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Judgment
Janarthanan, J.—One Kutti alias Yudhesyusdharan (since deceased), it is said, bad been proceeding along Ka-dalaiyur Road, in a bicycle,
his mother Santhakumari, having been seated in the cross-bar of the cycle, at about 9:30 P.M. on 22.4.1994. When he was about to cross
Rajasundari Kalyana Mandapam, situate in that road, one Arumugbadurai (accused 3), Selvamani (accused 4) and Veeraputhirapandi (accused 5)
were stated to have waylaid him and consequently, he got down from the cycle and asked them as to why he was being prevented from
proceeding further. Immediately thereafter, Gnanamuthu (accused 1) armed with an aruval, was stated to have inflicted two cuts on his head, while
Gajendran (accused 2), also armed with an aruval, was stated to have inflicted certain cuts on his hands, on receipt of those cuts, the victim
deceased was staled to have fallen on the ground, coterminous with the raising of a hue and cry by his mother. Thereafter, all those five accused
were stated to have escaped from there, by getting into an auto rickshaw parked nearby. Thereafter, the victim-deceased was stated to have been
taken to Government Hospital, where he was pronounced dead. His mother was stated to have lodged an information before Kovilpatti East
Police Station, which was registered as a case in a Crime No. 366/94 for alleged offences under Sections 147 ,148, 341 and 302 of the Indian
Penal Code against them, and further investigation had been taken up.
Such further investigation was stated to have revealed the existence of a conspiracy as to the murder of the deceased, among accused 1 to 5
and three others, namely Mariappan (accused 6) Murugesan alias Kuttai Murugan (accused 7) and Arumugha Pandi (accused 8). Accused 1 to 4
were stated to have surrendered before the Judicial Magistrate, Tenkasi on 26.4.1994. Accused 6 and 7 were staled to have been apprehended
respectively on 27.4.1994 and 3.5.1994. Accused 8 was stated to have surrendered before the Judicial Magistrate, Tiruchendur on 9.5.1994,
while accused 5 was stated to have surrendered before the Judicial Magistrate, Villathikulam on 13.5.1994.
Excepting accused 2,4 and 7 the rest of the accused filed many an application before Court of Session at Tuticorin for grant of bail.
(a) Four applications filed by accused 3 for his release on bail between 6.5.94 and 27.5.94 had been dismissed by the Court below and he filed
his fifth application in Crl.M.P. No. U41 of 1994 on 30.5.1994 in which he had been ordered to be released on conditional bail by the Court
below by its order dt. 8.6.1994, in the sense of directing him to stay at Trichy and report before the Trichy Cantonment Police Station daily twice
at 7 A.M. and 8 P.M. However on the next day namely 9.6.94 he filed his sixth application in Crl.M.P. No. 4223/94 for modification of the said
conditions and the same came to be modified by an order of the Court below dated 10.5.1994 directing him to stay at Madurai and report before
Tallakulam Police Station twice daily at 7 A.M. and 8 P.M.
(b) Similarly, accused 6 filed three applications for his release on bail and all those applications were stated to have been dismissed by orders dt.
13.5.1994; 20.5.1994 and 27.5.1994. However, within & few days thereafter, namely on 2.6.1994, he filed another application in Crl.M.P. No.
1142/94, in which he had been favoured with an order dt. 8.6.1994 of conditional bail, with a direction to stay at Trichy and report before
Cantonment Police Station there daily twice at 7 A.M. and 8 P.M. On 10.6.1994, he filed Crl.MP. No. 1224/94 for modification of the said
conditions, in which orders came to be passed on the very same date itself, modifying the conditions, by directing him to. stay at Madurai and
report before Tallakulam Police Station there daily twice at 7 A.M. and 8 P.M.
(c) Accused 8, on his part, appeared to have filed four applications for his release on bail between 20.5.1994 and 15.6.1994 and all those
applications were dismissed.
(d) Accused 1, stated to be the prime accused who is stated to have inflicted two lethal cuts on the head of the deceased, tried his luck by filing
two applications before the Court below for his release on bail, which got dismissed by order dt. 6.5.1994 and 27.5.1994. Not content with that,
he appeared to have filed a third application (Crl.M.P. No. 1140/1994) on 31.5.94 praying for his release on bail. Before ever an order was
passed therein by the Court below, he also filed Crl.OP. No. 4825 of 1994 before this Court on 6.6.1994, which came up for hearing on 7.6.94,
from which date, it was adjourned to 14.6.1994, on a request emerging from his learned counsel. In the meantime, on 8.6.1994, Crl.MP. No.
