IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05/03/2003
CORAM
THE HONOURABLE MR.JUSTICE C.NAGAPPAN
CRL.O.P.NO.4254 OF 2003 AND CRL.O.P.NO.4255 OF 2003
R.R.Gopal @ Nakkheeran Gopal ... Petitioner in both
the petitions
-Vs-
State, represented by
Inspector of Police,
Anthiyur Police Station
in Crime No.676/1998,
Erode District. (Now
transferred to CBCID) ... Respondent in
Crl.O.P.4254/2003
State,represented by
Inspector of Police,
Crime No.1500/1998 of
B-1 Police Station,
Coimbatore. (Now
transferred to CBCID) … Respondent in
Crl.OP.4255/2003
Petitions under Section 438 of Criminal Procedure Code praying
for orders as stated therein.
!For Petitioner ... Mr.K.Subramanian,
in both the Senior Counsel for
petitions Mr.P.T.Perumal
^For Respondents .. Mr.N.R.Chandran,
Advocate General and
Mr.I.Subramanian,
Public Prosecutor.
:COMMON ORDER
In Crl.O.P.No.4254 of 2003, the petitioner has sought for
anticipatory bail, in the event of his arrest, in the case in Crime No.676 of
1998 on the file of Inspector of Police, Anthiyur Police Station, Erode
District.
2. The same petitioner in Crl.O.P.No.4255 of 2003 has sought
for anticipatory bail, in the event of his arrest, in the case in Crime
No.1500 of 1998 of B-1 Police Station, Coimbatore.
3. Since the petitioner in both the petitions is one and the
same and the averments in both the petitions are similar, they were heard
together and a common order is passed.
4. The averments in both the petitions are summarised below.
The prosecution case in Crime No.676 of 1998 is that on 23.11.1998 one
Saravanan, son of Kandhavelu, gave a report stating that his father was
missing and a case was registered as ‘man missing’ and later, based on the
statement of one Muthukrishnan on 23.4.1999, the case was altered to Sections
147, 148, 302 and 201, I.P.C. read with Section 25 (1) (a) of Arms Act and
after investigation, final report was filed on 0 1.6.2000 against Veerappan
and nine others. The case was split up as against the absconding accused and
the case was committed to Sessions Court as against the accused who were
arrested and released on bail and it was taken on file in S.C.No.160 of 2000
and is pending trial before Additional Sessions Judge (Fast Track Court
No.II), Gobichettipalayam. The Investigating Officer filed an application
under Section 173 (8) Cr.P.C. on 20.11.2001 for further investigation and it
was allowed on the same date. Sivasubramaniam, Salem Area Reporter of
Nakkheeran Magazine, was implicated as additional accused in this case and he
was released on bail on 23.5.2002. The petitioner apprehends that the
respondent is taking all effort to implicate and arrest the petitioner in this
case.
The prosecution case in Crime No.1500 of 1998 is that on the
complaint of one Rathinam, a case was registered as ‘man missing’ on 19.1
1.1998 in B-1 Police Station, Coimbatore and after investigation, it was
closed as undetectable and the final report was accepted by Judicial
Magistrate No.V, Coimbatore on 09.1.2001 in R.C.S.4 of 2001. The
Investigating Officer filed an application under section 173 (8) Cr. P.C.
for further investigation on 05.11.2001 and it was allowed by the Judicial
Magistrate on 03.12.2001 and the reporters of the petitioner were implicated
by altering the case under Sections 147, 148, 364, 302 I.P.C. read with
Section 25 (1-b) of Arms Act. The petitioner apprehends that the respondent
is taking all efforts to implicate and arrest the petitioner in the case.
The petitioner is the Editor and Publisher of Tamil Political
Bi-weekly Nakkheeran Magazine and he started the magazine as a Weekly in the
year 1988 and they give News impartially to the Public and the Magazine is a
largest circulated political magazine in Tamil Nadu. For many years, one
Veerappan, known as Sandalwood smuggler Veerappan has been committing various
forest offences like smuggling of sandalwood, poaching and killing of
elephants for tusks in the dense forest area of Erode and Coimbatore Districts
and the adjoining forest area of Karnataka State and the State Governments of
Tamil Nadu and Karnataka were trying to apprehend Veerappan and they are not
able to nab him. During the year 1993, the petitioner sent his Salem Area
Reporter Sivasubramaniam to the Forest Area and he was able to meet Veerappan
and the same was published in Nakkheeran Magazine. In the year 1995 , when
the Nakkheeran Reporters were inside the jungle, the petitioner got
information that police were given orders to shoot them and hence complaints
were sent to Press Council of India on 15.11.1995 and 21.11.1995 and the
Chairman of Press Council of India Mr.Justice P.B.Savant wrote a letter to the
then Chief Minister of Tamil Nadu to intervene personally in the matter in the
interest of free press and provide security to the staff of the Newspaper.
