Kerala High Court
Dr. Siby Mathews vs Central Bureau Of Investigation on 20 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 20TH DAY OF JANUARY 2023 / 30TH POUSHA, 1944
BAIL APPL. NO. 5010 OF 2021
(CRIME NO.RC7(S)2021/SC II/NEW DELHI OF CB/SC II/NEW DELHI)
PETITIONER/ACCUSED NO.11:
P.S.JAYAPRAKASH, AGED 71 YEARS
S/O.N.SUDHAKARAN,
DEPUTY CENTRAL INTELLIGENCE OFFICER (RETD.),
AJAYASREE, 48/489D, PRA 115,
POOVAMPILLY LANE,
DESHABHIMANI ROAD,
ELAMAKKARA P.O., KOCHI - 682 026.
BY ADVS.Sri.KALEESWARAM RAJ
VARUN C.VIJAY
RESPONDENTS:
1 CENTRAL BUREAU OF INVESTIGATION
REPRESENTED BY THE CBI PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
KOCHI - 31.
ADDL.2 S.NAMBI NARAYANAN, AGED 81 YEARS
S/O SANKARALINGAM, SANGEETHA,
T.C NO. 36/978, NSS LANE,
PERUMTHANNI, TRIVANDRUM.
(IS IMPLEADED AS ADDL.R2 AS PER ORDER DATED
01.07.2021 IN CRL. MA NO.1/2021 IN BA NO.
5010/2021)
B.A.Nos.5010 of 2021 &
Connected cases 2
R1 BY ADV.SHRI.S.V.RAJU, ADDL. SOLICITOR
GENERAL OF INDIA
SRI.MANU S., DSG OF INDIA
SRI.SUVIN R MENON, CENTRAL GOVERNMENT COUNSEL
ADV.SRI.ANSHUMAN SINGH,
ADV.SRI.ANKITBHATIA,
ADV.SRI.HARSH PAUL SINGH,
ADV.SRI.HITARTH RAJA
R2 BY ADV.SRI.C.UNNIKRISHNAN (KOLLAM)
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON
20.01.2023, ALONG WITH B.A.NOS.5109/2021, 5809/2021,
6502/2021 & CRL.M.C.NO.4424/2021, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
B.A.Nos.5010 of 2021 &
Connected cases 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 20TH DAY OF JANUARY 2023 / 30TH POUSHA, 1944
BAIL APPL. NO. 5109 OF 2021
(CRIME NO.RC7(S)/2021-SC-II/CBI/NEW DELHI)
PETITIONERS/ACCUSED NOS.1 & 2:
1 VIJAYAN, AGED 65 YEARS
SON OF N.R. PADMANABHAN, TC6/1983(4),
SWANTHANAN, KOOTHU ROAD,
ELIPPODE, VATTIYOORKAVU,
THIRUVANANTHAPURAM, PIN - 695013.
2 THAMPI S DURGA DUTT, AGED 60 YEARS
SON OF SANKARAN NAIR, TC10/196-5,
NANTHIYAR HOUSE, 48C, SWATHI NAGAR LANE -2,
PIPEEN MOODU,
THIRUVANANTHAPURAM, PIN - 695005.
BY ADVS.SRI.SASTHAMANGALAM S.AJITHKUMAR
ADV.SRI.JINSON OUSEPH
RESPONDENTS:
1 CENTRAL BUREAU OF INVESTIGATION SCII
NEW DELHI, REPRESENTED BY ITS STANDING
COUNSEL HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031.
B.A.Nos.5010 of 2021 &
Connected cases 4
ADDL.2 S.NAMBI NARAYANAN, AGED 81 YEARS
S/O SANKARALINGAM, SANGEETHA,
T.C NO. 36/978, NSS LANE,
PERUMTHANNI, TRIVANDRUM.
(IS IMPLEADED AS ADDL.R2 AS PER ORDER DATED
26/7/2021 IN CRL. M.A NO.1/2021 IN BA NO.5109/2021)
ADDL.3 FAUZIYYA HASSAN OF H.USSAKURUGE,HHEKUNU,
MALE, MALDIVES (IDNO.A071700, MALE,
REPUBLIC OF MALDIVES.
(IMPLEADED AS PER ORDER DATED 13.1.2023 IN
CRL.M.A.NO.10 OF 2021 IN B.A.NO.5109/2021)
ADDL.4 MARIYAM RASHEEDA (ID NO.A076496), DHAFTHARA, NO.RS
3187, MALE, REPUBLIC OF MALDIVES.
(IMPLEADED AS PER ORDER DATED 13.1.2023 IN
UNNUMBERED CRL.M.A.11 OF 2021 IN B.A.NO.5109/2021)
R1 BY ADV.SHRI.S.V.RAJU, ADDL. SOLICITOR
GENERAL OF INDIA
SRI.MANU S., DSG OF INDIA
SRI.SUVIN R MENON, CENTRAL GOVERNMENT COUNSEL
ADV.SRI.ANSHUMAN SINGH,
ADV.SRI.ANKITBHATIA,
ADV.SRI.HARSH PAUL SINGH,
ADV.SRI.HITARTH RAJA
R2 BY ADV.SRI.C.UNNIKRISHNAN (KOLLAM)
R3 & R4 BY ADV.SRI.PRASAD GANDHI
ADV.SRI.M.R.JAYAPRASAD
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON
20.01.2023, ALONG WITH B.A.NOS.5010/2021, 5809/2021,
6502/2021 & CRL.M.C.NO.4424/2021, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
B.A.Nos.5010 of 2021 &
Connected cases 5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 20TH DAY OF JANUARY 2023 / 30TH POUSHA, 1944
BAIL APPL. NO. 5809 OF 2021
(CRIME NO.RC7(S)2021/SC II/NEW DELHI OF CB/SC II/NEW DELHI)
PETITIONER/ACCUSED NO.7:
R.B.SREEKUMAR (IPS RETD.),
AGED 74 YEARS, FORMER DGP,GUJARAT,
PLOT NO.193,
"SREELEKSHMIDEEPAM", SECTOR-8,
GANDHINAGAR-382008.
BY ADVS.SRI.S.SREEKUMAR (SR.)
P.MARTIN JOSE
P.PRIJITH
THOMAS P.KURUVILLA
R.GITHESH
AJAY BEN JOSE
MANJUNATH MENON
SACHIN JACOB AMBAT
HARIKRISHNAN S.
RESPONDENT:
CENTRAL BUREAU OF INVESTIGATION THROUGH ITS
DIRECTOR, 6TH FLOOR, LODHI ROAD, PLOT NO.5-B,
JAWAHARLAL NEHRU STADIUM MARG, CGO COMPLEX, NEW
DELHI 11.
B.A.Nos.5010 of 2021 &
Connected cases 6
BY ADVS.SHRI.S.V.RAJU, ADDL. SOLICITOR
GENERAL OF INDIA
SRI.MANU S., DSG OF INDIA
SRI.SUVIN R MENON, CENTRAL GOVERNMENT COUNSEL
ADV.SRI.ANSHUMAN SINGH,
ADV.SRI.ANKITBHATIA,
ADV.SRI.HARSH PAUL SINGH,
ADV.SRI.HITARTH RAJA
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON
20.01.2023, ALONG WITH B.A.NOS.5010/2021, 5109/2021,
6502/2021 & CRL.M.C.NO.4424/2021, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
B.A.Nos.5010 of 2021 &
Connected cases 7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 20TH DAY OF JANUARY 2023 / 30TH POUSHA, 1944
BAIL APPL. NO. 6502 OF 2021
(CRIME NO.RC7(S)2021/SC II/NEW DELHI OF CB/SC II/NEW DELHI)
PETITIONER/ACCUSED NO.17:
VINOD KUMAR MAINI, S/O.MULKH RAJ MAINI, R/O.51,
NIRMAN VIHAR, PHASE I EXTENSION, NEW DELHI-110091.
(CORRECTED AND SUBSTITUTED AS "R/O 51, NIRMAN
APARTMENT, MAYUR VIHAR, PHASE- 1 EXTENSION, NEW
DELHI-110091" AS PER ORDER DATED 6/10/2021 IN
CRL.M.A.NO.1/2021.
BY ADVS.SRI.PANKAJ MEHTA
SRI.RAMSHAD K.C.
RESPONDENTS:
1 THE CENTRAL BUREAU OF INVESTIGATION
REPRESENTED BY ASSISTANT SOLICITOR GENERAL ,
HIGH COURT OF KERALA, ERNAKULAM REPRESENTING
THE CENTRAL BUREAU OF INVESTIGATION.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM REPRESENTING THE STATE OF KERELA.
B.A.Nos.5010 of 2021 &
Connected cases 8
BY ADVS.SHRI.S.V.RAJU, ADDL. SOLICITOR GENERAL OF
INDIA SRI.MANU S., DSG OF INDIA
SRI.SUVIN R MENON, CENTRAL GOVERNMENT COUNSEL
ADV.SRI.ANSHUMAN SINGH,
ADV.SRI.ANKITBHATIA,
ADV.SRI.HARSH PAUL SINGH,
ADV.SRI.HITARTH RAJA
R2 BY SR.PUBLIC PROSECUTOR SMT.REKHA.S.
