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R.R.GOPAL @ NAKKHEERAN GOPAL versus STATE, REPRESENTED BY

High Court of Madras

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R.R.Gopal @ Nakkheeran Gopal v. State, represented by - CRL.O.P.NO.4254 OF 2003 AND CRL.O.P.NO.4255 OF 2003 [2003] RD-TN 175 (5 March 2003)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 05/03/2003

CORAM

THE HONOURABLE MR.JUSTICE C.NAGAPPAN

CRL.O.P.NO.4254 OF 2003 AND CRL.O.P.NO.4255 OF 2003 R.R.Gopal @ Nakkheeran Gopal ... Petitioner in both the petitions -Vs-

State, represented by

Inspector of Police,

Anthiyur Police Station

in Crime No.676/1998,

Erode District. (Now

transferred to CBCID) ... Respondent in Crl.O.P.4254/2003 State,represented by

Inspector of Police,

Crime No.1500/1998 of

B-1 Police Station,

Coimbatore. (Now

transferred to CBCID) ... Respondent in Crl.OP.4255/2003 Petitions under Section 438 of Criminal Procedure Code praying for orders as stated therein.

For Petitioner ... Mr.K.Subramanian,

in both the Senior Counsel for

petitions Mr.P.T.Perumal

For Respondents .. Mr.N.R.Chandran,

Advocate General and

Mr.I.Subramanian,

Public Prosecutor.

:COMMON ORDER



In Crl.O.P.No.4254 of 2003, the petitioner has sought for anticipatory bail, in the event of his arrest, in the case in Crime No.676 of 1998 on the file of Inspector of Police, Anthiyur Police Station, Erode District.

2. The same petitioner in Crl.O.P.No.4255 of 2003 has sought for anticipatory bail, in the event of his arrest, in the case in Crime No.1500 of 1998 of B-1 Police Station, Coimbatore.

3. Since the petitioner in both the petitions is one and the same and the averments in both the petitions are similar, they were heard together and a common order is passed.

4. The averments in both the petitions are summarised below. The prosecution case in Crime No.676 of 1998 is that on 23.11.1998 one Saravanan, son of Kandhavelu, gave a report stating that his father was missing and a case was registered as 'man missing' and later, based on the statement of one Muthukrishnan on 23.4.1999, the case was altered to Sections 147, 148, 302 and 201, I.P.C. read with Section 25 (1) (a) of Arms Act and after investigation, final report was filed on 0 1.6.2000 against Veerappan and nine others. The case was split up as against the absconding accused and the case was committed to Sessions Court as against the accused who were arrested and released on bail and it was taken on file in S.C.No.160 of 2000 and is pending trial before Additional Sessions Judge (Fast Track Court No.II), Gobichettipalayam. The Investigating Officer filed an application under Section 173 (8) Cr.P.C. on 20.11.2001 for further investigation and it was allowed on the same date. Sivasubramaniam, Salem Area Reporter of Nakkheeran Magazine, was implicated as additional accused in this case and he was released on bail on 23.5.2002. The petitioner apprehends that the respondent is taking all effort to implicate and arrest the petitioner in this case.