The petitioner went into the forest and met Veerappan in May 1 996 and
took an interview with him. Around 13.7.1997, Veerappan kidnapped nine
Karnataka forest officials and both the State Governments of Tamil Nadu and
Karnataka requested the petitioner to play the role of Emissary and secure the
release of abducted persons and they issued authorisation letters to the
petitioner and his reporters to that effect. The petitioner accepted the
assignment and persuaded Veerappan to release the forest officials and after
repeated efforts, the forest officials were released and both the State
Governments have given appreciation letters to the petitioner.
In 1999, due to the harassment caused to the reporters of
Nakkheeran by the Special Task Force of both the States, a complaint was given
to the Press Council of India and after enquiry, it advised the police not to
torture Nakkheeran reporters. Investigative Journalism practised by
Nakkheeran Magazine was not appreciated and the annoyed persons caused the
State machinery to file about 100 cases throughout the State of Tamil Nadu
against the petitioner and the petitioner filed Writ Petition Nos.925 of 1993
and 926 of 1993 before this Court and the former petition is pending. Only
three of those cases were charge sheeted and two of them ended in acquittal
and the other case was not pursued by the Government. Due to the persuasion
of the petitioner, one of the close associates of Veerappan, namely, Siddhan,
surrendered before the City Commissioner of Police, Chennai on 24.4.1998.
Mr.Rajkumar, the popular film actor of Karnataka and three
others were abducted by Veerappan on 30.7.2000 and on 31.7.2000, both the
Chief Ministers of Tamil Nadu and Karnataka met and decided to send the
petitioner as State Emissary and the petitioner was forced to accept the same.
Both the State Governments issued authorisation letters to the petitioner and
his reporters and five trips were made by them into the jungle and all the
hostages were released after 108 days. Some of the police officials and
political leaders were very critical about the role of emissary played by the
petitioner. After the change of government, the petitioner and his team are
in trouble.
Sivasubramaniam, the Salem Area Reporter of Nakkheeran
Magazine, was implicated in series of cases and was arrested. In the guise of
further investigation, petitions under Section 173 (8) Cr.P.C were filed in
every Veerappan related cases which were pending for years together only with
the motive of roping in the petitioner and his reporters as accused. The
petitioner filed Writ Petition No.1679 of 2002 before this Court to restrain
the police from arresting the petitioner and his reporters and it is pending.
Apprehending arrest in Rajkumar abduction case in Crime No.90
of 2000, the petitioner filed petition for anticipatory bail in Crl.O.
P.No.24771 of 2001 before this Court and it was contended by the prosecution
that the petitioner was not an accused in the case. However, this Court
passed an order stating that the petitioner be released on bail in the event
of being made an accused, as the apprehension of arrest was reasonable. The
petitioner was included as an accused in that case after six months and he was
summoned for interrogation before the Thalavady Police. Apprehending danger
to the life, the petitioner filed Crl.M.P.No.4828 of 2002 in the above
original petition for modification of the condition and this Court modified
the same and directed the petitioner to appear before the CBCID Special Wing
at Gobichettipalayam for interrogation for 10 days and this Court further
directed the Additional Director General of Police, CBCID, to monitor the
whole interrogation in order to ensure that no untoward incident takes place.
The petitioner was interrogated from 20.6.2002 to 29.6.2002 for 10 days. The
petitioner filed Writ PetitionNo.21864 of 2002 and W.P.No.21984 of 2002 before
this Court in this regard and they are pending. During the interrogation in
Rajkumar Abduction case, probing questions were put to him in respect of
Veerappan related cases, particularly, Kandhavel and Bakthavatsalam murder
cases, which are the subject matter of these petitions and the interrogation
was videographed on all the days.
The petitioner filed Crl.M.P.No.1594 of 2002 seeking
anticipatory bail in the case in Crime No.1500 of 1998 before the Principal
Sessions Judge, Coimbatore and the learned Judge dismissed the same on 26
.7.2002 on the ground that writ petitions seeking similar reliefs were already
pending on the file of this Court. From 27.12.2002 onwards, CBCID policemen
have been surveilling the office and residence of the petitioner and they
cause mental torture to the petitioner’s staff and family members. The
petitioner filed W.P.(Crl.) No.2 of 2003 before the Supreme Court praying for
a writ of prohibition restraining the respondent police officials from
misusing their statutory powers in the investigation of both the cases
pertaining to these petitions. The Apex Court dismissed the petition stating
that the order of dismissal will not preclude the petitioner from seeking
appropriate relief from the High Court.
