State of Kerala vs V. Anilkumar

R. Basant

The respondents herein are accused Nos. 22 and 23 in Crl. 116 of 2003 of Nemom Police Station. Serious allegations were raised against the accused in the case of violation of the provisions of the Kerala Abkari Act. Both the respondents were granted anticipatory bail as per common order dated 13-05-2005 by another Bench of this court. The relevant directions in the operative portion are extracted below :-

In the result, I direct the petitioners to surrender before the Magistrate concerned positively in 7 days. On such surrender and on their making deposit of an amount of Rs. 50,000/- each by way of cash security and each of them executing bail bond for Rs. 50,000/- with two solvent sureties each for the like sums to the satisfaction of the Magistrate, the Magistrate shall enlarge them on bail. On such release they shall report before the investigating officer between 10 a.m. and 11 a.m. on all days for a period of one month, on every alternate days thereafter for a period of next two months and thereafter on all Tuesdays and Fridays only, till investigation in the case is over and final report is laid. It is made clear that grant of anticipatory bail shall not stand in the way of the Magistrate giving the petitioners in police custody for the purpose of interrogation in case they so ask for and the Magistrate deems fit to grant. It is further ordered that on release the petitioners shall not move out of the territorial limits of the State of Kerala; that they shall furnish the detailed address of their abode to the investigating agency in writing with the telephone numbers and mobile numbers for contact by the investigating agency, that they shall always be available for the investigating agency for the purpose of interrogation and that no room shall be given by them for complaint that they are absconding. Violation of any of the above conditions shall result in cancellation of anticipatory bail so granted.

These bail applications are disposed of as above.

(emphasis supplied)

Accordingly the respondents/accused appeared before the learned Magistrate having jurisdiction on 19-5-2005 and were enlarged on bail on execution of bonds/complying with conditions on that date. Thereafter they were expected under the terms of the order extracted above to report before the Investigating Officer between 10 am and 11 am on all days for a period of one month. The common order clearly shows that the respondent/complaint was "State of Kerala, represented by Hareesh Kumar, Circle Inspector of Police, City Police Control Room, Thiruananthapuram". After their release, the petitioners were expected to report before the Investigating Officer on all days for a period of one month. Admittedly the petitioners did not report before Sri. Hareesh Kumar, C.I. of Police, during the period 20-5-2005 to 26-5-2005. They did however start reporting before him admittedly from 27-5-2005. These applications for cancellation of anticipatory bail u/s 439(2) Cr. P.C. are filed by the State on 26-5-2005 on the allegation that the conditions imposed have not been complied with during the period, 20-5-2005 to 26-5-2005.

The respondents have entered appearance through counsel. They contend that the prayer for cancellation of bail is misconceived. It is purely an ego clash between the C.I. referred above and the Assistant Commissioner of Police, Sankumugham who has been legally put in charge of supervision of the investigation by a valid order of the DGP. They contend that when they were enlarged on bail, they were issued a memo (produced by the respondents as Annexure R1) addressed to the Assistant Commissioner of Police. In these circumstances, they had appeared before the said Assistant Commissioner of Police, Sankumugham from 20-05-2005 to 26-05-2005 in obedience to the directions of this court. They had apprised the Assistant Commissioner of the directions of the Court and had faithfully reported before him on all days from 20-05-2005 to 26-05-2005. He had acknowledged Such appearance and had also wanted/permitted them to sign the register maintained at his office in token of their having appeared before him from 20-05-2005 to 26-05-2005.

What then is the violation? The learned DGP was requested to get an affidavit to be filed by the Assistant Commissioner of Police, Sankumugham as to whether these assertions of the respondents are correct. Accordingly, an affidavit has been filed by the Asst. Commissioner concerned wherein it is categorically admitted that he was ordered to be in charge of supervision of the investigation by the team lead by the C.I. referred above. He further confirmed that both the accused had appeared before him from 20-05-2005 to 26-05-2005 and were permitted to sign the register concerned.

One would have expected the State to graciously withdraw from prosecuting these petitions. But the State continues to proceed with these petitions asserting that there has been contumacious violation of the conditions imposed by this court while granting bail and such violations must result in cancellation of the anticipatory bail granted to the respondents.

The learned Director General of Prosecutions has advanced detailed arguments. It is first of all contended that notwithstanding the provisions of Section 41 A of the Kerala Abkari Act, this court had taken a very lenient view and petitioners have abused the liberty granted to them by this court which took a very lenient view. The order of anticipatory bail has become final now and it is necessary to even refer to the question whether u/s 41A anticipatory bail could have been granted or not. The learned DGP hastens to submit that he does not want to say anything about the grant of anticipatory bail but his contention is only that indulgence shown by the court has been abused by the respondents.

