Pasumpon @ Periyakaruppan vs State

P.R. Shivakumar, J.—This revision is directed against the operation of the impugned order passed in Crl. M.P. No. 4823/06 dated

22.01.2007 by the learned Principal Sessions Judge, Madurai.

The correctness of the order passed by the learned Principal Sessions Judge, Madurai dated 22.01.2007 made in Crl. M.P. No. 4823 of 2006

cancelling the bail granted in favour of the Petitioner in this Criminal Revision Case in respect of Crime No. 536 of 2000 on the file of Thideernagar

Police Station, Madurai is put in issue in this Criminal Revision Case.

Pursuant to the disappearance of one Sivaraman son of Aandi Thevar (Ex. M.L.A.) from the year 1998, an information was furnished to

Thideernagar Police Station based on which a case was registered on the file of the said police station in Crime No. 536 of 2000 on 04.04.2000

as a man missing case. Later on, the same was transferred to the CB-CID, Madurai in the year 2001. Thereafter, the CB-CID altered the case

into one for offences punishable under Sections 120(b) r/w Section 365 and 364 IPC in the year 2003. As per the altered First Information

Report Andi Thevar, his son Panneer Selvam and Pasumpon @ Periakaruppan were arrayed as accused Nos. 1, 2 and 3 respectively. All of them

were arrested on 10.07.2003 and remanded to judicial custody. So far as A-3-Pasumpon @ Periyakaruppan was concerned one day police

custody was also ordered on 25.07.2003. Thereafter, all the three persons were released on bail pursuant to orders passed by the learned

Principal Sessions Judge, Madurai. In this Criminal Revision case, we are not concerned with A-1-Andi Thevar and A-2-Paneer Selvam. A-3-

Pasumpon @ Periakaruppan was released on 13.08.2003 as per the order of the learned Principal Sessions Judge passed in Criminal M.P. No.

3900 of 2003.

While so, the CB-CID police completed the investigation and submitted a final report on 20.10.2003 for offence punishable under Sections

120(b) r/w Section 365 & 364 IPC against all the above said three persons. The same was taken on file by the learned Judicial Magistrate No. V,

Madurai as PRC. No. 15 of 2004. Not satisfying with the investigation conducted by the CB-CID the defacto complainant Rajendra Narasimhan

filed Crl. O.P. No. 24092 of 2004 on the file of this Court seeking a direction to the CBI to investigate the said case. Consequently, the said O.P.

was allowed by an order dated 21.12.2004 and a direction was issued to the CBI to conduct a fresh investigation and submit a final report and

PRC.No.15 of 2004 on the file of the Judicial Magistrate No. V, Madurai has also been ordered to be kept in abeyance till the completion of the

investigation and submission of the final report by the CBI.

Pursuant to the said order of this Court, the CBI took up investigation of the case assigning Crl. R.C. 11/S/2005/CBI/SCB/Chennai for the

above said offences against the above said persons and started the investigation. Investigation is being conducted by a team of officers headed by

S. Arulan, Inspector of Police. As Sivaraman son of Periyakaruppan was found missing during the year 1998, a man missing case was registered.

Meanwhile, a headless body was found in Mehamalai Hill area within the limits of Mayiladumparai police limit, Theni District on 23.09.1998 and a

case was registered on the file of the said police station in crime No. 115 of 1991 u/s 302 IPC. During the course of investigation conducted by

CBI the registration of the said case was brought to the notice of the investigating agency. The body was exhumed on 05.10.2005 and further

investigation revealed that the said body was that of Sivaraman son of Andi Thevar. According to the investigating agency the said Sivaraman was

abducted for the purpose of murder, after murdering him, the body was disposed of in an attempt to cause disappearance of evidence of the

offence of murder and the investigation conducted by the CBI revealed the involvement of two more persons (Nallu Thevar and Pancharajam) in

the commission of murder along with the accused.

In the light of the factual situation narrated above, the investigating officer moved a petition u/s 439(2) of Cr.P.C. before the learned Principal

Sessions Judge, Madurai for the cancellation of bail, so far as the A3-Pasumpon alias Periya Karuppan, the petitioner in the present Criminal

Revision Case, is concerned. The learned Sessions Judge, after giving opportunity to the accused concerned(A3) and after hearing the submissions

made on both sides passed an order on 22.01.2007 canceling the bail granted to the petitioner in the revision case. The said order of the learned

Principal Sessions Judge, Madurai is challenged in this Criminal Revision Case.

This Court heard the arguments advanced by Mr. Anantha Padmabhan, the learned Counsel appearing on behalf of the petitioner in the revision

case and Mr.Jacob Daniel Special Public Prosecutor entered for CBI cases appearing on behalf of the Respondent-State and paid its anxious

consideration to the same. The challenge to the order of the learned Assistant Judge impugned in this Criminal Revision Case is made on the

following grounds:

(i) The cancellation of bail has been sought for on the ground that the Investigating Agency is desirous of taking the accused concerned/petitioner in

this revision case into its custody for custodial interrogation. But, the concerned accused/petitioner in the Revision case having been remanded and

suffered incarcerations pending investigation by the previous investigating agency for more than 15 days, during which period one day police

custody was also granted, cannot be handed over to the present investigating agency in custody since such a police custody is against the principle

found in Section 167(1) Sub-clause (ii) proviso ''A'' of Cr.P.C.