The police officials are biased, inimical and avenging towards
the petitioner and the petitioner has categorised the facts to show the
sinister plan of the police and the petitioner is also submitting the relevant
documents. The petitioner is apprehending arrest by the respondent in both
the cases and fears ill-treatment and hence seeks for anticipatory bail in
both the cases.
5. The CBCID Inspectors of Anthiyur Circle, Erode District
and Coimbatore District have filed their respective counter statements in both
the petitions and the contents are similar and they are as follows. In the
case in Crime No.676 of 1998, final report was filed on 4.6.2000 before
Judicial Magistrate, Bhavani against Veerappan and 9 others for the offences
under Sections 147, 148, 364, 302 and 201, I.P.C besides Section 25 (1) (a) of
Arms Act and the case was committed in PRC.No.30 of 2000 on 21.9.2001 in
respect of Accused Nos.5, 6 and 8 alone and the case was split up with
reference to absconding accused. In S.C.No.160 of 2001, Accused Nos.5, 6 and
8 are facing trial before the Additional Sessions (Fast Track Court No.II),
Gobichettipalayam. Fresh materials had surfaced warranting further
investigation and in that context, application under Section 173 (8) Cr.P.C
was filed before the Judicial Magistrate, Bhavani in P.R.C.No.26 of 2001
(Split up case) and the same was allowed on 20.11.2001.
The case in Crime No.1500 of 1998 was originally registered as
‘ man missing’ and referred as undetectable on 27.12.2000. Fresh materials
had surfaced warranting further investigation and in that context, application
under Section 173 (8) Cr.P.C. was filed before Judicial Magistrate No.V,
Coimbatore and it was allowed on 3.12.2001.
During further investigation in both the cases, it was found
that cadres of certain Tamil extremist groups, such as the TNLA and TNRT,
which are banned organisations, had clandestinely entered into Sathiamangalam
forest and joined the forest brigand Veerappan and his associates.
Investigation further reveals that the cadres of the extremist groups are
acting in concert motivated by secessionist ideas which has the object of
liberation of Tamil Nadu from India. The petitioner and his associate
Sivasubramaniam appear to have taken a vital role in facilitating the members
of the two extremist groups in joining hands with Veerappan.
In the case in Crime No.676 of 1998, one Kandhavelu a resident
of a small hamlet near Andhiyur in Erode District was abducted and taken into
Thalavady Forest by Veerappan and his associates and in the case in Crime
No.1500 of 1998, one Bakthavatchalam of Coimbatore was abducted on 29.10.1998
and was taken to Thalavady Forest by Veerappan and his Associates and the
reports appeared in the Tamil Magazine Nakkheeran in its issues, dates
24.11.1998, 27.11.1998 and 4.12.1998 under the caption “Trial in Veerappan
Court and death sentence to police informants” contain a thumb nail sketch of
the gruesome manner in which the aforesaid Kandhavelu and Bakthavatchalam, who
were police informants, were murdered and the dead bodies were subsequently
screened from discovery. There were also photographs showing the various
stages and the dead bodies. The cover article published indicate that the
kidnapping and murder were orchestered and pre-planned with meticulous
precision.
When the abovesaid Nakkheeran magazine issues came to be
published and made available to the public, it was believed that the articles
were a product of investigative journalism as claimed by the petitioner.
However, it has since come to light that the petitioner and Sivasubramaniam
had an active role in the kidnapping and murder of Kandhavelu and
Bakthavatchalam in the Thalavady Forest and the publication of the article
with photographs is with the oblique motive to deter others from giving
information to the police, in that they would meet with a similar fate.
Further investigation discloses that the petitioner had been to the Thalavady
Forest some time before the incident and he appears to have been a privy to
the abduction and murder of both the persons. Materials gathered prima facie
disclose that Veerappan had entertained a doubt as to whether both the persons
were police informants and the petitioner herein clarified the matter through
his reporter Sivasubramaniam that both of them were police informants and they
should be eliminated and only after that Veerappan lured both the persons into
forest and brutally murdered them. The petitioner is the Editor, Printer and
Publisher of the Magazine where photographs of the occurrences had appeared
and Sivasubramaniam happens to be his reporter. In the context of
Secessionist activities are being pursued by Veerappan and his gang with the
help of Secessionist groups like TNLA and TNRT and the investigation is still
continuing and is at a crucial stage. There is prima facie indication of
active role being played by the petitioner and hence this Court may not grant
discretionary relief of anticipatory bail to the petitioner. Moreover, all
the incriminating materials relating to the gruesome murder of both the
persons are either in possession or control of the petitioner and custodial
interrogation is absolutely essential and if he is released on bail, the whole
process of investigation would be stifled and there is possibility of
abscondance and also tampering with the evidence.
