Karayi Chandrasekharan vs Inspector Of Police CBI/SCB

Ashok Menon, J

The petitioners are accused 7 and 8 in S.C.No.405/2012 on the files of the Additional Sessions Court-IV, Ernakulam in connection with conspiracy

leading to the murder of one Fasal, alleged to be a political adversary. Vide order dated 07.11.2013 this Court had in the aforesaid B.A., they were

granted bail, but on certain conditions. Condition (d) reads thus:

“The petitioners shall stay within Ernakulam district until the disposal of the case and shall not, except with the permission of the learned 4th Additional

Sessions Judge, Ernakulam (or other Court holding charge of that Court) leave the Ernakulam Districtâ€​.

The petitioners are thus confined to the limits of Ernakulam District for the last 7½ years. They had previously on several occasions filed

applications for deleting/vacating/modifying the aforesaid condition, in vain. They had preferred Crl.M.A.No.3152/2014 and it was dismissed on

08.04.2014. Once again they filed Crl.M.A.No.7088/2014, that too was dismissed on 25.11.2014. They approached the Hon'ble Supreme Court to

delete the condition and that too was dismissed by Order dated 30.03.2015. Since the trial got prolonged indefinitely, the petitioners approached this

Court again, and Crl.M.A.No.11393/2015 was dismissed on 02.02.2016. They have been residing far away from their home, and separated from the

members of their family, and left without any avocation. It is also stated that the petitioners and their families were facing unspeakable difficulties all

this while. They are heavily indebted, and their prolonged stay in a district far away from their homes may cause further misery. The 2nd petitioner

had allegedly availed a housing loan of Rs.10 lakhs and another loan of Rs.3 lakhs for the marriage and education of his daughter. Huge amounts have

accrued in arrears towards repayment of those loans. He has no income to repay it. His wife has been undergoing treatment for a grievous injury she

sustained to her knee resulting from a fall. On the basis of these facts, the 2nd petitioner had filed Crl.M.A.No.135/2018 to delete the condition. But

that was dismissed on 03.07.2018 and thereafter, he once again approached this Court by filing Crl.M.A.No.2/2019 and that too was dismissed on

16.11.2019.

The brother of the deceased had filed W.P.(C) No.30716/2017 before this Court seeking further investigation in the aforesaid crime by constituting

a special team of the CBI. That was sought in consequence of one Subeesh @ Kuppy Subeesh allegedly giving a confession statement while in

custody in another case. He had confessed that it was he along with some others, who had committed the murder of Fasal. Further investigation was

allowed by this Court and a special investigating team was ordered to be constituted for that purpose. There is every possibility that the trial may get

prolonged further, and therefore, the petitioners pray that indulgence may be shown to delete or substantially modify the condition so that they could be

reunited with their families.

The Assistant Solicitor General of India has filed a detailed objection vehemently opposing request made by the petitioners, stating that they are the

main conspirators to the commission of the aforesaid offence and substantial evidence has been collected against them to prove their complicity, and

the final report was also filed. Though bail was granted, it was on stringent conditions, considering the clout exercised by the petitioners in the locality

and they were asked to stay in Ernakulam, for that reason. The petitioners are the top leaders of C.P.I.(M) and they are in a position to strike terror in

the minds of the public with an immense capacity to influence witnesses. It was keeping in view this important aspect, that the stringent condition was

imposed. Even repeated attempts made by the petitioners to get the condition relaxed, altered or deleted, failed. This Court has repeatedly held that the

petitioners will have to continue to be away from the place of occurrence and their home district, considering the fact that they are highly influential

and may tamper with evidence and witnesses. It is also pertinent to note that the petitioners have in absentia contested the local body election and

come out successful, which according to the learned ASG, indicates their clout and influence among the locals. When even in their absence, they

could influence the persons of the locality to win the elections, the possibility of their actual physical presence would definitely lead to causing serious

detriment to the prosecution case. Moreover, in view of the fact that further investigation has been ordered by this Court, the witnesses and evidence

have become vulnerable once again. Efforts are being made to complete that investigation on time. The attempt made by the petitioners seeking

indulgence from the Hon'ble Supreme Court has also failed, and therefore, there is absolutely no reason or change of circumstances for a

reconsideration on the relaxation of the condition, which was repeatedly declined by this Court. Hence, the learned ASG prays that the application

may be dismissed.