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON
20.01.2023, ALONG WITH B.A.NOS.5010/2021, 5109/2021,
5809/2021 & CRL.M.C.NO.4424/2021, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
B.A.Nos.5010 of 2021 &
Connected cases 9
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 20TH DAY OF JANUARY 2023 / 30TH POUSHA, 1944
CRL.MC NO. 4424 OF 2021
AGAINST THE ORDER IN CRL.M.C.1226/2021 OF DISTRICT COURT &
SESSIONS COURT, THIRUVANANTHAPURAM DATED 24.8.2021
(CRIME NO.RC7(S)2021/SC II/NEW DELHI OF CB/SC II/NEW DELHI)
PETITIONER/PETITIONER/ACCUSED NO.4:
DR. SIBY MATHEWS
AGED 69 YEARS
S/O.JOSEPH MATHEWS, RESIDING AT 95/275, SILVER
HILLS, ANAYARA P.O., THIRUVANANTHAPURAM 695 059.
BY ADVS.SRI.V.AJAKUMAR(A-657)
SIDHARTH A.MENON
MUHAMMED ALJUQ A.(K/251/2021)
RESPONDENT:
CENTRAL BUREAU OF INVESTIGATION
REP.BY ITS STANDING COUNSEL,
HIGH COURT OF KERALA, ERNAKULAM 682 031.
BY ADVS.SHRI.S.V.RAJU, ADDL. SOLICITOR GENERAL OF
INDIA SRI.MANU S., DSG OF INDIA
SRI.SUVIN R MENON, CENTRAL GOVERNMENT COUNSEL
ADV.SRI.ANSHUMAN SINGH,
ADV.SRI.ANKITBHATIA,
ADV.SRI.HARSH PAUL SINGH,
ADV.SRI.HITARTH RAJA
B.A.Nos.5010 of 2021 &
Connected cases 10
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON
20.01.2023, ALONG WITH B.A.NOS.5010/2021, 5109/2021,
5809/2021 & B.A.NO.6502/2021, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
B.A.Nos.5010 of 2021 &
Connected cases 11
"C.R."
COMMON ORDER
The petitioners are accused in Crime No.RC7(S)/2021-SC-
II/CBI/New Delhi. The petitioners in B.A.No.5109 of 2021 are accused
Nos.1 and 2 in the crime. Accused No.4 is the petitioner in
Crl.M.C.No.4424 of 2021. The petitioner in B.A.No.5809 of 2021 is
accused No.7. Accused No.11 in the crime is the petitioner in
B.A.No.5010 of 2021. The petitioner in B.A.No.6502 of 2021 is accused
No.17.
2. The petitioners are alleged to have committed offences
punishable under Sections 120-B read with Sections 167, 195, 218,
323, 330, 348, 365, 477-A, and 506 of the Indian Penal Code.
Background
3. Sri.S.Nambi Narayanan, a renowned scientist of the
Indian Space Research Organization (ISRO), was arrested in a
prosecution initiated by the State Police, which was found to be false
and baseless. The prosecution resulted in harassment and
immeasurable torture of Sri.Nambi Narayanan. The criminal law was
set in motion without any foundation by which the liberty and dignity of
B.A.Nos.5010 of 2021 &
Sri.Nambi Narayanan and some others, including Ms.Mariyam Rasheeda
and Ms.Fauzia Hassan, were put in danger. The State Police failed to
take the required care and caution while dealing with an extremely
sensitive case.
3.1. The facts leading to the initiation of prosecution, as referred
to above, are as follows:-
3.2. On 20.10.1994, Vanchiyoor Police registered Crime No.225
of 1994 against one Ms.Mariyam Rasheeda, a Maldivian National, under
Section 14 of the Foreigners Act, 1946 and Para 7 of the Foreigners
Order, 1948. The said crime was registered based on a report by
Sri.S.Vijayan (accused No.1), the then Inspector, Special Branch,
Kerala Police, Thiruvananthapuram. The crime was initially investigated
by Sri.Thampi S.Durgadutt (accused No.2), who was the then SHO of
Vanchiyoor Police Station. Ms.Mariyam Rasheeda was arrested and
sent to judicial custody on 21.10.1994. Her custody was obtained by
the Police on 3.11.1994. She was interrogated by the Kerala Police and
the Intelligence Bureau Officials. The officials who interrogated
Ms.Mariyam Rasheeda allegedly obtained certain "confessions" which
led to the registration of Crime No.246 of 1994 of Vanchiyoor Police
Station on 13.11.1994 under Sections 3 and 4 of the Official Secrets
Act, 1923, based on the allegation that certain official secrets or
B.A.Nos.5010 of 2021 &
documents of ISRO had been leaked out by the scientists of ISRO.
3.3. In Crime No.246 of 1994, Ms.Mariyam Rasheeda and
Ms.Fauzia Hassan, another Maldivian National, were arrested. On
15.11.1994, the State Police Chief constituted a Special Investigation
Team (SIT) headed by Sri.Siby Mathews (accused No.4), who was the
then DIG, Crime Branch of Kerala Police. On 21.11.1994,
Sri.D.Sasikumaran, a scientist of ISRO, was arrested. Sri.S.Nambi
Narayanan was also arrested on 30.11.1994.
3.4. On 3.12.1994, consequent to the request of the Government
of Kerala and the decision of the Government of India, the investigation
was transferred to the CBI. After investigation, the CBI submitted a
report before the Chief Judicial Magistrate, Ernakulam, under Section
173(2) of the Code of Criminal Procedure in Crime No.246 of 1994,
stating that the evidence collected indicated that the allegations of
espionage against the scientists of ISRO, including Sri.Nambi
Narayanan, were not proved and found to be false. The Chief Judicial
Magistrate, in its order dated 2.5.1996, accepted the report submitted
by the CBI. In Crime No.225 of 1994, the CBI submitted final report
before the Chief Judicial Magistrate alleging offence under Section 14 of
the Foreigners Act, 1946. In Crime No.225/1994, Ms.Mariyam
Rasheeda was acquitted after trial.
B.A.Nos.5010 of 2021 &
3.5. In the report of closure on the allegation of espionage, the
CBI requested the Government of India and the Government of Kerala
to take departmental action against the erring officials. The
jurisdictional Magistrate accepted the report submitted by the CBI on
2.5.1996.
3.6. The Government of Kerala decided not to take any
disciplinary action against the State Government Officials for the
alleged lapses. The Government ordered the re-opening of the
investigation by the State Investigating Agency. The decision of the
Government of Kerala was challenged by Sri.Nambi Narayanan. The
matter reached the Apex Court, which quashed the decision of the
Government. The Apex Court awarded a compensation of Rupees Fifty
Lakhs to Sri.Nambi Narayanan and constituted a committee headed by
Justice Shri.D.K.Jain to find out the ways and means to take
appropriate steps against the erring officials.
3.7. On 25.3.2021, Justice D.K.Jain Committee submitted report
recommending an impartial and in-depth investigation by a central
investigation agency to unearth the motive behind the entire
conspiracy/nexus to falsely implicate Sri.S.Nambi Narayanan and other
scientists. The committee observed that prima facie 18 persons, who
B.A.Nos.5010 of 2021 &
were then serving the Kerala Police and Intelligence Bureau, were
involved.
3.8. Based on the report of Justice D.K.Jain Committee, the
Supreme Court ordered investigation, which resulted in the registration
of Crime No.RC:07(S)/2021-SC-II/CBI/New Delhi on 1.5.2021.
3.9. Accused Nos.1, 2, 7, and 11 filed applications seeking
anticipatory bail before this Court. As per order dated 13.8.2021 this
Court granted anticipatory bail to accused Nos.1, 2, 7, and 11. Accused
No.4 filed application for anticipatory bail before the Sessions Court
which granted bail for a period of 60 days from the date of order.
Accused No.4 challenged the order limiting the period of anticipatory
bail in Crl.M.C.No.4424 of 2021. This Court, as per the order dated
16.11.2021, lifted the time stipulation of 60 days. The CBI challenged
the order granting anticipatory bail to the accused before the Supreme
Court. As per the judgment dated 2.12.2022, the Apex Court set aside
the order granting anticipatory bail to the accused and remanded the
matter to this Court to decide the same afresh.
3.10. In the judgment dated 2.12.2022, the Apex Court observed
thus:-
"5. Be that as it may, as observed hereinabove, while
granting anticipatory bail to the respondents - accused,
the High Court has neither considered the allegations
B.A.Nos.5010 of 2021 &
against the respective accused nor the role played by
them nor the position held by them at the time of
registering the FIR in the year 1994 nor the role played by
them during the investigation of Crime Nos.225/1994 &
246/1994. The High Court has also not taken note of the
recommendations made by the Committee headed by
Hon'ble Mr.Justice D.K.Jain, a former Judge of this Court.
