Madhavan vs State by DSP/CBI/SCB, Madras

Shivappa, J.—The Petitioner herein is one of the accused in Crime No. 1929/94 registered for offences under Sections 147, 148,341, 307 and 210(B) I.P.C. The allegation is that the Petitioner herein along with other accused persons conspired to attack Advocate Vijayan and in furtherance of the said conspiracy they assaulted advocate Vijayan on 21-7-1994 in the early hours when he was leaving his house to go to New Delhi to attend the case in the Supreme Court in connection with 69% reservation policy of the Tamil Nadu Government.

The Petitioner moved the Sessions Judge for anticipatory bail and the same was dismissed on 30-10-1995. challan was filed for offences under Sections 143,147,443,324,326,307 and 120-B Indian Penal Code on 6-12-1995 against 13 accused persons on the file of X Metropolitan Magistrate, Egmore, Madras, showing the Petitioner as an absconding accused and his ranking a is shown as accused No. 2.

The counsel for the Petitioner argued regarding improbability in the prosecution case, delay in recording the statements, nature of medical evidence and lapses in investigation. In addition to there, he urged that the Petitioner had no bad antecedents and he is a M.A. Graduate and that there is no likelihood of tampering with the witnesses and assailed the reasons given by the Sessions Judge.

It is settled law that at the stage of considering the application for bail, court should not conduct mini trial and resort elaborate discussion and has to only look into police papers regarding prima facie case and not the probable defence. Contradictory statements by witnesses, lapses in investigation, improbabilities in the prosecution case, medical evidence and all other probable defenses have to be considered at the appropriate stage during trial and not at this stage. The evidence of the Doctor, documents filed, statement of the injured and his father and statement of other witnesses, identification parade, attendant circumstances clearly show the prima facie case against the Petitioner.

During December, 1995 a non-bailable warrant was issued by the X Metropolitan Magistrate, Egmore, against the Petitioner. Due to efforts taken by C.B.I, in pursuing the movements of the Petitioner from place to place for his apprehension, the Petitioner surrendered before the Judicial Magistrate, I Class, Namakkal, Salem District on 11.6.1996. On the request of the C.B.I, he was shifted to Central Prison, Madras and after serious difficulties in the matter of obtaining the police custody of the Petitioner, apart from the stiff opposition from the defence side, on a petition filed before the Sessions Judge two days police custody was given. The Petitioner who appeared before the C.B.I, at the initial stage of investigation gave a statement implicating powerfully placed persons among others without elaborating his own involvement and retracted the same later. Keeping in view the past conduct, nature of accusation, severity of punishment, the behaviour of the Petitioner, mode adopted to attack the victim, using of hirelings, retraction of the confession of the Petitioner, local police using their unlimited resources, made certain unconnected persons to surrender before the Magistrate pleading guilty, all these factors cannot be brushed aside. The antecedents and education though relevant circumstances to consider the case, having regard to the nature of the case and the participation played by the Petitioner and his association with the hirelings requires consideration to assess the consequences or the impact on the prosecution witnesses in the event of release. Likelihood of feeling from justice and tampering, though basic factors for consideration, while exercising the bail discretion, several other factors also have to be borne in mind. It is not the education of the person alone that matters because a man with education may also at times be prone to commit crimes so also as a person without bad antecedents. Every case has to be judged on the facts and circumstances of each case and no general criteria can be settled that an educated man with no bad antecedents is entitled for bail, that too, when the crime is serious and well thought of, with an ulterior motive.

This Court in State by Superintendent of Police Central Bureau of Investigation Vs. Adi Rajaram, has held thus:

Tampering may have two phases, one during investigation preventing the Investigation Agency from collecting the evidence and the other during trial, preventing the prosecution from placing the evidence so collected before the Court. In fact, the second phase is a as important, if not more important than the first phase. This is so because, investigation is not an end in itself. It is a process which precedes a trial. Evidence has to be collected, but the indictment comes only after the evidence is placed before the Court appreciated and accepted. If by proper safeguards the evidence collected during investigation is not allowed to bee preserved and placed before the court and if in the intervening stage, though the operation of extraneous forces the evidence is allowed to be underlined or erased, the entire investigation becomes an exercise of futility and the guilty escape the arms of justice. The possibility of the evidence being tampered is, therefore, serious aspect to which the court has to give due consideration.

Now the case has already been committed to the Court of Sessions, if bail is granted to a person who absconded and who master-minded and supervised the whole conspiracy being executed, there may be a hostile atmosphere during trial and there is every possibility of creating psychic fear in the minds of the witnesses to come forward to give evidence in the Court of law. Therefore, I see no substance in the contentions urged by the counsel for the Petitioner.

Before parting with this case, since other accused are also in custody and the charge sheet has already been filed and case committed to the Court of Session, the learned Sessions Judge has to take up the case on priority basis and complete the trial on day today basis without further delay within three months from today.

For the above reasons, the petition is dismissed.