The prosecution case in Crime No.1500 of 1998 is that on the complaint of one Rathinam, a case was registered as 'man missing' on 19.1 1.1998 in B-1 Police Station, Coimbatore and after investigation, it was closed as undetectable and the final report was accepted by Judicial Magistrate No.V, Coimbatore on 09.1.2001 in R.C.S.4 of 2001. The Investigating Officer filed an application under section 173 (8) Cr. P.C. for further investigation on 05.11.2001 and it was allowed by the Judicial Magistrate on 03.12.2001 and the reporters of the petitioner were implicated by altering the case under Sections 147, 148, 364, 302 I.P.C. read with Section 25 (1-b) of Arms Act. The petitioner apprehends that the respondent is taking all efforts to implicate and arrest the petitioner in the case. The petitioner is the Editor and Publisher of Tamil Political Bi-weekly Nakkheeran Magazine and he started the magazine as a Weekly in the year 1988 and they give News impartially to the Public and the Magazine is a largest circulated political magazine in Tamil Nadu. For many years, one Veerappan, known as Sandalwood smuggler Veerappan has been committing various forest offences like smuggling of sandalwood, poaching and killing of elephants for tusks in the dense forest area of Erode and Coimbatore Districts and the adjoining forest area of Karnataka State and the State Governments of Tamil Nadu and Karnataka were trying to apprehend Veerappan and they are not able to nab him. During the year 1993, the petitioner sent his Salem Area Reporter Sivasubramaniam to the Forest Area and he was able to meet Veerappan and the same was published in Nakkheeran Magazine. In the year 1995 , when the Nakkheeran Reporters were inside the jungle, the petitioner got information that police were given orders to shoot them and hence complaints were sent to Press Council of India on 15.11.1995 and 21.11.1995 and the Chairman of Press Council of India Mr.Justice P.B.Savant wrote a letter to the then Chief Minister of Tamil Nadu to intervene personally in the matter in the interest of free press and provide security to the staff of the Newspaper. The petitioner went into the forest and met Veerappan in May 1 996 and took an interview with him. Around 13.7.1997, Veerappan kidnapped nine Karnataka forest officials and both the State Governments of Tamil Nadu and Karnataka requested the petitioner to play the role of Emissary and secure the release of abducted persons and they issued authorisation letters to the petitioner and his reporters to that effect. The petitioner accepted the assignment and persuaded Veerappan to release the forest officials and after repeated efforts, the forest officials were released and both the State Governments have given appreciation letters to the petitioner. In 1999, due to the harassment caused to the reporters of Nakkheeran by the Special Task Force of both the States, a complaint was given to the Press Council of India and after enquiry, it advised the police not to torture Nakkheeran reporters. Investigative Journalism practised by Nakkheeran Magazine was not appreciated and the annoyed persons caused the State machinery to file about 100 cases throughout the State of Tamil Nadu against the petitioner and the petitioner filed Writ Petition Nos.925 of 1993 and 926 of 1993 before this Court and the former petition is pending. Only three of those cases were charge sheeted and two of them ended in acquittal and the other case was not pursued by the Government. Due to the persuasion of the petitioner, one of the close associates of Veerappan, namely, Siddhan, surrendered before the City Commissioner of Police, Chennai on 24.4.1998. Mr.Rajkumar, the popular film actor of Karnataka and three others were abducted by Veerappan on 30.7.2000 and on 31.7.2000, both the Chief Ministers of Tamil Nadu and Karnataka met and decided to send the petitioner as State Emissary and the petitioner was forced to accept the same. Both the State Governments issued authorisation letters to the petitioner and his reporters and five trips were made by them into the jungle and all the hostages were released after 108 days. Some of the police officials and political leaders were very critical about the role of emissary played by the petitioner. After the change of government, the petitioner and his team are in trouble.

Sivasubramaniam, the Salem Area Reporter of Nakkheeran Magazine, was implicated in series of cases and was arrested. In the guise of further investigation, petitions under Section 173 (8) Cr.P.C were filed in every Veerappan related cases which were pending for years together only with the motive of roping in the petitioner and his reporters as accused. The petitioner filed Writ Petition No.1679 of 2002 before this Court to restrain the police from arresting the petitioner and his reporters and it is pending. Apprehending arrest in Rajkumar abduction case in Crime No.90 of 2000, the petitioner filed petition for anticipatory bail in Crl.O. P.No.24771 of 2001 before this Court and it was contended by the prosecution that the petitioner was not an accused in the case. However, this Court passed an order stating that the petitioner be released on bail in the event of being made an accused, as the apprehension of arrest was reasonable. The petitioner was included as an accused in that case after six months and he was summoned for interrogation before the Thalavady Police. Apprehending danger to the life, the petitioner filed Crl.M.P.No.4828 of 2002 in the above original petition for modification of the condition and this Court modified the same and directed the petitioner to appear before the CBCID Special Wing at Gobichettipalayam for interrogation for 10 days and this Court further directed the Additional Director General of Police, CBCID, to monitor the whole interrogation in order to ensure that no untoward incident takes place. The petitioner was interrogated from 20.6.2002 to 29.6.2002 for 10 days. The petitioner filed Writ PetitionNo.21864 of 2002 and W.P.No.21984 of 2002 before this Court in this regard and they are pending. During the interrogation in Rajkumar Abduction case, probing questions were put to him in respect of Veerappan related cases, particularly, Kandhavel and Bakthavatsalam murder cases, which are the subject matter of these petitions and the interrogation was videographed on all the days.

The petitioner filed Crl.M.P.No.1594 of 2002 seeking anticipatory bail in the case in Crime No.1500 of 1998 before the Principal Sessions Judge, Coimbatore and the learned Judge dismissed the same on 26 .7.2002 on the ground that writ petitions seeking similar reliefs were already pending on the file of this Court. From 27.12.2002 onwards, CBCID policemen have been surveilling the office and residence of the petitioner and they cause mental torture to the petitioner's staff and family members. The petitioner filed W.P.(Crl.) No.2 of 2003 before the Supreme Court praying for a writ of prohibition restraining the respondent police officials from misusing their statutory powers in the investigation of both the cases pertaining to these petitions. The Apex Court dismissed the petition stating that the order of dismissal will not preclude the petitioner from seeking appropriate relief from the High Court.