6. In view of the above, the impugned judgment(s)
and order(s) passed by the High Court granting
anticipatory bail to the respondents - original accused
deserve to be quashed and set aside and the matters are
to be remitted to the High Court to consider the
anticipatory bail applications afresh and thereafter to pass
appropriate orders in accordance with law and on their
own merits and taking into consideration the observations
made hereinabove."
3.11. The Apex Court had requested this Court to finally decide
and dispose of the bail applications, preferably within a period of four
weeks from the date of receipt of the order dated 2.12.2022. The
matter was placed before me on the eve of the Christmas Holidays on
22.12.2022. The arguments were completed on 13.1.2023. The CBI
produced the CD files on 17.1.2023.
Prosecution Case
4. All the accused conspired together to falsely implicate
Sri.S.Nambi Narayanan, an eminent scientist of ISRO, and others in the
espionage case. The accused deliberately leaked the information to the
press to create a narrative implicating the scientists of Liquid Propulsion
Systems Centre. They arrested the scientists, deliberately suppressed
B.A.Nos.5010 of 2021 &
the material facts, and tampered with the investigation. They further
permitted the unauthorized interrogation of Ms.Mariyam Rasheeda and
the scientists by the officials of the Intelligence Bureau. There was a
deliberate attempt to remove Sri.S.Nambi Narayanan from the project
of Cryogenic Technology for defeating the prestigious mission of ISRO.
The respective roles played by each accused
4.1. Sri.S.Vijayan (accused No.1/petitioner No.1 in
B.A.No.5109/2021): He wrongfully confined Ms.Mariyam Rasheeda from
13.10.1994 to 20.10.1994 by keeping her passport and Air tickets,
thereby preventing her from leaving the country. He falsely implicated
Ms.Mariyam Rasheeda in Crime No.225 of 1994 of Vanchiyoor Police
Station. Media personnel were brought to the scene when Ms.Mariyam
Rasheeda was arrested in Crime No.225 of 1994 in his office at
Thiruvananthapuram, projecting her as a spy, thereby he defamed
Ms.Mariyam Rasheeda, allowed interrogation of Ms.Mariyam Rasheeda
unlawfully by the Intelligence Bureau officials, submitted a false report
for registering Crime No.246 of 1994 (espionage case) against
Ms.Mariyam Rasheeda and Ms.Fauzia Hassan under the penal provisions
of the Official Secrets Act, 1923 which was found to be false and
baseless, arrested Ms.Mariyam Rasheeda and Ms.Fauzia Hassan in
espionage case, conspired to stall the Cryogenic project of ISRO which
B.A.Nos.5010 of 2021 &
led to the false implication of Sri.Nambi Narayanan and
Sri.D.Sasikumaran in Crime No.246 of 1994.
4.2. Sri.Thampi S Durgadutt (Accused No.2/petitioner No.2 in
B.A.No.5109/2021): He was part of the Kerala Police Team which
interrogated the arrested persons. He registered FIR in Crime No.225
of 1994 under the provisions of the Foreigners Act, 1946, against
Ms.Mariyam Rasheeda and tortured her.
4.3. Sri.Siby Mathews (accused No.4/petitioner in
Crl.M.C.No.4424/2021, which arose from Crl.M.C.No.1226/2021 of the
Sessions Court, Thiruvananthapuram): He headed the SIT, which
investigated both the crimes. He directed the arrest of
Sri.D.Sasikumaran, Sri.K.Chandrasekharan, Sri.S.Nambi Narayanan,
and Sri.S.K.Sharma without any evidence against them and absolutely
based on the incorrect interrogation report prepared by the Intelligence
Bureau Officials and falsely implicated them in Crime No.246 of 1994
(espionage case). On 30.11.1994, he made a recommendation to the
DGP Crime Branch for the transfer of investigation of the cases to the
CBI. But, at the same time, he directed the arrest of Sri.Nambi
Narayanan on the same day without any evidence. He permitted the
interrogation of the accused persons arrested in Crime No.246 of 1994
in the custody of the Kerala Police unlawfully by the IB officials. He
B.A.Nos.5010 of 2021 &
allowed the torture of arrested persons in the custody of the Kerala Police
during interrogation by the Officials of the Kerala Police and the IB.
4.4. Sri.R.B.Sreekumar (accused No.7/petitioner in B.A.No.
5809/2021): He was the Deputy Director of the IB team at the relevant
time. He played an active role in the wrongful detention/keeping under
the surveillance of Ms.Mariyam Rasheeda in Hotel Samrat from
15.10.1994 till her formal arrest in Crime No.225 of 1994. He co-
ordinated with the Kerala Police on behalf of the Intelligence Bureau.
He allowed the IB team to prepare incorrect interrogation reports,
which led to the false implication of Ms.Mariyam Rasheeda, Ms.Fauzia
Hassan, Sri.S.Nambi Narayanan, etc.. He played an active role in the
conspiracy to frame the scientists of ISRO in collusion with the Kerala
Police. During the interrogation by the IB headed by him, Sri.Nambi
Narayanan and Sri.Sasikumaran were pressurized and even tortured.
The investigation of the case was virtually hijacked by the IB team
headed by Sri.R.B.Sreekumar.
4.5. Sri.P.S. Jayaprakash (accused No.11/petitioner in
B.A.No.5010/2021): He was part of the IB team which had interrogated
the arrested persons in the custody of the Kerala Police. He prepared
incorrect interrogation reports of Ms.Mariyam Rasheeda, Ms.Fauzia
Hassan, Sri.D.Sasikumaran and Sri.K.Chandrasekharan and tortured the
B.A.Nos.5010 of 2021 &
arrested persons during the interrogation in the custody of the Kerala
Police. He was part of the larger conspiracy to stall the Cryogenic
Project of the ISRO.
4.6. Shri.V.K.Maini (accused No.17/petitioner in
B.A.No.6502/2021): He was part of the IB team which interrogated the
arrested persons.
Submissions
5. The learned Senior Counsel Sri.S.Sreekumar appearing
for accused No.7, submitted the following:-
Accused No.7 discharged his official duty without any malafides.
The Kerala Police arrested Ms.Mariyam Rasheeda for overstaying and
thereafter, during the investigation by the Kerala Police, the names of
Sri.Nambi Narayanan and others were disclosed much before the
investigation was handed over to the SIT. Accused No.7 was not part
of the SIT constituted for investigating the matter. He only assisted the
SIT in the matter of questioning the accused persons at the request of
the Kerala Police. He had never interrogated Sri.Nambi Narayanan. He
was assigned the duty of interrogating only Sri.D.Sasikumaran.
Accused No.7 and the other accused were not parties to the
proceedings of Justice D.K.Jain Committee, and therefore, they were
not given the opportunity to place relevant materials before the
B.A.Nos.5010 of 2021 &
Committee.
5.1. The learned counsel for accused No.11 Sri.Kaleeswaram Raj
submitted the following:-
Accused No.11 had not even seen Sri.Nambi Narayanan. Political
vengeance was the reason for implicating accused No.11 in the crime.
The CBI has no interest in `interrogation' but only interested in the
`incarceration' of the accused. Custodial interrogation of the accused is
not required. The prosecution failed to pinpoint the role of each of the
accused in the allegations touching the theory of conspiracy. The facts
presented by the prosecution are not supported by any acceptable
substance.
5.2. The learned counsel appearing for accused No.4
Sri.V.Ajakumar submitted the following:-
Five out of the eighteen accused are being differentially treated
by the CBI. Accused No.4 had no direct role in the registration of the
crime. He only happened to be the head of the SIT. Out of the non-
bailable offences alleged against the accused, registration of FIR in
respect of the offence under Section 195 IPC is in violation of the
procedure provided in Section 195 Cr.P.C. The ingredients of the
offence punishable under Section 365 IPC are lacking in the allegations,
and the accused are entitled to the protection of Sections 76 and 79 of
B.A.Nos.5010 of 2021 &
the Indian Penal Code. The prosecution failed to establish the
requirements of custodial interrogation of the accused.
5.3. Sri.Sasthamangalam S. Ajithkumar, the learned counsel
appearing for accused Nos.1 and 2, submitted that the accused were
not parties to the proceedings of Justice D.K.Jain Committee and,
therefore, they had no opportunity to know the conclusions of the
report which formed the foundation of registration of the FIR.
5.4. Sri.Pankaj Mehta, the learned counsel appearing for the
petitioner in B.A.No.6502 of 2021, submitted that accused No.17 had
not interrogated the accused in Crime Nos.225/1994 and 246 of 1994
and that he only collected the documents as a member of the IB team.
