Leniency Cannot Be Shown When Officers Of State Are Accused Of Heinous Crimes : Kerala High Court

The Kerala High Court while refusing bail to two army personnel held that when the accused is an officer of the State, "leniency is not the sanction of law, instead rigidity is the rule of law" . 

A single bench of Justice A.Badharudeen was hearing an anticipatory bail application where initially the offences registered against the petitioners were bailable, but subsequently the non-bailable offence of Section 307 (Attempt to Murder) of the Indian Penal Code, was added.

The petitioners requested that since two of the accused persons were army personnel, the court must take a lenient view. However, disagreeing with the said contention, the court observed that:

"when heinous offences are alleged to be committed by the responsible officers of the State, viz. Police Officers, Excise Officers, Para military forces, Military persons and persons empowered with observance and implementation of law (list is not exhaustive), the same is an aggravating factor, to be taken note of, in deviation from the general principles, which would not apply to common man. If so, in such cases, leniency is not the sanction of law, instead rigidity is the rule of law."

The counsel for the petitioner submitted that at the time of registering the FIR only bailable offences were alleged and hence the accused persons were released on bail. Since, later on the offence under under Section 307 of IPC was alleged, the petitioners now have the right to approach the court under Section 438 of CrPC for anticipatory bail, the petitioners argued.

However, the Public Prosecutor opposed bail on the ground that Section 307 was later added based on witness statements and medical records of the hospital that showed that the victim had sustained serious injuries. Hence the police has the right to arrest, interrogate and recover weapons from the petitioners as the newly incorporated alleged offence is non bailable.

The court observed that going by the medical records and the statements of the doctor a prima facie case for Section 307 has been made out. Denying anticipatory bail to the petitioners, the court remarked that the “arrest, custodial interrogation and recovery of the weapons at the instance of the petitioner are absolutely necessary to achieve effective and fair investigation and eventful prosecution”. The court however, made a specific note of the fact that the petitioners were free to approach the relevant the jurisdictional court for bail as per the ratio in Pradeep Ram's case.

Case Title: Pradeep and Others V State of Kerala and Others 

Citation: 2023 LiveLaw (Ker) 107

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