The police officials are biased, inimical and avenging towards the petitioner and the petitioner has categorised the facts to show the sinister plan of the police and the petitioner is also submitting the relevant documents. The petitioner is apprehending arrest by the respondent in both the cases and fears ill-treatment and hence seeks for anticipatory bail in both the cases.

5. The CBCID Inspectors of Anthiyur Circle, Erode District and Coimbatore District have filed their respective counter statements in both the petitions and the contents are similar and they are as follows. In the case in Crime No.676 of 1998, final report was filed on 4.6.2000 before Judicial Magistrate, Bhavani against Veerappan and 9 others for the offences under Sections 147, 148, 364, 302 and 201, I.P.C besides Section 25 (1) (a) of Arms Act and the case was committed in PRC.No.30 of 2000 on 21.9.2001 in respect of Accused Nos.5, 6 and 8 alone and the case was split up with reference to absconding accused. In S.C.No.160 of 2001, Accused Nos.5, 6 and 8 are facing trial before the Additional Sessions (Fast Track Court No.II), Gobichettipalayam. Fresh materials had surfaced warranting further investigation and in that context, application under Section 173 (8) Cr.P.C was filed before the Judicial Magistrate, Bhavani in P.R.C.No.26 of 2001 (Split up case) and the same was allowed on 20.11.2001. The case in Crime No.1500 of 1998 was originally registered as ' man missing' and referred as undetectable on 27.12.2000. Fresh materials had surfaced warranting further investigation and in that context, application under Section 173 (8) Cr.P.C. was filed before Judicial Magistrate No.V, Coimbatore and it was allowed on 3.12.2001.

During further investigation in both the cases, it was found that cadres of certain Tamil extremist groups, such as the TNLA and TNRT, which are banned organisations, had clandestinely entered into Sathiamangalam forest and joined the forest brigand Veerappan and his associates. Investigation further reveals that the cadres of the extremist groups are acting in concert motivated by secessionist ideas which has the object of liberation of Tamil Nadu from India. The petitioner and his associate Sivasubramaniam appear to have taken a vital role in facilitating the members of the two extremist groups in joining hands with Veerappan. In the case in Crime No.676 of 1998, one Kandhavelu a resident of a small hamlet near Andhiyur in Erode District was abducted and taken into Thalavady Forest by Veerappan and his associates and in the case in Crime No.1500 of 1998, one Bakthavatchalam of Coimbatore was abducted on 29.10.1998 and was taken to Thalavady Forest by Veerappan and his Associates and the reports appeared in the Tamil Magazine Nakkheeran in its issues, dates 24.11.1998, 27.11.1998 and 4.12.1998 under the caption "Trial in Veerappan Court and death sentence to police informants" contain a thumb nail sketch of the gruesome manner in which the aforesaid Kandhavelu and Bakthavatchalam, who were police informants, were murdered and the dead bodies were subsequently screened from discovery. There were also photographs showing the various stages and the dead bodies. The cover article published indicate that the kidnapping and murder were orchestered and pre-planned with meticulous precision.

When the abovesaid Nakkheeran magazine issues came to be published and made available to the public, it was believed that the articles were a product of investigative journalism as claimed by the petitioner. However, it has since come to light that the petitioner and Sivasubramaniam had an active role in the kidnapping and murder of Kandhavelu and Bakthavatchalam in the Thalavady Forest and the publication of the article with photographs is with the oblique motive to deter others from giving information to the police, in that they would meet with a similar fate. Further investigation discloses that the petitioner had been to the Thalavady Forest some time before the incident and he appears to have been a privy to the abduction and murder of both the persons. Materials gathered prima facie disclose that Veerappan had entertained a doubt as to whether both the persons were police informants and the petitioner herein clarified the matter through his reporter Sivasubramaniam that both of them were police informants and they should be eliminated and only after that Veerappan lured both the persons into forest and brutally murdered them. The petitioner is the Editor, Printer and Publisher of the Magazine where photographs of the occurrences had appeared and Sivasubramaniam happens to be his reporter. In the context of Secessionist activities are being pursued by Veerappan and his gang with the help of Secessionist groups like TNLA and TNRT and the investigation is still continuing and is at a crucial stage. There is prima facie indication of active role being played by the petitioner and hence this Court may not grant discretionary relief of anticipatory bail to the petitioner. Moreover, all the incriminating materials relating to the gruesome murder of both the persons are either in possession or control of the petitioner and custodial interrogation is absolutely essential and if he is released on bail, the whole process of investigation would be stifled and there is possibility of abscondance and also tampering with the evidence.