5.5. Sri.S.V.Raju, the learned Additional Solicitor General of India
(ASG), made the following submissions:-
Accused No.7, who was the Deputy Director of the Intelligence
Bureau at the relevant time, had played an active role in the wrongful
detention of Ms.Mariyam Rasheeda at Hotel Samrat,
Thiruvananthapuram, from 15.10.1994 till her formal arrest in the
falsely registered Crime No.225/1994. Accused No.7, being the head of
the Intelligence Bureau Team at Thiruvananthapuram interrogated the
arrested persons in the custody of the Kerala Police and had prepared
incorrect interrogation reports of Ms.Mariyam Rasheeda, Ms.Fauzia
B.A.Nos.5010 of 2021 &
Hassan, Sri.D.Sasikumaran, Sri.K.Chandrasekharan, Sri.S.Nambi
Narayanan and Sri.S.K.Sharma. Accused No.7 played a very active role
in the conspiracy hatched with the intent to stop the Cryogenic Project
of ISRO. Sri.Nambi Narayanan and Sri.D.Sasikumaran were
pressurized and even tortured by the interrogators to falsely implicate
Sri.Muthunayagam and Sri.U.R.Rao, who were in charge of the
Cryogenic Project of ISRO in the espionage case. Accused No.4, being
the head of the SIT, which investigated both crimes, directed the arrest
of Sri.Nambi Narayanan, Sri.D.Sasikumaran, Sri.K.Chandrasekharan
and Sri.S.K.Sharma without any evidence against them and only based
on incorrect interrogation reports prepared by the IB officials. On
30.11.1994, accused No.4 made a recommendation to the Director
General of Police, Kerala, for transfer of investigation of the case and,
at the same time, directed the arrest of Sri.Nambi Narayanan on the
same day itself. Accused No.4 allowed interrogation of the accused
persons arrested in Crime No.246/1994 in the custody of the Kerala
Police, exclusively and unlawfully, by the IB officials. Accused No.4
allowed the torture of arrested accused persons during interrogation in
the custody of the Kerala Police. Accused No.1, the Inspector, Special
Branch, wrongfully confined Ms.Mariyam Rasheeda during the
period from 13.10.1994 to 20.10.1994 by keeping her passport
B.A.Nos.5010 of 2021 &
and Air tickets, thereby preventing her from leaving the
country and thereafter registered Crime No.225/1994 of Vanchiyoor
Police Station against her under the Foreigners Act, 1946 alleging
overstaying in India. Accused No.1 also allowed the interrogation of
Ms.Mariyam Rasheeda unlawfully by the IB officials. The materials
collected indicate a larger conspiracy to stall the Cryogenic Project of
ISRO. Sri.P.S.Jayaprakash (A11) was part of the IB team which had
interrogated the arrested accused persons in the custody of the Kerala
Police and had prepared incorrect interrogation reports of Ms.Mariyam
Rasheeda, Ms.Fauzia Hassan, Sri.D.Sasikumaran and
Sri.K.Chandrasekharan. The arrested persons were tortured during the
interrogation in the custody of the Kerala Police by the IB team, of
which accused No.11 was a part.
5.6. Sri.C.Unnikrishnan, the learned counsel appearing for
Sri.Nambi Narayanan submitted the following:-
The intention of the accused was to stall the Cryogenic Project as
part of a conspiracy. Accused Nos.1 and 2 registered the crime in
violation of Section 13 of the Official Secrets Act, 1923 with the definite
intention of stalling the Cryogenic Project undertaken by the ISRO. The
larger conspiracy hatched by the accused could be revealed only by way
of custodial interrogation, and therefore, they are not entitled to the
B.A.Nos.5010 of 2021 &
relief of pre-arrest bail.
5.7. Sri.Prasad Gandhi, the learned counsel appearing for
Ms.Mariyam Rasheeda and Ms.Fauzia Hassan, submitted that the arrest
and registration of Crime Nos.225 & 246 of 2021 was part of a larger
conspiracy to defame the victims and to defeat the advancement of
Rocket Engineering Programme of India. The Maldivian Nationals were
tortured by the local police, and they suffered untoward hardships and
agony at the hands of the accused, the counsel added.
Consideration
6. The scope of judicial evaluation in an application under
Section 438 Cr.P.C. is limited. The first and foremost thing that the
Court hearing an anticipatory bail application should consider is the
prima facie case put up against the accused. Thereafter, the nature of
the offence should be looked into, along with the severity of the
punishment. The necessity of custodial interrogation can be one of the
grounds for declining the relief of anticipatory bail. However, even if
custodial interrogation is not required or necessitated, by itself, it
cannot be a ground to grant anticipatory bail [vide: x x x v. Arun
Kumar C.K. & Another (2022 LiveLaw (SC) 870)].
7. Coming to the materials placed in support of the
prosecution.
B.A.Nos.5010 of 2021 &
8. Out of the above-mentioned ten heads of offences, the
offences punishable under Sections 195, 365, and 120-B of IPC
(depending upon the nature of the principal offence) are non-bailable.
9. A careful examination of the Case Diary and Justice
D.K.Jain Committee Report reveals the following materials in support of
the prosecution:-
9.1. The Kerala Police, headed by accused No.4, lost sight of
Order No.25022/2/90-F.I dated 1.3.1990 of the Government of India,
which exempted the passport holders of Maldivian Nationals from
obtaining visas while visiting India, provided their stay did not exceed
90 days. The Kerala Police ignored the fact that Ms.Mariyam Rasheeda
had a valid confirmed Air ticket to Maldives for 17.10.1994 booked with
Indian Airlines, which was deliberately not placed on record by accused
No.1, Sri.S.Vijayan. The Kerala Police also lost sight of the fact that
Ms.Mariyam Rasheeda had a ticket for Male on 29.9.1994 but could not
travel due to nationwide strike called by the LDF and further that she
was precluded from travelling due to a plague scare. The Kerala Police
also ignored the fact that she had approached the competent authority
for an extension of her visa, which indicated her bonafides. The CBI
confirmed that Ms.Mariyam Rasheeda and Ms.Fauzia Hassan visited the
office of Inspector Sri.Vijayan on 13.10.1994 along with the confirmed
B.A.Nos.5010 of 2021 &
tickets for extension of visa for two days as she was under the
impression that her visa was going to expire on 14.10.1994.
Sri.Vijayan kept her passport from 13.10.1994 to 15.10.1994, and he
asked her to report to his office, where she was arrested. The FIR
registered narrated a different story that Sri.Vijayan, during enquiry, on
20.10.1994, came to know that Ms.Mariyam Rasheeda had shifted from
Hotel Samrat to House No.TC-29/786, "Geethanjali" at Palkulangara,
Thiruvananthapuram. The Kerala Police were in contact with
Ms.Mariyam Rasheeda much prior to 20.10.1994, which is contrary to
the FIR. There was suppression of material facts. The Case Diary in
Crime No.225 of 1994 did not contain all the relevant facts collected
during the investigation. Though Sri.Vijayan insisted that Ms.Mariyam
Rasheeda was required for further questioning in the interests of the
sovereignty and integrity of India, no police remand was seen sought
from the Court.
9.2. Sri.Vijayan (accused No.1) highlighted that Ms.Mariyam
Rasheeda was contacting some persons regularly, and some of the
telephone numbers contacted by her were of an institution concerned
with the defense of India. Sri.Vijayan recovered a personal diary of
Ms.Mariyam Rasheeda, which inter alia contained the telephone
numbers of Sri.D.Sasikumaran, a scientist of ISRO. The CBI, during the
B.A.Nos.5010 of 2021 &
investigation, collected the details of phone calls made by
Sri.D.Sasikumaran, which revealed that Ms.Mariyam Rasheeda had
made only one call at his residence on 20.9.1994, and she referred to
Sri.D.Sasikumaran as her friend.
9.3. No attempt was made either on the part of Sri.Vijayan or
Sri.Thampi S Durgadutt to collect the information regarding the kind of
friendship maintained by Ms.Mariyam Rasheeda with
Sri.D.Sasikumaran. Though the Kerala Police and the IB maintained
the stand that Ms.Mariyam Rasheeda was suspectedly involved in
espionage activities, no serious attempt appears to have been made by
any of the investigating agency. Though the Case Diary and remand
application would reveal that the Investigating Agency harboured
suspicion that Ms.Mariyam Rasheeda was a spy working with the
Maldivian Army and had contacts with Sri.D.Sasikumaran working in the
ISRO, no request for police custody was made. The documents
recovered from the possession of Ms.Mariyam Rasheeda in Dwivegi
language did not suggest any espionage activities relating to PSLV
technology or any other technology. On 16.10.1994, after
interrogation, the IB Officials informed Sri.Vijayan that they did not
suspect anything except that Mr.D.Sasikumaran was a womaniser.
Sri.Vijayan disagreed and decided that Ms.Mariyam Rasheeda should be
B.A.Nos.5010 of 2021 &
examined by the IB and R&AW jointly, indicating that the police officers
were taking undue interest in ensuring that Ms.Mariyam Rasheeda
should be arrested and should be implicated in some espionage case.
In Crime No.246 of 1994 (espionage matter) though police custody of
Ms.Mariyam Rasheeda was granted to Sri.Thambi S Durgadutt, she was
interrogated by the IB Officials from 4.11.1994 without the involvement
of the local police.
