'No Prima Facie Case Of Conspiracy Or Involvement Of Foreign Powers In Nambi Narayanan's Arrest': Kerala HC In ISRO Espionage Case

Advocate C Unnikrishnan, appearing for Narayanan, also made a similar submission as that of ASG. The Counsel alleged that the arrest was a part of a larger conspiracy to stall the development of cryogenic rocket technology.

Advocate Kaleeswaram Raj, Counsel appearing for P.S. Jayaprakash on the contrary had contended that Nambi Narayanan had no role in the Cryogenic Project of ISRO at any time.

The Court while considering the question as to whether the prosecution has established the non-bailable offence punishable under Section 120-B of IPC, observed that the following ingredients constitute the offence of criminal conspiracy:

(i)There should be an agreement (concert or league) between two or more persons;

(ii) Such an agreement should be (ii.i) either for doing an illegal act

(ii.ii) or for doing an act by illegal means, (ii.iii) or for breaking the law, i.e., an act which is made punishable by this Code;

Furthermore, the Apex Court in Zakia Ahsan Jafri v. State of Gujarat held that every act of commission and omission would not result in hatching criminal conspiracy unless the acts have been done deliberately and there is meeting of minds of all concerned.

In this case, after perusing the records produced before it, the Court pointed out that even prior to the registration of the crime, the Kerala Police brought in the Central Agencies like Intelligence Bureau and R&AW and allowed them to interrogate Mariyam Rasheeda to ascertain her involvement in espionage without any legal authority and without creating any records on the interrogation. Even after the IB and other Central Agencies had concluded that there was no evidence to show that Mariyam Rasheeda was connected with espionage activities in relation to VSSC scientists, the Kerala Police proceeded with the conclusion of criminality in her connection with the VSSC scientists.

"Even when the Additional Public Prosecutor concerned gave an opinion that it would not be possible to take Ms.Mariyam Rasheeda into police custody, at the directions of the higher authorities ...the Maldivian women were taken into custody, based on the espionage theory, though there was no material on record showing their involvement and thereafter, Sr.D.Sasikumaran was arrested without any material. Sri.Nambi Narayanan and Sri.K.Chandrasekharan were tortured in police custody," the Court noted. 

From the materials produced, the Court inferred that Nambi Narayanan was arrested based on the suspicion that he had attempted to resign from ISRO just after the arrest of one of the Maldivian ladies with intent to join a private firm in France and also in the backdrop of the fact that the Maldivian ladies had contacted two scientists attached to ISRO.  The Court said that the aforesaid facts point to the circumstances in which the Kerala Police and the IB at the time of registration of the crime and immediately thereafter before the transfer of the case to CBI, had some suspicion regarding the allegations they raised in the respective FIRs even though ultimately the CBI concluded that the allegations raised by the Kerala Police and the doubt maintained by the IB Officials were false and baseless.

The Court, thereby, observed even though that there is a lack of professionalism in the discharge of duties by the accused especially by the officials of the Kerala Police, no mental element of the accused in the commission of the alleged offences or of their alleged participation in a conspiracy has been established by the CBI. 

What appears from the materials is that there was a glaring lack of professionalism in the discharge of duties by the accused especially by the officials of the Kerala Police. However, the mental element of the accused in the commission of the alleged offences and their alleged participation in a conspiracy as projected by the prosecution is yet to be established by the CBI.

The High Court re-heard the bail applications of the five accused after its earlier orders granting them pre-arrest bail in 2021 were set aside by the Supreme Court in December 2022. The Supreme Court had remanded the matters for fresh decision by the High Court after observing that the previous orders were passed without considering certain aspects.

In the first order granting bail also, the High Court had observed that the arrest of Narayanan was influenced by foreign elements and that the concerns of the Kerala Police at that time cannot be said to be without basis.

Case Title: P.S. Jayaprakash v. Central Bureau of Investigation and other connected matters

Citation: 2023 LiveLaw(Ker) 38

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