Vs. State of Kerala  Insc 234 (18 April 2001)
Thomas & R.P. Sethi Thomas, J.
appellant who was described by the investigating agency as one of the kingpins
in a series of grave crimes including the offence under Section 8 of the Kerala
Abkari Act (For short the Act) found it easy to secure orders of anticipatory
bail in all those cases from the Sessions Judge, Pathanamthitta. But the High
Court of Kerala, within a month, reversed those orders of the Sessions Judge as
per an order passed by a learned Single Judge which is sought to be impugned in
this Court. These appeals by special leave are intended for that purpose. After
hearing learned counsel for the appellant we did not think the necessity to
hear the arguments of the counsel for the respondent State of Kerala. Hence we proceed to dispose of
these appeals on the strength of the arguments of the appellant.
number of criminal cases were registered sequel to the large scale deaths of
persons in what is now known as the liquor tragedy in Kollam District (Kerala).
A larger number of persons have been permanently incapacitated in the episodes.
Arrested persons in connection with such cases remain in jails as bail has not
been granted to them.
apprehended that he would also be arrested in connection with some of those
cases, if not in all. Hence, while remaining absconding, he approached the
Sessions Court, Pattanamthitta, for benefiting him with a pre-arrest bail
order. He got what he desired. The Sessions Judge who granted the order of
anticipatory bail found from the investigation records that there are reasons
to presume that appellant would also be implicated as an accused in the case.
The serious objections raised by the Public Prosecutor in the Sessions Court
did not have any impact on the Sessions Judge which is discernible from the
flippant reasoning adopted by him for granting the pre-arrest bail order.
to the Sessions Judge no material could be collected by the investigating
agency to connect the petitioner with the crime except the confessional
statement of the co-accused. He also observed that I do not think that any
prejudice will be caused to the prosecution in the event of granting
anticipatory bail especially when the petitioner has not so far been arrayed as
an accused in the case.
disquieting that a Sessions Judge has chosen to adopt such inane reasoning for
granting anticipatory bail in cases involving offences for which the
legislature has imposed stringent restrictions even in regard to the grant of
the offences involved is Section 8(2) of the Act which is punishable with
imprisonment for a term which may extend to ten years and a fine which shall
not be less than Rupees one lakh. Section 41A of the Act says that no person
accused of an offence punishable for a term of imprisonment for three years or
more shall be released on bail or on his own bond unless:
the Public Prosecutor or the Assistant Public Prosecutor, as the case may be,
has been given an opportunity to oppose the application for such release, and
Where the Public Prosecutor or the Assistant public prosecutor, as the case may
be, opposes an application, the court is satisfied that there are reasonable
grounds for believing that he is not guilty of such offences and that he is not
likely to commit any offence while on bail.
above provision is in pari materia with Section 37 of the Narcotic Drugs and
Psychotropic Substances Act. This Court has held, time and again, that no
person who is involved in an offence under that Act shall be released on bail
in contravention of the conditions laid down in the said Section. (vide Union
of India vs. Ram Samujh and anr. [1999 (9) SCC 429]. If the position is thus in
regard to an accused even after arrest, it is incomprehensible how the position
would be less when he approaches the court for pre-arrest bail knowing that he
would also be implicated as an accused. Custodial interrogation of such accused
is indispensably necessary for the investigating agency to unearth all the
links involved in the criminal conspiracies committed by the persons which
ultimately led to the capital tragedy. We express our reprobation at the
supercilious manner in which the Sessions Judge decided to think that no
material could be collected by the investigating agency to connect the
petitioner with the crime except the confessional statement of the co-accused.
Such a wayward thinking emanating from a Sessions Judge deserves judicial
condemnation. No court can afford to presume that the investigating agency
would fail to trace out more materials to prove the accusation against an
accused. We are at a loss to understand what would have prompted the Sessions
Judge to conclude, at this early stage, that the investigating agency would not
be able to collect any material to connect the appellant with the crime. The
order of the Sessions Judge, blessing the appellant with a pre-arrest bail
order, would have remained as a bugbear of how the discretion conferred on
Sessions Judges under Section 438 of the Cr.P.C would have been misused. It is
heartening that the high Court of Kerala did not allow such an order to remain
in force for long. By the impugned order passed by the learned Single Judge of
High Court an unwholesome benefit wangled by the appellant was rightly
appeals are dismissed.