The Kerala High Court on 14th December 2020 denied bail to Indian Union Muslim League (IUML) legislator VK Ebrahim Kunju, who was arrested in the Palarivattom flyover scam case by the Vigilance and Anti-Corruption Bureau (VACB).
Ebrahim Kunju was arrested on November 18, 2020 in connection with the alleged corruption in the construction of Palarivattom flyover in Kochi, during the previous Congress-led UDF rule. He was arrested after a Vigilance Court in Muvattupuzha dismissed his bail application recently.
He was quizzed by the VACB sleuths at the private hospital where his arrest was recorded following which a magistrate visited the premises and remanded him to judicial custody. Ebrahim Kunju, representing Kalamassery constituency in the state Assembly, was interrogated multiple times in the past by the agency in connection with the case.
At the beginning of the bail order, Justice Kunhikrishnan prefaced the sapient passage 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.
While considering the point whether he is entitled for bail as he is a sick person Justice Kunhikrishnan quoted the judgment Jolyamma vs. State of Kerala (2020(5)KLT 75) wherein it was held that the 1 st proviso to Section 437(1) Cr.P.C is not a mandatory provision. It is a discretionary power of the court. Therefore, the petitioner cannot argue as of right that he is entitled bail as per the first proviso to Section 437(1) Cr.P.C because he is a sick person.
Section 437 (1) Provisio clause of Cr. P. C,1973 reads as infra:
Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail it such person is under the age of sixteen years or is a woman or is sick or infirm:
While referring to 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:
As per the Medical Board report the patient will be highly prone to various infections, especially when the absolute neutrophil count is low. 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.
While considering the contention raised by the petitioner based on the first proviso to section 437(1) Cr.P.C, 1973 the bench observed that “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) Criminal Procedure Code, 1973, especially when the treatment is going on.”
The bench however, granted liberty to file a fresh bail application once he is removed to the jail from the hospital, after improving his clinical and hematological parameters as opined by the medical board, the petitioner is free to move a fresh bail application.
