Point of Law: Grant of Bail - Overstaying in India after the expiry of Visa - Section 438 of the Cr.P.C. is not extraordinary in the sentence that it should be invoked only in exceptional or rare cases.

ORDER :

The petitioner in B.A.No.5010/2021 is the 11th accused; the petitioners in B.A.No.5109/2021 are accused 1 and 2; while the petitioner in B.A.No.5809/2021 is the 7th accused in Crime No.RC/050/2021/S0007 of SC-II Delhi Police Station. The case which was registered by the Central Bureau of Investigation (CBI) alleging offences punishable under Sections 120B, 167, 218, 330, 323, 195, 348, 365, 477A and 506 of the I.P.C. against 18 persons, including the petitioners, who were all officers either with the Kerala Police or with the Intelligence Bureau (IB).

2. The allegation in brief, is that, on 20.10.1994 Crime No.225/1994 was registered on the basis of a report submitted by the 1st accused, Inspector of Special Branch of Kerala Police at Vanchiyoor Police Station against a Maldivian National, namely, Mariyam Rashida under Section 14 of the Foreigners Act, 1946 for overstaying in India after the expiry of the Visa. During the investigation of the said case, on the basis of the report submitted by the 1st accused, another crime was registered as Crime No.246/1994 on 13.11.1994 at the same Police Station alleging offences punishable under Sections 3 and 4 of the Official Secrets Act, 1923 read with Section 34 of the I.P.C. against the aforesaid Mariyam Rashida and another lady named Foauzia Hasan, also a Maldivian National, on the allegation that they had in collusion with some others had taken part in the activities against the sovereignty and integrity of India and indulged in activities, which would harm the cordial relationship of India with the neighbouring countries. The investigation in the aforesaid two crimes, registered on the basis of the report submitted by the 1st accused, was initially conducted by the 2nd accused, who was then the Sub Inspector of Police, Vanchiyoor Police Station. Later, on 15.11.1994, the investigation of both these cases was entrusted to the Special Investigation Team constituted by the DGP of Kerala Police, headed by the then DIG of Crimes, Siby Mathews, who is the 4th accused here. In Crime No.246/1994, six persons, including the aforesaid two Maldivian ladies were arrested. That included D.Sasikumaran, K.Chandrasekhar, Nambi Narayanan, Sudhir Kumar Sharma, who were all Scientists in the Liquid Propulsion Systems Centre (LPSC), alleging that they were involved in espionage activities relating to the Indian Space Research Organisation (ISRO). During the police custody, all these persons were subjected to interrogation by a number of officers of the Kerala Police and Intelligence Bureau. Later, the investigation was handed over to the C.B.I. on 03.12.1994 and the crimes were re-registered as RC.10(S)/1994-CBI/SIU.V/SIC.II (Foreigner's Act Case) and RC.11(S)/1994-CBI/SIU.VI/SIC.II (Espionage Case) respectively. The C.B.I. submitted a closure report before the designated court, the Chief Judicial Magistrate Court, Ernakulam, on 16.04.1994 stating that the allegations pertaining to espionage could not be proved and were found to be false. The report submitted by the C.B.I. was accepted by the Chief Judicial Magistrate Court, Ernakulam on 02.05.1996, and the entire proceedings against the aforesaid persons came to an end. It was also alleged in the report that the lapses were committed by the earlier investigating agencies/ interrogators. Copies of the report were also sent to the Government of India and to the Government of Kerala, requesting suitable action against the erring officials. The Kerala Government pursued to reopen the espionage case and ordered re-investigation. The said order of the State Government was challenged in K.Chandrasekhar and others v. State of Kerala and others and ultimately the Hon'ble Supreme Court quashed the orders of the State Government directing reopening of investigation in the espionage case holding that the State Government's notification seeking re-investigation was mala fide. The Government of Kerala decided not to take any disciplinary action against the S