IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 11TH JUNE 2010 / 21ST JYAISTHA 1932 Bail Appl..No. 3268 of 2010() ---------------------------------------- CP.3/2010 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... PETITIONER/ACCUSED NO.1: -------------------- REV.FR.VARGHESE THEKKEKARA, AGED 51, S/O.T.M.BABY, THEKKEKARA, THEKKEKARA HOUSE, PERUMBAVOOR, ERNAKULAM DISTRICT. BY ADV. SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.SUJESH MENON V.B. SRI.JOSEPH P.ALEX SRI.SHYAM ARAVIND SRI.T.ANIL KUMAR RESPONDENT(S): COMPLAINANT: --------------------------- 1. CBI, CHENNAI REPRESENTED BY THE STANDING COUNSEL TO THE CBI, HIGH COURT OF KERALA. *ADDL. R2 IMPLEADED. SARAMMA VARGHESE, AGED 58 YEARS, W/O. LATE T.M.VARGHESE, THOMPARA HOUSE, IRINGOL, PERUMBAVOOR, ERNAKULAM. *ADDL. R2 IS IMPLEADED AS PER ORDER DTD. 11.06.2010 IN CRL. MA. 307/.2010. R1 BY ADV. SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. ADDL.R2 BY ADV. SRI.C.P.UDAYABHANU THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J ---------------------- B.A.No.3268 OF 2010 ----------------------------------- Dated this the 11th day of June 2010 O R D E R This petition is for anticipatory bail. 2. The alleged offences are under section 120-B, 147, 148, 326, 302, 201, 212 and 149 IPC and Sec.27 (1) of Arms Act. According to prosecution, on 5.12.2002 at about 1.30 pm, accused No.13 to 17 formed into an unlawful assembly and armed with deadly weapons like sword, inflicted injury on Malankara Varghese and he succumbed to injuries on the same day at hospital. Offences were committed by members of an unlawful assembly in pursuance of criminal conspiracy, assaulted and committed murder of Malankara Varghese. Petitioner is the first accused, who is alleged to have conspired with second accused to assault the deceased. Accused 3 to 5 also conspired with accused 6 to 17 to assault and commit murder of deceased. 3. Learned counsel for petitioner submitted that petitioner is a priest for the past 28 years, without any criminal antecedents. The crime was registered as early as on 5.12.2002 and B.A. No.3268/10 2 investigation was going on over a period of eight years by different agencies including CBI. But only recently, on 7.5.2010, charge sheet was laid by CBI. Till then, petitioner was not implicated as an accused in this case. He was not required for the purpose of investigation as an accused. It is true that petitioner was questioned by CBI on several occasions, but petitioner was not arrested and this fact is mentioned in the charge-sheet itself. The investigating officer has not reported that petitioner was absconding. CBI did not propose to arrest petitioner, may be because, the evidence against petitioner is not strong enough or since there is no sufficient evidence against petitioner, it is submitted. 4. The only person who implicated petitioner is CW27, who is none other than the cousin of deceased Varghese. He was questioned only a few days prior to filing of charge sheet. He was questioned on 8.4.2010 and charge was laid on 7.5.2010. According to CW 27's statement, he heard a conversation of petitioner and second accused that there is a decision to take revenge on the deceased. It was submitted that CW27 has no case that petitioner conspired to assault or commit murder of the deceased. Even if the allegations made by CW 27 are correct, B.A. No.3268/10 3 there is no reason why he suppressed the details for a period of eight years, even though he is a close relative of deceased Varghese, it is submitted. 5. Learned counsel for petitioner argued that no warrant was issued against petitioner originally, on filing of charge sheet. Only a summons was issued by learned Chief Judicial Magistrate since petitioner was not shown as an absconding accused and he was actually not absconding. He was available for arrest or for the purpose of investigation. As per the summons, the day appointed for his appearance was 20.5.2010. Since petitioner did not get any summons from the court, he did not appear on that day. On knowing that warrant was issued, enquiry made and it was understood that though summons was ordered, summons was not taken from court by the CBI for effecting service on accused. 6. However, on 20.5.2005, the case was called by learned Magistrate who was in charge of Chief Judicial Magistrate on that day. Since accused was not present, court ordered to issue non- bailable warrant. Copy of the order is produced and it reads as follows: “A2 produced. Remand extended till 3.5.2010. B.A. No.3268/10 4 Issue NBW against A1 since he is not on bail. Issue summons to A3-19. Adjourned to 3.6.2010.” It is pointed by learned counsel for petitioner that though only summons was repeated to accused No.3 to 19, in the case of petitioner alone, non-bailable warrant was ordered. The reason shown for issuance of NBW by learned Magistrate, who was in charge of Chief Judicial Magistrate on 20.5.2010 is that petitioner was not on bail. 6. Learned counsel for petitioner submitted that petitioner was not on bail, since he had no occasion to seek bail. Petitioner came to know that he is implicated as first accused only when he came to know that a warrant was issued against him. Petitioner was not implicated till filing of charge sheet and not even a report was given to the court stating that petitioner is being proceeded against. In such circumstances, petitioner could not have moved for bail, it is submitted. 7. The crime was registered against several other persons and at the time of filing of charge sheet, the rank of the accused was altered and petitioner who was not an accused till filing of charge was implicated as first accused. Warrant was issued illegally, and it is only because of such illegal warrant, that B.A. No.3268/10 5 petitioner is now apprehending arrest, it is submitted. It is also pointed out that if the accused had an opportunity to appear in court, on receipt of summons on 20.5.2010, he would have appeared in court in obedience of summons. In such event, he would not have been remanded in the light of the decision reported in Sreekumar Vs. State of Kerala 2008 (3) KLT 748, it is submitted. 