There is no dispute and it is agreed that Section 439(2) will apply to all bails granted under Chapter XXXIII of the Cr. P.C., including anticipatory bail granted u/s 438 Cr. P.C. There is no serious dispute about the quality of consideration that a count should undertake when it is called upon to exercise the powers u/s 439(2) Cr. P.C. The decision in Dolat Ram and Others Vs. State of Haryana, is the leading decision on the point. In paragraph 4 of the said decision the position of law is stated in the following words:-

Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail, already granted. Generally speaking, the grounds for cancellation of bail broadly (illustrative and not exhaustive) are; interference or attempt to interfere with the due curse of administration of justice or evasion or attempt to evade that due course of justice or abuse of the concession granted to the accused in any manner.

An innocent violation of any condition imposed by the court will not ipso facto lead to cancellation of bail u/s 439(2) Cr. P.C. The crucial and vital question is whether there has been deliberate, contumacious and unjustified infraction of the conditions imposed by the court. While considering that contention it is vital now to note that admittedly respondents were appearing before the Assistant Commissioner of Police, Sankumugham on the relevant dates, that is on 20-05-2005 and 26-05-2005 on which days they are now alleged to have committed violation of the directions. Was he the Investigating Officer at the relevant time? There can be no doubt that the investigation was being conducted by a team led by the C.I. referred above. But there is no dispute regarding the fact that the Assistant Commissioner of Police, Sankumugham was the official who was assigned with the responsibility of supervising the investigation the respondents, instead of appearing before the C.I. who headed the team of investigation, appeared before a Superior Officer who was as per valid orders entrusted with the duty of supervising the inspection, it can by no stretch of supervising the inspection, it can by no stretch of imagination be held that such accused/respondents were intentionally, deliberately and with contumacious intent, violating the directions of the court.

Of course I find merit in the submission of the learned DGP that respondents must have known that the C.I. was in direct, immediate charge of investigation. But that cannot lead to the further conclusion that appearance before the superior officer entrusted with the supervision of investigation amounts to contumacious violation of the conditions.

The course adopted by the State is surprising because there appears to be a gap in communication between the C.I. referred above and his superior who was admittedly entrusted with the responsibility of supervising the investigation. I do also note that the officers do not appear to be on taking terms. If the respondents did not appear before the C.I. it passes ones comprehension how he could have gone to the extreme step of applying for cancellation of bail without and before consulting or informing his superior officer the Assistant Commissioner of Police, Sankumugham. Obviously there appears to be some discord between the two officers concerned. At any rate the respondents cannot be made the scapegoats for such disagreement or discord between the officers concerned. It may not have been proper or moral for them to taken advantage of the perceived want of congruity between the C.I. and the ACP. But the crucial question is only whether there was intentional, deliberate and contumacious violation of the conditions imposed. It is very evident that the respondents did not attempt to flee from justice. They were continuing to report before a Superior Officer on all relevant dates.

It will not be inapposite in this context to note that an application for custody was filed by C.I. in charge of the investigation on 20-05-2005. According to the respondents, this was filed on 21-05-2005. What is of relevance to note is that even in that petition, the C.I. has not made an allegation that the respondents have violated the condition by not appearing before him on 20-05-2005. It must also be noted that the court in the order granting anticipatory bail had directed the accused persons to furnish the telephone numbers, mobile numbers, etc. If as a matter of fact till 27-05-2005, the respondents did not appear before the Investigating Officer and he suspected foul play it would only have been reasonable to expect him to try to contact the respondents to find out if they are absconding and they had filed from justice. But what we find is that the C.I. comes forth with this application only on 26-05-2005 and till then makes no attempt to contact the respondents or his immediate superior entrusted with the responsibility of supervision to find out whether the respondents are absconding or are reporting before the superior officer.

The State should have, according to me taken a definite stand. The State has no case that the Assistant Commissioner who was filed the affidavit is not speaking the truth about the respondents reporting before him. If he were not speaking the truth or had knowingly permitted the accused to report before him to save the respondents of their obligation to report before the C.I. the State must have taken a firm stand and the ACP must have been visited with the necessary consequences. The State cannot skirb the issue by merely claiming to cancel the bail granted to the petitioners. In these circumstances, it must be held that the respondents have not been shown to be guilty of any deliberate, intentional and contumacious violation of the conditions so as to persuade this court to invoke the extra ordinary powers available u/s 439(2) Cr. P.C.

The learned DGP submits that it is the burden of this court to ensure that the directions issued by invoking the extra ordinary jurisdiction u/s 438 Cr. P.C. are complied with strictly and are not avoided and evaded by ingenious explanations offered by the respondents. I am in total agreement with the learned DGP but must say that sufficient materials are not placed before me to conclude that there has been deliberate and contumacious violation of the conditions by the respondents. These petitions are in these circumstances, dismissed.