CENTRAL BUREAU OF INVESTIGATION versus P.S. JAYAPRAKASH ETC. ETC. on 2 December 2022

1. Feeling aggrieved and dissatisfied with the impugned commonjudgment and order dated 13.08.2021 passed by the High Court of Keralaat Ernakulam in Bail Application Nos. 5010/2021, 5109/2021 and 5809/2021 and a separate order dated 16.11.2021 passed by the High Court inCriminal Miscellaneous Application No. 4424/2021, by which the HighCourt has allowed the said bail applications and has granted anticipatorybail to the private respondents herein – original accused in connectionwith Crime No. RC/050/2021/S0007 of SC-II Delhi Police Stationregistered by the Central Bureau of Investigation(CBI) alleging offencespunishable under Sections 120B, 167, 218, 330, 323, 195, 348, 365, 477Aand 506 of the Indian Penal Code (IPC), the CBI has preferred thepresent appeals.

2. The allegations against the accused in the present FIR relateback to the year 1994 in connection with Crime No. 225/1994/246/1994registered by the Kerala Police and the Intelligence Bureau (IB) officialswhich was registered against one Mariyam Rashida. One S NambiNarayanan was arrested along with two other persons. The investigationwas handed over to the CBI. The CBI submitted the closure reportbefore the learned Chief Judicial Magistrate, Ernakulam under Section173(2) Cr.P.C. stating that the evidence collected indicated that theallegations of espionage against the scientists of ISRO including S NambiNarayanan were not proved and were found to be false. The said reportcame to be accepted by the learned Chief Judicial Magistrate, Ernakulamvide order dated 2.5.1996 and all the accused came to be discharged.At this stage, it is required to be noted that the said criminal proceedingswere initially investigated by the Kerala Police and Intelligence Bureau(IB) and all the accused in the present criminal case were the officialsat the relevant time.

2.1 That thereafter the said S. Nambi Narayanan approached thelearned Single Judge of the High Court praying for a direction to theState Government to take appropriate action against the police officials.

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AThe learned Single Judge allowed the said writ petition. The matter wascarried before the Division Bench of the High Court of Kerala. TheDivision Bench overturned the decision of the learned Single Judge settingaside the order of the State Government declining to take appropriateaction against the police officials and remitted the matter to the StateGovernment. The judgment and order passed by the Division Bench ofBthe High Court was the subject matter before this Court by way ofCriminal Appeal Nos. 6637-6638 of 2018. By a detailed judgment dated14.09.2018, reported in (2018) 10 SCC 804, this Court allowed the saidappeals. This Court directed the State of Kerala to pay a sum of Rs. 50lacs towards compensation to the appellant – S. Nambi Narayanan.CThis Court also directed to constitute a Committee headed by Hon’bleMr. Justice D.K. Jain, a former Judge of this Court, to find out ways andmeans to take appropriate steps against the erring officials.

2.2 That thereafter, the Committee appointed under the order ofthis Court dated 14.09.2018 headed by Hon’ble Mr. Justice D.K. Jain, aDformer Judge of this Court, submitted its report dated 25.03.2021 in asealed cover before this Court. After perusing the report, this Courtvide order dated 16.04.2021 directed the Registry to forward one copyof the report to the Director/Acting Director of CBI who may thenproceed in the matter in accordance with law being a Court directed enquiry. This Court also observed and made it clear that it will be openEto the CBI to treat the report as a preliminary inquiry report and proceedin the matter appropriately. This Court also clarified that the said reportshall not be made public and it can be used by the CBI during furtherenquiry/investigation process that is required to be undertaken by theCBI as recommended in the report.F

2.3 That thereafter and taking into consideration therecommendations made by the Committee headed by Hon’ble Mr. JusticeD.K. Jain, a former Judge of this Court, the CBI has registered thepresent FIR on 1.5.2021 against 18 accused persons including the privaterespondents herein, who at the relevant time were the officials of KeralaGPolice and Intelligence Bureau (IB) alleging offences punishable underSections 120B, 167, 218, 330, 323, 195, 348, 365, 477A and 506 of theIPC.

2.4 Apprehending their arrest in connection with the aforesaidFIR/Crime No. RC/050/2021/S0007 of SC-II Delhi Police StationHregistered by the CBI, the private respondents herein filed anticipatory bail applications before the High Court by way of Bail ApplicationNos. 5010/2021, 5109/2021 and 5809/2021. By the impugned commonjudgment and order, the High Court has allowed the said bail applicationsand granted anticipatory bail to the private respondents herein, whowere all officials either with the Kerala Police or with the IB at therelevant time.

