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. 2003 of 2010() ----------------------------- CRIME NO.30/2010 OF RAJPURA POLICE STATION, PATTIALA DISTRICT, PUNJAB. (S): PETITIONER/ACCUSED -------------------------------------- SAMDEEP VARGHESE, AGED 38 YEARS, S/O.LATE MR.MOHAN K.VARGHESE,'SERENE'27/2182, K.P.VALLON ROAD,KADAVANTHARA,ERNAKULAM,KOCHI-20. BY ADV. SRI.GEO PAUL RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. S.I. OF POLICE, RAJPURA CITY POLICE STATION, PATIALA DISTRICT, PUNJAB. 3. DEPUTY SUPERINTENDENT OF POLICE, RAJPURA PATIALA DISTRICT , PUNJAB. 4. DIRECTORATE OF REVENUE INTELLIGENCE, REPRESENTED BY STANDING COUNSEL, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.TEK CHAND. ADDL.ADVOCATE GENERAL(STATE OF PUNJAB), 1. SRI.NARESH KUMAR SANGHI 2. SRI.JAYANT K.SUD. THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 11/06/2010, ALONG WITH B.A.2638/10, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.R. K.HEMA, J. ---------------------------------------------- Bail Application Nos.2003 & 2638 of 2010 ---------------------------------------------- Dated 11th June, 2010. O R D E R These petitions are filed under section 438 of the Code of Criminal procedure code (`the Code', for short), for anticipatory bail. 2. On a complaint filed by the representative of a Company, which is engaged in the business of trading and distribution of petrochemicals in India and overseas, a crime was registered against nine persons, alleging offences under Sections 65, 66, 66A, C and D of the Information Technology Act and Sections 419 and 420 of the Indian Penal Code (`IPC' for short). 3. As per the allegations in the complaint, the company has a web-site in the name and and style `www.jaypolychem.com' but, another web site was set up in the internet by first accused (Samdeep Varghese @ Sam), who was dismissed from the company, as under the name and style B.A.2003 & 2638/10 2 `www.jayplychem.org', in conspiracy with other accused, including one Preeti and Charanjeet Singh, who are the sister and brother-in-law of `Sam' and defamatory and malicious matters about the company and its directors are made available in that web site. 4. It is further alleged in the complaint that first accused’s sister and brother-in-law are based in Cochin and they have been acting in collusion and conspiracy with known and unknown persons, who have dishonestly and fraudulently cheated the company and committed acts of forgery, impersonation etc. In pursuance of the conspiracy, two of the accused (Amardeep Singh and Rahul) had visited Delhi and Cochin. 5. The complaint also reveals that first accused and others sent e-mails from fake e-mail accounts of many of the customers, suppliers, Bank etc. to malign the name and image of the Company and its Directors. It is further alleged thus: “The defamation campaign run by all the said persons named above has caused immense damage to the name and reputation of the Company. The Company has also suffered losses of several crores of Rupees for producers and suppliers, B.A.2003 & 2638/10 3 and customers were unable to do business”. 6. It is also alleged in the complaint thus: “Company has also learnt that Mr.Varghese, Mr.Amardeed Singh and other above referred persons in collusion with other known and unknown persons have impersonated different individuals, real or imaginary and have made and used forged electronic records, created false e-mail accounts to send information that they knew was false and grossly offensive to cause annoyance, inconvenience, danger, obstruction, injury etc., to the Company, its Directors, employees and other persons with the further malafide and deliberate intention of causing annoyance and inconvenience and deceive the addresses and recipients about the origin of such information/messages.” 7. There is also an allegation that first accused, in collusion with other accused “have been passing on and exchanging confidential information of the Company to each other and to third parties”. The further allegation is that first accused along with his sister and brother-in-law and one Rahul had financed a trip of one of the accused Amardeep and his wife to Cochin and Munnar although the Company was informed that he was going to Kulu-Manali for his honeymoon. Those persons parted with B.A.2003 & 2638/10 4 certain confidential information of the Company which resulted in great financial loss to the Company, besides loss of business and reputation. 8. The further allegation against the accused is this: “The said persons are withholding certain other information of confidential nature for which they are blackmailing the Company and its Directors and are seeking extortion money for not returning the confidential documents and material which they have unauthorisedly and illegally taken from the Company records of some of which was handed over to them or they had access to as employees of the Company.” 