MURALEEDHARANversusSTATE OF KERALA

                           MURALEEDHARAN                                        A
                                  v.
                           STATE OF KERALA

                             APRIL 18, 2001

                 [K.T. THOMAS AND R.P. SETHI, JJ.] ·                            B

     Code of Criminal Procedure, 1973: Section 438.

      Anticipatory Bail-Grant of-Liquor tragedy resulted in large-scale
deaths of persons-Accused was considered one of the kingpins in a series C
of grave crimes-Sessions Judge granted anticipatory bail to the accused on
the ground that no material could be collected by the investigating agency
to connect the accused with the crime except the confessional statement of
the co-accused-But the High Court reversed the order of Sessions Judge-
Correctness of-Held: No Court can afford to presume that the investigating D
agency would fail to trace out more materials to prove the accusation
against an accused-Custodial interrogation of an accused is indispensably
necessary--Hence, High Court rightly reversed the order of the Sessions
Judge-Kera/a Abkari Act, S.8.

      The appellant was considered to be one of the kingpins in a series of     E
grave crimes including the offence under Section 8 of the Kerala Abkari
Act. A number of criminal cases were registered as a sequel to the large-
scale deaths of persons in what is known as the liquor tragedy. The appellant
was granted anticipatory bail under Section 438 of the Code of Criminal
Procedure, 1973 by the Sessions Judge on the ground that no material could
be collected by the investigating agency to connect the a11pellant with the     F
crime except the confessional statement of the co-accused. But the High
Com1 reversed the order of the Sessions Judge. Hence this appeal.

     Dismissing the appeal, the Court

      HELD : 1.1. Custodial interrogation of an accused is indispensably        G
necessary for the investigating agency to unearth all the links involved in
the criminal conspiracies 'committed by the persons.

      Union of India v. Ram Samujh, [1999) 9 SCC 429, relied on.

      1.2. The supercilious manner in which the Sessions Judge decided to       H
                                     57
    58                    SUPREME COURT REPORTS                    [2001] 3 S.C.R.

A   think that "no material could be collected by the investigating agency to
    connect the a1>pellant with the crime except the confessional statement of the
    co-accused" desenres reprobation. Such a wayward thinking emanating from
    a Sessions Judge deserves judicial condemnation. No court can afford fo          '" ...
    presume that the investigating agency would fail to trace out more materials
    to prove the accusation against an accused. One fails to understand what
B   would have prompted the Sessions Judge to conclude, at this early stage, that
    the investigating agency would not be able to collect any matelial to connect
    the appellant with the clime. 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 on the Sessions Judge under Section 438 of the Code of
c   Criminal Procedure, 1973 has been misused. It is heartening that the High
    Court did not allow ~uch an order to remain in force for long. By the impugned
    order passed by the High Court an unwholesome benefit wrangled by the
    appellant was lightly reversed. [60-D-F]

          CRIMINAL APPELLATE JURISDICTION : Crimitlal Appeal Nos.
D 507-510 of 2001.
          From the Judgment and.Order dated 8.3.2001 of the Kerala High Court
    in Crl. M.C. Nos. 1187, 1188, 1235 and 1236of2001.
                                                                                     ~

          U.R. Lalit, E.M.S. Anam and Fazlin Anani for the Appellant.
E
          The Judgment of the Court was delivered by .

          THOMAS, J. Leave granted.

          The appellant who was described by the investigating agency as one
F 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 ofKerala, within a month, reversed those
  orders of the Sessions Judge as per an order passed by a learned Single                  E-
  Judge which is sought to be impugned in this Court. These appeals by special
G
  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.                          ,I




H         A number of criminal cases were registered sequel to the large scale
        MURALEEDHARAN v. STATE OF KERALA [THOMAS, J.]                         59

deaths of persons in what is now known as the liquor tragedy in Kollam A
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. Appellant
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 B
Sessions Court, Pattanamthitta, for benefitmg 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 C
flippant reasoning adopted by him for granting the pre-arrest bail order.

      According 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         D
granting anticipatory bail especially when the petitioner has not so far been
arrayed as an accused in the case."

      It is disquieting that a Sessions Judge has chosen to adopt such inane
reasoning for granting anticipatory bail in cases involving offences for which     E
the legislature has imposed stringent restrictions even in regard to the grant
of regular bail.

      One 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 41 A of the Act . . F .
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:

        "(l) the Public Prosecutor or the Assistant Public Prosecutor, as the
              case may be, has been given an opportunity to oppose the             G
              application for such release, and
        (2)   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      H
    60                      SUPREME COURT REPORTS                    [2001] 3 S.C.R.

A                  offe1ice while on bail."

           The 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 unqer that Act shall be released
    on bail in contravention of the conditio1is laid down in the said Section. (vide
B   Union of India V. Ram Samujh and Am~, [1999] 9 sec 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
C   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
D   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
E   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
F   wangled by the appellant was rightly reversed.

            The appeals are dismissed.

    VS.S.                                                      Appeals dismissed.