6. The petitioner has filed reply affidavits in both the
petitions containing similar averments and they are summarised. The
respondents in their counters have claimed that fresh materials have surfaced
without disclosing at what point of time they had surfaced. The claim made by
the respondents that further investigation discloses that Tamil Extremist
Groups had clandestinely entered into Sathyamangalam Forest and joined
Veerappan is not correct. The further investigation was commenced only on
20.11.2001 and 3.12.2001, whereas wayback in 1998 , the petitioner as a result
of journalistic investigation came to know about the infiltration and
published the report on this aspect in Nakkheeran Magazine, dated 29.12.1998
and the petitioner has also issued press statements published in Tamil
Newspapers, dated 12.9.2000. The petitioner has clearly established his
concern and anxiety about the need for taking a serious view of this matter
and it is the petitioner who first disclosed this news to the world. The
judgment of Supreme Court was delivered on 07.11.2000 and the further
investigation was ordered on 20.11.2001 and 03.12.2001. Therefore, the claim
that on further investigation the above information was found out is false and
incorrect. The petitioner has published the article and the photographs
relating to the murder of both the deceased, as a result of investigative
journalism.
The allegation that the petitioner and Sivasubramaniam
had active role in those murders is an afterthought and concocted story. The
further allegation that the petitioner had been to Thalavady Forest some time
prior to murders and the petitioner appear to have been a privy to the
abduction and murder are all false. In the year 1997, the petitioner was sent
to rescue 11 forest officials pursuant to the request made by both the State
Governments as a Government Emissary and that is actually one year prior to
the alleged murders. The further allegation that the petitioner conveyed to
Veerappan that both the deceased were police informants is figments of
imagination and without any basis. The petitioner has disclosed in his
articles that Veerappan is a hardened criminal and innocent tribal people
became his victims.
The contention that the further investigation is is progress
and is in crucial stage is a routine statement. After 15 months and 12 months
from the date of order of further investigation in both the cases, the
respondents still claim that the investigation is still in crucial stage. The
custodial interrogation of the petitioner at this stage is not necessary. The
allegation that there is possibility of absconding of the accused and also
tampering with the evidence in the cases is false. The averment that all the
incriminating materials relating to the murder cases are in possession or
control of the petitioner is a false statement and motivated. As soon as the
office of the petitioner received the audio cassette, letter and film roll,
even before publication of the matter in the magazine, Mr.Kalimuthu, the then
Chief of Tamil Nadu Special Task Force, were interviewed by placing the
materials before him. Subsequently, all the materials were handed over. With
reference to the present cases also the petitioner was interrogated during the
interrogation from 20.6.2002 to 29.6.2002. Custodial interrogation of the
petitioner may not be given in the cases because of the past conduct of the
police officials in torturing Sivasubramaniam, one of the accused in the case,
who has already explained the same in his affidavit. There is consistent and
deliberate attempt to falsely implicate the petitioner in the cases and the
investigation is motivated and the request for custodial interrogation is
lacking bonafides. The petitioner has already expressed the danger to his
life at the hands of police and this Court has prima facie accepted the plea
in Crl.O.P.No.24771 of 2001 and modified the condition. This Court in
Cr.R.P.No.902 of 2002 directed the respondents to complete the interrogation
of Sivasubramaniam in the Court room of Judicial Magistrate. The respondents
have arrested Krishnakumar @ Maharan in Crime No.1500 of 1998 and he has filed
an affidavit in the writ petition filed by the petitioner in the Supreme Court
in W.P.(Crl.)No.2 of 20 03 about the custodial violence inflicted on him. If
the custodial interrogation of the petitioner is given to the respondents,
they will not only torture him but also eliminate him in the guise of
encounter. Merely because anticipatory bail is granted, the right of
investigation is not curtailed and conditions may be imposed.
7. The point for consideration is whether the petitioner is
entitled for anticipatory bail in the cases.
8. The respondents in their counter affidavits have stated
that further investigation discloses that the petitioner herein had an active
role in the kidnapping and murder of Kandhavelu and Bakthavatchalam in the
Thalavady Forest and the incriminating materials are either in possession or
control of the petitioner and hence custodial interrogation of the petitioner
is necessary in both the cases. From the above it is clear that the
petitioner is alleged to be an accused in both the cases and the investigation
is now done by CBCID Police.
9. Mr.K.Subramanian, learned Senior Counsel appearing for the
petitioner, contended that the material on record discloses that right from
the year 1996 there was friction between Tamil Nadu Police and petitioner
magazine and the respondents are fabricating false evidence against the
petitioner by torturing persons and the further investigation is motivated and
not bonafide and the accusation stems from ulterior motive, object being to
injure and humiliate the petitioner by having him arrested and hence the
petitioner should be granted anticipatory bail in both the cases.