9. On the above allegations made in the First Information Statement, a crime was registered against first accused, his sister and brother-in-law and few others, at Rajpura city police station, in Punjab. According to respondents, later, it was revealed on investigation that huge amount of money was brought by first accused and other accused and handed over to first accused’s mother, who is now reportedly, arrayed accused no.6 (Smt. Mariamma- who is not named in the FIR). She also allegedly hatched a criminal conspiracy with all the other accused to commit the various offences. B.A.2003 & 2638/10 5 10. The first accused and his mother (A6) filed separate petitions for anticipatory bail. According to them, they are absolutely innocent of the allegations made. The first accused was working as General Manager in Reliance India Limited for a very long time, and he earned a very good reputation. Later, he joined the company of the complainant and worked as the Vice President for a period of two years. In the mean time, he came to know that the company is indulging in illegal activities and various fraudulent money transactions and committing various offences and hence, he did not intend to continue in the company. He resigned from the job. 11. According to petitioners, the company was aware that first accused was having confidential information about the shady manner in which the company was run and fearing that he would leak out relevant informations to authorities, a false complaint is filed against him, as a shield. First accused, in fact, made a complaint to the Director of Revenue Intelligence ( who is shown as 4th respondent in these petitions) regarding the various illegalities in which the Company is indulged in, and proceedings are now pending against the company. (Learned Standing Counsel appearing for 4th respondent submitted that a B.A.2003 & 2638/10 6 complaint is received raising serious allegations against the Company and its Directors and enquiry is being conducted). 12. It is also submitted that the only motive of the Company is to wreak vengeance against first accused and to destroy his reputation. His whole family is dragged into criminal proceedings, without any basis. The first accused’s sister and brother-in-law were implicated in the complaint, as per the FIR. and much later, first accused’s mother who is aged 78 years is also dragged in as an accused, on flimsy grounds and with ulterior motive, as a pressure tactics, it is submitted. 13. The first accused’s sister and brother-in-law, who are Doctors, filed application for anticipatory bail and this Court was pleased to allow the application, as per order dated 1.3.2010 in B.A.1163/2010 [reported in Koshy v. State of Kerala (2010(1) KLT 945], it is submitted. The allegations against first accused in the said bail application are almost similar in nature and, as against first accused's mother, those are still lesser in substance and content. In such circumstances, there is no reason to refuse anticipatory bail to petitioners, it is submitted. 14. This petition is strongly opposed by the second and B.A.2003 & 2638/10 7 third respondents, who are represented by Sri. Naresh Kumar Singhi, and Sri. Jayant K.Sud, learned Additional Advocates Generals for the State of Punjab and also by Sri. Vineeth Malhotra, who was also heard on behalf of the defacto complainant. It was strenously argued by all of them that this Court has no jurisdiction to consider or entertain the anticipatory bail applications. The offences are allegedly committed within the limits of Rajpura city police station in Patiala District in the State of Punjab. Therefore, the only courts which can grant anticipatory bail are the High Court of Punjab or the sessions court concerned in Punjab, within whose jurisdiction the crime is committed, it is strenuously contended. 15. Learned Advocate General cited a decision of the Supreme Court in State of Assam v. R.K.Krishna Kumar (AIR 1998 SC 144), and also pointed out that various High Courts of this country, followed the dictum laid down in the above decision and held in same lines that the court which can grant anticipatory bail is the court within whose jurisdiction, the offence is committed. The following decisions were cited: Capt. Satish Kumar Sharma v. Delhi Administration and others (ILR 1990(2) Delhi 203), In re : ram Badan (1982 B.A.2003 & 2638/10 8 Crl.L.J. 1961 Calcutta), Kailashpati Kedia v. State of Maharashtra and others (1996 M.P.L.J. 847(Maharashtra). 