R. Kamraj and Others vs State

K. Mohan Ram, J.—The petitioners are the first, second, fourth, fifth, sixth and ninth accused in Crime No. 686 of 2007 on the file of the respondent herein. The said crime has been registered against the petitioners herein and others for the alleged offences under Sections 147, 148, 323, 294 (b), 324, 336, 506 (ii) and 307 of the Indian Penal Code.

The prosecution case is that on 01.10.2007 in front of the Periyar Statue at Mannargudi a fast was organised by D.M.K. Party; at about 12.30 P.M. the petitioners herein who are the office bearers of the AIADMK Party and 200 other armed with aruval, knife and stones came running to the fasting place firing crackers and shouting "beat and kill the persons belonging to the DMK Party" and on seeking that the informant Karikalan and others tried to save their party-men and at that time the first petitioner cut Karikalan on his head with aruval and the other accused attacked others causing grievous injuries; Karikalan got himself admitted in the hospital and on the complaint given by him the above case was registered. The petitioners were arrested on 02.10.2007 and they filed a bail application in Cri. M.P. No. 7096 of 2007 on the file of the learned Sessions Judge, Nagatpattinam. The said application was heard in the presence of the counsel for the petitioners herein and the Public Prosecutor and by an order dated 05.10.2007, the learned Chief Judicial Magistrate who was in-charge of the disposal of the bail applications on that date granted bail to the petitioners. In the order, the learned Chief Judicial Magistrate has observed as follows;

The learned public prosecutor has represented that he was not properly instructed by the concerned Investigating Officer and he has no objection to release them on bail. But he has conceded that bail can be ordered as there is no law and order problem.

Considering the facts and circumstances of the case and as it is a case and counter case and as the learned public prosecutor says that tension is not prevailing, I am inclined to grant bail subject to severe conditions to avoid further complications between the parties. Accordingly the petitioners are ordered to be enlarged on bail on each of the petitioner executing a bond for a sum of Rs. 5000 with two sureties each for a like sum to the satisfaction of the Judicial Magistrate No. 1, Mannargudi with condition that they shall report before the Judicial Magistrate No. 1, Cuddalore daily at 10 AM and 5 PM until further orders.

Subsequently, as is evident from the order dated 06.10.2007 passed by the learned Session Judge, Nagapattinam, in Cri. M.P. No. 7131 of 2007 in Cri. M.P. No. 7096 of 2007 the respondent had filed an application u/s 439(2) of the Criminal Procedure Code at 5.25 P.M. on 05.10.2007 itself seeking cancellation of the bail granted to the petitioners in Cri. M.P. No. 7096 of 2007. It is also evident from the said order that the copy of the order granting bail to the petitioners was not furnished to the petitioners inspite of being applied for by the petitioners which necessitated the petitioners to file Cri. M.P. No. 7131 of 2007 and the same was allowed and the copy of the bail order was directed to be furnished to the petitioners by the learned Judge on 06.10.2007. It is also seen from the typed-set of papers filed in this case that the petitioners were arrested on 06.10.2007 in connection with Crime No. 690 of 2007 in which the petitioners and others have been alleged to have committed offence punishable under Sections 147.148, 323. 294(b), 324,336,506 (ii) and 307 of the Indian Penal Code and Section 3 the TNPID Act.

In the affidavit filed by one Thirru. S. Palanivel, Deputy Superintendent of Police. District Crime Branch, in-charge of: Mannargudi Police Sub-Division, in Cri. M.P. No. 7111 of 2007 seeking cancellation of bail granted to the petitioners it is stated that one of the accused namely S. Kamaraj, involved in the case had filed Cri. O.P. No. 30076 of2007 seeking bail before the High Court, Madras, and the same was posted on 05.10.2007 for hearing and the case diary relating to Crime No. 686 of 2007 was sent to the Government Advocate representing the State in the High Court and hence the case diary was not produced before the Chief Judicial Magistrate when the bail application in Cri. M.P. No. 7096 of 2007 was taken up for hearing. Further in the affidavit in paragraph 3 it is stated as under:

The Hon''ble Chief Judicial Magistrate, Nagapattinam who was in-charge of disposing of the bail application was pleased to allow the bail application as there was no proper instruction from the Investigating Officer concerned to the Public Prosecutor to represent on behalf of the prosecution. Three persons namely Murthi, Nehru and Govindaraj who were injured in the occurrence are still under treatment as in-patient at Government Hospital. This apart, the occurrence have taken place between persons belonging to rival political parties and commotion prevails in the locality. The grant of bail to the abovementioned respondents/accused in this case would aggravate the tension that prevails in the locality.

Therefore it becomes just and necessary for this Hon''ble Court to cancel the order granting bail to the above-mentioned respondents-accused on 05.10.2007.