10. The learned Advocate General and the learned Public
Prosecutor appearing for the respondents contended that the allegation of
malafide is without any basis and both the cases are in the stage of further
investigation and as such malafide cannot be attributed and the apprehension
of the petitioner that he will be subjected to torture in the interrogation is
baseless and the petitioner is not entitled for a pre-arrest bail order in the
cases.
11. The learned senior counsel appearing for the petitioner
contended that no enmity is alleged between the petitioner and the deceased
persons and there is no allegation that the petitioner had intention to kill
the deceased persons and it is also not alleged that the petitioner was
present in the scene of occurrence and no overt act is alleged against the
petitioner insofar as the occurrence is concerned. It is further contended
that though the respondents assert that the petitioner played an active role
in the kidnapping and murder of the deceased persons, there are no positive
materials to substantiate the same and the credibility of the statements
alleged to have been obtained from witnesses have to be tested during the
trial.
12. The learned senior counsel further contended that in the
case in Crime No.676 of 1998, after investigation, the final report was filed
and the case of the absconding accused was split up and the case in S.C.No.160
of 2000 is pending trial before the Additional Sessions Court,
Gobichettipalayam and at that time, petition for further investigation under
Section 173(8) Cr.P.C. was filed and it was allowed on 20.11.2001 and the
case in Crime No.1500 of 1998 was closed as undetectable and petition seeking
for further investigation under Section 173(8) Cr.P.C. was filed and allowed
on 3.12.2001 and only after the present Government assumed office in the year
2001, the above petitions came to be filed with ulterior motive to humiliate
the petitioner and his staff. He further contended that besides the present
two cases, the petitioner has been implicated in Crime No.90 of 2000 relating
to Rajkumar abduction and in that case further investigation under Section
173(8) Cr.P.C. was ordered on 4.7.2001 and the petitioner moved this Court
seeking anticipatory bail in Crl.O.P.No.24771 of 2001 and this Court by order,
dated 10.12.2001, granted pre-arrest bail on the basis that the petitioner’s
apprehension of arrest was reasonable and he is entitled for protection under
Section 438 Cr.P.C. and later the condition also came to be modified in
Crl.M.P.No.4828 of 2002.
13. According to the petitioner, he is an investigative
journalist and he is the Editor and Publisher of political weekly Magazine ‘
Nakkheeran’ and has contributed much to the cause of public and on two earlier
occasions he accepted the requests of Governments of Tamil Nadu and Karnataka
and acted as State Emissary risking his life and he has also caused surrender
of one associate of Veerappan, a hardcore criminal, before the respondent
police.
14. In the petitions, the petitioner has stated that around
13.7.19 97, forest brigand Veerappan kidnapped nine forest officials of
Karnataka into the forest and both Governments issued authorisation letters to
the petitioner and his reporters to establish contact with Veerappan, in an
effort to release the hostages and the petitioner and his reporters ventured
into jungle and on repeated efforts, they succeeded in releasing the hostages
and both the State Governments have given appreciation letters to the
petitioner for his social contribution. Xerox copies of authorisation letters
and appreciation letters issued by both the State Governments are found in the
typed set filed along with the petitions. The petitioner has further stated
that popular film actor of Karnataka Mr.Rajkumar, along with three others, was
abducted by Veerappan on 30.7.2000 and the petitioner was again requested to
go as Emissary and both the State Governments issued authorisation letters and
letters of immunity to the petitioner and his reporters and they made five
trips into the jungle and ultimately the hostages were released after 108
days. Xerox copies of those letters are also found in the typed set. The
copy of letter of the then Commissioner of Police, Madras, dated 24.4.1998,
addressed to the petitioner, recording the formal surrender of Siddhan, an
associate of Veerappan, to the police, is also enclosed in the typed set. The
above facts are not denied in the counter by the respondents.
15. The specific contention of the petitioner is that his
reporter was able to establish contact with forest brigand Veerappan even in
the year 1993 and in the year 1995, he got information that police has been
given shoot at sight orders against his reporters when they were in the jungle
and due to this, he sent complaints to the Press Council of India on
15.11.1995 and 21.11.1995 and the then Chairman of the Press Council of India
Justice P.B.Savant wrote a letter to the then Chief Minister of Tamil Nadu to
intervene personally in the matter and provide security to the staff of the
newspaper. Xerox copy of the letter of the Chairman of Press Council of
India, dated 17.1.1996, is found in the typed set.