16. It was also pointed out by learned Additional Advocate General that a petition was filed before the High Court of Punjab by first accused's sister and brother-in-law, for quashing the proceedings initiated against them and it is still pending. No stay is granted in the case. They also moved the Sessions Court in Punjab for anticipatory bail. The petitioners herein being their close relatives being brother and mother are aware of the pendency of the said proceedings and nothing prevents them from moving the appropriate forum, it is argued. Petitioners may be directed to approach the courts in Punjab which alone have jurisdiction to entertain the petitions and if these petitions are entertained, it will encourage forum shopping, it is submitted. 17. It is also submitted that though an anticipatory bail order was passed in favour of first accused's sister and brother-in-law, by another learned judge of this court, in Koshy v. State of kerala 2010(1) KLT 945, the said order is challenged by the State of Punjab before the Supreme Court on various grounds, including jurisdiction and notice has been B.A.2003 & 2638/10 9 ordered to the accused. It is also pointed out that as per the order passed by this Court in the anticipatory bail application, there is a direction that petitioners therein shall make themselves available for interrogation by the Investigating Officer in the office of the City Police Commissioner, Ernakulam, on such date and dates, as intimated by the City Police Commissioner, Ernakulam. 18. The above direction in Koshy's case is illegal, in the light of the dictum laid down by the Supreme Court in D.Benupani, Asst.Director, Enforcement Directorate (FERA) v. A.K.Bajoria (JT 1997(9) SC 379), wherein it is clearly laid down that such directions cannot be granted by the court while granting anticipatory bail, it is strenuously argued. The fixing of place for interrogation is within the realm of investigation and the court cannot intrude into it, it is strongly argued. In such circumstances, the mere fact that an order of anticipatory bail is granted in favour of two of the co-accused may not be made a ground to grant anticipatory bail to the petitioners, it is argued. 19. It is also pointed out that from the arguments advanced on behalf of petitioners it is clear that first accused is B.A.2003 & 2638/10 10 not residing at present within Kerala and that he is still in Singapore. But, his address shown in the cause title is that of Cochin. He has not subjected himself to the jurisdiction of this Court; he has not filed even a vakalath, but only a memo is filed by learned counsel for first accused, on behalf of him though he is residing abroad, it is pointed out. (Learned counsel for petitioners clarified that as per the relevant Rules in Kerala, a memo filed by counsel is sufficient and vakalath is not insisted upon in criminal matters. That is why the Registry has not noted any defect and the petition was admitted by this court). 20. Learned counsel for petitioners refuted the above arguments and contended that an anticipatory bail application can be entertained by any High court within whose jurisdiction a person apprehends arrest. He placed reliance upon the decisions reported in C.I.Mathew v. Govt. of India (1984 KLT 942) and Madhusoodan v. Supdt. of Police (1992 (2) KLT 83). It is further submitted that first accused is a permanent resident of Kerala and the address shown in the cause title is his permanent address. He may come to Kerala at any time and he is apprehending arrest within Kerala, since B.A.2003 & 2638/10 11 a crime was registered and a non-bailable warrant was issued against him, it is submitted. 21. In this context, another argument is raised by learned counsel for petitioners that the arrest warrant issued in this case is not legal or proper. According to him, it is illegal for the Magistrate Court to issue a warrant for securing the presence of an accused, for the purpose of investigation in the light of the decision in State v. Dawood Ibrahim Kaskar 9AIR 1997 SC 2494). It is based on an illegal warrant that petitioners are now being sought to be arrested, it is pointed out. Further, there was no necessity at all to obtain a warrant from the court, since police can arrest the accused even without warrant, as cognizable offences are involved in this case. The over-enthusiasm of the police in procuring warrant raises an apprehension that petitioners may be harassed in case they are arrested under an illegal warrant, it is argued. 22. It is also submitted that two Additional Advocate Generals and another counsel from the State of Punjab have come all the way from Punjab to Kerala, to argue a case which does not even involve any public interest, but it is between two private individuals only. In the above circumstances, B.A.2003 & 2638/10 12 petitioners reasonably apprehend that if they are arrested, they will be subjected to torture and harassment by police. They will also suffer irreparable injury and loss, if anticipatory bail is not granted, it submitted. 