6. The petitioner has filed reply affidavits in both the petitions containing similar averments and they are summarised. The respondents in their counters have claimed that fresh materials have surfaced without disclosing at what point of time they had surfaced. The claim made by the respondents that further investigation discloses that Tamil Extremist Groups had clandestinely entered into Sathyamangalam Forest and joined Veerappan is not correct. The further investigation was commenced only on 20.11.2001 and 3.12.2001, whereas wayback in 1998 , the petitioner as a result of journalistic investigation came to know about the infiltration and published the report on this aspect in Nakkheeran Magazine, dated 29.12.1998 and the petitioner has also issued press statements published in Tamil Newspapers, dated 12.9.2000. The petitioner has clearly established his concern and anxiety about the need for taking a serious view of this matter and it is the petitioner who first disclosed this news to the world. The judgment of Supreme Court was delivered on 07.11.2000 and the further investigation was ordered on 20.11.2001 and 03.12.2001. Therefore, the claim that on further investigation the above information was found out is false and incorrect. The petitioner has published the article and the photographs relating to the murder of both the deceased, as a result of investigative journalism.

The allegation that the petitioner and Sivasubramaniam had active role in those murders is an afterthought and concocted story. The further allegation that the petitioner had been to Thalavady Forest some time prior to murders and the petitioner appear to have been a privy to the abduction and murder are all false. In the year 1997, the petitioner was sent to rescue 11 forest officials pursuant to the request made by both the State Governments as a Government Emissary and that is actually one year prior to the alleged murders. The further allegation that the petitioner conveyed to Veerappan that both the deceased were police informants is figments of imagination and without any basis. The petitioner has disclosed in his articles that Veerappan is a hardened criminal and innocent tribal people became his victims.

The contention that the further investigation is is progress and is in crucial stage is a routine statement. After 15 months and 12 months from the date of order of further investigation in both the cases, the respondents still claim that the investigation is still in crucial stage. The custodial interrogation of the petitioner at this stage is not necessary. The allegation that there is possibility of absconding of the accused and also tampering with the evidence in the cases is false. The averment that all the incriminating materials relating to the murder cases are in possession or control of the petitioner is a false statement and motivated. As soon as the office of the petitioner received the audio cassette, letter and film roll, even before publication of the matter in the magazine, Mr.Kalimuthu, the then Chief of Tamil Nadu Special Task Force, were interviewed by placing the materials before him. Subsequently, all the materials were handed over. With reference to the present cases also the petitioner was interrogated during the interrogation from 20.6.2002 to 29.6.2002. Custodial interrogation of the petitioner may not be given in the cases because of the past conduct of the police officials in torturing Sivasubramaniam, one of the accused in the case, who has already explained the same in his affidavit. There is consistent and deliberate attempt to falsely implicate the petitioner in the cases and the investigation is motivated and the request for custodial interrogation is lacking bonafides. The petitioner has already expressed the danger to his life at the hands of police and this Court has prima facie accepted the plea in Crl.O.P.No.24771 of 2001 and modified the condition. This Court in Cr.R.P.No.902 of 2002 directed the respondents to complete the interrogation of Sivasubramaniam in the Court room of Judicial Magistrate. The respondents have arrested Krishnakumar @ Maharan in Crime No.1500 of 1998 and he has filed an affidavit in the writ petition filed by the petitioner in the Supreme Court in W.P.(Crl.)No.2 of 20 03 about the custodial violence inflicted on him. If the custodial interrogation of the petitioner is given to the respondents, they will not only torture him but also eliminate him in the guise of encounter. Merely because anticipatory bail is granted, the right of investigation is not curtailed and conditions may be imposed.

7. The point for consideration is whether the petitioner is entitled for anticipatory bail in the cases.

8. The respondents in their counter affidavits have stated that further investigation discloses that the petitioner herein had an active role in the kidnapping and murder of Kandhavelu and Bakthavatchalam in the Thalavady Forest and the incriminating materials are either in possession or control of the petitioner and hence custodial interrogation of the petitioner is necessary in both the cases. From the above it is clear that the petitioner is alleged to be an accused in both the cases and the investigation is now done by CBCID Police.

