after these applications had been filed that the petitioner is sought to be arrayed as the fourth accused. The records show that on several occasions the statements of the petitioner were taken. It is also true that there seems to be inconsistencies between his statements. But the records do indicate that the petitioner has been co-operating fully with the investigation and at no point of time refused to respond to the notice issued by the Investigating Agency to appear for interrogation.

10. A few significant facts cannot be ignored to be noticed. As already stated, the two persons who were deported from South Africa had infact stated that they had contacted Antony David, who is the brother of Antish David, the third accused, for help in South Africa. The statements taken from the victims also indicate that they were given to understand that it was Antony David who had promised job for various applicants and it was on that basis that accused Nos. 1 to 3 had collected amounts. From the records, it is seen that none of the victims had attributed any role to the petitioner, and as of now, as already noticed, the only material against the petitioner is the statement by the second and third accused in these cases.

11. It is interesting to note that Antony David had applied for another passport on the ground that his original passport was damaged. When his application for issuance of a fresh passport was rejected by the authorities concerned, he approached this court for necessary reliefs. The authorities contended that since his brother was involved in these two offences, his application had been rejected and his involvement is also to be ascertained. This court disposed of the writ petition filed by Antony David by observing that the mere fact that the petitioner's brother is involved in two cases may not be a ground to reject the application for passport filed by Antony David. This court also by way of caution observed that the order passed by this court will not preclude the authorities from proceeding against Antony David, if it is found that he is involved in these two cases.

12. It is interesting to note that thereafter Antony David moved this court for anticipatory bail apprehending arrest in these two cases. The authorities concerned represented before this court that they do not intend to implicate Antony David in these two cases at all and recording that observation, the application was disposed of.

13. One fails to understand as to how Antony David could have been so easily absolved, especially when the statement of the victims was to the effect that when they detained at Johannesburg Air Port, they had contacted Antony David and it was at his behest that they had gone to South Africa. It is under the above facts and circumstances that the claim of the petitioner that he is sought to be implicated with oblique motive will have to be considered. Of course, there are materials to show the possible involvement of the petitioner. But, from 2006 onwards till 17.9.2012, when on 17.9.2012 alone the petitioner was made as the fourth accused in these two cases, the investigating agency too did not feel it necessary to arrest him or to array him as an accused. It was only after these applications for bail were filed that they immediately filed a report before the JFCM court concerned arraying him as the fourth accused.

14. It is also significant to notice that the 1st, 2nd and 3rd accused had been granted anticipatory bail. If one is to go by the records, they are the prime culprits in these two cases. Of course, the allegation against the petitioner is that he was responsible in entering the visa in the passports of the respective victims. The records also indicate that the petitioner has been questioned on several occasions and at no point of time he showed any disinclination to co-operate with the investigation.

15. In this context, it will be apposite to refer to the decision reported in Siddharam Satlingappa Mhetre v. State of Maharashtra ((2011) 1 SCC 694). In the said decision, the scope and ambit of Section 438 Cr.P.C. was elaborately considered. The criterion to apply Section 438 Cr.P.C. has been enumerated in the said decision. The decision holds that the power under Section 438 Cr.P.C. is to be applied only in extraordinary and compelling circumstances is a misnomer. The decision also goes on to say that arrest is not a matter of course and can be resorted to only under compelling and exceptional circumstances. The decision also refers to the object and reason for introducing Section 438 in Cr.P.C.. In paragraph 112 of the said decision, after referring to the earlier decision of the Apex Court in Gurbaksh Singh Sibbia v. State of Punjab ((1980) 2 SCC 565), it was observed as follows:

"112.The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

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 sections 34 and 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."

16. Going by the above decision, arrest is the last option and it should be restricted to cases where arrest is imperative. The Apex Court had cautioned the courts while exercising power under Section 438 Cr.P.C. to be extremely careful and examine the entire available records and scrutinize the allegations against the petitioner. The courts are also to see whether there are other corroborative materials to substantiate the allegation. On going through the above decision, it is found that if the person who applies for anticipatory bail is found to be fully co-operating with the investigation and there is no reason to believe that he will not do so in future also, the discretionary relief can be exercised in his favour.

17. There is no straight jacket formula in the application of Section 438 Cr.P.C.. Each case depends upon its facts. The only material available as of now against the petitioner will have to be considered in considering whether anticipatory bail should be granted to the petitioner.

18. The crimes were registered in 2006 and the petitioner has been questioned on several occasions and his statements have been recorded. His specimen signature has also been obtained by the investigating agency. What is most significant is that he is sought to be arrayed as an accused hurriedly and hastily only after these applications for anticipatory bail have been filed. These applications were filed on 21.8.2012 and several adjournments were taken by the learned Public Prosecutor for getting instructions. It was finally on 25.9.2012, the learned Public Prosecutor submitted that the petitioner has been arrayed as the fourth accused in these two cases. On verifying the records, it is found that the report before the court concerned, namely JFCM-I, Aluva, arraying the petitioner as the fourth accused was filed only on 17.9.2012. That being the state of affairs, the claim of the petitioner that it is with oblique motive that he has been implicated and he is sought to be arrayed as an accused cannot be easily brushed aside. There is also nothing to show that the petitioner is likely to abscond or he will not co-operate with the investigation. His conduct so far shows that he has immediately responded to the calls made by the investigating agency and has fully co-operated with the investigation. Since he is a person who is holding a high office and a person having firm roots in the society, there is no reason to believe that he is likely to abscond. Little are the chances that he is likely to influence the witnesses. Considering the entire facts and circumstances of the case, these applications are allowed as follows:

i) Petitioner shall surrender before the Investigating Officer in Crime Nos.134 & 135/CR/SII/06 of C.B.C.I.D., who after interrogation shall produce them before the JFCM concerned, which court on applications for bail being moved by the petitioner, shall release him on bail on his executing a bond for a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) with two solvent sureties each for the like sum in each of the cases to the satisfaction of the JFCM concerned.

ii) The learned Magistrate shall ensure the identity of the sureties and the veracity of the tax receipts produced by the sureties for the purpose of executing the bond.

iii) Petitioner shall make himself available for interrogation or for such other purpose as the case may be on receipt of intimation from the Investigating Agency or as and when required by the Investigating Agency.

iv) Petitioner shall leave his current and future communication address and telephone number from time to time with the investigating officer concerned.

v) Petitioner shall not tamper or attempt to tamper with the evidence or influence or try to influence the witnesses.

vi) If any condition is violated, bail bail executed shall stand cancelled, and the JFCM concerned, may take such steps as are available to him in law.

P. BHAVADASAN, JUDGE

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