CENTRAL BUREAU OF INVESTIGATIONversusP.S. JAYAPRAKASH ETC. ETC.

                        [2022] 16 S.C.R. 635                            635


           CENTRAL BUREAU OF INVESTIGATION                              A
                                 v.
                 P.S. JAYAPRAKASH ETC. ETC.
             (Criminal Appeal Nos. 2147-2149 of 2022)
                       DECEMBER 02, 2022                                B
         [M. R. SHAH AND C. T. RAVIKUMAR, JJ.]
       Anticipatory bail: High Court granted anticipatory bail to
private respondents – Accusation against private respondents was
that during relevant time, they were officials either with the Kerala
                                                                        C
Police or with the Intelligence Bureau and were involved in filing
false cases of espionage against scientists of ISRO – Writ petition
filed by one of the scientist seeking appropriate action against the
police officers – Matter travelled upto Supreme Court – The Supreme
Court constituted a committee headed by former judge of Supreme
Court to take appropriate steps against erring officials – Pursuant     D
to recommendations of the Committee, CBI registered present FIR
against 18 accused persons including the private respondents – By
impugned order, High Court granted anticipatory bail to the private
respondents – Instant appeal by CBI – Held: While granting
anticipatory bail to the private respondents-accused, High Court
                                                                        E
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 – High Court also did not take
note of the recommendations made by the Committee headed by a
former Judge of Supreme Court – Impugned judgment granting              F
anticipatory bail to the private respondents-original accused is,
therefore, quashed and set aside – Matters remitted to High Court
to consider the anticipatory bail applications afresh and thereafter
to pass appropriate orders in accordance with law.
     Allowing the appeals and remitting the matters to High             G
Court, the Court
     HELD: 1. The High Court had 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, the         H
                                635
636            SUPREME COURT REPORTS                      [2022] 16 S.C.R.


A     matters need to be remanded to the High Court to consider the
      anticipatory bail applications afresh. It appears that what is
      weighed with the High Court is that FIR is filed after a number of
      years. However, the High Court did not appreciate at all that the
      FIR was lodged pursuant to the liberty reserved by this Court in
      the judgment and order passed in the year 2021. [Para 4][639-F-
B
      H; 640-A]
            2. While granting anticipatory bail to the respondents-
      accused, the High Court did neither consider 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
C     the year 1994 nor the role played by them during the investigation
      of Crime. The High Court also did not take note of the
      recommendations made by the Committee headed by a former
      Judge of this Court. The impugned judgment(s) and order(s)
      passed by the High Court granting anticipatory bail to the
D     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. [Para 5-6][640-B-E]
E           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      Nos. 2147-2149 of 2022.
            From the Judgment and Order dated 13.08.2021 of the High Court
      of Kerala at Ernakulam in Bail Application Nos. 5010, 5109 and 5809 of
      2021.
F           With
            Criminal Appeal No. 2150 of 2022.
             S.V. Raju, ASG, Sairica Raju, Annam Venklatesh, Kanu Agrawal,
      Pramod Kumar Guntur, Sharath Nambiar, Digvijay Dam, Ms. Swati
      Ghildiyal, Rahul Mishra, M.K. Maroria, Arvind Kumar Sharma, Advs.
G
      for the Appellant.
            Kapil Sibal, Sr. Adv., Ms. Aparna Bhat, Ms. Karishma Maria,
      Nizam Pasha, Rishabh Parikh, Ms. Aparajita Jamwal, Kaleeswaram
      Raj, Mohammed Sadique T.A., Mrs. Anu K. Joy, Alim Anvar, Ms. Thulasi
      K. Raj, Jose Abraham, Sebastian Joseph, M. P. Srivignesh, Lakshman
H
         CENTRAL BUREAU OF INVESTIGATION v. P.S.                               637
                JAYAPRAKASH ETC. ETC.

Raja. T, Mithun Kumar. N, Ms. Anju Joseph, Jogy Scaria, Ms. Beena              A
Victor, Keerthipriyan E., Ms. M. Pirya, Ms. Varsha Awana, Advs. for
the Respondents.
      The Judgment of the Court was delivered by
      M. R. SHAH, J.
                                                                               B
      Leave granted.
       1. Feeling aggrieved and dissatisfied with the impugned common
judgment and order dated 13.08.2021 passed by the High Court of Kerala
at Ernakulam in Bail Application Nos. 5010/2021, 5109/2021 and 5809/
2021 and a separate order dated 16.11.2021 passed by the High Court in         C
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        D
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     E
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          F
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 said criminal proceedings
were initially investigated by the Kerala Police and Intelligence Bureau       G
(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.      H
638            SUPREME COURT REPORTS                          [2022] 16 S.C.R.


A     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
B
      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.
C     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.
             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
D     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
E     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.
F           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
G     Police and Intelligence Bureau (IB) alleging offences punishable under
      Sections 120B, 167, 218, 330, 323, 195, 348, 365, 477A and 506 of the
      IPC.
             2.4 Apprehending their arrest in connection with the aforesaid
      FIR/Crime No. RC/050/2021/S0007 of SC-II Delhi Police Station
H     registered by the CBI, the private respondents herein filed anticipatory
        CENTRAL BUREAU OF INVESTIGATION v. P.S.                               639
         JAYAPRAKASH ETC. ETC. [M. R. SHAH, J.]

bail applications before the High Court by way of Bail Application            A
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.
                                                                              B
        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
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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   D
matter of present appeals at the behest of the CBI.
       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          E
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.            F
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        G
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                H
640            SUPREME COURT REPORTS                          [2022] 16 S.C.R.


A     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 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.
B
             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
C
      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 –
D
      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.
E
             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.
F     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
G     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.
H
          CENTRAL BUREAU OF INVESTIGATION v. P.S.                                  641
           JAYAPRAKASH ETC. ETC. [M. R. SHAH, J.]

       8. The Registry of the High Court is directed to notify all these           A
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
weeks from today and till the bail applications are finally decided by the
                                                                                   B
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            C
law and on their own merits and in light of the observations made
hereinabove.
       9. All these appeals are allowed to the aforesaid extent.

Devika Gujral                Appeals allowed and matters remitted to High Court.
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