23. Learned Advocate Generals maintained the strong stand that there is no bar in issuing a non-bailable warrant for the purpose of investigation. According to him, other High Courts in Neela J.Shah v. State of Gujarat (1998 CRL.LJ (Guj) 2228) and State of Manipur v. Vikas Yadav [2000 CRL.LJ 4229 (Guwahati)] considered the very same question and following the dictum laid down in Dawood Ibrahim's case, it was held that there is no bar for issuance of warrant by the Magistrate, for the purpose of investigation. 24. Learned Additional Advocate General also clarified that it is only because accused's presence could not be procured by the Investigating Officers that they were forced to get an order of non-bailable warrant from the Magistrate Court concerned. It is only legal and no malice can be attributed to the investigating agency on this count. Further, merely because the Additional Advocate Generals have appeared in this case for the State concerned and argued the case, it B.A.2003 & 2638/10 13 cannot be contended that there is malice. It is only to assist this court that they are here, it is submitted. 25. Learned Additional Advocate General also argued that many important facts can be brought to light only if petitioners are subjected to custodial interrogation. Though a direction was issued by this court in Koshy's case while granting anticipatory bail to the co-accused, who are none other than first accused's sister (she is also daughter of sixth accused) and her husband to appear before the Sub Divisional Judicial Magistrate, Rajpura within two months, they have not complied with the said direction. The respondents reasonably believe that petitioners may also follow the same path, in which event, investigation will be at peril. The urgency in the case of application for anticipatory bail has been emphasised by the Supreme Court in M.R.Vijayakumar v. State of A.P. in 1988 Crl.L.J.14. Taking into account all these facts and circumstances, it is submitted that both the petitions deserve to be dismissed. 26. I also heard Sri.M.S.Breeze and Sri.Tek Chand, learned Public Prosecutors on behalf of the State of Kerala. They limited their arguments to jurisdiction of this Court. According B.A.2003 & 2638/10 14 to them, whatever is stated by the Supreme Court in Krishnakumar's case confines to the facts of said case. It is also specifically stated therein that it was unnecessary to consider whether the Bombay High Court has jurisdiction or not. On the facts of that case, the Supreme Court found that the cases should be considered by High Court of Guwahati, it is pointed out. 27. Learned Public Prosecutors for the State of Kerala also supported the arguments advanced that the court within whose jurisdiction the arrest is apprehended also has jurisdiction to entertain the application for anticipatory bail. They also cited a decision of the Sikkim High Court reported in Rama Shankar Prasad v. The State (1998 Crl.L.J. 1926), which is in tune with the decisions of this Court in C.I.Mathew v. Govt. of India (1984 KLT 942) and Madhusoodan v. Supdt. of Police (1992(2) KLT 83) on the question of jurisdiction. It is held therein as follows : “We are of the view that the place where the arrest is threatened should also confer jurisdiction for entertainment of a matter under Section 438, Cr.P.C. Hence, the application is quite in order so far as the jurisdiction is concerned.” B.A.2003 & 2638/10 15 28. On hearing both sides, I find that I must first decide whether this court has jurisdiction to entertain these anticipatory bail applications or not. The Supreme Court in State of Assam v. R.K.Krishna Kumar (1998 SC 144) held as follows: “We do not think it necessary to decide whether Bombay High Court has jurisdiction to entertain the applications filed by the respondents. All the same, the question of granting anticipatory bail to any person who is allegedly connected with the offences in question must for all practical purposes be considered by the High Court of Guwahati within whose territorial jurisdiction such activities should have been perpetrated. In view of the conceded position that appellants were not heard by the High Court, we set aside the impugned orders on that ground alone. The applications are to be disposed of after hearing the appellants also. For that purpose we order that the applications for anticipatory bail filed by the respondents would stand transferred to the High Court of Guwahati where those applications would be heard by a Division Bench of that High Court and appropriate orders be passed thereon” (Emphasis supplied) 29. In Krishnakumar's case cited above the offences were committed within the territorial jurisdiction of the State of Assam but, anticipatory bail applications were moved before the Bombay High Court. The Bombay High Court allowed the applications, without hearing the respondents and hence, B.A.2003 & 2638/10 16 the Director General of Police filed appeals against the said orders before the Supreme Court. The Supreme Court, while considering the said appeals held thus: “in view of the conceded position that appellants were not heard by the High Court, we set aside the impugned orders on that ground alone”. 