8. But, petitioner did not receive any summons. Learned Magistrate failed to verify whether summons was received by petitioner before issuing non-bailable warrant. He has also failed to consider whether petitioner had any opportunity to move for bail. Therefore, the order of the Magistrate to issue NBW is illegal. If the petitioner is arrested in execution of non-bailable warrant issued by the court, it is likely that he will be remanded and he will suffer irreparable injury and loss. In such circumstances, petitioner may be granted anticipatory bail, it is submitted. 9. Learned standing counsel for CBI submitted that petitioner was not arrested, since he had co-operated with the investigation and CBI did not find it necessary to arrest him. It is also conceded that summons was not served on petitioner by CBI. B.A. No.3268/10 6 Though summons was ordered, CBI had not procured the same for service on petitioner. It is also conceded that petitioner was implicated as first accused only at the time of filing of the charge sheet on 7.5.2010 and not before. Learned standing counsel for CBI submitted that, in the peculiar circumstances of the case, this petition is not opposed. 10. Widow of the deceased Varghese filed a petition through counsel and he was also heard. He raised serious objection in granting anticipatory bail to the petitioner. According to him, petitioner has an important role in the murder of the deceased. Petitioner stands on the same footing as second accused and there is absolutely no reason why the petitioner alone was not arrested or subjected to custodial interrogation. According to him, CBI has joined hands with petitioner and avoided his arrest, though he is involved in the commission of offence. 11. It is also submitted that a writ petition was filed by the widow of the deceased Varghese for a proper investigation, since she smelt some malafides in the investigation. The said petition was disposed of yesterday by this court, since charge sheet was already laid. She has already filed a petition for further B.A. No.3268/10 7 investigation. In such circumstances, the discretionary remedy u/s.438 of Cr.P.C may not be invoked in favour of the petitioner and he has to be subjected to custodial interrogation. Some top persons in the diocese are also involved in the murder and their role will be revealed only if petitioner is subjected to custodial interrogation. But, CBI has deliberately caused omission to arrest petitioner without any satisfactory explanation, it is submitted. 12. It is also pointed out by learned counsel that warrant is already issued and it is for the court which has issued the warrant to decide whether the petitioner is entitled for bail or not, especially since charge sheet is filed. The remedy of the petitioner is to surrender before the concerned court and seek appropriate relief by filing a petition u/s. 437 of Cr.P.C. and the remedy is not to file an application for anticipatory bail, it is submitted. 13. On hearing both sides, I find that the crucial question to be considered is whether this court can grant anticipatory bail, since warrant was issued by the trial court, after filing of the charge sheet. Admittedly, petitioner is sought to be arrested only as per a non-bailable warrant issued by committal court. If petitioner is arrested, it is likely that in all probabilities he will be B.A. No.3268/10 8 remanded, since sessions offences are involved as pointed out by learned counsel for petitioner. The Magistrate court will not normally grant bail in a case involving sessions offences, like murder because it can grant bail only if it is found that accused is not guilty of the offences alleged. Ordinarly, Magistrate court will be reluctant to enter a finding to that effect in a case involving offence u/s.120(B) and 302 IPC. 14. While assessing the background in which non-bailable warrant is issued, I am satisfied, from the submissions made by both sides that warrant was issued without ascertaining whether summons was served or not. Non-bailable warrant was issued against petitioner only for the reason that he was not on bail. Learned Magistrate also failed to consider whether petitioner had any opportunity to seek bail till filing of charge sheet. If petitioner had received summons and appeared he would have been granted bail in the light of the decision in Sreekumar Vs. State of Kerala 2008 (3) KLT 748. So petitioner is faced with a situation of arrest and possibility of remand only because of an error committed by the court. 15. Investigating agency found that his arrest was not essential and admittedly as per records, only evidence of CW 27 B.A. No.3268/10 9 is available against petitioner who was questioned after about eight years of incident. It is also clear that petitioner was implicated as first accused only on the date on which charge sheet was laid, after shuffling the rank of the accused. It cannot be disputed that petitioner could not have applied for bail, before any court prior to filing of the charge sheet. It is also clear that since CBI did not intend to arrest him he could not have apprehended arrest. Therefore he had no occasion for filing any application for anticipatory bail. 16. Therefore from the materials placed before me, I find that learned Magistrate went wrong in issuing non -bailable warrant without ascertaining relevant aspects. Petitioner faces a threat of remand only because of a wrong order of the court. No person shall suffer, because of a wrong order passed by the court. Though several allegations are made by the aggrieved widow of the deceased, there are no materials on record to substantiate the allegations. There is only the statement of the CW27 to connect with the allegations made in respect of the criminal conspiracy. CW 27 was questioned only on 8.4.2010 at a very belated stage. 17. From the available records, I am satisfied that only B.A. No.3268/10 10 because of the order passed by the learned Magistrate in issuing a non-bailable warrant, petitioner is likely to suffer detention. Taking all what is discussed, I find that it is only fit and proper that anticipatory bail is granted to the petitioner, taking into account the peculiar facts and exceptional circumstances of the case, under which non-bailable warrant was issued against petitioner. Hence, the following order is passed: 1. Petitioner shall surrender before the Chief Judicial Magistrate court within ten days from today. 2. On such surrender, he shall be released on bail on his executing bond for Rs.25,000/- with two solvent securities for the like sum to the satisfaction of the learned Magistrate. This petition is allowed. K. HEMA, JUDGE. Sou.