9.4. Based on the interrogation report and statement, placed on
record by Sri.Vijayan (accused No.1), the Commissioner of Police
Sri.V.R.Rajivan directed the Police to register FIR under Sections 3, and
4 of the Official Secrets Act, 1923 without any foundation as the FIR
revealed no specific overt act to invoke the provisions of the Official
Secrets Act, 1923.
9.5. Even prior to the registration of the crime, the Kerala Police
brought in the Central Agencies such as the Intelligence Bureau and
R&AW and permitted them to interrogate Ms.Mariyam Rasheeda to
ascertain her involvement in espionage without any legal authority and
without creating any records on the interrogation. While the IB and
other Central Agencies concluded that there was no evidence to show
that Ms.Mariyam Rasheeda was connected with espionage activities in
relation to VSSC scientists, the Kerala Police did not forego the
B.A.Nos.5010 of 2021 &
espionage theory and proceeded with the conclusion of criminality in
her connection with the VSSC scientists. Though the FIR was registered
for the offence punishable under Section 14 of the Foreigners Act, 1946
against Ms.Mariyam Rasheeda wherein it was recorded that she was to
be interrogated in the interests of sovereignty and integrity of the
country, no police custody of Ms.Mariyam Rasheeda was sought or
obtained. Several mandatory procedures were flouted by the
Investigating Agencies.
9.6. Even when the Additional Public Prosecutor concerned gave
an opinion that it would not be possible to take Ms.Mariyam Rasheeda
into police custody, at the directions of the higher authorities, Crime
No.246 of 1994 was registered, and the Maldivian women were taken
into custody, based on the espionage theory, though there was no
material on record showing their involvement and thereafter,
Sr.D.Sasikumaran was arrested without any material. Sri.Nambi
Narayanan and Sri.K.Chandrasekharan were tortured in police custody.
10. The relevant question in view of the above materials is
whether the prosecution has prima facie established the non-bailable
offences punishable under Sections 195, 365, and 120-B of IPC.
11. The essential ingredients of an offence under Section
195 IPC are;
B.A.Nos.5010 of 2021 &
(i) That the offender gave false (or fabricated) evidence.
(ii) That the offender, when giving or fabricating the same, intended
thereby to cause, or knew that it was likely that he would thereby
cause, the person in question to be convicted of an offence punishable
with imprisonment for life (or imprisonment for a term of seven years
or upwards) under the Indian Penal Code.
12. In order to attract the offence under Section 195, it is
not only necessary to prove that the accused fabricated false evidence
but also that he knew he was fabricating evidence.
13. The essential ingredients of an offence under Section
365 are;
(i) That the offender kidnapped or abducted any person
(ii) That he did so with the intent to cause that person to be
confined secretly and wrongfully.
14. The ingredients of criminal conspiracy to constitute
offence under Section 120-B of IPC are as follows:-
(i)There should be an agreement (concert or league) between two
or more persons;
(ii) Such an agreement should be (i) either for doing an illegal act
(ii) or for doing an act by illegal means, (iii) or for breaking the
law, i.e., an act which is made punishable by this Code;
B.A.Nos.5010 of 2021 &
(iii) Such an agreement must follow an overt act.
15. In Zakia Ahsan Jafri v. State of Gujarat (AIR 2022
SC 3050), the Apex Court held that every act of commission and
omission would not result in hatching criminal conspiracy unless the
acts have been done deliberately and there is meeting of minds of all
concerned.
16. Now, I shall analyse whether the materials placed by
the prosecution and the other circumstances projected are sufficient to
prima facie establish that the petitioners/accused committed the non-
bailable offences alleged.
17. Admittedly, Ms.Mariyam Rasheeda, Ms.Fauzia Hassan,
and the others, who were arrested in connection with the crimes
registered by the Kerala Police, were produced before the jurisdictional
Magistrate within 24 hours.
18. A perusal of the Case Diary and other relevant materials
would reveal that in the statements of some of the witnesses recorded
by the CBI it has come out that Sri.D.Sasikumaran and
Sri.K.Chandrasekharan had contacted each other to help Ms.Mariyam
Rasheeda, who was staying in Thiruvananthapuram in a hotel, and
Sri.D.Sasikumaran had met her. It has also come out in the materials
that Sri.Nambi Narayanan was arrested based on the suspicion that he
B.A.Nos.5010 of 2021 &
had attempted to resign from ISRO just after the arrest of one of the
Maldivian ladies with intent to join a private firm in France and also in
the backdrop of the fact that the Maldivian ladies had contacted two
scientists attached to ISRO. These facts point to the circumstances in
which the Kerala Police and the IB at the time of registration of the
crime and immediately thereafter before the transfer of the case to CBI,
had some suspicion regarding the allegations they raised in the
respective FIRs. It is true that, ultimately the CBI could conclude that
the allegations foisted by the Kerala Police and the doubt maintained by
the IB Officials were found to be false and baseless.
19. The facts that two scientists of ISRO had repeatedly
contacted a Maldivian National and Sri.Nambi Narayanan had submitted
an application seeking voluntary retirement, are highlighted by the
counsel for the accused as a justification for developing suspicion in the
minds of the Officials of the Kerala Police and the IB for the registration
of the two crimes, the premises of which were later found to be false
and baseless resulting in the torture and harassment of Sri.Nambi
Narayanan and others. The concerns of the Kerala Police and the IB at
that stage could not be said to be without any foundation.
20. What appears from the materials is that there was a
glaring lack of professionalism in the discharge of duties by the accused
B.A.Nos.5010 of 2021 &
especially by the officials of the Kerala Police. However, the mental
element of the accused in the commission of the alleged offences and
their alleged participation in a conspiracy as projected by the
prosecution is yet to be established by the CBI.
21. The CBI invoked the provisions of Section 195 IPC
essentially on the ground that the Kerala Police suppressed facts at the
time of registration of the FIRs and during investigation, and they
recorded false statements intending to implicate them in grave
offences. The materials placed before me would indicate that the
accused manipulated the statements of the accused and witnesses in
Crime Nos.225 and 246 of 1994.
22. Criminal guilt would attach to a man for violations of
criminal law. This principle is subject to limitations indicated in the
maxim "actus non facit reum, nisi mens sit rea". A mere commission of
a criminal act is not enough to constitute a crime, and this is more
important in the case of more serious crimes. These generally require
an element of wrongful intent. Criminal jurisprudence insists upon this
`fault element' with the mark of advancing civilization. The sum and
substance of the above principle are that the prosecution has to prima
facie establish that the accused had the necessary intention to commit
the acts or omissions.
B.A.Nos.5010 of 2021 &
23. The elements of mens rea for the commission of the
offences punishable under Sections 195 and 365 IPC are prima facie not
revealed.
24. The learned counsel for accused No.4 contended that
even if the whole prosecution case is admitted, the accused are entitled
to the protection contained in Sections 76 and 79 of IPC. It is
submitted that there must be a bonafide intention to advance the law
manifested by the circumstances attending the act, which is the subject
of the charge. It is submitted that the present accused believed in
good faith that they were bound by law to do as they did or that, being
empowered by law to act in the matter, they had acted to the best of
their judgment exerted in good faith. I find force in this submission.
25. On the theory of conspiracy, this Court put a query to
the learned Additional Solicitor General as to what materials they have
so far collected. The learned Additional Solicitor General submitted that
only after a thorough interrogation of the accused the CBI could
unearth the conspiracy for which their custodial interrogation is highly
required. It is vehemently contended that the investigation conducted
so far indicates a larger conspiracy to stall the Cryogenic Project of
ISRO, which was crucial for India's Space Programme in which
B.A.Nos.5010 of 2021 &
Sri.Nambi Narayanan would have contributed substantially. The
learned counsel for accused No.4 resisted the submission and
contended that Sri.Nambi Narayanan had no role in the Cryogenic
Project of ISRO at any time. He relied on a letter dated 25.11.1994
addressed to accused No.4 by the then Director of Liquid Propulsion
Systems Centre, Valiamala Sri.A.E.Muthunayagam (Annexure N report
in Crl.M.C.No.4424 of 2021). In the above-said letter,
Sri.Muthunayagam had stated that as Sri.R.Karunanidhi and
Sri.K.Lakshminarayanan associated with the Cryogenic System Project
had taken voluntary retirement Sri.Md. Muslim had taken over the
position of Deputy Project Director, Project Management Office in place
of Sri.K.Lakshminarayanan. The learned counsel relied on this letter
wherein there is no mention of Sri.Nambi Narayanan, who voluntarily
tendered his resignation, to contend that he had no role in the
Cryogenic System Project.
26. On a careful analysis of the materials placed before the
Court, I am of the view that the prosecution has so far not prima facie
established any element of conspiracy as projected by the learned
Additional Solicitor General.
