Kerala High Court
P.Gopalakrishnan Alias Dileep vs State Of Kerala on 22 January, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
Saturday, the 22nd day of January 2022 / 2nd Magha, 1943
BAIL APPL. NO. 248 OF 2022
CRIME NO.6/2022 OF CRIME BRANCH POLICE STATION, ERNAKULAM.
PETITIONERS/ACCUSED 1 TO 3
1. P.GOPALAKRISHNAN ALIAS DILEEP, AGED 53 YEARS, S/O. LATE
G.PADMANABHA PILLAI, PADMASAROVARAM, KOTTARAKADAVIL ROAD, ALUVA,
ERNAKULAM DISTRICT-683 101
2. P.SIVAKUMAR @ ANOOP, AGED 46 YEARS, S/O. LATE G.PADMANABHA PILLAI,
PADMASAROVARAM, VIP LANE, ALUVA -683 101
3. T.N.SURAJ, AGED 52 YEARS, S/O. LATE THANKAPPAN NAIR, APARTMENT
NO.9E, TOWER 1,
DD PLATINUM, KATHIKADAVU, ERNAKULAM-682 017
RESPONDENT/STATE AND COMPLAINANT
1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682 031
2. THE DEPUTY SUPERINTENDENT OF POLICE, CRIME BRANCH, ERNAKULAM-683 104
This Bail application coming on for orders upon perusing the
petition and upon hearing the arguments of M/S B.RAMAN PILLAI (SR.),
SUJESH MENON V.B., PHILIP T.VARGHESE, THOMAS T.VARGHESE, ACHU SUBHA
ABRAHAM, V.T.LITHA, K.R.MONISHA, NITYA R., Advocates for the petitioners
and PUBLIC PROSECUTOR for the respondents, the court passed the following:
BAIL APPL. NO. 248 OF 2022
ANNEXURE G: TRUE COPY OF THE COMPLAINT SUBMITTED BY
MR.P.BALACHANDRA KUMAR TO SHO, NEDUMBASSERY POLICE
STATION DATED 22.11.2021.
ANNEXURE H: TRUE COPY OF THE STATEMENT OF MR.P.BALACHANDRA KUMAR
DATED 01.01.2022.
ANNEXURE I: TRUE COPY OF THE STATEMENT OF MR.P.BALACHANDRA KUMAR
DATED 03.01.2022.
GOPINATH P., JUDGE.
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Bail Application Nos.248, 288 & 300 of 2022
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Dated this the 22nd day of January, 2022
ORDER
The petitioners in these cases are accused Nos.1 to 5 in Crime No.6/2022
of Crime Branch Police Station, Ernakulam. The said crime has been registered
alleging commission of offences under Sections 116, 118, 120B and 506 of the
Indian Penal Code r/w. Section 34 of that Code.
2. The said crime was registered based on a complaint of the
investigating officer in Crime No.297/2017 of Nedumbassery Police Station,
which is now pending trial as S.C.No.118/2018 on the file of the Additional
Special Sessions Judge, [CBI Court-III], Ernakulam. The complaint of the
investigating officer essentially stems from certain information given by one
Balachandra Kumar regarding the accused in this case. Briefly put, the
information given by the aforesaid Balachandra Kumar is that owing to
animosity arising out of the registration of Crime No.297/2017 where the 1st
petitioner in B.A No.248/2022 is the main accused, the petitioners herein had
conspired to do away with the investigating officer and other officers connected
with Crime No.297/2017. The information given by the aforesaid Balachandra
Kumar is stated to be supported by material such as voice clips and videographs
which would suggest that the allegations against the accused are correct.
3. Sri. B. Raman Pillai, the learned senior counsel instructed by Sri.
Philip T. Varghese for the petitioners would contend, referring to the written
complaint dated 22.11.2021 given by the aforesaid Balachandra
Kumar(Annexure-G in B.A.No.248/2022), that even if the entire allegations
contained therein are taken into account, the same does not constitute an
offence, either of abetment under Sections 116 or 118 of the Indian Penal
Code or of criminal conspiracy to commit an offence under Section 302 of
the Indian Penal Code (punishable under Section 120B of the Code) as is
now suggested by the prosecution. It is also submitted that subsequent
statements given by the aforesaid Balachandra Kumar (produced as
Annexures- H & I in B.A.No.248/2022) are basically improvements of his
earlier complaint. It is also pointed out that it is only in Annexure-I
statement that the allegation of a conspiracy to harm the investigating
officers in Crime No.297/2017 was made. It is submitted that even if the
contents of Annexures-H & I are also taken into account, even then, the
offences, as alleged, have not been committed. It is submitted that while the
prosecution has every right to investigate into allegations based on the
contents of Annexures-G, H and I, the prosecution cannot insist for custody
of the petitioners, as at present no offence is made out.
