A Bench of
Justices MR Shah and CT Ravikumar today reserved the judgement while hearing two petitions filed by the Central Bureau of Investigation
challenging the grant of bail by the Kerala High Court.
"What we propose is this...We will ask the high court to consider the anticipatory bail applications afresh without in any way being influenced by any observations of the Court's order. Unless you have something else to say."
The bench added that the protection granted to the accused by the High Court can be continued till the matter is decided.
During the hearing, Additional Solicitor General SV Raju took the court through the impugned High Court order as well as the First Information Report registered in the matter.
As the hearing progressed, the Bench queried about the number of people who were granted anticipatory and regular bail.
"Only one person granted regular bail."
The ASG also told that the Kerala High Court was wrong to say that since the incident took place 25 years ago, granting bail should not be a problem.
"The Court had directed investigation. The incident took place 25 years back, despite that investigation was directed. Not open to HC to say on these grounds that bail can be granted…It was said that CBI should take action. Ld. Judge to then say that matter is old, and that was one of the grounds for granting bail is not appropriate."
He further said that,
"We will not be able to find evidence if these kinds of orders are passed. It's an offence against the nation, not a simple offence, not against individuals. Investigation is required. Need to go into the root of the matter. Scientist has been falsely implicated."
It was further submitted that Cryogenic Engine Technology would have been done long back if the scientist was not implicated and that foreign powers were behind the whole thing.
Senior Advocate Kapil Sibal, appearing for former Gujarat DGP RB Sreekumar (who was IB Deputy Director at the time of the crime), contended that all offences alleged against him are bailable except for kidnapping.
"But the High Court has not considered material. High Court does not talk of your role", bench said.
Sibal mentioned that it was not the case, pointing to the relevant portion in the order.
"That's a reproduction of an earlier judgement", the Bench observed.
"But these are the factors that the High Court considered. Should the High Court not consider a judgement of this court while granting bail? No role attributed to me, no allegations against me, all offences bailable…If he does not allege anything, why should the High Court discuss it? This is very strange", Sibal said.
After a short discussion, the Bench said that it would remit the matter back to the High Court.
As the matter drew to a close, the Bench pointed out the errors that the High Court had conducted.
"The High Court has committed certain wrongs. It has not dealt with Justice Jain committee report, individual allegations not examined. High Court should deal with individual cases individually."
In 2018, while awarding compensation of Rs 50 lakhs to Dr.Nambi Narayanan for his illegal arrest and custodial torture, the Supreme Court
had constituted a commission led by former Supreme Court judge, Justice DK Jain to unearth the larger conspiracy behind the framing of former ISRO scientist Nambi Narayan and other scientists in the 1994 espionage case.
In April 2021, the Justice Jain committee submitted a report before the Supreme Court. Following that, the Supreme Court
directed the CBI to take action on the Justice Jain Committee report. The CBI registered the case arraying former Kerala DGP Siby Mathews,former Gujarat DGP RB Sreekumar and PS Jayaprakash(who were IB officials in 1994) and two former Kerala Police officers S. Vijayan and Thampi S. Durga are the other accused in the case.
In the order granting anticipatory bail, the High Court observed that concerns of the Kerala police at that stage about the espionage case cannot be said to be without basis.
"Some of the documents which have been produced for perusal indicate that there were certain suspicious circumstances pointing towards the act of the Scientists in the ISRO and that is what induced the officers to proceed against them", Justice Ashok Menon had noted in the order.
The High Court also remarked that there was "not even a scintilla of evidence" to suggest that the petitioners accused of implicating former ISRO scientist Nambi Narayanan in the espionage case were influenced by foreign elements.
"There is not even a scintilla of evidence regarding the petitioners being influenced by any foreign power so as to induce them to hatch a conspiracy to falsely implicate the Scientists of the ISRO with the intention to stall the activities of the ISRO with regard to the development of Cryogenic Engine", the High Court order said.