27. The learned Additional Solicitor General has further
contended that the alleged conspiracy has international ramifications. I
B.A.Nos.5010 of 2021 &
have carefully examined the Case Diary and the Justice D.K.Jain
Committee Report. I am unable to find any credible material to prima
facie find any elements of such conspiracy. There is absolutely no
indication or credible material to prima facie hold that a foreign power
had a hand in persuading the petitioners/accused in the registration of
the two crimes referred to above.
28. The further submission of the learned Additional
Solicitor General is that the investigation in the case is at the early
stage, and only after interrogation of the petitioners the CBI could
collect the relevant materials.
29. The contention of the learned Additional Solicitor
General that the accused are to be interrogated cannot be lost sight of.
The question here is whether the custodial interrogation of the
petitioners/accused is required or not. The petitioners/accused have
placed materials showing their old age ailments. There is nothing to
show that they may flee from justice. They have made an undertaking
to the effect that they would co-operate with the investigation. If the
CBI could place materials on record which would prima facie make the
accusations well founded, the petitioners/accused could not have been
entitled to the relief of pre-arrest bail.
B.A.Nos.5010 of 2021 &
30. The learned counsel appearing for Sri.Nambi Narayanan
made a submission that there is no justification for the
petitioners/accused to seek the relief of anticipatory bail based on the
principle of liberty as by way of their acts Sri.Nambi Narayanan's liberty
and dignity were put in peril. I am unable to accept this contention. It
is true that Sri.Nambi Narayanan was subjected to torture, harassment,
and undue hardships at the hands of the accused. Is it ground to
extend the same ignominy to the present accused ? While answering
this, it is apposite to quote Justice V.R.Krishna Iyer: "The Dharma of a
man is to be human, of being true to the dignity and worth of the
human person, of showing reverence for life, love, compassion and
equal regard for fellow beings." (Law versus Justice, Problems and
Solutions, Justice V.R.Krishna Iyer, p.223). It appears that the officials
of the Kerala Police had ignored Dharma. This Court functions within
the four corners of Dharma, which under the present system includes
the Constitution and the laws.
31. While considering the scope of jurisdiction under Section
438 Cr.P.C., the Constitution Bench of the Apex Court in Gurbaksh
Singh Sibbia & Ors. v. State of Punjab [(1980) 2 SCC 565] held
thus:
B.A.Nos.5010 of 2021 &
"31. In regard to anticipatory bail, if the proposed accusation
appears to stem not from motives of furthering the ends of
justice but from some ulterior motive, the object being to injure
and humiliate the applicant by having him arrested, a direction
for the release of the applicant on bail in the event of his arrest
would generally be made. On the other hand, if it appears likely,
considering the antecedents of the applicant, that taking
advantage of the order of anticipatory bail he will flee from
justice, such an order would not be made. But the converse of
these propositions is not necessarily true. That is to say, it
cannot be laid down as an inexorable rule that anticipatory bail
cannot be granted unless the proposed accusation appears to be
actuated by mala fides; and, equally, that anticipatory bail must
be granted if there is no fear that the applicant will abscond.
There are several other considerations, too numerous to
enumerate, the combined effect of which must weigh with the
court while granting or rejecting anticipatory bail. The nature
and seriousness of the proposed charges, the context of the
events likely to lead to the making of the charges, a reasonable
possibility of the applicant's presence not being secured at the
trial, a reasonable apprehension that witnesses will be tampered
with and "the larger interests of the public or the State" are
some of the considerations which the court has to keep in mind
while deciding an application for anticipatory bail. The relevance
of these considerations was pointed out in State v. Captain
Jagjit Singh [AIR 1962 SC 253 : (1962) 3 SCR 622 : (1962) 1
Cri LJ 216] , which, though, was a case under the old Section
498 which corresponds to the present Section 439 of the Code.
It is of paramount consideration to remember that the freedom
of the individual is as necessary for the survival of the society as
it is for the egoistic purposes of the individual. A person seeking
anticipatory bail is still a free man entitled to the presumption of
innocence. He is willing to submit to restraints on his freedom,
by the acceptance of conditions which the court may think fit to
impose, in consideration of the assurance that if arrested, he
shall be enlarged on bail."
32. In Siddharam Satlingappa Mhetre v. State of
Maharashtra [(2011) 1 SCC 694] the Apex Court held thus:-
"113. Arrest should be the last option and it should be
restricted to those exceptional cases where arresting the
B.A.Nos.5010 of 2021 &
accused is imperative in the facts and circumstances of that
case. The court must carefully examine the entire available
record and particularly the allegations which have been directly
attributed to the accused and these allegations are corroborated
by other material and circumstances on record."
(In Sushila Aggarwal v. State (NCT of Delhi) [(2020) 5 SCC 1]) the declaration of
law in Siddharam Satlingappa Mhetre that no condition can be imposed while
granting order of anticipatory bail alone was overruled)
33. In Sushila Aggarwal, the Constitution Bench of the
Apex Court, following the decision in Gurbaksh Singh Sibbia, held
that while considering an application (for grant of anticipatory bail) the
court has to consider the nature of the offence, the role of the person,
the likelihood of his influencing the course of investigation, or
tampering with evidence (including intimidating witnesses), likelihood of
fleeing justice (such as leaving the country), etc.
34. In the present case, the CBI could not place any
concrete materials on record which prima facie make the accusations
against the petitioners/accused well founded. The `mens rea' of the
petitioners in the commission of the alleged offences is doubtful. There
is no possibility of the petitioners fleeing from justice. The apprehension
of tampering of the witnesses has no basis. The prosecution failed to
establish that prejudice would be caused to free, fair, and full
investigation in the event of granting anticipatory bail to the petitioners.
B.A.Nos.5010 of 2021 &
35. Having considered the entire circumstances on the
touchstone of the precedents mentioned above, I am of the view that
the petitioners/accused are entitled to anticipatory bail.
36. In the result, the Bail Applications and the Crl.M.C. are
allowed on the following conditions:
(1) The petitioners shall appear before the Investigating Officer
on 27.1.2023 between 10 a.m. and 11 a.m. for interrogation.
In the event of their arrest, they shall be released on bail on
their executing bond for Rs.1,00,000/- (Rupees One Lakh only)
each with two solvent sureties each for the like sum.
(2) They shall continue to appear before the Investigating Officer
for interrogation on Mondays and Fridays for a period of two
weeks.
(3) The petitioners shall not leave India without the permission of
the jurisdictional Court.
(4) The petitioners shall continue to report before the Investigating
Officer for interrogation as and when required.
(5) The petitioners shall not influence the witnesses or tamper with
the evidence.
(6) They shall fully co-operate with the investigation, including
subjecting themselves to `deemed custody', as observed in
Gurbaksh Singh Sibbia & Others. v. State of Punjab and Sushila
Aggarwal & Others v. State (NCT of Delhi) and Ors. (AIR 2020
SC 831), for the purpose of discovery or identification, if any.
I make it clear that the observations made in this order are only for the
B.A.Nos.5010 of 2021 &
purpose of the disposal of these bail applications.
Registry shall hand over the report of Justice D.K.Jain
Committee and the Case Diary, sealed by the Private Secretary in my
presence, to the learned Central Government Counsel who assisted the
learned Additional Solicitor General.
K.BABU
Judge
TKS
B.A.Nos.5010 of 2021 &
APPENDIX OF BAIL APPL. 5010/2021
RESPONDENT ANNEXURES
Annexure R1(a): A TRUE COPY OF THE JUDGMENT OF THE HON'BLE
SUPREME COURT OF INDIA IN CIVIL APPEAL
NO.6637 AND 6638 OF 2018 DATED 14/09/2018
Annexure R1(b): TRUE COPY OF THE ORDER DATED 15/04/2021 OF
THE HON'BLE SUPREME COURT OF INDIA IN
MISCELLANEOUS APPLICATION NO.586-587 OF 2021
IN CIVIL APPEAL NO.6637 OF 2018
PETITIONER ANNEXURES
Annexure 1- TRUE COPY OF THE CORONARY ANGIOPLASTY REPORT
DATED 26/07/2021 TOGETHER WITH DISCHARGE
SUMMARY ISSUED BY THE CONSULTANT
INTERVENTIONAL CARDIOLOGIST OF THE HOSPITAL.
