IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 4402 of 2007()
1. C. MUHAMMED IQBAL, AGED 45 YEARS,
... Petitioner
Vs
1. STATE - REPRESENTED BY PUBLIC PROSECUTOR
... Respondent
2. THE STATION HOUSE OFFICER
For Petitioner :SRI.M.SASINDRAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :02/08/2007
O R D E R
R. BASANT, J.
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B.A. No. 4402 OF 2007
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Dated this the 2nd day of August, 2007
ORDER
Whoever you be – Judge, Prosecutor, Counsel, Police
Official or an ordinary lay citizen; if after going through the
Case Diary in this case, your sense of justice and righteousness
is not hurt or wounded, there must be something structurally
defective and deficient in you. The crime alleged in this case
and the sequence of events that followed are truly disturbing.
Your pride of being a citizen in this Republic wedded to rule of
law would be pricked. Any civilized society must hang its
head down in shame that such events can take place within it
anywhere. It would be abdication of responsibility for this
Court to pretend not to have seen the sorry state of affairs in
this Case Diary and proceed to dispose of the anticipatory bail
application wearing blinkers. Observations must be made
about the gross injustice in the hope that such observations
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will improve the quality of criminal justice delivery system in the
State and ignoring the apprehension that the observations may
trigger sensational commercial journalism and provide fodder for
political fencing.
2. The events took place not in any corner of the State; but
in the heart of Talassery Town which has a place of prominence
in the judicial map of this country – that too at the busy O.V.
Road. There is a row of shops lying east to west abutting the
main road. The victim in this case runs a petty shop – a textile
and tailoring shop – in the middle room, having taken the
premises on lease on a monthly rent of Rs.3,100/- as per a lease
deed dated 1/4/04 in the name of his wife. One Musthafa and
Mohammed Kunhi are said to be the joint owners of the said
shop room. The petitioner herein is arrayed as the 4th accused.
He is Mohammed Iqbal, the Power-of-Attorney holder of the
said Mohammed Kunhi. The rooms on the east and west of the
victim’s shop as also the area behind have all been sold. There
were requests to the victim to surrender his premises. He did
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not yield to those requests. Such requests were allegedly made
by accused 1 to 4 whose names are narrated in the F.I.R. On
the night of 7/4/07, the victim had closed the shop and
proceeded to his house in peace. The next morning he was
informed that his shop room as well as the adjacent shop rooms
have all been razed down brutally employing JCBs and other
vehicles. The tenant – victim who thought that law will take care
of them and will not be forcibly thrown out of possession, came
on the next morning to see his shop room razed down and all the
articles either destroyed or removed stealthily. He ran to the
police station in the hope that he will get justice from the police.
An F.I.R. was registered. The four persons, who had allegedly
wanted the victim to surrender his shop, were naturally shown
as the suspected accused persons who must have had a role in
razing down his shop room. The investigation slowly proceeded.
The persons in the locality were questioned by the police. The
adjacent shop owner stated to the police that the four accused
persons had come on the previous night to him and had insisted
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that he must vacate the premises after taking away all his
articles on the same night. He complied with the said request.
As he was proceeding to leave his shop in the late hours, he had
seen the JCB and all the paraphernalia kept ready for operation
with the four accused persons present there.
3. The 4th accused – the petitioner herein came to this
Court claiming anticipatory bail. On his own showing he is a very
influential person of the locality. There are indications to show
that he enjoys affluence also. He prayed that anticipatory bail
may be granted to him. The incident took place in the night of
7/4/07 and the petitioner had come to this Court as late as on
12/7/07. He was not arrested till then. He raised a contention
before me when the matter came up for hearing that he is only a
suspect; that the suspicion is unjustified and that he is not liable
to be arrested.
4. The learned Public Prosecutor was requested to place
the Case Diary for the perusal of this Court. A perusal of the
Case Diary shows that one Koduvally Rajan in a petition dated
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9/4/07 had admitted before the Investigating Officer that he is
the one responsible for demolition of the building. He had
marked copies of the petition to all the higher officials of the
police in the District. Very interestingly, he raised a contention
that the victim had no rights at all and the victim was trying to
get back into possession of the premises which admittedly was
razed down by him. A perusal of the Case Diary revealed that
the said Koduvally Rajan had not been arrayed as an accused
notwithstanding his bold assertion that he was responsible for
the demolition of the building. This Court was disturbed. The
learned Public Prosecutor was directed to take instructions and
explain. Thereafter, the learned Director General of
Prosecutions has appeared on behalf of the police before me.
Ordinary prudence is expected from all human beings. If such
a demolition did take place, any prudent person must suspect the
owner for having carried the mission. If he did not so suspect,
there is something certainly suspicions in his prudence. But the
Investigating Officer does not appear to have considered that
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possibility at all. The Case Diary was placed before this Court
on 20/7/07. Koduvally Rajan was not made an accused. No
efforts were made to bring him on the array of accused or to
make enquiries about him till then.