(ii) Bail once granted u/s 439 Cr.P.C. cannot be cancelled otherwise than in accordance with Sub-clause 2 of the said Section. According to the

petitioner in the revision case unless any one of the conditions on which bail was granted has been violated making it unsafe for the prosecution to

proceed with the further investigation or trial of the case, the bail once granted in a particular crime case cannot be cancelled.

In support of the above said contention, Mr.Ananda Padmanabhan learned Counsel appearing for the petitioner in the revision case drew the

attention of this Court to the decision reported in 1992 L.W. Cri. 441 judgment of the Honourable Supreme Court made in Central Bureau of

Investigation, Special Investigation Cell (1) New Delhi v. Anbupam J. Kulkarni and the judgment of the Honourable Supreme Court made in

Dolatram and Ors. v. State of Haryana reported in 1995 SCC (Cri.) 237. In the first case cited above, the question whether an accused produced

before the Magistrate u/s 167(1) of Cr.P.C. can be remanded to police custody after the expiry of initial period of 15 days of remand was

considered by the Honourable Supreme Court and the answer given by the Supreme Court for the said question is in the negative. In the second

case cited by the learned Counsel for the petitioner, the facts to be taken into consideration for cancellation of bail under Sections 437(5) and

439(2) Cr.P.C. were discussed by the Honourable Supreme Court.

Of course, there is no difference of opinion that a person arrested for an offence in respect of a particular Crime number and remanded to

custody either judicial or police, cannot be remanded to police custody after the expiry of the initial period of remand of 15 days from the date of

production before the Magistrate. But, on the other hand, learned Counsel for the CBI would contend that the said restriction will not apply to the

case on hand since, according to him, the registration of the case, pursuant to the direction issued by this Court for conduction investigation afresh

should be deemed to be a registration of new case whereupon the accused can be arrested and remanded even without an order of the Court

canceling the bail granted to him when the matter was investigated by another investigating agency under a different Crime number. The said

proposition, according to the learned Counsel for the CBI, gains strength from the fact that this Court, while directing investigation by the CBI

made it clear that the investigation should be started afresh. This Court is not in a position to concur with such a far reaching proposition suggested

by the learned Counsel for the CBI.

The right conferred upon an arrested person u/s 167 Cr.Pc. is not restricted with reference to any particular offence or the stage or stages of

investigation. It simply say, whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed

within 24hours. he shall be produced before the nearest Judicial Magistrate for necessary orders of remand; that the accused person thus

forwarded to Magistrate can be remanded initially for a term not exceeding 15 days and that during that initial period of 15 days alone he can be

entrusted to the custody of the police. Such a protection enunciated in Section 167 Cr.P.C. cannot be taken away by ingenious methods devised

by the police by either registering a fresh case or by altering the First Information Report incorporating a graver offence than the one for which the

case was initially registered. In Anupam J. Kulkarni case 1992 L.W. Cri. 441 the Honourable Supreme Court has held in clear terms that

alteration of First Information Report incorporating a graver offence shall not be a ground on which the right conferred on the arrested persons u/s

167 of Cr.P.C. against police custody after the initial period of 15 days remand cannot be eroded.

Therefore, this Court comes to the conclusion that the bail granted to the petitioner in the Criminal Revision Case cannot be cancelled on the

ground that a fresh crime number was assigned by the CBI and investigation was started afresh in accordance with the direction of this Court. At

best, the registration of a case with a fresh crime number on the file of the CBI can be treated as an alteration of First Information Report in respect

of the case originally registered on the jurisdictional police, namely Crime No. 536 of 2000 by Madurai Theedernagar Police Station. Though the

investigation to be conducted by the CBI is termed a fresh investigation in the order of this Court, it can be construed only a re-investigation.

On the other hand, the order of cancellation of bail is sought to be sustained on a further ground that the petitioner was granted bail only in

respect of Crime No. 536 of 2000 on the file of the Theedernagar Police Station, Madurai registered in connection with the alleged conspiracy and

abduction, whereas, a separate case in Crime No. 114 of 1998 on the file of Mayiladumparai Police Station, Theni District happened to be

registered in the year 1998 itself, for an offence punishable u/s 302 IPC, when a headless dead body was found in Mehamalai hill area on

23.09.1998; that the said headless body was later on found to be that of Sivaraman as no order of bail was obtained in respect of the said crime

number and that the said case got revived by the registration of Crime No. RC/11/S/2005/CBI/SCB/Chennai on the file of CBI. According to the

admitted case of the investigating agency, the conspiracy abduction and murder formed part of one and the same transaction. That being so, the

above said contention raised on behalf of the CBI that even without having the bail granted in Crime No. 536/00 registered on the file of Theedeer

Nagar Police station, Madurai, cancelled the petitioner could be arrested in Crime RC/11/S/2005/CBI/SCB/Chennai as the same could be

construed as a continuation of Crime No. 114/98 registered on the file of Mayiladumparai Police Station, Theni District. It does not hold wider in

it. The above said contention of the learned Counsel for the CBI seems to be quite illogical for the simple reason that the CBI approached the

Sessions Judge for the cancellation of bail with the conviction that the benefit of bail granted in respect of Crime No. 536 of 2000 would enure to

the concerned accused in respect of Crime No. RC/11/S/2005/CBI/SCB/Chennai CBI also.