2.5 One of the accused Dr. Siby Mathews applicant before theHigh Court in Criminal Miscellaneous Petition No. 4424/2021 (respondentNo.1 in Criminal Appeal arising from SLP(Criminal) No. 4097/2022)was initially granted the anticipatory bail by the learned trial Court,however, the anticipatory bail period was restricted to 60 days only andthereafter he approached the High Court by way of the aforesaid criminalmiscellaneous application No. 4424/2021 and by the impugned judgmentand order dated 16.11.2021, the High Court has allowed the saidapplication and has granted the anticipatory bail to him also. The impugnedjudgment(s) and order(s) passed by the High Court granting anticipatorybail to the respective accused – private respondents herein are the subjectmatter of present appeals at the behest of the CBI.

3. We have heard Shri S.V. Raju, learned Additional SolicitorGeneral of India appearing on behalf of the appellant – CBI. We havealso heard Shri Kapil Sibal, learned Senior Advocate appearing on behalfof the respondent - original accused in Criminal Appeal arising fromSLP(Criminal) No. 8010/2021 and other learned counsel appearing forthe respondents – original accused.

4. Number of submissions have been made by Shri S.V. Raju,learned ASG as well as learned senior counsel/counsel appearing onbehalf of the respective respondents – original accused on merits.However, from the impugned judgment(s) and order(s) passed by theHigh Court, it appears that the High Court has made some observationswithout considering the individual role played by the respective accusedwhen they were working in the Kerala Police/IB and without consideringthe nature of allegations against them, we are of the opinion that thematters need to be remanded to the High Court to consider theanticipatory bail applications afresh.

From the impugned judgment(s) and order(s) passed by the HighCourt, it appears that what is weighed with the High Court is that FIR isfiled after a number of years. However, the High Court has not A

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Aappreciated at all that the FIR was lodged pursuant to the liberty reservedby this Court in the judgment and order passed in the year 2021 and onthe basis of the recommendations made by the Committee headed byHon’ble Mr. Justice D.K. Jain, a former Judge of this Court. Therefore,the High Court has failed to appreciate that the present FIR was pursuantto the observations and the directions issued by this Court.B

5. Be that as it may, as observed hereinabove, while grantinganticipatory bail to the respondents – accused, the High Court has neitherconsidered the allegations against the respective accused nor the roleplayed by them nor the position held by them at the time of registeringthe FIR in the year 1994 nor the role played by them during theCinvestigation of Crime No. 225/1994/246/1994. The High Court has alsonot taken note of the recommendations made by the Committee headedby Hon’ble Mr. Justice D.K. Jain, a former Judge of this Court.

6. In view of the above, the impugned judgment(s) and order(s)passed by the High Court granting anticipatory bail to the respondents –Doriginal accused deserve to be quashed and set aside and the mattersare to be remitted to the High Court to consider the anticipatory bailapplications afresh and thereafter to pass appropriate orders inaccordance with law and on their own merits and taking into considerationthe observations made hereinabove.

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7. In view of the above and for the reasons stated above, all theseappeals are allowed. The impugned judgment and order passed by theHigh Court dated 13.08.2021 passed in Anticipatory Bail ApplicationNos. 5010/2021, 5109/2021 and 5809/2021 and also the judgment andorder dated 16.11.2021 passed in Criminal Miscellaneous Petition No.F4424/2021 are hereby quashed and set aside. All the Anticipatory BailApplications are remitted to the High Court to decide the same afresh inaccordance with law and on their own merits and in light of theobservations made hereinabove. However, it is observed that this Courthas not expressed anything on merits in favour of either of the partiesGand it is ultimately for the High Court to pass appropriate order/s inaccordance with law and on their own merits and in light of theobservations made hereinabove. We request the High Court to finallydecide and disposed of the anticipatory bail applications on remand, atthe earliest but preferably within a period of four weeks from the date ofreceipt of the present order.H

CENTRAL BUREAU OF INVESTIGATION v. P.S.JAYAPRAKASH ETC. ETC. [M. R. SHAH, J.]

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8. The Registry of the High Court is directed to notify all theseAanticipatory bail applications before the concerned Bench taking up suchmatters within a period of one week from today. Till then, by way of aninterim arrangement and without prejudice to the rights and contentionsof the CBI before the High Court, it is directed that for a period of fiveweeks from today and till the bail applications are finally decided by theBHigh Court on remand, the respondents herein – original accused be notarrested, subject to their cooperation in the investigation. It is furtherobserved and directed that the High Court to decide and dispose of thebail applications afresh on remand without in any way being influencedby the present interim arrangement and the High Court shall decide anddisposed of the bail applications on remand strictly in accordance withClaw and on their own merits and in light of the observations madehereinabove.

9. All these appeals are allowed to the aforesaid extent.

Devika Gujral

Appeals allowed and matters remitted to High Court.

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