Central Bureau Of Investigation vs P.S. Jayaprakash

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. OF 2022 (Arising from SLP(Criminal) Nos.8008-8010/2021)

Central Bureau of Investigation …Appellant

Versus

P.S. Jayaprakash Etc. Etc. …Respondents

WITH

CRIMINAL APPEAL NO. OF 2022 (Arising from SLP(Criminal) No.4097/2022)

Central Bureau of Investigation …Appellant

Versus

Dr. Siby Mathews …Respondent

JUDGMENT

M.R. SHAH, J.

Leave granted.

1. Feeling aggrieved and dissatisfied with the impugned common

judgment and order dated 13.08.2021 passed by the High Court of Signature Not Verified Digitally signed by Neetu Sachdeva Kerala at Ernakulam in Bail Application Nos. 5010/2021, 5109/2021 and Date: 2022.12.02 16:23:00 IST Reason:

5809/2021 and a separate order dated 16.11.2021 passed by the High

1 Court in Criminal Miscellaneous Application No. 4424/2021, by which the

High Court has allowed the said bail applications and has granted

anticipatory bail to the private respondents herein – original accused in

connection with Crime No. RC/050/2021/S0007 of SC-II Delhi Police

Station registered by the Central Bureau of Investigation(CBI) alleging

offences punishable under Sections 120B, 167, 218, 330, 323, 195, 348,

365, 477A and 506 of the Indian Penal Code (IPC), the CBI has

preferred the present appeals.

2. The allegations against the accused in the present FIR relate back

to the year 1994 in connection with Crime No. 225/1994/246/1994

registered by the Kerala Police and the Intelligence Bureau (IB) officials

which was registered against one Mariyam Rashida. One S Nambi

Narayanan was arrested along with two other persons. The

investigation was handed over to the CBI. The CBI submitted the

closure report before the learned Chief Judicial Magistrate, Ernakulam

under Section 173(2) Cr.P.C. stating that the evidence collected

indicated that the allegations of espionage against the scientists of ISRO

including S Nambi Narayanan were not proved and were found to be

false. The said report came to be accepted by the learned Chief Judicial

Magistrate, Ernakulam vide order dated 2.5.1996 and all the accused

came to be discharged. At this stage, it is required to be noted that the

2 said criminal proceedings were initially investigated by the Kerala Police

and Intelligence Bureau (IB) and all the accused in the present criminal

case were the officials at the relevant time.

2.1 That thereafter the said S. Nambi Narayanan approached the

learned Single Judge of the High Court praying for a direction to the

State Government to take appropriate action against the police officials.

The learned Single Judge allowed the said writ petition. The matter was

carried before the Division Bench of the High Court of Kerala. The

Division Bench overturned the decision of the learned Single Judge

setting aside the order of the State Government declining to take

appropriate action against the police officials and remitted the matter to

the State Government. The judgment and order passed by the Division

Bench of the High Court was the subject matter before this Court by way

of Criminal Appeal Nos. 6637-6638 of 2018. By a detailed judgment

dated 14.09.2018, reported in (2018) 10 SCC 804, this Court allowed the

said appeals. This Court directed the State of Kerala to pay a sum of Rs.

50 lacs towards compensation to the appellant – S. Nambi Narayanan.

This Court also directed to constitute a Committee headed by Hon’ble

Mr. Justice D.K. Jain, a former Judge of this Court, to find out ways and

means to take appropriate steps against the erring officials.

3 2.2 That thereafter, the Committee appointed under the order of this

Court dated 14.09.2018 headed by Hon’ble Mr. Justice D.K. Jain, a

former Judge of this Court, submitted its report dated 25.03.2021 in a

sealed cover before this Court. After perusing the report, this Court vide

order dated 16.04.2021 directed the Registry to forward one copy of the

report to the Director/Acting Director of CBI who may then proceed in the

matter in accordance with law being a Court directed enquiry. This Court

also observed and made it clear that it will be open to the CBI to treat

the report as a preliminary inquiry report and proceed in the matter

appropriately. This Court also clarified that the said report shall not be

made public and it can be used by the CBI during further

enquiry/investigation process that is required to be undertaken by the

CBI as recommended in the report.

2.3 That thereafter and taking into consideration the recommendations

made by the Committee headed by Hon’ble Mr. Justice D.K. Jain, a

former Judge of this Court, the CBI has registered the present FIR on

1.5.2021 against 18 accused persons including the private respondents

herein, who at the relevant time were the officials of Kerala Police and

Intelligence Bureau (IB) alleging offences punishable under Sections

120B, 167, 218, 330, 323, 195, 348, 365, 477A and 506 of the IPC.