4. Sri. T.A. Shaji, the learned Director General of Prosecution
instructed by Sri. P. Narayanan, the learned Senior Public Prosecutor had
handed over to me in a sealed cover certain materials collected by the
investigating agency which suggest that an in-depth investigation is required
into the matter. It would not be appropriate for me to refer to or make any
findings concerning those materials as that would be highly improper at this
stage. I have referred to them only to emphasise that a thorough
investigation is required into the matter.
5. The learned Director General of Prosecution would vehemently
oppose the grant of anticipatory bail or even an interim order of protection.
He refers to the judgments of the Supreme Court in State Rep. by the
C.B.I. v. Anil Sharma; (1997) 7 SCC 187, State of Andhra Pradesh
v. Bimal Krishan Kundu and another; (1997) 8 SCC 104, Dr. P.A.
Dasthakir v. The Deputy Superintendent of Police, CBCID, EOW-
1, Sub Unit, Thrivuananthapuram; 2012 SCC Online Ker 8968,
Karayi Rajan & another v. Central Bureau of Investigation; 2012
SCC Online Ker 12215, & P.Chidambaram v. Directorate of
Enforcement; 2019 (9) SCC 24 to contend that in cases where the
offence alleged is that of criminal conspiracy, the success of investigation
will depend very much on the kind of custody that is available to the
prosecution and when the accused are protected by an order of bail or any
order of protection from arrest, very often, it would be difficult for the
prosecution to prove its case against the accused. He submits regarding the
judgement of the Supreme Court in R. Venkatkrishnan v. Central
Bureau of Investigation; 2009(11) SCC 737 that a criminal conspiracy
is hatched behind closed doors and it is very difficult for the prosecution to
get any direct evidence of such conspiracy. It is submitted that only a
thorough investigation and a custodial interrogation of the accused will
enable the prosecution to get sufficient evidence to establish a conspiracy. It
is submitted that the grant of bail or interim protection would defeat the
investigation as the accused are extremely influential. It is submitted that
the experience of the prosecution with the earlier case in which the 1 st
petitioner in B.A.No.248/2022 is the main accused has been that every
possible effort will be taken by the accused to influence any witnesses and to
change the course of the investigation.
6. The learned senior counsel appearing for the petitioners, in
reply, refers to the judgment of the Supreme Court in Sushila Aggarwal
and others v. State (NCT of Delhi) and another; (2020) 5 SCC 1,
and in particular, paragraph 68 thereof to contend that where the accused is
protected by an order or anticipatory bail or an interim order protecting him
from arrest and where there is a violation of any condition upon which such
order is granted, the prosecution is not remediless and recourse can be
added to Section 438(2) of Cr.P.C., to apply for cancellation of bail. My
attention is also drawn to the judgment of the Supreme Court in P.
Chindambaram v. Directorate of Enforcement; (2020) 13 SCC 791
to contend that the Court while considering a bail application must be
circumspect in referring to materials handed over by the prosecution in a
sealed cover. I must immediately note that the judgment of the Supreme
Court in P.Chidambaram (supra) suggests that while it would be
inappropriate for the Court to rely upon and quote from such materials
handed over by the prosecution, there is no bar in considering such
materials to satisfy the judicial conscience of the Court regarding the
entitlement of the accused to bail.
7. Having heard the learned senior counsel for the petitioners and
the learned Director General of Prosecution for the respondents, and having
regard to the materials placed on record, I am inclined to pass an interim
order as follows:-
i) The petitioners shall not be arrested in connection with Crime
No.6/2022 of Crime Branch Police Station, Ernakulam, till 27.1.2022;
ii) The petitioners in these bail applications shall report before the
investigating officer in Crime No.6/2022 of Crime Branch Police Station,
Ernakulam at 9 a.m. on 23.1.2022, 24.1.2022 & 25.1.2022;
iii) They shall be available for interrogation and such other
investigation as may be necessary, from 9.00 A.M till 8 P.M, on the aforesaid
dates;
iv) The petitioners shall fully co-operate with the investigation. It
is made clear that any attempt to interfere with the course of investigation in
any manner, whatsoever, will entail cancellation of this order of protection.
The learned Senior Public Prosecutor is directed to place a report
regarding the interrogation of the petitioners and any other materials that
may be collected by the prosecution before this Court, on 27.1.2022, in a
sealed cover. Post on 27.1.2022 along with B.A.No.476/2022.
sd/-
GOPINATH P.
JUDGE
acd
22-01-2022 /True Copy/ Assistant Registrar