5. The learned Public Prosecutor and learned D.G.P. were
requested to keep the Case Diary in their safe custody. The
Investigating Officer was given an opportunity to explain. He
has now filed a statement. The Case Diary now shows that the
electrical energy connection to the premises was switched off on
the night in question to facilitate the demolition. Now it is said
that a conspiracy was hatched to carry out the evil mission. It is
now stated that Koduvally Rajan has been apprehended and
produced before Court on 25/7/07 after this Court made
observations on 24/7/07 and gave the Investigating Officer an
opportunity to explain. The Case Diary shows that the local
people were outraged by the culpable conduct of the offenders.
It also indicates that the local people suspected foul play. A
harthal was organised by the Merchants’ Association. Obviously
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the sentiments of the right thinking members of the community
were hurt and disturbed.
6. The Investigating Officer now tries to explain that
Koduvally Rajan’s address in the petition received by him was
not correct. It was not handed over to him personally. It was
received by post. Though it is seen that copies are marked to
the superior officers, copies were not really sent. The
Investigating Officer could not ascertain the identity of that
person. That is why he was not arrayed as an accused and was
not proceeded against till this Court made observations on
24/7/07. One cannot be too naove and gullible to meekly
swallow these excuses. If ordinary prudence is employed, it is
not difficult to see that the demolition was carried out after
prior concert and elaborate preparation and with the blessings
or at least the willingness to close their eyes of the the powers
that be to the injustice that was perpetrated. The investigation
is most unsatisfactory. It is difficult to restrain oneself and not
draw the inference that the entire operation had the blessings of
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the powers that be.
7. Police is the visible arm of the State. Good governance
cannot take place unless we have an efficient, sincere, honest
and committed police force. The police force in the country
must also have commitment to the fundamental values of the
Constitution. Concern for the weak, the underprivileged, the
less fortunate and the victims of crimes must be inherent in the
police force. That is the sum and substance of the preambular
commitment in the Constitution. In a socialist democratic
republic if the arms of the State do not have such fundamental
commitment to the weak and underprivileged, the ideals of the
Constitution can never be achieved.
8. Idealism by itself will not be sufficient. It must be
matched with efficient and effective systems. It has been the
misfortune to this Court, sitting in this jurisdiction, to see the
very low quality of investigation in crimes in this State. The
police force has to become professional. Every police officer
must have pride in the discharge of his duty. That is crucially
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lacking today, it appears. Efforts to make the police a
committed professional force have not been seriously
undertaken.
9. The learned D.G.P. submits that the needful shall be
done and proper and effective investigation shall be conducted in
the case. In one case where this Court happens to see the Case
Diary and expresses its dissatisfaction, such an offer is made.
But that is not sufficient at all. It must be for the police force to
ensure that ongoing supervision of investigationa is conducted
by the superior officials. In each Zone and in each sub-division
there must be a group of senior police officials who will monitor
and supervise the investigation in the crimes. Every
Investigating Officer must feel that his work will be supervised
and it will be suicidal professionally if he does not act efficiently.
10. I leave it there. It is for the learned Director General
of Prosecutions and the top brass of the police to take necessary
steps, of course, with the active support and assistance of the
political executive to ensure that the quality of investigation is
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considerably improved and that those responsible for such
collusive investigations are brought to book.
11. Coming back to the prayer of the 4th accused for
anticipatory bail, he claims to be the Power-of-Attorney holder of
one of the two joint owners of the property. The learned D.G.P.
submits that Koduvally Rajan does not appear to be an important
player in the crime that has been committed. He, the learned
D.G.P. feels, is only a pawn in the hands of the criminals whom
the learned D.G.P. describes as the `Real estate Mafia’. The
petition is significantly silent that his principal has lost interest
in the property and has already assigned the property to the said
Koduvally Rajan. That shows that at least, the learned D.G.P.
has correctly understood that the machinations were not of the
persons who are the apparent title holders. The petitioner
certainly appears to be an important player in the scheme that
was implemented.
12. There is indication to show that the petitioner was one
of those who wanted the tenant to vacate. There is material to
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show that on the previous night the petitioner had gone to one of
the adjacent owners and had wanted the occupant to
immediately vacate the premises. There are indications in the
Case Diary to show that the petitioner was present in the
locality late that night.
13. The jurisdiction to grant anticipatory bail is certainly
not to be invoked as a matter of course. It must be reserved for
extraordinary situations where the court is satisfied that the
powers of arrest are about to be misused or abused. I do not in
this case find any such features which would justify the
invocation of the extraordinary equitable discretion under
Sec.438 of the Cr.P.C. This certainly is a fit case where the
petitioner must appear before the Investigating Officer or the
learned Magistrate having jurisdiction and seek regular bail in
the ordinary course.
14. I expect the State to take necessary steps to ensure
that the investigation is entrusted to the officers of highest
integrity and competence. Necessary action in this regard shall
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be taken within a period of 15 days from this date and the action
taken shall be reported to this Court.
15. This bail application is accordingly dismissed.
16. Hand over a copy of this order to the learned Director
General of Prosecutions.
17. Call on 20/8/2007 for report of the learned D.G.P.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy//
P.S. to Judge
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