IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 31ST OCTOBER 2011 / 9TH KARTHIKA 1933 Bail Appl..No. 7300 of 2011 CRIME NO.251 OF 2010 OF PALAKKAD TOWN NORTH POLICE STATION RENUMBERED AS CRIME 259/CR/HHW-II/CBCID/EKM AND REGISTERED AS R.C.NO.34/2010(S)0008/CBI, THIRUVANANTHAPURAM. PETITIONERS/ACCUSED NOS.6,7,5&8: 1. K.RAMACHANDRAN, AGED 48, S/O.T.NARAYANAN NAIR (LATE), KRISHNA NIVAS, OLASSERI, PALAKKAD, (GRADE A.S.I, PALAKKAD TOWN NORTH POLICE STATION UNDER SUSPENSION). 2. MADHAVAN.K, AGED 44, S/O.VASUDEVAN NAIR (LATE), KULAVARAMPATH HOUSE, PERUVAMPA P.O., PALAKKAD, (SENIOR CIVIL POLICE OFFICER, PALAKKAD KASABA POLICE STATION UNDER SUSPENSION). 3. ABDUL RASHEED.P.A, S/O.ABDUL KHADER P.A, AGED 39, PARAKKAL HOUSE, VALLIKODE, PALAKKAD, (CIVIL POLICE OFFICER PALAKKAD TOWN NORTH POLICE STATION, UNDER SUSPENSION). 4. SHILAN.K.S, AGED 40, S/O.K.S.SREERAMAN (LATE), PALLIKANDATH HOUSE, KADUMTHURUTHY, YAKKARA P.O., PALAKKAD, (CIVIL POLICE OFFICER, TOWN SOUTH POLICE STATION, PALAKKAD-UNDER SUSPENSION). BY ADVS. M/S.B.RAMAN PILLAI,R.ANIL, SUJESH MENON V.B., SHYAM ARAVIND, T.ANIL KUMAR AND MANU TOM RESPONDENT: COMPLAINANT CBI, THIRUVANANTHAPURAM BRANCH, REPRESENTED BY THE STANDING COUNSEL TO CBI. ADV. SRI.P.CHANDRASEKHARA PILLAI, C.B.I. FOR R1 THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 12/10/2011, THE COURT ON 31/10/2011 PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 7300 OF 2011 ------------------------------------------------------ Dated this the 31st day of October, 2011 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure filed by accused Nos. 6,7,5 and 8 in RC No.34/2010(S)0008/CBI/TVPM. The Crime was originally registered as Crime No.251 of 2010 of Town North Police Station, Palakkad. The Crime was re-registered as Crime No.259/CR/HHW/II/ CBCID/EKM. After the CBI took over investigation, the Crime was re- registered as mentioned above. 2. The offences alleged against the accused are under Sections 302, 218, 201, 348, 465 and 471 read with Section 34 of the Indian Penal Code. 3. On 22-3-2010, one Sheela was murdered while committing theft of her gold ornaments and cash. Crime No.246 of 2010 was registered at Palakkad Town North Police Station in respect of that offence. That case is popularly known as “Sheela murder case.” On 28-3-2010, the accused in that case, namely, Sampath, Kanakaraj and BAIL APPL. NO.7300 OF 2011 :: 2 :: Manikantan were arrested at Coimbatore. They were brought to Kerala. Instead of producing them before Court, they were taken by the police personnel to a river side cottage at Malampuzha, Palakkad. At the river side cottage, the aforesaid three persons were brutally manhandled by the police personnel. As a result of the same, Sampath died while in police custody. Those police personnel are the accused persons in the present case, which is popularly known as “Sampath custody murder case.” It is alleged that records were manipulated in such a way to make it appear that when Sampath was taken to Palakkad Town North Police Station, he developed chest pain and on the way to hospital, he died. 4. It is submitted by the learned counsel for the petitioners that in the Sheela murder case, Kanakaraj was convicted and sentenced to death, while Manikantan was acquitted. 5. In the present case (Sampath custody murder case), the prosecution alleges that as a result of the conspiracy among some of the accused, Sampath was illegally brought to the river side cottage at Malampuzha, without informing the relatives or friends of Sampath and he was brutally tortured to death by the police. BAIL APPL. NO.7300 OF 2011 :: 3 :: 6. The first petitioner (K.Ramachandran) is an Assistant Sub Inspector of Police. At the relevant time, he was working at Palakkad Town North Police Station. The 2nd petitioner (Madhavan K.) is a senior Civil Police Officer (Grade Head Constable) attached to Palakkad Kasaba Police Station. The third Petitioner (Abdul Rasheed P.A.) and the 4th Petitioner (Shilan K.S) are Civil Police Officers attached to Palakkad Town North Police Station and Palakkad Town South Police Station respectively. The petitioners apprehend arrest and therefore they have filed this application for anticipatory bail. 7. Sri.B. Raman Pillai, the learned counsel appearing for the petitioners submitted that there is no material to connect the petitioners with the offence. The petitioners have unblemished service of 27 years, 18 years, 15 years and 17 years respectively in the Police Department. The first petitioner was conferred with the Chief Minister’s police medal, apart from 25 good service entries and several cash rewards. Petitioners 2 and 3 have also to their credit Chief Minister’s police medal and several good service entries and cash rewards. The fourth petitioner claims that he was given eleven good service entries and several cash rewards taking into account his efficiency, integrity and honesty. BAIL APPL. NO.7300 OF 2011 :: 4 :: 8. The petitioners raised the following contentions. Sampath, Kanakraj and Manikantan were taken into custody during the night of 28-3-2010 by the Dy. S.P., Palakkad who was the head of the Special team constituted by the Superintendent of Police, Palakkad. Their arrest was effected by the joint operation of Kerala Police and Tamil Nadu police including the commando force of the Commissioner of Police, Coimbatore. They were detained in the office of the Commissioner of Police, Coimbatore and at B-9 police station, Coimbatore for several hours including the night of 28-3-2010. They were questioned by the Tamil Nadu police in connection with the Crimes registered by Tamil Nadu police. The aforesaid three accused in Sheela murder case were brought to Kerala only in the evening of 29-3-2010. Sampath died in police custody during the night of 29.3.2010. Crime No.251 of 2010 was registered by Palakkad Town North Police Station under Section 174 of the Code of Criminal Procedure. After the CBCID took over investigation, the case under Section 174 Crl. P.C. was altered into a case of murder of Sampath in police custody. Twelve persons were arrayed as accused. The petitioners were included in the said twelve accused persons. Subsequently, the Dy.S.P., Palakkad and the Circle Inspector of Police, Palakkad Town North were also included as accused Nos.14 and 13. BAIL APPL. NO.7300 OF 2011 :: 5 :: Meanwhile, the brother of Sampath filed W.P.