MATHEW ZACHARIA Vs. STATE OF KERALA

JUDGEMENT

(1.) The matter has come on before us on a fairly detailed order of reference by Bhaskaran J. Although the learned Judge refrained from expressing his final view, he stated more than once in the order of reference, that there is enough to cast doubts on the correctness of the decision of a Division Bench of this Court in Velu Viswanathan & Others v. The State ( 1971 KLT 80 ), and that the question of law involved should be settled by a Division Bench, or a larger Bench, before which this petition may be placed by the Chief Justice.

(2.) The petitioner is the President of the Kerala Non Gazetted Officers' Union. On the night/morning of the 9th/10th November 1973 at 3-30 A.M. the 2nd and 3rd respondents with a post of constables are stated to have searched the petitioner's Vettikkunnel House, Mannarcad in the petitioner's absence, and, according to his wife, asked her to direct the petitioner to contact either the 2nd or the 3rd respondent with a sum of not less than Rs. 5,000/-, as he was the accused in a criminal case. The petitioner, on enquiry, learnt that Crime No. 145/1973 of Karukachal Police Station had been filed against him and others for offences under S.467, 471, 472, 419 and 420, read with S.34 of the IPC. The petitioner has not so far been arrested, but, by his petition he stated that he has been advised to surrender himself before this Court and get released on bail. The prayers in the petition are to release the petitioner on bail and to declare that respondents 2 and 3 cannot claim custody of the petitioner for the purpose of Crime 145 of 1973. For the purpose of the latter prayer there are averments in the petition that if the petitioner is taken into police custody he would be subjected to physical torture to extract confessions or to effect recoveries, and that he has been advised by Counsel, not to answer any questions put by the police, an advice, which he proposes scrupulously to follow. It is said, that questioning by the police, in such circumstances would amount to testimonial compulsion, and therefore offend Art.20(3) of the Constitution. The argument proceeded much further, and would deny even the very right of the police to interrogate an accused under S.161 of the Crl. P.C., on which, the Division Bench ruling in Velu Viswanathan's case (1971 KLT 80) is directly in point.

(3.) The petition has appeared to us rather curious and extra ordinary. As an application for bail, the petitioner would rest it on S.497 Crl. PC., on the ground that the Section covers even the case of a "person accused or suspected of any non bailable offences", who, ........."appears or is brought before a court .........". We do not think that an option of appearing in any of the hierarchy of courts is left to the sweet will and pleasure of the accused; and we are quite unable to see any ground to allow the petitioner to frog leap the Magistrate and the Sessions Judge and make a direct approach to us for bail. On that ground, we would dismiss the application is so far as it relates to bail.