'What Is The Purpose Of Releasing Him?': Kerala High Court Denies Bail To Former PWD Minister VK Ebrahim Kunju In Palarivattom Flyover Scam

The Kerala High Court, while dismissing the bail application filed by former PWD minister VK Ebrahim Kunju in the Palarviattom flyover scam, observed that there are serious allegations against the former minister and thus he is not entitled bail on merit at this stage.

A person who was admitted to a hospital one day before the arrest and that also a hospital of his choice and he is being treated by a doctor of his choice is not entitled the benefit the first proviso to section 437(1) Cr.P.C, especially when the treatment is going on, Justice PV Kunhikrishnan observed in the order dismissing the bail application.

The court, however, granted liberty to move a fresh bail application once he is discharged from the hospital and removed to jail. 

Ebrahim Kunju was arrested by the Vigilance and Anti Corruption Bureau on November 26. A vigilance court had earlier dismissed the bail plea filed by former minister V K Ebrahim Kunju, arrested by the Vigilance and Anti-Corruption Bureau (VACB) in a flyover scam case. The Muvattupuzha Vigilance court also dismissed a vigilance application seeking his custody but permitted the agency to question the ailing former minister few hours a day at a private hospital in Kochi where he is admitted for treatment of cancer.  

Justice Kunhikrishnan prefaced the bail order with the following interesting observation about the etymology of the word ;

The Palarivattom flyover, which reduced the traffic problem in Cochin city to some extent, is now unpopular because of the alleged corruption in its construction. The name Palarivattom has evolved from the word 'Pagalnarivattom'. 'Pagalnarivattom' means a place where jackal roams even in the day time. Now Keralites suspect that it is not jackals but corrupt people wandering through this area. The vigilance must find out the truth by conducting a fair and impartial investigation and restore the name of Palarivattom connected with that of jackals instead of corrupt people. Jackals are better than corrupt people.

The court also said that he is not as of right that entitled to bail because he is a sick person. The court added:

The 1st proviso to Section 437(1)Cr.P.C indeed says that the court may direct that a person referred to in clause (i) or clause (ii) of that Section be released on bail if such  person is under the age of sixteen years or is a woman or is sick or infirm. But this Court in Jolyamma vs. State of Kerala (2020(5)KLT 75) considered this point and held that the 1st proviso to Section 437(1) Cr.P.C is not a mandatory provision. It is a discretionary power of the court.  

The court also noted the Medical Board report which said that the patient will be highly prone to various infections and that his absolute neutrophil count is low. The judge observed:

"A reading of the above medial board report, it is clear that the petitioner needs serious treatment from a hospital. The report suggests that it is better to have hospital care until his clinical and hematological parameters improve, especially because of his immune-compromised state. Then what is the purpose of releasing the petitioner on bail? The Medical Board says that the patient will be highly prone to various infections. During this pandemic period, what is the purpose of releasing the petitioner on bail and asking him to go to his house is the question. The petitioner was admitted to a hospital of his choice on 17.11.2020. He was arrested on 18.11.2020. He is now treated by a doctor of his choice. He is now in hospital. Let the treatment continue. Once the treatment is over, and the doctors suggest that he can be discharged, he will be removed to jail. At that stage, the petitioner can file a bail application. At that stage, the bail application can be considered on merit also if necessary. The contention raised by the petitioner based on the first proviso to section 437(1) Cr.P.C is left open. A person who admitted to a hospital one day before the arrest and that also a hospital of his choice and he is being treated by a doctor of his choice is not entitled the benefit the first proviso to section 437(1) Cr.P.C, especially when the treatment is going on. Therefore, in my opinion, on medical ground also the petitioner is not entitled bail at this stage.

CASE: V.K.EBRAHIM KUNJU vs. STATE OF KERALA [B.A.No.8209 of 2020 ]
CORAM: JUSTICE PV KUNHIKRISHNAN
COUNSEL: SR. ADV. B.RAMAN PILLAI, STATE ATTORNEY K.V.SOHAN

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