(C) No.13426 of 2010 before the High Court praying for handing over the investigation to the C.B.I. The High Court directed the CBI to take over investigation of the custody murder case of Sampath. 9. Sri.B.Raman Pillai, the learned counsel for the petitioners contended that C.B.I included 18 more persons as accused in the case. However, the CBI did not take any action to arrest the IPS officers. In paragraph 15 of the Bail Application, it is stated thus: “It is understood that after the S.P. and the I.G. of police were arrayed as accused, the investigating officer of the CBI had obtained warrant of arrest from the Court of the Chief Judicial Magistrate, Ernakulam, where the CBI has filed their FIR, to arrest them. The Hon’ble High Court has also given a free hand to the investigating officer to proceed with the investigation effectively without any fear. In the meantime, the Senior officers of the CBI interfered in favour of the S.P. and I.G. of police. The CBI directorate had even approached the Hon’ble Supreme Court to get an order that the investigation should be conducted only in accordance with the provisions in the CBI manual. In the meantime, the CBI officer who recorded the above statements of Kanakaraj and Manikantan was changed.” BAIL APPL. NO.7300 OF 2011 :: 6 :: 10. The learned counsel for the petitioners submitted that the investigation of the case is over. Final report against five accused persons was filed on 22-6-2011. 117 witnesses are cited in the final report and a large number of documents are listed. Since it was not necessary to get the statements of the petitioners, they were not arrested. The petitioners were attending to their official duties until they were suspended from service on 21-5-2010. The petitioners were available at their residence. The petitioners went to their respective offices for receiving their subsistence allowance. Till July 2011, none of the officers of either CBCID or CBI ever contacted the petitioners. The petitioners stated in the Bail Application thus: “Thereafter the investigating officers have been making suggestions and offers through others to the petitioners to become approvers after giving statements before the Magistrate supporting the present prosecution story. The Petitioners have politely refused to oblige.” The petitioners apprehend harassment and humiliation if they are arrested. The petitioners filed an application for anticipatory bail before the Sessions Court, Ernakulam. The learned Sessions Judge dismissed the application. BAIL APPL. NO.7300 OF 2011 :: 7 :: 11. It is submitted by the petitioners that the CBI is selective in the matter of arrest of the accused. Even after obtaining arrest warrant, CBI did not arrest the Superintendent of Police and the I.G. of Police. There is no reason why the petitioners should be arrested. 12. Sri.P.Chandrasekhara Pillai, the learned counsel for CBI submitted the following: For the investigation of Sheela murder case, a special investigation team was constituted by the District Superintendent of Police. The petitioners were members of the Special Investigation team. Sampath was brought to the river side cottage in a private scorpio vehicle belonging to a contractor. An accused should not have been brought in a private vehicle. Various methods of torture, like “Garudhan Thookkam”, dipping the head in water and giving electric shock, apart from the conventional methods of hitting with hitting blocks, beating on the feet etc., were adopted by the accused in the case. The postmortem certificate indicates that Sampath sustained 63 ante mortem injuries. A quantity of 2.5 litres of blood was found collected in the internal organs of Sampath. CBI issued notices to the petitioners to appear before the investigating officer. The notices were attempted to be served in person, through the office of the District BAIL APPL. NO.7300 OF 2011 :: 8 :: Superintendent of Police. The D.S.P. reported that the petitioners were absconding. The notices issued to the petitioners were received by their relatives and they stated that the petitioners were not available. It is highly necessary to arrest the petitioners. Custodial interrogation of the petitioners is required. Sri.Chandrasekhara Pillai also submitted that who among the accused should be arrested and in what manner the investigation should be conducted, are all in the realm of the discretion of the investigating agency and the accused cannot dictate as to how these functions should be carried out by the investigating agency. 13. Prima facie, it cannot be said that there is no material to connect the petitioners with the offence. It is improper to arrive at conclusions on facts, while disposing of an application for anticipatory bail. The allegations levelled against the accused, including the petitioners, are grave in nature. If anticipatory bail is granted to the petitioners, it would adversely affect the proper and smooth investigation of the case. The petitioners cannot get an order for anticipatory bail on the ground that the investigating agency did not arrest some other accused persons. Howsoever improper may be the method adopted by the investigating agency in not arresting some of BAIL APPL. NO.7300 OF 2011 :: 9 :: the accused, that is not a ground for the petitioners to claim immunity from arrest. Custodial interrogation of the petitioners may be required in the case. I am of the view that the petitioners are not entitled to the discretionary relief under Section 438 of the Code of Criminal Procedure. For the aforesaid reasons, the Bail Application is dismissed. (K.T.SANKARAN) Judge ahz/