9. Mr.K.Subramanian, learned Senior Counsel appearing for the petitioner, contended that the material on record discloses that right from the year 1996 there was friction between Tamil Nadu Police and petitioner magazine and the respondents are fabricating false evidence against the petitioner by torturing persons and the further investigation is motivated and not bonafide and the accusation stems from ulterior motive, object being to injure and humiliate the petitioner by having him arrested and hence the petitioner should be granted anticipatory bail in both the cases.

10. The learned Advocate General and the learned Public Prosecutor appearing for the respondents contended that the allegation of malafide is without any basis and both the cases are in the stage of further investigation and as such malafide cannot be attributed and the apprehension of the petitioner that he will be subjected to torture in the interrogation is baseless and the petitioner is not entitled for a pre-arrest bail order in the cases.

11. The learned senior counsel appearing for the petitioner contended that no enmity is alleged between the petitioner and the deceased persons and there is no allegation that the petitioner had intention to kill the deceased persons and it is also not alleged that the petitioner was present in the scene of occurrence and no overt act is alleged against the petitioner insofar as the occurrence is concerned. It is further contended that though the respondents assert that the petitioner played an active role in the kidnapping and murder of the deceased persons, there are no positive materials to substantiate the same and the credibility of the statements alleged to have been obtained from witnesses have to be tested during the trial.

12. The learned senior counsel further contended that in the case in Crime No.676 of 1998, after investigation, the final report was filed and the case of the absconding accused was split up and the case in S.C.No.160 of 2000 is pending trial before the Additional Sessions Court, Gobichettipalayam and at that time, petition for further investigation under Section 173(8) Cr.P.C. was filed and it was allowed on 20.11.2001 and the case in Crime No.1500 of 1998 was closed as undetectable and petition seeking for further investigation under Section 173(8) Cr.P.C. was filed and allowed on 3.12.2001 and only after the present Government assumed office in the year 2001, the above petitions came to be filed with ulterior motive to humiliate the petitioner and his staff. He further contended that besides the present two cases, the petitioner has been implicated in Crime No.90 of 2000 relating to Rajkumar abduction and in that case further investigation under Section 173(8) Cr.P.C. was ordered on 4.7.2001 and the petitioner moved this Court seeking anticipatory bail in Crl.O.P.No.24771 of 2001 and this Court by order, dated 10.12.2001, granted pre-arrest bail on the basis that the petitioner's apprehension of arrest was reasonable and he is entitled for protection under Section 438 Cr.P.C. and later the condition also came to be modified in Crl.M.P.No.4828 of 2002.

13. According to the petitioner, he is an investigative journalist and he is the Editor and Publisher of political weekly Magazine ' Nakkheeran' and has contributed much to the cause of public and on two earlier occasions he accepted the requests of Governments of Tamil Nadu and Karnataka and acted as State Emissary risking his life and he has also caused surrender of one associate of Veerappan, a hardcore criminal, before the respondent police.

14. In the petitions, the petitioner has stated that around 13.7.19 97, forest brigand Veerappan kidnapped nine forest officials of Karnataka into the forest and both Governments issued authorisation letters to the petitioner and his reporters to establish contact with Veerappan, in an effort to release the hostages and the petitioner and his reporters ventured into jungle and on repeated efforts, they succeeded in releasing the hostages and both the State Governments have given appreciation letters to the petitioner for his social contribution. Xerox copies of authorisation letters and appreciation letters issued by both the State Governments are found in the typed set filed along with the petitions. The petitioner has further stated that popular film actor of Karnataka Mr.Rajkumar, along with three others, was abducted by Veerappan on 30.7.2000 and the petitioner was again requested to go as Emissary and both the State Governments issued authorisation letters and letters of immunity to the petitioner and his reporters and they made five trips into the jungle and ultimately the hostages were released after 108 days. Xerox copies of those letters are also found in the typed set. The copy of letter of the then Commissioner of Police, Madras, dated 24.4.1998, addressed to the petitioner, recording the formal surrender of Siddhan, an associate of Veerappan, to the police, is also enclosed in the typed set. The above facts are not denied in the counter by the respondents.

15. The specific contention of the petitioner is that his reporter was able to establish contact with forest brigand Veerappan even in the year 1993 and in the year 1995, he got information that police has been given shoot at sight orders against his reporters when they were in the jungle and due to this, he sent complaints to the Press Council of India on 15.11.1995 and 21.11.1995 and the then Chairman of the Press Council of India Justice P.B.Savant wrote a letter to the then Chief Minister of Tamil Nadu to intervene personally in the matter and provide security to the staff of the newspaper. Xerox copy of the letter of the Chairman of Press Council of India, dated 17.1.1996, is found in the typed set.