16. It is the further case of the petitioner that again in
the year 1999, due to the harassment caused to the reporters of ‘Nakkheeran’
Magazine by the Tamil Nadu and Karnataka Special Task Force, complaint was
sent to the Press Council of India and a detailed enquiry was conducted by the
Committee of Press Council and it concluded that the complaint is true and
advised the police not to torture the reporters and the same was accepted by
the Press Council. A copy of the report of the Press Council is also
available in the typed set.
17. According to the petitioner, the investigative journalism
practised by his Magazine was inconvenient to public servants during the year
1991 to 1996 and the State machinery filed about 100 cases throughout the
State for a publication in one issue of Magazine and out of those cases, only
three were charge sheeted and two of them were ended in acquittal and the
other case was not pursued by the Government and the petitioner was forced to
file writ petitions in this regard.
18. The petitioner has averred that the police in the guise
of further investigation started filing petitions under Section 173(8) Cr.P.C.
in Veerappan related cases which were pending for years together only with the
motive of roping the petitioner and his reporters as accused and the
petitioner has also filed writ petition seeking prohibition of the same and
the same is pending on the file of this Court.
19. The learned senior counsel for the petitioner contended
that the apprehension of the petitioner that he will be subjected to torture,
if arrested in the cases, is not without basis and other reporters of
‘Nakkheeran’ Magazine, who were made accused in the cases, have filed
affidavits alleging torture. A xerox copy of the complaint alleging torture
filed by Reporter Sivasubramaniam in the Court of Judicial Magistrate,
Bhavani, in Crime No.438 of 1998, Vellithiruppur Police Station and a xerox
copy of the affidavit of Reporter Krishnakumar @ Maharan alleging torture by
Police filed in W.P.(crl.) No.2 of 2003 before the Supreme Court are found in
the typed set. The learned senior counsel for the petitioner submitted that
Judicial Magistrate, Sathyamangalam, declined to grant custody of reporter
Sivasubramaniam to the Investigation Officer in P.R.C.No.10 of 2001 and a
Revision was filed by the State in Crl.R.P.No.902 of 2002 before this Court
and this Court in order, dated 13.5.2002, directed the Investigating Officer
to examine the accused in the room allotted inside the campus of
Sathyamangalam Court for two days. A xerox copy of the order is also found in
the typed set.
20. In the counter affidavits filed by the respondents it is
stated that the petitioner and his associate Sivasubramanian appear to have
taken a vital role in facilitating the members of Tamil Extremist Groups, such
as TNLA and TNRT, which are banned organisations, in joining hands with
Veerappan in the forest and the observation of the Supreme Court in the
decision in Abdul Karim vs. State of Karnataka – (2001 SCC Crl. 59) is also
extracted. The learned senior counsel for the petitioner contended that the
claim of the respondent police that further investigation disclosed the
joining of Tamil Extremist Groups with Veerappan in the Sathyamangalam Forest
is not correct and the further investigation was commenced only on 20.11.2001
and 3.12.2001 in the cases and whereas the petitioner, wayback in 1998, came
to know of the same and has published the same as information report in the
‘Nakkheeran’ Magazine issue, dated 29.12.1998 and also mentioned it in the
press statement of the petitioner, which was published in the Daily Newspapers
‘The Hindu’ and ‘Indian Express’ on 12.9.2000 and xerox copies of the same are
filed in the typed set. The above decision of the Apex Court arose in a case
pertaining to withdrawal of prosecution against Veerappan and others in the
Rajkumar Abduction Episode and in that decision, the Apex Court has mentioned
the role played by the petitioner as Emissary in the matter and also observed
that Veerappan was acting in consultation with Secessionist organisations/
groups which had the object of liberation of Tamil from India. The decision
was rendered on 7.11.2000 well before the further investigation ordered in the
cases and the contention of the petitioner in this regard cannot be easily
brushed aside.
21. The next contention of the respondents is that further
investigation discloses that Veerappan entertained a doubt as to Kandhavelu
and Bakthavatchalam were police informants and when this was conveyed to the
petitioner, he clarified the matter through his Reporters Sivasubramanian and
Krishnakumar that both of them were police informants and they should be
eliminated and the petitioner had been to Thalavady Forest prior to the
occurrences in both the murder cases and he has an active role in the
kidnapping and murder of both the persons and the publication of the article
with photographs in the magazine is with an oblique motive to deter others
from giving information to the police. The petitioner in his reply statement
has stated that in the year 1997 he went inside the forest as Government
Emissary to rescue the kidnapped forest officials and after one year the
occurrence in the murder cases took place and the allegation that he informed
Veerappan that both the deceased persons were police informants is false and
the article and the photographs were published with an object to educate the
public about the atrocities of Veerappan besides exposing the failure of
Special Task Force and the publications have advanced the cause of public
interest. According to the respondents, when the publications were made in
the year 1998, it was believed that the article was a product of investigative
journalism and it has now come to light that the petitioner had an active role
in kidnapping and murder of both the persons. Both the murder cases are in
the stage of further investigation. Detailed examination of the evidence and
elaborate documentation of the merits of the cases should be avoided while
passing order on the anticipatory bail applications.
