K NARAYAN Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) To a Doctor in distress we say 'physician heal thyself'. What shall we say to a policeman the preserver of peace and to whom the life and liberty of a citizen is in the usual course entrusted to his care is himself in trouble and seeks the protection of the law to secure his freedom. That precisely is the question herein for consideration in this application filed under Section 439 Cr.P.C. seeking bail, the applicant being a Senior I.P.S. Officer, who was serving as D.C.P. West, Bangalore till the 2nd May, 1988, on which date he was taken into custody by the Central Bureau of Investigation ('C.B.I' for short) an organisation based at New Delhi to which the investigation of the case, which has since come to be known in popular parlance as the 'Rasheed murder case', has been handed over. Having regard to the prosecution's case, as now and even before, the locale being the City of Bangalore, it should have been normally investigated by the police of Karnataka. In fact the C.O.D., an elite core of the Karnataka Police, began investigating into the circumstances under which Rasheed, a lawyer from Kerala who was on a sojourn to Bangalore, came to meet with his death. But, in the meanwhile, as a result of the relentless efforts mounted by the lawyers of Bangalore, expressing lack of confidence in the police of Karnataka being apt investigators of the foul crime to which Rasheed is said to have fallen a victim, the C.B.I. were called in and handed over the investigation. Since 25-9-1987, the C.B.I. having taken over the investigation into this case have now in their dragnet apart from the applicant herein, six other police officers among several other as well, all stand charged with having connived at and having murdered Rasheed and thereafter engineering to wipe out the traces of a foul crime, offences punishable under Section 302 I.P.C. read with Section 120B and Section 201 I.P.C.

(2.) The facts of this case have a long mileage and through its meandering course encompass in its broad spectrum, such factors as institutional rivalry, political vendetta, public paranoia and the day in and day out trial by the medial all of which have contributed to the complexities and Dimensions of the case presently under investigation and now for a limited extent under scrutiny by me.

(3.) Suffice if for my purpose to begin the backdrop of this case recalling the presence of Rasheed in Bangalore on the 14th to 16th of August, 1987. It is common ground that on the 14th he visited a college called Sanjay Gandhi College of Education in Millers Road coming with the jurisdiction of the High grounds Police Station which is again under the administrative control of the applicant In this case. According to facts on record, Rasheed was then roughed up by the policemen belonging to Highgrounds police for no reason at all, taken back to Highgrounds Police Station only to be confronted by a complaint by a lady called Rathna said to be the Principal of the said Sanjay Gandhi College, alleging that he had misbehaved with her. On that complaint the Highgrounds police registered a case and took Rasheed to the Court of II Metropolitan Magistrate at Bangalore about 5 p.m. on that day. Rasheed who is said to have presented a bedraggled appearance managed to save himself by telling the Court that he was a lawyer from Kerala; that he wanted bail and ultimately the Court having granted bail on his own bond Rasheed is said to have gone back to his place of temporary residence at Bangalore, a lodge called Sandhya Lodge in Subedar Chatram Road. The next day Rasheed went to the press, gave a strongly worded statement to the press indicting the then Home Minister and the police of Highgrounds alleging that they were thirsting for his blood for no reason Ft alt. He is also supposed to have given a representation to the President of Bar Association about which there is some controversy as to whether Rasheed gave it at all. But it is not necessary for me to go into this angle, suffice it to note that there was a representation whether it was made by Rasheed or some one else in the name of Rasheed lamenting the police of Karnataka and the unwarranted attention they were paying to him as a result of which he feared safety for his own life. It would appear the said report due to the intervening holidays on 15th and 16th August, 1987 came to the notice of the Secretary, Bar Association only on the 17th and thereafter some developments having taken place to which it is not necessary in this case to advert to. Finally it transpired on the 18th an Advocate of Bangalore by name Venkatappa moved an application before the II M.M. Court, Bangalore for a search warrant to be issued since efforts to locate Rasheed had been futile. Fearing jeopardy to Rasheed's life, the Advocate sought for a search warrant being issued to the jurisdictional police. It was first issued to the Assistant Commissioner of Police and later on it was taken back from him and issued to the Assistant Commissioner of Police, Seshadripuram made returnable within 24 hours. But, on the 20th a warrant was issued to the D.C.P. West and the D.C.P. at that time was none other than Narayan, the applicant herein. When there was no return to that warrant also, the next day a warrant was issued to the then Commissioner of Police Sri. K.V. Balakrlshna Rao. As records of the Court below which I have summoned to this Court show the warrant issued to the Commissioner had been returned to the Court on the 25th instant stating that enquiries made by the police revealed that Rasheed who was earlier staying in Sandhya Lodge was not found on 16-9-1987. In fact the C.I. of Chickpet Police Station had also made a representation to the Court directly. But, it so happened that on that day the Commissioner wrote a letter to the Magistrate and stated that only on the 26th he came to know of the body warrant issued and having regard to the fact that Chickpet police had already filed a return in that behalf, he had nothing to say in that behalf. He also adverted to a Habeas Corpus petition moved in the High Court from which he learns that Rasheed was dead. Subsequent investigation done by the C.B.I. indicated that the warrant issued to D.C.P. Narayan was still lying in his office on 26th and in all probability the warrant seen by Mr. Balakrishna Rao, the Commissioner, was the one issued to Narayan and not the one issued to the Commissioner as