16. It is the further case of the petitioner that again in the year 1999, due to the harassment caused to the reporters of 'Nakkheeran' Magazine by the Tamil Nadu and Karnataka Special Task Force, complaint was sent to the Press Council of India and a detailed enquiry was conducted by the Committee of Press Council and it concluded that the complaint is true and advised the police not to torture the reporters and the same was accepted by the Press Council. A copy of the report of the Press Council is also available in the typed set.

17. According to the petitioner, the investigative journalism practised by his Magazine was inconvenient to public servants during the year 1991 to 1996 and the State machinery filed about 100 cases throughout the State for a publication in one issue of Magazine and out of those cases, only three were charge sheeted and two of them were ended in acquittal and the other case was not pursued by the Government and the petitioner was forced to file writ petitions in this regard.

18. The petitioner has averred that the police in the guise of further investigation started filing petitions under Section 173(8) Cr.P.C. in Veerappan related cases which were pending for years together only with the motive of roping the petitioner and his reporters as accused and the petitioner has also filed writ petition seeking prohibition of the same and the same is pending on the file of this Court.

19. The learned senior counsel for the petitioner contended that the apprehension of the petitioner that he will be subjected to torture, if arrested in the cases, is not without basis and other reporters of 'Nakkheeran' Magazine, who were made accused in the cases, have filed affidavits alleging torture. A xerox copy of the complaint alleging torture filed by Reporter Sivasubramaniam in the Court of Judicial Magistrate, Bhavani, in Crime No.438 of 1998, Vellithiruppur Police Station and a xerox copy of the affidavit of Reporter Krishnakumar @ Maharan alleging torture by Police filed in W.P.(crl.) No.2 of 2003 before the Supreme Court are found in the typed set. The learned senior counsel for the petitioner submitted that Judicial Magistrate, Sathyamangalam, declined to grant custody of reporter Sivasubramaniam to the Investigation Officer in P.R.C.No.10 of 2001 and a Revision was filed by the State in Crl.R.P.No.902 of 2002 before this Court and this Court in order, dated 13.5.2002, directed the Investigating Officer to examine the accused in the room allotted inside the campus of Sathyamangalam Court for two days. A xerox copy of the order is also found in the typed set.

20. In the counter affidavits filed by the respondents it is stated that the petitioner and his associate Sivasubramanian appear to have taken a vital role in facilitating the members of Tamil Extremist Groups, such as TNLA and TNRT, which are banned organisations, in joining hands with Veerappan in the forest and the observation of the Supreme Court in the decision in Abdul Karim vs. State of Karnataka - (2001 SCC Crl. 59) is also extracted. The learned senior counsel for the petitioner contended that the claim of the respondent police that further investigation disclosed the joining of Tamil Extremist Groups with Veerappan in the Sathyamangalam Forest is not correct and the further investigation was commenced only on 20.11.2001 and 3.12.2001 in the cases and whereas the petitioner, wayback in 1998, came to know of the same and has published the same as information report in the 'Nakkheeran' Magazine issue, dated 29.12.1998 and also mentioned it in the press statement of the petitioner, which was published in the Daily Newspapers 'The Hindu' and 'Indian Express' on 12.9.2000 and xerox copies of the same are filed in the typed set. The above decision of the Apex Court arose in a case pertaining to withdrawal of prosecution against Veerappan and others in the Rajkumar Abduction Episode and in that decision, the Apex Court has mentioned the role played by the petitioner as Emissary in the matter and also observed that Veerappan was acting in consultation with Secessionist organisations/ groups which had the object of liberation of Tamil from India. The decision was rendered on 7.11.2000 well before the further investigation ordered in the cases and the contention of the petitioner in this regard cannot be easily brushed aside.

21. The next contention of the respondents is that further investigation discloses that Veerappan entertained a doubt as to Kandhavelu and Bakthavatchalam were police informants and when this was conveyed to the petitioner, he clarified the matter through his Reporters Sivasubramanian and Krishnakumar that both of them were police informants and they should be eliminated and the petitioner had been to Thalavady Forest prior to the occurrences in both the murder cases and he has an active role in the kidnapping and murder of both the persons and the publication of the article with photographs in the magazine is with an oblique motive to deter others from giving information to the police. The petitioner in his reply statement has stated that in the year 1997 he went inside the forest as Government Emissary to rescue the kidnapped forest officials and after one year the occurrence in the murder cases took place and the allegation that he informed Veerappan that both the deceased persons were police informants is false and the article and the photographs were published with an object to educate the public about the atrocities of Veerappan besides exposing the failure of Special Task Force and the publications have advanced the cause of public interest. According to the respondents, when the publications were made in the year 1998, it was believed that the article was a product of investigative journalism and it has now come to light that the petitioner had an active role in kidnapping and murder of both the persons. Both the murder cases are in the stage of further investigation. Detailed examination of the evidence and elaborate documentation of the merits of the cases should be avoided while passing order on the anticipatory bail applications.

