Anticipatory bail or pre arrest bail is a bail provided to person in apprehending and anticipating bail. If any person believe that he may be arrested on commission of a crime , he may apply to the court of sessions or high court that he may be released on bail if such arrest occurs. The anticipatory bail is a preventive relief mentioned under section 438 of Criminal Procedure Code, 1973. The petitioners in the case ,P. Gopalakrishnan alias Dileep v. State of Kerala has applied for anticipatory bail before the Hon’ble High Court of Kerala.
FACTS:
The petitioners in this case are , Gopalakrishnan @ Dileep (A1) , P. Shivakumar @Anoop (A2), T. N Suraj (A3), Appu @ Krishnaprasad R (A4) , Byju B. R (A5) and an unidentified accused. They are accused in Crime NO. 6/2022, alleging commission of offences under Sections 116, 118, 120-B and 506 Indian Penal Code. The A1 is also the 8th accused in Crime NO. 297/ 2017 which is now pending trial as S.C No. 118/2018. .
The Crime No. 6/2022 was registered upon the basis of the information provided by Balachandra Kumar; that the first accused together with the other accused ,(including the unidentified accused) has conspired to do away with investigation officers and other officers who are connected with the investigation of Crime No. 297/2017 (Actress assault case). Subsequently an FIR was registered and apprehending arrest the accused have approached the court for bail.
ISSUES:
- Whether the petitioners have committed the offence of criminal conspiracy, abetment and criminal intimidation?
- Whether the anticipatory bail should be denied on the grounds of non- cooperation or propensity to intimidate possible witness?
ARGUMENTS ON BEHALF OF ACCUSED:
The senior advocate B. Raman Pillai assisted by Mr. Philip . T . Varghese alleged that the entire case is a malicious attempt to entrap the accused and to fabricate evidence in actress assault case as the prosecution lacks evidences and failed to prove the involvement of the accused in the above mentioned case. The original instrument in which the voice was recorded was no longer available or produced and there could have been tampering of the voice clips , points the counsel, and also , direct the attention to the inconsistencies in the statement of Balachandra Kumar, the informant .The advocate relied on judgments in which anticipatory bail was allowed even though the offences committed were grave . Sushila Aggarwal and others v. State (NCT of Delhi) and another, (2020) 5 SCC 1 is cited to point out that the grant of anticipatory bail does not in any manner interfere with the investigation of a crime.
Counsel submitted that it would be a travesty of justice if the petitioners are denied bail in the present case as no material whatsoever has been collected by the prosecution to prove any of the offences alleged against the petitioners.
ARGUMENTS ON BEHALF OF PROSECUTION:
The learned Director General of Prosecutions contended that the court should keep in mind the nature and gravity of the accusations while considering the application for anticipatory bail . The prosecution submitted that the investigation officer has no connection with Balachandra Kumar and the complaint was transferred to him as the case was linked to the prevailing criminal case. It is submitted that the statements of Balachandra Kumar are sufficient proof of the conspiracy and should be seen as a statement by an eye witness to conspiracy and not the sole evidence of conspiracy.
While answering the allegation of minor inconsistencies in the statement of Balachandra kumar the prosecution referred to the judgment of the Supreme Court in Kamal Kapoor v. Sachin Kartarsingh, (2001) SCC OnLine 142 that minor contradictions between two statements recorded cannot be a subject matter of comparison for the purpose of determining whether the accused is entitled to an order for anticipatory bail .
The prosecution further submitted that the act of accused to change the mobile phones they were using and the denial to hand over the phone to the investigating officer show that they have something to hide.
JUDGEMENT:
The verdict was pronounced by Justice Gopinath P after two weeks of elaborate hearing. The court pointed out that there was no prima facie evidence to prove that the accused has committed conspiracy to target investigating officers.
While considering the offence of abetment , the court took the view that “there is nothing to suggest, at present, that the accused had done something or some act in respect of which an offence of abetment can be alleged. For an offence of abetment, something must be done. There is no material to suggest that an act or illegal omission had occurred for the accused in this case to be charged with an offence of abetment of that act or omission. Therefore, prima facie and for the purposes of these Bail Applications, it can be presumed that Section 116 of the Code is not attracted. “
For the alleged offence of criminal conspiracy court referred to R. Venkatkrishnan v. Central Bureau of Investigation,(2009) 11 SCC 737 , in which it was pointed ‘A criminal conspiracy must be put to action and so long a crime is merely generated in the mind of the criminal, it does not become punishable’. Court commented if there is no material to prove criminal conspiracy , the punishment under Section 118 will not be invoked.
The other offence alleged is that of criminal intimidation. Criminal intimidation punishable under Section 506 of the Code is essentially a threat. The court opined that the statement by itself or words allegedly spoken by the 1st accused cannot be termed as ‘threat or intimidation’ for the purposes of Section 506 of the Indian Penal Code
However the court was of the opinion regarding the apprehension , that the accused may not cooperate with the investigation is real and could be curbed by adequate conditions . The court referred to Sushila Aggarwal , supra , in which it was pointed , even if bail is granted to the accused it is always open to the prosecution to move this court for cancellation of bail or for arrest of the accused as held by the Constitution Bench. Justice Gopinath regarding the custody of the accused commented” I am also of the view that the investigation can be properly conducted without the custody of the accused making it clear that even while on anticipatory bail the ‘deemed custody’ or ‘limited custody’ will be with the prosecution for the purposes of any recovery etc “
The court considering all the facts , circumstances and evidences granted anticipatory bail to the petitioners upon conditions.
Bail conditions:
(i) Each of the Petitioners shall execute separate bonds for sums of Rs.1,00,000/- (Rupees one lakh only) each with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court;
(ii) Petitioners shall appear before the investigating officer in Crime No.6/2022 Crime Branch Police Station as and when summoned to do so;
(iii) Petitioners shall co-operate with the investigation and make themselves available for interrogation whenever required;
(iv) Petitioners shall not tamper with any evidence;
(v) Petitioners shall not directly or indirectly make any inducement, threat or promise to any witness acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to any police officer;
(vi) Petitioners shall surrender their passports before the jurisdictional Court. If the petitioners or any of them do not have passports, they shall execute an affidavit to that effect and file the same before the jurisdictional Court. If the 1st petitioner has already surrendered his passport in the earlier proceedings against him, this condition will not apply to him;
(vii) Petitioners shall not involve in any other crime while on bail.
ANALYSIS:
The hon’ble Justice has looked into the facts , evidences and circumstances deeply and provided the petitioners with the pre arrest bail . The petitioner being influential , the apprehension that they may not cooperate with investigation and intimidate the witnesses were foreseen by the justice and provided proper conditions for the anticipatory bail, non –compliance of which would quash bail.
The court while pronouncing the judgement brought up and criticised the way the media has dealt with the whole facts of the case and the judicial proceedings .The case being a high profile case has generated a lot of media attention. Each and every observation of the court was dissected and intensely discussed through media. The media under the mask of right to free speech and expression are now carrying out publicity stunts for their rating and profit. Justice Gopinath opined that “The constitutional Courts in this country have been zealous to protect the freedom of speech and expression but this cannot be a license for persons armed with half- baked facts with little or no knowledge of how the judiciary functions and little or no knowledge of the fundamental legal principles that govern it, abuse the justice delivery system. “
Reference:
Hannah Varghese, ‘Prima facie No Material ‘; Kerala High Court Grants Pre Arrest Bail to Dileep In Murder Conspiracy Case, livelaw( Feb 8, 2022)