For all the reasons stated above, this Court comes to the conclusion that the respondent is not entitled to seek cancellation of bail on the

ground that they want the petitioner to be remanded to their custody for custodial interrogation, since such a power has been lost long back on the

expiry of 15 days initial remand.

So far as the next contention of the petitioner that the bail once granted cannot be cancelled unless there has been violation of conditions

making it unsafe for the investigating agency to conduct the investigation or proceed with the trial of the case is concerned, this Court has to

necessarily disagree with the learned Counsel for the petitioner. Though the alteration of the First Information Report at a later stage incorporating

a graver offence than the one for which the case was initially registered alone cannot be a ground on which the bail already granted can be

cancelled, the same is no doubt a valid point to be taken into consideration to see whether there has been a change of circumstances warranting

cancellation of bail. In the instant case, originally a case was registered as a man missing case. Subsequently, on the intervention of the Court, the

investigation was entrusted with CB-CID pursuant to which the case was altered as a case for offences under Sections 120(b) r/w 365 and 364

IPC. The said Investigating Agency, namely, CB-CID police, unable to trace out the missing person allegedly kidnapped, was content with the

submission a final report for the above said offences alone, without probing further to find out the fate of the person allegedly abducted. Once

again, the intervention of the Court was needed for entrusting the investigation of the case to the CBI. Now, according to the CBI, the present

Investigating Team was able to prove a link between the headless dead body found in Mehamalai Hill area and the present case and that the

Investigating Team has also find out the dead body to be that of Sivaraman, the person abducted in this case. In the above said circumstances, the

dead body was exhumerated and a DNA test was also conducted. According to the respondent, the said DNA test proved the identity of the

deceased. Two more persons have also been arrested and added as accused Nos.4 & 5 in this case. After identification of the dead body was

established, the case was altered by an altered First Information Report including the offences punishable under Sections 302 IPC and 201 IPC.

All the above said facts will be sufficient to hold that, while granting bail the learned Sessions Judge did not have the materials placed before

him to show commission of graver offences, namely offences punishable under Sections 302 and 201 IPC which weighed with him to come to the

conclusion that no prima facie was made out for a graver offence other than the offences initially quoted in the first altered First Information Report.

Investigation has revealed, according to CBI, the commission of murder and an attempt to cause disappearance of evidence of the offence of

murder punishable under Sections 302 and 201 IPC. If these aspects were brought to the notice of the learned Sessions Judge while dealing with

the bail application, bail would not have been granted. This Court comes to the conclusion that these are change of circumstances based on which

the decision of the learned Sessions Judge to cancel the bail can be sustained. This view gains support from the judgment of his Lordship R.C.

Lahoti, the learned Judge of Madhya Pradesh High Court as he then was pronounced in Kalyan Singh Vs. State of Madhya Pradesh, .

It is also brought to the notice of this Court that the respondent has taken steps to get the bail granted to the other two accused persons,

namely A1 and A2, cancelled and that the petitions filed on the file of the learned Sessions Judge have been dismissed on the sole ground that this

revision case is pending on the file of this Court, giving liberty to the prosecution to file a fresh application after the disposal of this petition.

Under the above said facts and circumstances of the case, this Court comes to the conclusion that one of the grounds on which the bail was

cancelled namely, the proposal of the CBI to have the petitioner remanded to their custody for custodial interrogation is not valid; and that

however, the order of the learned Principal Sessions Judge, Madurai canceling the bail granted to the petitioner herein can be sustained on the

other ground, namely, the facts and circumstances brought to light during investigation are capable of making it unsafe and not prudent to have the

petitioner at large during the pendency of investigation. Hence, this Court holds that the revision petition is bound to fail and accordingly the same is

dismissed. The revision petitioner/accused No. 3 is directed to surrender within 15 days from the date of receipt of an order. In case of default, the

investigating officer shall get necessary warrant and produce the accused before the concerned Magistrate. In case of failure, on the part of the

petitioner the jurisdictional Magistrate shall issue a Non-Bailable Warrant.

As requested by the learned Counsel, this Court makes it clear that this order shall not be interpreted to preclude the petitioner herein from

moving a fresh bail application after his surrender or arrest, based on fresh facts and change of circumstances that may arise later on. Consequently

connected M.P. No. 1 of 2007 is closed.