30. So, it is clear that the bail orders were set aside only on the ground that the appellants were not heard and it was not on the ground that the Bombay High Court has no jurisdiction. It is also relevant to note that the Supreme Court held that it was not “necessary to decide whether Bombay High Court has jurisdiction to entertain the applications filed by the respondents” though an argument was raised that the Bombay High Court had no jurisdiction to entertain the bail applications, since the offences were committed within State of Assam. 31. It is true that the Supreme Court also held in the above decision that the question of granting anticipatory bail to any person, who is allegedly connected with the offences in question “must for all practical purposes be considered by the High Court of Guwahati within whose territorial jurisdiction B.A.2003 & 2638/10 17 such activities should have been perpetrated.” It is pertinent to note that what is referred to by the Supreme Court is, “the High Court of Guwahati” and not “any High Court”. In such circumstances, it appears to me that the Supreme Court was not laying down a general proposition but, the appeals were disposed of on facts holding that the anticipatory bail applications in that case are to be considered by the High Court of Guwahati within the jurisdiction of which the activities were perpetrated. Of course, there can be no doubt that anticipatory bail can be granted by the courts, within whose jurisdiction the offence is committed. 32. It is also relevant to note that the Supreme Court did not consider in Krishnakumar's case whether the High Court within whose jurisdiction arrest is apprehended has jurisdiction to entertain the application or not. A division bench of this court held in Madhusoodan v. Supdt. of Police (1992(2) KLT 83) that the court within whose jurisdiction the arrest is apprehended can grant anticipatory bail. The relevant portion from the above decision is extracted as hereunder: “If release from arrest is necessary, the place where arrest is made has some significance for such release. In our view the place where a person apprehends arrest is B.A.2003 & 2638/10 18 a sure test for determining jurisdiction of “the” High Court or “the” Court of Session as the case may be. If the applicant can satisfy the court that his apprehension that he would be arrested at a place within the territorial limits of a particular court is based on reasonable grounds, we would say that the High Court or the Sessions Court having jurisdiction over that place has authority to exercise powers under. S.438 of the Code.” 33. I may mention here that the judgments of the Supreme Court in krishnakumar's case and that of the Division Bench decision are authored by the same learned judge. I also find that there is nothing in krishnakumar's case which runs contrary to what is laid down on jurisdiction in the decision of the Division Bench of this Court. No other decision of the Supreme Court was cited by the respondents which would over rule the two decisions of this court in C.I.Mathew v. Govt. of India (1984 KLT 942) and Madhusoodan v. Supdt. of Police (1992(2) KLT 83) or render them, not good law. In the above circumstances, I am bound to follow the decisions of this Court and I hold that the High Court within whose territorial jurisdiction a person apprehends arrest also can grant anticipatory bail. There is no bar for a High Court in entertaining an application for anticipatory bail, if a person apprehends arrest within its B.A.2003 & 2638/10 19 jurisdiction. 34. Therefore, the next question to be decided is, whether the petitioners apprehend arrest within the State of Kerala. It has come out from the arguments advanced by learned counsel for petitioners that first accused is working abroad in Singapore and he is also residing there. He is not, at present, residing in Kerala. In such circumstances, I find that there can be no reasonable apprehension of arrest of petitioner within the state of kerala. 35. A reading of section 438 of the code shows that a person who seeks anticipatory bail shall satisfy the court that “he has a reason to believe that he may be arrested”. It is not enough if he merely states that he has an apprehension of arrest. The court must be satisfied that the apprehension of arrest expressed by him is reasonable and not merely fanciful. In a case in which non-bailable offence is allegedly committed outside the jurisdiction of the High Court, before which a person has moved for anticipatory bail he must also satisfy