Annexure AII TRUE COPY OF THE PLAINT IN OS NO. 370/2003
FILED BY MR.S.NAMBI NARAYANAN BEFORE THE
HON'BLE SUB COURT THIRUVAVANTHAPURAM
B.A.Nos.5010 of 2021 &
APPENDIX OF BAIL APPL. 5109/2021
PETITIONER ANNEXURES
Annexure 1: THE TRUE COPY OF FIR IN CRIME RC0502021S0007
DATED 01/05/2021 SC-II DELHI POLICE STATION CBI
Annexure 2: THE TRUE COPY OF ORDER DT 25/06/2021 IN
CRL.M.C.NO.1226/21 OF BEFORE THE SESSIONS'
JUDGE, THIRUVANANTHAPURAM
RESPONDENT ANNEXURES
Annexure A TRUE COPY OF THE JUDGMENT OF THE HON'BLE
R1(a)" SUPREME COURT OF INDIA IN CIVIL APPEAL NO.6637
AND 6638 OF 2018 DATED 14/09/2018
Annexure TRUE COPY OF THE ORDER DATED 15/04/2021 OF THE
R1(b): HON'BLE SUPREME COURT OF INDIA IN MISCELLANEOUS
APPLICATION NO.586-587 OF 2021 IN CIVIL APPEAL
NO.6637 AND 6638 OF 2018
PETITIONER ANNEXURES
Annexure A3 NOTICE UNDER SEC.160 CRPC
Annexure A5- REPLY STATEMENT FILED BY THE CBI IN
CRL.M.C.NO.4831/2013
RESPONDENT ANNEXURES
Annexure TRUE COPY OF THE "AN OPEN LETTER" DATED
R2(a)- 26/12/1996 SIGNED BY 6 VERY SENIOR AND EMINENT
PERSONALITIES OF ISRO.
PETITIONER ANNEXURES
Annexure A6- THE TRUE COPY OF THE ANTICIPATORY BAIL
APPLICATION OF SIBY MATHEWS IPS BEARING
CRL.M.C.1226 OF 2021 WITHOUT ANNEXURE FILED
BEFORE THE SESSION'S JUDGE THIRUVANANTHAPURAM
Annexure A8 TRUE COPY OF THE REMAND APPLICATION DATED
21.10.94 ALONG WITH SMT. MARIAM RASHEEDA WITH A
REQUEST TO REMAND HER FOR 14 DAYS UNDER
JUDICIAL CUSTODY SUBMITTED BY THE 2ND
PETITIONER BEFORE THE ADL. CJM,
THIRUVANANTHAPURAM
Annexure A9 TRUE COPY OF THE MEMO OF APPEARANCE FILED BY
ADVOCATES B.S PRASAD GANDHI & K.D. NAIR,
VANCHIYOOR, THIRUVANANTHAPURAM DATED 22/10/1994
B.A.Nos.5010 of 2021 &
Annexure A10 TRUE COPY OF THE PETITION DATED 03/11/1994
SEEKING THE CUSTODY OF SMT. MARIAM RASHEEDA FOR
CUSTODIAL INTERROGATION.
Annexure A11 TRUE COPY OF THE AFFIDAVIT DATED 03/11/1994
SUBMITTED ALONG WITH PETITION DATED 03/11/1994
BEFORE THE ADL. CJM, THIRUVANANTHAPURAM.
Annexure A12 TRUE COPY OF THE ORDER DATED 03/11/94 IN CMP
10228/94 (VANCHIYOOR PS CRIME 225 OF 1994) OF
THE ADL. CJM, THIRUVANANTHAPURAM
Annexure A13 TRUE COPY OF THE FIR IN CRIME 246/94 U/S. 3 & 4
OF INDIAN OFFICIAL SECRETS ACT, 1923 R/W
SECTION 34 IPC AND REPORT DATED 13/11/1994
BASED ON WHICH CRIME 246/94 OF VANCHIYOOR PS IS
REGISTERED.
Annexure A14 TRUE COPY OF THE REMAND APPLICATION IN CRIME
246 /1994 SUBMITTED BY THE 1ST PETITIONER
BEFORE THE ADL. CJM, THIRUVANANTHAPURAM.
Annexure A15 TRUE COPY OF THE REMAND EXTENSION APPLICATION
DATED 14/11/1994 IN CRIME 225 OF 1994 OF
VANCHIYOOR POLICE STATION PERTAINING TO SMT.
MARIAM RASHEEDA SUBMITTED BY THE 1ST PETITIONER
BEFORE THE ADL. CJM, THIRUVANANTHAPURAM
Annexure A16 TRUE COPY OF THE PROCEEDINGS VIDE ORDER NO.
CONFDL.I/91232/94 DATED 15.11.1994 CONSTITUTING
A SPECIAL TEAM FOR THE INVESTIGATION OF CRIME
225/94 & 246/94 OF VANCHIYOOR POLICE STATION
ISSUED BY SRI. T.V. MADHOSOODHANAN IPS,
DIRECTOR GENERAL OF POLICE, POLICE
HEADQUARTERS, THIRUVANANTHAPURAM.
Annexure A17 TRUE COPY OF PRESS NOTE CIRCULATED BY SRI. DR.
A.E. MUTHUYANGAM AND OTHER SENIOR SCIENTISTS
DURING PRESS MEET ON 24/08/2022 AT PRESS CLUB,
THIRUVANANTHAPURAM REGARDING ISRO CASE.
Annexure NEWS CUTTING TAKEN FROM THE NEW INDIAN EXPRESS,
A17(a) DAILY PUBLISHED FROM THIRUVANANTHAPURAM ON
25/08/2022 REGARDING THE PRESS MEET IN ISRO
CASE/FILM "ROCKETRY" BY SRI. DR. A.E.
MUTHUYANGAM AND OTHER SENIOR SCIENTISTS.
B.A.Nos.5010 of 2021 &
Annexure NEWS CUTTING TAKEN FROM MALAYALA MANORAMA,
A17(b) DAILY THIRUVANANTHAPURAM EDITION PUBLISHED IN
25/08/2022 REGARDING THE PRESS MEET IN ISRO
CASE/FILM "ROCKETRY" BY SRI. DR. A.E.
MUTHUYANGAM AND OTHER SENIOR SCIENTISTS.
Annexure A18 TRUE COPY OF THE REMAND APPLICATION DATED
21.10.94 ALONG WITH SMT. MARIAM RASHEEDA WITH A
REQUEST TO REMAND HER FOR 14 DAYS UNDER
JUDICIAL CUSTODY SUBMITTED BY THE 2ND
PETITIONER BEFORE THE ADL. CJM,
THIRUVANANTHAPURAM
Annexure A19 TRUE COPY OF THE MEMO OF APPEARANCE FILED BY
ADVOCATES B.S PRASAD GANDHI & K.D. NAIR,
VANCHIYOOR, THIRUVANANTHAPURAM DATED 22/10/1994
Annexure A20 TRUE COPY OF THE PETITION DATED 03/11/1994
SEEKING THE CUSTODY OF SMT. MARIAM RASHEEDA FOR
CUSTODIAL INTERROGATION.
Annexure A21 TRUE COPY OF THE AFFIDAVIT DATED 03/11/1994
SUBMITTED ALONG WITH PETITION DATED 03/11/1994
BEFORE THE ADL. CJM, THIRUVANANTHAPURAM.
Annexure A22 TRUE COPY OF THE ORDER DATED 03/11/94 IN CMP
10228/94 (VANCHIYOOR PS CRIME 225 OF 1994) OF
THE ADL. CJM, THIRUVANANTHAPURAM
Annexure A23 TRUE COPY OF THE FIR IN CRIME 246/94 U/S. 3 & 4
OF INDIAN OFFICIAL SECRETS ACT, 1923 R/W
SECTION 34 IPC AND REPORT DATED 13/11/1994
BASED ON WHICH CRIME 246/94 OF VANCHIYOOR PS IS
REGISTERED.
Annexure A24 TRUE COPY OF THE REMAND APPLICATION IN CRIME
246 /1994 SUBMITTED BY THE 1ST PETITIONER
BEFORE THE ADL. CJM, THIRUVANANTHAPURAM.
Annexure A25 TRUE COPY OF THE REMAND EXTENSION APPLICATION
DATED 14/11/1994 IN CRIME 225 OF 1994 OF
VANCHIYOOR POLICE STATION PERTAINING TO SMT.
MARIAM RASHEEDA SUBMITTED BY THE 1ST PETITIONER
BEFORE THE ADL. CJM, THIRUVANANTHAPURAM
B.A.Nos.5010 of 2021 &
Annexure A26 TRUE COPY OF THE PROCEEDINGS VIDE ORDER NO.
CONFDL.I/91232/94 DATED 15.11.1994 CONSTITUTING
A SPECIAL TEAM FOR THE INVESTIGATION OF CRIME
225/94 & 246/94 OF VANCHIYOOR POLICE STATION
ISSUED BY SRI. T.V. MADHOSOODHANAN IPS,
DIRECTOR GENERAL OF POLICE, POLICE
HEADQUARTERS, THIRUVANANTHAPURAM.
Annexure A27 TRUE COPY OF PRESS NOTE CIRCULATED BY SRI. DR.
A.E. MUTHUYANGAM AND OTHER SENIOR SCIENTISTS
DURING PRESS MEET ON 24/08/2022 AT PRESS CLUB,
THIRUVANANTHAPURAM REGARDING ISRO CASE.
Annexure NEWS CUTTING TAKEN FROM THE NEW INDIAN EXPRESS,
A27(a) DAILY PUBLISHED FROM THIRUVANANTHAPURAM ON
25/08/2022 REGARDING THE PRESS MEET IN ISRO
CASE/FILM "ROCKETRY" BY SRI. DR. A.E.
MUTHUYANGAM AND OTHER SENIOR SCIENTISTS.