undeniably the warrant issued to the Commissioner was in the archives of the Court by the 25th instant. A Photostat copy of the warrant issued to Narayan is produced before me by the Counsel for C.B.I., Sri C. Shivappa, and that bears a minute purporting to be in the handwriting of Narayan on the top portion of the warrant. The minute reads: 'The local A.C.P. to attend to it and report.' Mystery still shrouds the where abouts of the original warrant issued to Narayan and according to the C.B.I thereby hangs a tale. Now we pick up the thread from the spot where the body of that napless victim Rasheed was found along side a clump of bushes near the railway track at Salem. This discovery, it would appear, was made by a railway gang-man. On the 18th the matter was reported to the raiIway police and thereafter an inquest panchanama was held, post-mortem was done and the body was buried. Subsequently the body of Rasheed was exhumed by the Tamilnadu police and a further postmortem was done. At that stage the relatives of the deceased have been sum moned. The body was identified and once again consigned to mother earth, But from the person of the deceased two vouchers one of Sandhya lodge, Bangalore and other of a hotel called Sathyaprakash dated 16th August, 1987 were found and that led the Tamilnadu police to make enquiries with the Karnataka Police and an Officer of Karnataka Police having gone to the spot, it would appear, he inspected the receipts and made a report back to his official superiors herein at Bangalore. By then there having been a lot of furore about the disappearance of Rasheed, the C.O.D. was directed to take up investigation into the circumstances of Rasheed's death. In the first instance C.O.D, registered a case against Highgrounds police for offences punishable under Section 202 I.P.C. read with Section 201 I.P.C. and immediately thereafter it would appear they changed front and indicated that the investigation would pr6ceed not against any definite persons but against unknown persons. But, before they could make any progress, the little progress they had made indicating that on the 16th Rasheed had again found his way into the Highgrounds police station; was with the Highgrounds police and thereafter he had slipped away although the Highgrounds police were anxious to keep him back because he was due to return to the Magistrate Court on 17th instant, the later stages of the investigation were handed over to the C.B.I. in virtue of a decision taken by the Government of Karnataka to hand over the investigation to the C.B.I. in the interest of fair and impartial investigation and since then, as stated earlier, the C.B.I. have taken into their custody six police Officers including the accused Narayan. He was in police custody from 2-5-1988 to 9-5-1988 and subsequently he has been in judicial custody. It seems to me it may not be proper to advert to the whole gamut of the material collected against Narayan and I do not also think it proper to make a lengthy denouement of the case of either side, although denouement of the case of either side, although such has been the endeavour of Counsel on both sides who have invited me to record a finding on the circumstances of the case as collected so far and to say whether it is wholly innocuous or as to what extent they incriminate the accused or whether they totally absolve him from all blame. We are now at a very inconvenient stage so far as pronouncement or rendering a final verdict in regard to the material in possession of the prosecution. While it is true all the material has got to be weighed and assessed but at the same time it is not necessary to pronounce on its credibility or legality. Suffice as pointed out by Supreme Court in GURUCHARAN SINGH v. STATE 19/8 Cr.L.J. 129, the Court at this stage is concerned with the existence of material against the accused and not as to whether those material are credible or not, on the merits. Although a large volume of legal cornucopia was cited by both sides indicating the measure and width of the Court's power to decide whether the detention of the accused in custody and its continuance is justifiable in the circumstances or not, having regard to the very wide discretion which the Court enjoys in virtue of the provision of Section 439 Cr.P.C. which imposes no constraints at all on the powers of this Court, it seems to me the very width of those powers enjoins a very chastened and wearied exercise of that power and that power should not be exercised like what a despot in a third world country might do. But, then, as learned Counsel Sri Visweswara has, in the course of a very well martial led argument, repeatedly emphasized I am now seized with the question of granting bail that ultimately results in securing liberty to a citizen and that priceless right cannot be lenied except on justifiable grounds. Indeed it is a very difficult exercise to perform. On the other hand learned Counsel for the C.B.I. Mr. Shivappa particularly during the closing stages of his argument put in an emotive appeal highlighting the hardships to which the investigation by the C.B.I. was subjected, the plight suffered by the Investigating Officers whose home base was in Delhi and who have very little root outside affecting their functional capabilities, particularly when they had to contend with the hostile reception at the hands of Karnataka Police with the investigation itself being trained on a high-ranking officer of the Karnataka Police. He wanted me to juxtapose these factors as against the argument that a citizen's liberty was at stake and the fact that the citizen happens otherwise to be a police officer should not so heavily weigh as to till the balance against him. In NIRANJAN SINGH v. PRABHAKAR 1980 Cr.L.J. 426, Supreme Court indicates that while passing orders on bail applications detailed examination of the evidence and elaborate documentation of the merits of the case should be avoided and no party should have the impression that his case has been prejudiced. To be satisfied about a prima facie case is needed but it is not the same as an exhaustive exploration of the merits in the order itself. But the fact that the application for bail is by a police accused should not deter the Court from doing what is just and proper. It should view the pros and cons undettered by the presence of psychic pressure of police presence It is well to remember these norms in dealing with the application now made before this Court.