22. According to the respondent, the investigation is still
continuing and is at a crucial stage. The learned senior counsel for the
petitioner contended that the further investigation having been ordered in
both the cases in the year 2001 and after 15 months and 12 months respectively
from the date of order, the respondents now cannot claim that the
investigation is at crucial stage. This factual aspect cannot be denied.
23. Lastly, it is urged by the respondents that incriminating
materials relating to the murder of both the persons are either in possession
or control of the petitioner and custodial interrogation of the petitioner is
necessary and if he is released on anticipatory bail, the whole process of
investigation would be stifled and there is possibility of abscondance of
accused and also tampering with evidence in the cases. The learned Advocate
General contended that the petitioner is absconding and even in the defamation
case filed by him he did not appear in that court and he avoided arrest in the
cases and public interest require the custodial interrogation of the
petitioner which will disclose the contact of the petitioner with the Tamil
Extremist Groups and Veerappan.
24. The learned Public Prosecutor pointed out the report
published by the petitioner in his magazine about the ‘mock trial’ conducted
by Veerappan in the murder of Kandhavelu and Bakthavatchalam and the
photographs published showing various stages and contended that the petitioner
is having possession of materials, including the camera, film roll, cassettes,
letters and cyanide and custodial interrogation of the petitioner is necessary
for eliciting more useful information and material and the Court has to
presume that police officers would conduct custodial interrogation in
responsible manner and hence the petitioner should not be granted anticipatory
bail in the case and relied on the decision of the Apex Court in State, Rep.by
the C.B.I. vs. Anil Sharma – (1997 SCC (Cri) 1039) in this regard. The
petitioner in his reply statement has stated that immediately after his office
received audio cassette, letter and the film roll and even before the
publication of the matter in the magazine, Mr.Kalimuthu, the then Chief of
Tamil Nadu Special Task Force, was interviewed by placing the materials before
him and subsequently all the materials were handed over to him and the
petitioner was interrogated with reference to this during the 10 days
interrogation in Rajkumar abduction case by CBCID Special Wing at
Gobichettipalayam and that was also videographed. A xerox copy of the
‘Nakkheeran’ issue, dated 24.11.1998, publishing the interview of
Mr.Kalimuthu, the then Chief of Special Task Force, Tamil Nadu, is enclosed in
the typed set and he has spoken about the audio cassette and cyanide in the
interview. However, since the cases are under further investigation, detailed
examination of the materials has to be avoided. The decision of the Apex
Court referred to supra arose in an appeal assailing the pre-arrest bail order
granted by the High Court in favour of a former minister of a State in a case
registered for the offences under Prevention of Corruption Act with the
allegation that the respondent had amassed wealth far and excess of his known
sources of income and the Apex Court in the circumstances of the case and
after the perusal of the case diary file concluded that the High Court has
misdirected itself in exercising the discretionary power under Section 438
Cr.P.C. and allowed the appeal.
25. The learned senior counsel for the petitioner contended
that the petitioner did not abscond as contended by the prosecution and the
petitioner has been interrogated for 10 days by CBCID in Rajkumar abduction
case and allegation of the prosecution that the privy of the petitioner in the
murder cases is found out only during further investigation is not a ground to
put against the petitioner at this stage and the apprehension of torture at
the hands of police expressed by the petitioner was found to be reasonable by
this Court in its earlier order and the materials placed by the petitioner
disclose the friction between the police and the petitioner and his staff
right from 1996 and hence the custodial interrogation should not be given to
the respondents and the petitioner is always prepared to make himself
available for interrogation as directed by the Court and relied on the recent
judgment of the Apex Court in Mahant Chand Nath Yogi and another vs. State of
Haryana – (2003 SCC (Crl) 312) in this regard. The above decision arose on an
appeal against the order of High Court cancelling the anticipatory bail
granted to some of the accused in the case by the Sessions Court and the Apex
Court held that the accused were interrogated on two occasions for sufficient
time and the accused were added in the case after a period of 4-1/2 months
from the date of murder based on the disclosure statement and one of the
accused has alleged that he was falsely implicated because of political
rivalry and the case was not in the initial stage and the learned Sessions
Judge had considered the matter in detail and granted anticipatory bail and
the same was erroneously set aside by the High Court and restored the order of
anticipatory bail passed by the Sessions Judge.
