20 Jan 2023 8:20 AM GMT
The Kerala High Court on Friday allowed anticipatory bail applications of former Police and Intelligence Bureau officers, including former Gujarat ADGP RB Sreekumar and former Kerala DGP Siby Mathews, in the case relating to the alleged framing of former ISRO scientist Nambi Narayanan in the 1994 ISRO Espionage case.A bench of Justice K. Babu passed the order. The Court directed that the...
The Kerala High Court on Friday allowed anticipatory bail applications of former Police and Intelligence Bureau officers, including former Gujarat ADGP RB Sreekumar and former Kerala DGP Siby Mathews, in the case relating to the alleged framing of former ISRO scientist Nambi Narayanan in the 1994 ISRO Espionage case.
A bench of Justice K. Babu passed the order. The Court directed that the accused must appear before the CBI for interrogation on January 27 between 10 AM and 11 AM. In the event of their arrest, they shall be released on bail on executing bonds for Rs 1 lakhs each with two solvent sureties each for the like sum. They cannot leave India without the permission of jurisdictional court.
"They shall continue to appear before the interrogating officer on Mondays and Fridays for a further period of two weeks. They shall continue to report before the investigating officer for interrogation as and when required. Petitioners shall not influence the witnesses or tamper with the evidence. They shall fully corporate with the investigation subjecting themselves to deemed custody as observed in Gurbachan Singh Sibbia & Others. v. State of Punjab and Sushila Aggarwal & Others v. State (NCT of Delhi) and Ors. for the purpose of discovery or identification if any", Justice Babu read out the operative portion of the order.
The High Court re-heard the bail applications of the five accused after its earlier orders granting them pre-arrest bail in 2021 were set aside by the Supreme Court in December 2022. The Supreme Court had remanded the matters for fresh decision by the High Court after observing that the previous orders were passed without considering certain aspects.
The petitioners are alleged to have committed offences punishable under Sections 120-B read with Sections 167, 195, 218, 323, 330, 348, 365, 477-A, and 506 of the Indian Penal Code.
The prosecution case is that all the accused conspired together to falsely implicate eminent scientist of ISRO Nambi Narayanan and others in the espionage case. The accused deliberately leaked the information to the press to create a narrative implicating the scientists of the Liquid Propulsion Systems Centre. They arrested the scientists deliberately suppressing the material facts, and tampered with the investigation. They further permitted the unauthorized interrogation of Mariyam Rasheeda and the scientists by the officials of the Intelligence Bureau and that there was a deliberate attempt to remove Nambi Narayanan from the project of Cryogenic Technology for defeating the prestigious mission of ISRO.
It was submitted by Senior Advocate S. Sreekumar on behalf of R.B. Sreekumar IPS that he had neither arrested Narayanan nor was he present during his interrogation of Narayanan. Sreekumar was then the Deputy Director of the Intelligence Bureau.
He apprised the Court that the investigation had been transferred to the CBI immediately after the arrest of Nambi Naryan. The senior counsel further submitted that R.B. Sreekumar discharged his official duty without any malafides. Senior Counsel further submitted that he only assisted the STI in the matter of questioning the accused persons t the request of the Kerala Police and that he was only assigned the duty of interrogating D. Sasikumar.
Senior Counsel pleaded the Court not to be influenced by the report of DK Jain Committee as the accused persons were not parties to the proceedings of Justice DK Jain Committee and therefore they were not given an opportunity to place relevant materials before the Committee.
The DK Jain Committee was constituted by the Apex Court to inquire into the role of the police officials in the conspiracy against Nambi Narayanan.
Advocate V Ajakumar, who appeared on behalf of former DGP Dr Sibi Mathews, argued before the Court that he had no direct role in the registration of the crime and he only happened to be the head of the SIT.
"Out of the nonbailable offences alleged against the accused, registration of FIR in respect of the offence under Section 195 IPC is in violation of the procedure provided in Section 195 Cr.P.C. The ingredients of the offence punishable under Section 365 IPC are lacking in the allegations, and the accused are entitled to the protection of Sections 76 and 79 of the Indian Penal Code. The prosecution failed to establish the requirements of custodial interrogation of the accused", the Counsel submitted.