22. According to the respondent, the investigation is still continuing and is at a crucial stage. The learned senior counsel for the petitioner contended that the further investigation having been ordered in both the cases in the year 2001 and after 15 months and 12 months respectively from the date of order, the respondents now cannot claim that the investigation is at crucial stage. This factual aspect cannot be denied.

23. Lastly, it is urged by the respondents that incriminating materials relating to the murder of both the persons are either in possession or control of the petitioner and custodial interrogation of the petitioner is necessary and if he is released on anticipatory bail, the whole process of investigation would be stifled and there is possibility of abscondance of accused and also tampering with evidence in the cases. The learned Advocate General contended that the petitioner is absconding and even in the defamation case filed by him he did not appear in that court and he avoided arrest in the cases and public interest require the custodial interrogation of the petitioner which will disclose the contact of the petitioner with the Tamil Extremist Groups and Veerappan.

24. The learned Public Prosecutor pointed out the report published by the petitioner in his magazine about the 'mock trial' conducted by Veerappan in the murder of Kandhavelu and Bakthavatchalam and the photographs published showing various stages and contended that the petitioner is having possession of materials, including the camera, film roll, cassettes, letters and cyanide and custodial interrogation of the petitioner is necessary for eliciting more useful information and material and the Court has to presume that police officers would conduct custodial interrogation in responsible manner and hence the petitioner should not be granted anticipatory bail in the case and relied on the decision of the Apex Court in State, Rep.by the C.B.I. vs. Anil Sharma - (1997 SCC (Cri) 1039) in this regard. The petitioner in his reply statement has stated that immediately after his office received audio cassette, letter and the film roll and even before the publication of the matter in the magazine, Mr.Kalimuthu, the then Chief of Tamil Nadu Special Task Force, was interviewed by placing the materials before him and subsequently all the materials were handed over to him and the petitioner was interrogated with reference to this during the 10 days interrogation in Rajkumar abduction case by CBCID Special Wing at Gobichettipalayam and that was also videographed. A xerox copy of the 'Nakkheeran' issue, dated 24.11.1998, publishing the interview of Mr.Kalimuthu, the then Chief of Special Task Force, Tamil Nadu, is enclosed in the typed set and he has spoken about the audio cassette and cyanide in the interview. However, since the cases are under further investigation, detailed examination of the materials has to be avoided. The decision of the Apex Court referred to supra arose in an appeal assailing the pre-arrest bail order granted by the High Court in favour of a former minister of a State in a case registered for the offences under Prevention of Corruption Act with the allegation that the respondent had amassed wealth far and excess of his known sources of income and the Apex Court in the circumstances of the case and after the perusal of the case diary file concluded that the High Court has misdirected itself in exercising the discretionary power under Section 438 Cr.P.C. and allowed the appeal.

25. The learned senior counsel for the petitioner contended that the petitioner did not abscond as contended by the prosecution and the petitioner has been interrogated for 10 days by CBCID in Rajkumar abduction case and allegation of the prosecution that the privy of the petitioner in the murder cases is found out only during further investigation is not a ground to put against the petitioner at this stage and the apprehension of torture at the hands of police expressed by the petitioner was found to be reasonable by this Court in its earlier order and the materials placed by the petitioner disclose the friction between the police and the petitioner and his staff right from 1996 and hence the custodial interrogation should not be given to the respondents and the petitioner is always prepared to make himself available for interrogation as directed by the Court and relied on the recent judgment of the Apex Court in Mahant Chand Nath Yogi and another vs. State of Haryana - (2003 SCC (Crl) 312) in this regard. The above decision arose on an appeal against the order of High Court cancelling the anticipatory bail granted to some of the accused in the case by the Sessions Court and the Apex Court held that the accused were interrogated on two occasions for sufficient time and the accused were added in the case after a period of 4-1/2 months from the date of murder based on the disclosure statement and one of the accused has alleged that he was falsely implicated because of political rivalry and the case was not in the initial stage and the learned Sessions Judge had considered the matter in detail and granted anticipatory bail and the same was erroneously set aside by the High Court and restored the order of anticipatory bail passed by the Sessions Judge.