Annexure NEWS CUTTING TAKEN FROM MALAYALA MANORAMA,
A27(b) DAILY THIRUVANANTHAPURAM EDITION PUBLISHED IN
25/08/2022 REGARDING THE PRESS MEET IN ISRO
CASE/FILM "ROCKETRY" BY SRI. DR. A.E.
MUTHUYANGAM AND OTHER SENIOR SCIENTISTS.
Annexure A28 TRUE COPY OF THE JUDGMENT IN SATENDER KUMAR
ANTIL VS. CBI AND ANOTHER, (2022) 0 AIR SC
3386.
Annexure A29 TRUE COPY OF THE ORDER IN CRL. MC. 2270 OF 2021
DATED 07.10.2021 GRANTING ANTICIPATORY BAIL TO
THE 5TH ACCUSED BY THE SESSIONS COURT,
THIRUVANANTHAPURAM
B.A.Nos.5010 of 2021 &
APPENDIX OF BAIL APPL. 5809/2021
PETITIONER ANNEXURES
Annexure A TRUE COPY OF F.I.R NO.RC0502021S0007 OF
SC-II DELHI POLICE STATION
Annexure B TRUE COPY OF ORDER OF MINISTRY HOME
AFFAIRS DATED 24/01/2005
RESPONDENT ANNEXURES
Annexure R1(a): A TRUE COPY OF THE JUDGMENT OF THE
HON'BLE SUPREME COURT OF INDIA IN CIVIL
APPEAL NO.6637 AND 6638 OF 2018 DATED
14/09/2018
Annexure R1(b): TRUE COPY OF THE ORDER DATED 15/04/2021
OF THE HON'BLE SUPREME COURT OF INDIA IN
MISCELLANEOUS APPLICATION NO.586-587 OF
2021 IN CIVIL APPEAL NO.6637 AND 6638 OF
B.A.Nos.5010 of 2021 &
APPENDIX OF CRL.MC 4424/2021
PETITIONER ANNEXURES
Annexure A PHOTOCOPY OF THE ORDER DATED 24.8.2021 IN
CRIMINAL M.C.NO.1226/2021 OF THE COURT OF THE
SESSIONS JUDGE, THIRUVANANTHAPURAM
Annexure B TRUE COPY THE CRL.M.C.NO.1226/2021 FILED BY THE
PETITIONER BEFORE THE HON'BLE SESSION'S JUDGE,
THIRUVANANTHAPURAM UNDER SECTION 438 OF CR.P.C
(WITHOUT ANNEXURES).
Annexure C TRUE COPY OF THE ORDER NO.CONFDL 1/91232/1994
DATED 15/11/1994 OF THE DIRECTOR GENERAL OF
POLICE CONSTITUTING SPECIAL INVESTIGATION TEAM
FOR THE INVESTIGATION OF CRIME NO.225/1994 AND
CRIME NO.246/1994 OF VANCHIYOOR POLICE STATION
(PRODUCED AS ANNEXURE 1 IN
CRL.M.C.NO.1226/2021).
Annexure D TRUE COPY OF THE LETTER DATED 3/6/1996
FORWARDED BY MR.SHARADKUMAR DIG OF POLICE, CBI,
SIC, NEW DELHI TO THE CHIEF SECRETARY,
GOVERNMENT OF KERALA ALONG WITH REPORT
REGARDING INVESTIGATION (PRODUCED AS ANNEXURE 2
IN CRL.M.C.NO.1226/2021).
Annexure E TRUE COPY OF THE G.O.(RT) NO.1923/2011/ HOME
DATED 29/6/2011 (PRODUCED AS ANNEXURE 3 IN
CRL.M.C.NO.1226/2021).
Annexure F TRUE COPY OF THE PROCEEDINGS DATED 30/3/2015 IN
COMPLAINT NO.235/2011 1998-99 FILED BY MR.NAMBI
NARAYAN (PRODUCED AS ANNEXURE 4 IN
CRL.M.C.NO.1226/2021).
Annexure G TRUE COPY OF THE JUDGMENT DATED 14/9/2018 OF
THE HON'BLE SUPREME COURT OF INDIA IN CIVIL
APPEAL NOS.6637-6638 OF 2018 (PRODUCED AS
ANNEXURE 5 IN CRL.M.C.NO.1226/2021).
Annexure H TRUE COPY OF THE ORDER DATED 15/4/2021 OF THE
HON'BLE SUPREME COURT OF INDIA IN MISCELLANEOUS
APPLICATION NO.586- 587/2021 IN C.A.NO.6637-
6638/2018 (PRODUCED AS ANNEXURE 6 IN
CRL.M.C.NO.1226/2021).
B.A.Nos.5010 of 2021 &
Annexure I TRUE COPY OF THE LETTER DATED 1/11/94 FILED BY
MR.NAMBI NARAYANAN TO THE CHAIRMAN, ISRO
SEEKING VOLUNTARY RETIREMENT WITH
RECOMMENDATION BY THE DIRECTOR, LPSC (PRODUCED
AS ANNEXURE 8 IN CRL.M.C.NO.1226/2021).
Annexure J TRUE COPY OF THE G.O.(MS) NO.203/2019/ HOME
DATED 27/12/2019 (PRODUCED AS ANNEXURE 9 IN
CRL.M.C.NO.1226/2021).
Annexure K TRUE COPY OF THE MEMO DATED 6/1/20 FILED BY
MR.NAMBI NARAYANAN IN O.S.NO.370/2003 BEFORE
THE HON'BLE SUBORDINATE JUDGES COURT,
THIRUVANANTHAPURAM (PRODUCED AS ANNEXURE 10 IN
CRL.M.C.NO.1226/2021).
Annexure L TRUE COPY OF THE ORDER DATED 14/1/2020 IN
O.S.NO.370/2003 OF THE HON'BLE 1ST ADDITIONAL
SUB COURT, THIRUVANANTHAPURAM (PRODUCED AS
ANNEXURE 11 IN CRL.M.C.NO.1226/2021).
Annexure M TRUE COPY OF THE ORDER DATED 19/3/2020 IN
I.A.NO.79/2020 IN O.S.NO.370/2003 OF THE
HON'BLE 1ST ADDITIONAL SUB COURT,
THIRUVANANTHAPURAM (PRODUCED AS ANNEXURE 12 IN
CRL.M.C.NO.1226/2021).
Annexure N TRUE COPY OF THE LETTER DATED 25/11/1994 ISSUED
BY A.E.MUTHUNAYAGAM TO SIBY MATHEW.IPS
(PRODUCED AS ANNEXURE 13 IN
CRL.M.C.NO.1226/2021).
Annexure O TRUE COPY OF THE REPORT F-NO.2/1(2)/94
REGARDING VIGILANCE CASE AGAINST
MR.D.SASIKUMARAN AND SRI.NAMBI NARAYANAN
(PRODUCED AS ANNEXURE 14 IN
CRL.M.C.NO.1226/2021).
Annexure P TRUE COPY OF THE ORDER DATED 24/6/1996 OF THE
SPECIAL JUDGE (SPE/CBI) II, ERNAKULAM IN
R.C.NO.22/A/94. (PRODUCED AS ANNEXURE 15 AS
ADDITIONAL DOCUMENT IN CRL.M.C.NO.1226/2021).
Annexure Q TRUE COPY OF THE ORDER DATED 26/7/2021 OF THE
HON'BLE SUPREME COURT OF INDIA IN MISCELLANEOUS
APPLICATION NO.1091-1092 IN C.A.NO.6637-
6638/2018 (PRODUCED AS ANNEXURE 16 AS
ADDITIONAL DOCUMENT IN CRL.M.C.NO.1226/2021).
B.A.Nos.5010 of 2021 &
Annexure R NOTICE DATED 22/7/2021 ISSUED BY SUNIL SING
RAWAT - DY.SP, CBI/SC II, NEW DELHI (PRODUCED
AS ANNEXURE 17 AS ADDITIONAL DOCUMENT IN
CRL.M.C.NO.1226/2021).
Annexure S TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED
FROM KIMS HEALTH TO DR.SIBY MATHEWS
Annexure T TRUE COPY OF THE LETTER NO.SB/1053/OC/1994-TC
DATED 24/10/1994 ISSUED BY COMMISSIONER OF
POLICE TO DY. INSPECTOR GENERAL OF POLICE CID &
RAILWAYS, THIRUVANANTHAPURAM
Annexure U TRUE COPY OF THE APPLICATION DATED 9/12/1994
FILED BY DSP, CBI II, NEW DELHI IN R.C 11(S)/94
BEFORE ADDITIONAL CHIEF JUDICIAL MAGISTRATE
ALONG WITH TRUE COPY OF THE ORDER.
Annexure V TRUE COPY OF THE REPLY STATEMENT FILED BY CBI
IN CRL.M.C.NO.4821 OF 2013.
Annexure W TRUE COPY OF THE GAZETTE OF INDIA DATED
20/1/1987.
TKS