4 2.4 Apprehending their arrest in connection with the aforesaid

FIR/Crime No. RC/050/2021/S0007 of SC-II Delhi Police Station

registered by the CBI, the private respondents herein filed anticipatory

bail applications before the High Court by way of Bail Application Nos.

5010/2021, 5109/2021 and 5809/2021. By the impugned common

judgment and order, the High Court has allowed the said bail

applications and granted anticipatory bail to the private respondents

herein, who were all officials either with the Kerala Police or with the IB

at the relevant time.

2.5 One of the accused Dr. Siby Mathews applicant before the High

Court in Criminal Miscellaneous Petition No. 4424/2021 (respondent

No.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 and thereafter

he approached the High Court by way of the aforesaid criminal

miscellaneous application No. 4424/2021 and by the impugned

judgment and order dated 16.11.2021, the High Court has allowed the

said application and has granted the anticipatory bail to him also. The

impugned judgment(s) and order(s) passed by the High Court granting

anticipatory bail to the respective accused – private respondents herein

are the subject matter of present appeals at the behest of the CBI.

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3. We have heard Shri S.V. Raju, learned Additional Solicitor General

of India appearing on behalf of the appellant – CBI. We have also heard

Shri Kapil Sibal, learned Senior Advocate appearing on behalf of the

respondent - original accused in Criminal Appeal arising from

SLP(Criminal) No. 8010/2021 and other learned counsel appearing for

the 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 on

behalf of the respective respondents – original accused on merits.

However, from the impugned judgment(s) and order(s) passed by the

High Court, it appears that the High Court has made some observations

without considering the individual role played by the respective accused

when they were working in the Kerala Police/IB and without considering

the nature of allegations against them, we are of the opinion that the

matters need to be remanded to the High Court to consider the

anticipatory bail applications afresh.

From the impugned judgment(s) and order(s) passed by the High

Court, it appears that what is weighed with the High Court is that FIR is

filed after a number of years. However, the High Court has not

appreciated at all that the FIR was lodged pursuant to the liberty

reserved by this Court in the judgment and order passed in the year

6 2021 and on the basis of the recommendations made by the Committee

headed by Hon’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 pursuant to the observations and the directions issued by this Court.

5. Be that as it may, as observed hereinabove, while granting

anticipatory bail to the respondents – accused, the High Court has

neither considered the allegations against the respective accused nor

the role played by them nor the position held by them at the time of

registering the FIR in the year 1994 nor the role played by them during

the investigation of Crime No. 225/1994/246/1994. The High Court has

also not taken note of the recommendations made by the Committee

headed by 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 –

original accused deserve to be quashed and set aside and the matters

are to be remitted to the High Court to consider the anticipatory bail

applications afresh and thereafter to pass appropriate orders in

accordance with law and on their own merits and taking into

consideration the observations made hereinabove.

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7. In view of the above and for the reasons stated above, all these

appeals are allowed. The impugned judgment and order passed by the

High Court dated 13.08.2021 passed in Anticipatory Bail Application Nos.

5010/2021, 5109/2021 and 5809/2021 and also the judgment and order

dated 16.11.2021 passed in Criminal Miscellaneous Petition No.

4424/2021 are hereby quashed and set aside. All the Anticipatory Bail

Applications are remitted to the High Court to decide the same afresh in

accordance with law and on their own merits and in light of the

observations made hereinabove. However, it is observed that this Court

has not expressed anything on merits in favour of either of the parties

and it is ultimately for the High Court to pass appropriate order/s in

accordance with law and on their own merits and in light of the

observations made hereinabove. We request the High Court to finally

decide and disposed of the anticipatory bail applications on remand, at

the earliest but preferably within a period of four weeks from the date of

receipt of the present order.

8. The Registry of the High Court is directed to notify all these

anticipatory bail applications before the concerned Bench taking up such

matters within a period of one week from today. Till then, by way of an

interim arrangement and without prejudice to the rights and contentions

of the CBI before the High Court, it is directed that for a period of five

8 weeks from today and till the bail applications are finally decided by the

High Court on remand, the respondents herein – original accused be not

arrested, subject to their cooperation in the investigation. It is further

observed and directed that the High Court to decide and dispose of the

bail applications afresh on remand without in any way being influenced

by the present interim arrangement and the High Court shall decide and

disposed of the bail applications on remand strictly in accordance with

law and on their own merits and in light of the observations made

hereinabove.

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

………………………………..J. [M.R. SHAH]

NEW DELHI; …………………………………J. DECEMBER 02, 2022. [C.T. RAVIKUMAR]

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