1140 of 1994 filed before the Court below came up for hearing on 8.6.1994, on which date, learned Sessions Judge, after hearing both sides,
released him on conditional bail directing him to stay at Trichy and report before Cantonment Police Station there twice at 7 A.M. and 8 P.M.
daily.
(e) Accused 5 also filed two applications for his release on bail before the Court below and those applications were stated to have been dismissed
by orders dated 20.5.1994 and 27.5.1994. Consequently, he filed Crl.OP. No. 4809/94 on the file of this Court on 6.6.1994 and the same came
up before this Court on 7.6.1994, on which date, it was adjourned to 14.6.94 on a request emerging on his behalf.
When both these applications came up for hearing on 14.6.1994, learned counsel appearing for accused 1 made a representation for
withdrawal of his application (Crl.OP. No. 4825/1994) on the ground that bail had already been granted to him by the court below by its order dt.
8.6.1994. This Court, feeling the impropriety of the order passed by the Court below, during the pendency of the application for the release of
accused 1 on bail before this Court did not accede to the request for withdrawal as prayed for then. Both the petitions were however adjourned to
various dates till upto 1.7.1994.
In the meantime, pursuant to the directions issued by this Court, one A.V.Muthu, learned Public Prosecutor before the Court below and one
S.A.Syed Shahabudeen, Inspector of Police, filed affidavits individually explaining the circumstances leading to the grant of bail for accused 1 and
rejection for accused 5 by the Court below. Ultimately, on 1.7.1994, arguments of learned counsel appearing for respective petitioners and
learned Government Advocate were heard.
Of the eight accused involved in this case, materials so far collected prima facie reveal specific overt acts of infliction of homicidal violence
traceable only to two of them, namely, accused 1 and 2, in the sense of inflicting brutal cuts by means of an aruval on the head of the deceased by
accused 1 and on his hand/by accused 2, resulting in his death. Waylaying of the deceased is stated to be the part played by accused 3 to 5; while
accused 6,7 and 8 were staled to be the conspirators, along with other accused in the alleged murder of the deceased, besides accused 6 is stated
to have driven the autorickshaw to enable them to make good their escape from the sense.
Accused 2,4 and 7 are languishing in prison, as a consequence of their not moving any sort of an application for bail before any forum whatever.
Accused 8, placed in similar circumstances, as that of accused 6, despite moving applications on four occasions before the Court below for his
release on bail, had been languishing in prison by the dismissal of those applications, while accused 6 had been favoured with an order of
conditions bail.
Accused 5, placed on the same pedestal, as that of accused 3, had not been favoured with an order of bail by the Court below, though accused
3 had been granted conditional bail. Accused 1, being the prime accused, as alleged, besides being responsible for the cause of death of the
deceased, by infliction of brutal cuts on his head, had, however, been released on conditional bail by the Court below. The rational or basis for
grant or rejection of the bail to various accused in the occurrence, appears to be the number of days of pre- trial detention in prison, irrespective of
the part played by individual accused. Such sort of an approach by the court below in the matter of grant of bail to the accused involved in heinous
offence of murder does not appear to reflect the exercise of judicial discretion, in the best of fashion possible and to put it otherwise, such exercise
of power may give rise to an inference that the same could be the resultant product of caprice and sheer arbitrariness without application of mind.
Useful reference, in a profitable way may, however, be made here to what their Lordships of the Supreme Court said as to the exercise of
judicial discretion in the matter of grant or otherwise of bail,, by referring to the elegant words of Benjamin Cardozo, in the case of Babu Singh and
Others Vs. State of U.P., , reflecting thus:-
8.... Personal liberty, deprived when bail is refused, is too precious a value of our constitutional System recognised under Art. 21 that the crucial
power to negate it is a great trust exercisable, not casually but judiciary ,with lively concern for the cost to the individual and the community. To
glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all personal
liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of ''procedure established by law''. The last four words of Art.
21 are the life of that human right.
The doctrine of police power, constitutionally validates punitive processes for the maintenance of public order, security of the State, national
integrity and the interest of the public generally. Even so, having regard to the solomon issue involved, deprivation of personal freedom, ephemeral
or enduring, must be founded on the most serious considerations relevant to the welfare objectives of society specified in the Constitution.