Advocate Kaleeswaram Raj appearing for former Kerala police official P.S. Jayaprakash submitted that he has not even seen Nambi Narayanan and that Political vengeance was the reason for implicating him in the crime.
"Suspicion cannot result in denial of freedom, suspicion cannot be the basis for such a drastic action after 28 years", said the Counsel while stressing the fact that there is only a broad allegation and no individual case has been built up and that the prosecution has failed to pinpoint the role of each of the accused in the allegations touching the theory of conspiracy. The facts presented by the prosecution are not supported by any acceptable substance.
Advocate Sasthamangalam S. Ajithkumar appearing for S. Vijayan and Thampi S Dugadutt submitted that the accused were not parties to the proceedings of Justice D.K.Jain Committee and, therefore, they had no opportunity to know the conclusions of the report which formed the foundation of registration of the FIR.
Advocate Pankaj Mehta appearing on behalf of V.K. Maini, who was a member of IB, submitted before the Court that his client had no role in this case, and that his role was only limited to the collection of documents.
"I was just directed to go to Kerala and collect the data. I was only collecting information, and giving it back to the authorities. I had no role to play. As I was only discharging my duties, I will certainly be protected under Section 21 IPC".
Advocate C Unnikrishnan, appearing for Narayanan, alleged that the arrest was a part of a larger conspiracy to stall the development of cryogenic rocket technology.
Additional Solicitor General (ASG) SV Raju who appeared for the Central Bureau of Investigation also made a similar submission. ASG added that the matter is of serious nature involving national security and foreign powers may be involved in the conspiracy to foist a false case against eminent scientists of ISRO and custodial interrogation was necessary for proper investigation.
Findings Of The Court
The Court observed that the scope of judicial evaluation in an application under Section 438 CrPC is limited.
"...the nature of the offence should be looked into, along with the severity of the punishment. The necessity of custodial interrogation can be one of the grounds for declining the relief of anticipatory bail. However, even if custodial interrogation is not required or necessitated, by itself, it cannot be a ground to grant anticipatory bail( XXX v. Arun Kumar C K & Another)," the Court observed.
The Court after perusing the Case Diary and DK Jain Committee Report, opined that it was unable to find any credible material to prima facie find any elements of conspiracy as contended by the Additional Solicitor General.
There is absolutely no indication or credible material to prima facie hold that a foreign power had a hand in persuading the petitioners/accused in the registration of the two crimes referred to above.
The Court also rejected the contention raised by the Counsel appearing for Nambi Narayanam, that there is no justification for the petitioners/accused to seek the relief of anticipatory bail based on the principle of liberty as by way of their acts Nambi Narayanan’s liberty and dignity were put in peril.
“The Dharma of a man is to be human, of being true to the dignity and worth of the human person, of showing reverence for life, love, compassion and equal regard for fellow beings.”, quoting Justice V.R. Krishna Iyer the Court said that though it is is true that Nambi Narayanan was subjected to torture, harassment, and undue hardships at the hands of the accused, the Court functions within the four corners of Dharma, which under the present system includes the Constitution and the laws, even if it appears that the officials of the Kerala Police had ignored Dharma.
The Court further observed that in this case, CBI failed to place any concrete materials on record which prima facie makes the accusations against the accused well found.
The `mens rea’ of the petitioners in the commission of the alleged offences is doubtful. There is no possibility of the petitioners fleeing from justice. The apprehension of tampering of the witnesses has no basis. The prosecution failed to establish that prejudice would be caused to free, fair, and full investigation in the event of granting anticipatory bail to the petitioners.
Considering the facts and circumstances of the case, the Court observed that the petitioners are entitled to anticipatory bail.
Case Title: P.S. Jayaprakash v. Central Bureau of Investigation and other connected matters
Citation: 2023 LiveLaw(Ker) 38
Click Here To Read/Download The Order