The learned Senior Counsel Sri.P.Vijayabhanu appearing for the petitioners and Sri.P.Vijayakumar, learned ASG appearing for the CBI was heard

in great detail. Records and documents perused.

The learned Senior Counsel Sri. Vijayabhanu argues that the condition imposed on the petitioners prohibiting their entry into their home district and

confining them in Ernakulam for all these years would be tantamount to imposing conviction prior to their being found guilty.

This is against the presumption of innocence in a criminal trial. It is also pointed out that the prosecution has no case that the petitioners had actively

participated in the act of murder. The specific allegation is that they, being leaders of the C.P.I.(M), had hatched a conspiracy to eliminate the

deceased for the reasons of his working against the interests of the party. There are materials to connect the petitioners to the crime only by way of

their contact with the other persons accused in the crime. Being political leaders, it is natural for them to keep in touch with the other members of the

party, and therefore, it cannot be interpreted as an act of conspiracy. Moreover, it is stated that the investigation has taken a new turn in view of the

disclosure made by Kuppy Subeesh, an active member of the R.S.S. involved in various cases. He was arrested and interrogated in custody In

another case, and he admitted his involvement in the murder of Fasal as also admitted his involvement in some other crimes in the district of Kannur.

The investigation was reopened in the other case, but the instant case, the court refused and therefore, the brother of the deceased approached this

Court for further investigation. After being convinced about the additional materials, the possibility of exculpation, of persons who are already

arraigned as accused and the inculpation of some others, who are not yet arraigned as accused, further investigation was ordered to be made by a

special team of the CBI officers. In view of that development, there is the possibility of the petitioners getting exculpated in case Kuppy Subeesh and

his companions are arraigned as an accused on the basis of the evidence that may be collected by the investigating agency. In view of these

developments, there is absolutely no necessity for condition (d) to continue. The matter may take further time and there is also a possibility that the

persons who are now sought to be implicated may challenge their inclusion. Hence, it is submitted that the petitioners may be released from the

stringent condition of confining themselves in Ernakulam.

Per contra, Sri.P.Vijayakumar, the learned ASG points out that Kuppy Subeesh had allegedly given a confession statement regarding his

involvement in the murder of Fasal, but he had very soon retracted from that confession and gave a statement to the contrary, accruing the police of

torture and intimidation. Retracted confession is of no use, and that apart, there are no other materials available at present to exculpate the petitioners.

However, the CBI is bound to conduct a further investigation and it has also done so earnestly. But the fact that the investigation has now been

reopened, the situation of the accused is relegated to the earliest stage and there is still a possibility of the petitioners tampering with evidence and

influencing witnesses. Hence, in case of relaxing the condition, further investigation of the case would be severely jeopardized, submits the learned

ASG.

After having heard the submissions on both sides, I find that the petitioners have been confined in Ernakulam for the last 7½ years. They have

now become aged. They are not able to do any avocation to eke out a livelihood and have become a burden on those who are supporting them to

continue their residence in Ernakulam. The fact that the petitioners wield considerable clout in the locality stands established by their winning elections

in absentia. But this fact would also indicate that if they want to tamper with evidence or influence the witnesses even in absentia, they could have

done so. For the last 7½ years, there is not been a single instance of the petitioners violating any of the bail conditions. The CBI has no allegation of

the petitioners attempting to influence witnesses or tamper with evidence. In view of the reopening of the investigation, it is sure to take some time to

file the final report. The petitioners therefore would continue to be confined in Ernakulam for some more time. The possibility that the petitioners

getting exculpated in the case in view of the confession of Kuppy Subeesh cannot be ruled out completely. If it so happens, the conditions imposed on

the petitioners would result in great injustice to them.

Therefore, I am of the opinion that there must be a modification of the aforesaid stringent condition. However, keeping in view of the submission

made by the learned ASG that there is a possibility that the petitioners tampering with evidence and witnesses using their political clout, the

investigation team has to be given further time to complete the investigation. During that period, the aforesaid condition shall continue to be in place.

However, if the investigation continues beyond that period of three months from today, the condition shall not continue, and therefore, the Application

is allowed in part and condition (d) in the aforesaid bail order shall continue for a further period of three months more from today. After the expiry of

the said three months, condition (d) shall stand vacated. The Application is allowed in part as above.