10.What, then, is judicial discretion in this bail context? In the elegant words of Benjamin Cardozo,
The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his
own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague
and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated
to ''the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains.
Agonizing it is to mention here the practice of filing applications simultaneously for the release of persons accused of offence of heinous crime,
both before the Court to Session as well as before this court, without revealing the real state of affairs, before either of the Courts. Accused 1 filed
application for bail in Crl.M.P. No. 1140 of 1994 before the court below on 31.5.1994 and without revealing the filing or pendency of the said
application, an application in Crl.OP. No. 4825 of 1994 had also been filed before this court on 6.6.1994 and when that application came up for
hearing on 4.6.1994, it was informed to this court that he had already been released by the Court below by order dated 8.6.1994 in an application
pending before it. Learned Public Prosecutor, who represented the State before the Court below, in his affidavit would swear in a sly fashion that
he had opposed the bail application, which came up for orders on 8.6.1994, in a strong and stout fashion, as he was aware of the details and fads
of the case and about all the eight accused and as the Investigating Officer was not available on that date and was out of station. He would further
slate that he was not aware of the fact that similar application for bail was pending before this Court.
The Inspector of Police, on his apart, in his affidavit would wear that he attended this court on 7.6.1994, in connection with Crl.O.P. No.
4825 of 1994 and returned to Tuticorin on 9.6.1994 and in the meantime, bail application by accused 1 came up for hearing on 8.6.1994 in
Crl.MP. No. 1140 of 1994 before the court below and orders had been passed, releasing accused 1 on bail.
However, one thing is dear. Learned Public Prosecutor and the Inspector of Police had filed their respective affidavits incorporating averments
in such a way to somehow or other wriggle out of the situation. In a heinous crime of murder, like the case of hand, it is the primary duty of learned
Public Prosecutor representing the State in the Court below to have asked for adjournment for getting instructions, if really the Investigation Officer
was out of Station. The part played by each accused in an occurrence is capable of being revealed only on perusal of the case diary and without
the same, a learned Public Prosecutor could not be expected to effectively discharge his duty in making a representation on the facts and in
circumstances of each case.
In the case on hand, learned Public Prosecutor before the Court below, did positively state in his affidavit filed before this court that the
Inspector of Police was out of station and as he was having possession of previous knowledge of the facts and circumstances of the case, stoutly
opposed the bail application. He, however, did not disclose through what source, he came to know that the Inspector of Police was not available
in the station on the date, on which the bail application come before the court below. In such a situation, it is quite possible and plausible to infer
that the source of information he derived could not be anyone, other than the one from a police Constable. If really notice had been issued to the
Investigating Officer and a Constable had been sent to inform learned Public Prosecutor as to his unavailability in the Station, information could
have been passed on to learned Public Prosecutor, as to the factum of the Inspector of Police, having gone to Madras to effectively oppose the
bail application presented before this court by accused 1. If that be the position it is the primary duty of learned Public Prosecutor, instead of
stoutly opposing the bail application, to have brought to the notice of the court below as to the pendency of the bail application before this Court,
in order to avoid the plausibility of conflicting decisions before different forums.
Like wise, it is the duty of the Investigating Officer, who has attended this Court for the initial hearing on 7.6.1994, to have brought to the
notice of this Court about the pendency of the bail application filed much earlier on 31.5.1994 before the Court below. In such circumstances, I
will not be far wrong to think that in order to cover up the dereliction of their duty, both of them resorted to file affidavits individually in such a way
as to escape from being found fault with on their part by court in having rendered an aid to an accused, alleged to be a prime accused, to be
released on bail. This sort of a release of the prime accused on bail by the court below, on the facts and in the circumstances of this case, no
doubt, deserves to be condemned.
Taking into consideration the materials so far available prima facie revealing the part played by accused 5 in the alleged occurrence, no
prejudice will be caused to the investigation, if he is released on conditional bail at this stage.
However, recording the representation made by learned counsel for accused 1, Crl.O.P. No. 4825 of 1994 is dismissed as withdrawn.
Accused 5 is directed to be released on bail, on his executing a bond for a sum of Rs. 2,000/- (Rupees two thousand only) with two sureties
each for a like sum to the satisfaction of the Judicial Magistrate, No. I, Kovilpatti and on condition that he shall remain at Madurai and report
before Tallakulam Police Station daily twice at 7:00 A.M., and 8:00 P.M., until further orders.