26. The learned senior counsel for the petitioner further
contended that the earlier State Government appreciated and acknowledged the
role played by the petitioner as Emissary in rescuing the hostages held by
Veerappan and after the change of Government in 2001, the petitioner and his
team were implicated in a series of Veerappan related cases and decisions
taken at Governmental level should not be so easily nullified by a change of
Government and by some other political party assuming power and relied on the
decision of the Apex Court in State of Haryana vs. State of Punjab and
another -((2002) 2 SCC 507). The learned Advocate General contended that
investigation of criminal case does not become vitiated on account of
malafides and relied on the decision of the Apex Court in State of Haryana and
others vs. Bhajan Lal and others – (1992 Supp.(1) SCC 335). Insofar as the
present cases are concerned, further investigation is in progress and evidence
is being collected.
27. The learned Public Prosecutor emphasized that both the
cases relate to gruesome murders and the further investigation is in progress
and at this stage pre-arrest bail should not be granted to the petitioner.
The learned Senior Counsel appearing for the petitioner contended that as per
the ratio laid down by the Constitution Bench of the
Apex Court in Gurbaksh Singh vs. State of Punjab – (AIR 1980 SC 1632), even
if a non-bailable offence is alleged to have been committed by a person
happens to be an offence of murder, the High Court has the power under Section
438 Cr.P.C. to grant anticipatory bail and further relied on the decision of
the Apex Court in Salauddin Abdulsamad Shaikh vs.State of Maharashtra-(AIR
1996 SC 1042) and a decision of this Court in S.Saravanan @ Saravanaperumal
vs. The State – (19 95 Crl.L.J. 1999). The power of the High Court or the
Sessions Court under Section 438 Cr.P.C. is well defined in various decisions
of the Apex Court and in grave offences the Court has to be careful and
circumspect in entertaining an application for anticipatory bail.
28. The learned senior counsel for the petitioner contended
that the petitioner has shown malafides on the part of the respondent by
placing all materials and the petitioner has also shown that the accusation
appears to stem from ulterior motive to humiliate the petitioner by having him
arrested and hence he is entitled for anticipatory bail in the cases as per
the decision of the Apex Court in Gurubaksh Singh vs. State of Punjab – (AIR
1980 SC 1632). The allegation of malafides cannot be gone into in detail,
since the cases are under further investigation. Still, it is true that the
petitioner has placed enough materials before the Court to show that there was
friction between the petitioner and the police machinery for a long time.
29. The petitioner apprehends torture at the hands of police,
if subjected to custodial interrogation in the cases. In fact, it is already
seen that this Court found the apprehension of the petitioner reasonable in
another case and granted pre-arrest bail on condition to appear before the
Investigation Officer for 10 days and the petitioner has also subjected
himself for interrogation as ordered by this Court. Even though the present
cases relate to the offence of murder, the context in which the judicial
discretion under Section 438 Cr.P.C. is required to be exercised assumes
importance. Having regard to the materials placed by the petitioner, I am of
the view that the petitioner has made out a case for pre-arrest bail in both
the cases. Insofar as interrogation is concerned, I am inclined to follow
the earlier order of this Court passed against this petitioner. Since the
further investigation is done in both the cases by CBCID, the petitioner can
be directed to appear before the Additional Superintendent of Police, CBCID
Special Wing, Gobichettipalayam, for 15 days in both the cases, for the
purpose of interrogation, every day between 10.00 a.m. and 3.00 p.m. and the
Additional Director General of Police, CBCID, Chennai, shall also be directed
to monitor th e interrogation of the petitioner and ensure his safety.
30. In result, it is ordered that the petitioner shall be
released on bail in the event of his arrest or his surrendering before the
Court in Crime No.676 of 1998 of Anthiyur Police Station, Erode District, now
transferred to CBCID and also in Crime No.1500 of 1998 of B-1 Police Station,
Coimbatore, now transferred to CBCID on his executing personal bond for a sum
of Rs.25,000/- (Rupees twenty five thousand) in each case, with two sureties,
each for a like sum in both the cases, to the satisfaction of Judicial
Magistrate No.I, Gobichettipalayam and on further condition that the
petitioner shall appear before the Additional Superintendent of Police, CBCID
Special Wing, Gobichettipalayam, for 15 days in both the cases, for the
purpose of interrogation, every day between 10.00 a.m. and 3.00 p.m. The
Additional Director General of Police, CBCID, Chennai, is directed to monitor
the interrogation of the petitioner and ensure his safety.
31. The petitioner shall surrender before the concerned court
within 15 days from the date of receipt of copy of this order.
Index: Yes
Internet: Yes
gb.