26. The learned senior counsel for the petitioner further contended that the earlier State Government appreciated and acknowledged the role played by the petitioner as Emissary in rescuing the hostages held by Veerappan and after the change of Government in 2001, the petitioner and his team were implicated in a series of Veerappan related cases and decisions taken at Governmental level should not be so easily nullified by a change of Government and by some other political party assuming power and relied on the decision of the Apex Court in State of Haryana vs. State of Punjab and another -((2002) 2 SCC 507). The learned Advocate General contended that investigation of criminal case does not become vitiated on account of malafides and relied on the decision of the Apex Court in State of Haryana and others vs. Bhajan Lal and others - (1992 Supp.(1) SCC 335). Insofar as the present cases are concerned, further investigation is in progress and evidence is being collected.

27. The learned Public Prosecutor emphasized that both the cases relate to gruesome murders and the further investigation is in progress and at this stage pre-arrest bail should not be granted to the petitioner. The learned Senior Counsel appearing for the petitioner contended that as per the ratio laid down by the Constitution Bench of the Apex Court in Gurbaksh Singh vs. State of Punjab - (AIR 1980 SC 1632), even if a non-bailable offence is alleged to have been committed by a person happens to be an offence of murder, the High Court has the power under Section 438 Cr.P.C. to grant anticipatory bail and further relied on the decision of the Apex Court in Salauddin Abdulsamad Shaikh vs.State of Maharashtra-(AIR 1996 SC 1042) and a decision of this Court in S.Saravanan @ Saravanaperumal vs. The State - (19 95 Crl.L.J. 1999). The power of the High Court or the Sessions Court under Section 438 Cr.P.C. is well defined in various decisions of the Apex Court and in grave offences the Court has to be careful and circumspect in entertaining an application for anticipatory bail.

28. The learned senior counsel for the petitioner contended that the petitioner has shown malafides on the part of the respondent by placing all materials and the petitioner has also shown that the accusation appears to stem from ulterior motive to humiliate the petitioner by having him arrested and hence he is entitled for anticipatory bail in the cases as per the decision of the Apex Court in Gurubaksh Singh vs. State of Punjab - (AIR 1980 SC 1632). The allegation of malafides cannot be gone into in detail, since the cases are under further investigation. Still, it is true that the petitioner has placed enough materials before the Court to show that there was friction between the petitioner and the police machinery for a long time.

29. The petitioner apprehends torture at the hands of police, if subjected to custodial interrogation in the cases. In fact, it is already seen that this Court found the apprehension of the petitioner reasonable in another case and granted pre-arrest bail on condition to appear before the Investigation Officer for 10 days and the petitioner has also subjected himself for interrogation as ordered by this Court. Even though the present cases relate to the offence of murder, the context in which the judicial discretion under Section 438 Cr.P.C. is required to be exercised assumes importance. Having regard to the materials placed by the petitioner, I am of the view that the petitioner has made out a case for pre-arrest bail in both the cases. Insofar as interrogation is concerned, I am inclined to follow the earlier order of this Court passed against this petitioner. Since the further investigation is done in both the cases by CBCID, the petitioner can be directed to appear before the Additional Superintendent of Police, CBCID Special Wing, Gobichettipalayam, for 15 days in both the cases, for the purpose of interrogation, every day between 10.00 a.m. and 3.00 p.m. and the Additional Director General of Police, CBCID, Chennai, shall also be directed to monitor th e interrogation of the petitioner and ensure his safety.

30. In result, it is ordered that the petitioner shall be released on bail in the event of his arrest or his surrendering before the Court in Crime No.676 of 1998 of Anthiyur Police Station, Erode District, now transferred to CBCID and also in Crime No.1500 of 1998 of B-1 Police Station, Coimbatore, now transferred to CBCID on his executing personal bond for a sum of Rs.25,000/- (Rupees twenty five thousand) in each case, with two sureties, each for a like sum in both the cases, to the satisfaction of Judicial Magistrate No.I, Gobichettipalayam and on further condition that the petitioner shall appear before the Additional Superintendent of Police, CBCID Special Wing, Gobichettipalayam, for 15 days in both the cases, for the purpose of interrogation, every day between 10.00 a.m. and 3.00 p.m. The Additional Director General of Police, CBCID, Chennai, is directed to monitor the interrogation of the petitioner and ensure his safety.

31. The petitioner shall surrender before the concerned court within 15 days from the date of receipt of copy of this order. Index: Yes

Internet: Yes

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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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