A detailed counter statement has been filed by the petitioners herein in Cri. M.P. No. 7111 of 2007 inter alia contending that at the time when the bail application was heard Thiru, S. Palanivel, Deputy Superintendent of Police, was present in the Court in his uniform and was instructing the Public Prosecutor and only on his instructions, the Public Prosecutor made such representations as is referred to by the learned Chief Judicial Magistrate in the order dated 05.10.2007 and the application seeking cancellation of the bail has been filed as an afterthought; the informant Karikalan has been discharged from the hospital even on 02.10.2007 and on that same day he had been arrested in Crime No. 687 of 2007 and remanded to judicial custody; the other alleged injured, namely, Murthy had sustained very minor injury but, inspite of that he remains to be an inpatient in the hospital; while Govindaraj and Nehru got themselves admitted in this hospital only on 04.10.2007 and the same is evident from the documents produced by the prosecution itself; in the application seeking for cancellation of bail it is not alleged that if the petitioners come out on bail they will tamper with the witnesses or abscond or hamper with the investigation and therefore there is absolutely no reason for cancelling the bail and that too when the petitioners have been, directed to stay at Cuddalore and report before the Judicial Magistrate No. 1, Cuddalore, daily at 10.00 A.M. and 4.00 P.M.; the learned Sessions Judge, by his order dated 08.10.2007, allowed Cri. M.P. No. 7111 of 2007 and ordered cancellation of bail granted to the petitioners in Cri. M.P. No. 7096 of 2007. Being aggrieved by that the petitioners initially filed Cri. R.C. No. 1594 of 2007 which has been subsequently converted as Cri. O.P. No. 34899 of 2007 as a petition u/s 482 of the Criminal Procedure Code. While admitting the said Criminal revision, this Court has granted interim stay of the operation of the order dated 8,10.2007 passed in Cri. M.P. No. 7111 of 2007 and as such the petitioners are on bail even as on today and staying at Cuddalore and complying with the conditions imposed on them while granting bail.

Heard Mr. P.H. Manoj Pandian Learned Counsel for the petitioners and Mr. Hasan Mohamed Jinnah, learned Government Advocate (Cri. side) for the respondent.

Learned Counsel for the petitioners submitted that the learned Session Judge has cancelled the bail granted to the petitioners without taking into consideration the supervening circumstances and for cancellation of the bail the post bail conduct of the petitioners/accused alone has to be taken note off but the same has not been done by the learned Sessions Judge in the instant case and therefore the order of the learned Sessions Judge is liable to be set aside. It is further contended that the learned Sessions Judge having granted bail on appreciation of facts has again reappreciate the facts without jurisdiction and hence the order is liable to be set aside; when the petitioners have not been shown to have in any manner violated the bail condition the learned Sessions Judge ought not to have cancelled the bail granted to the petitioners. Learned Counsel for the petitioners further contended that no sufficient cause has been shown by the prosecution to cancel the bail. In support of his contentions the Learned Counsel relied upon number of judgments, but this Court is not referring to all the decisions relied upon by the Learned Counsel for the petitioners for the reasons hereinafter stated.

Countering the contentions put forth by the Learned Counsel for the petitioners the learned Government Advocate (Criminal Side) contended that the learned Sessions Judge merely on the basis of the concession made by the Public Prosecutor had granted bail to the petitioners and "when the Public Prosecutor had stated before the learned Sessions Judge (Chief Judicial Magistrate) that he was not properly instructed by the concerned Investigating Officer, the learned Sessions Judge, ought to have granted time to him to get proper instructions from the Investigating Officer, the learned Principal Sessions Judge, taking into consideration all the fact that tension was still prevailing in the locality as the clash was between two rival political parties and some of the injured were yet to be discharged from the hospital and for the valid and acceptable reasons the learned Sessions Judge has rightly cancelled the bail granted, to the petitioners and as such the order need not be interfered with learned Government Advocate (Cri. Side) submitted that the first petitioner is a District Secretary of the AIADMK Party and who is an Ex-Member of Parliament and the other petitioners are all holding various posts in the A1ADMK Party and as such they are capable of tampering with the witnesses and in fact the de facto complainant in Crime No. 690 of 2007 had been won over by the petitioner herein which itself will show that the petitioners will tamper with the witnesses if they are allowed to be on bail. He further submitted that the petition filed u/s 482 of the Criminal Procedure Code cannot be converted either as a petition u/s 438 or 439 of the Criminal Procedure Code. He further contended that a petition u/s 482 of the Criminal Procedure Code cannot be entertained if specific provisions are available in Criminal Procedure Code to seek similar remedy. According to the learned Government Advocate, when the bail granted to the petitioners have been cancelled, the petitioners can very well approach the Sessions Court or this Court seeking bail u/s 439 of the Criminal Procedure Code and they cannot approach this Court u/s 482 of the Criminal Procedure Code. In support of his contentions the learned Government Advocate (Criminal Side) relied upon several decisions and only the relevant decisions are referred to for the reason hereinafter stated.

I have carefully considered the abovesaid submission made by the Learned Counsel on either side, perused the materials available on record and the decisions relied upon by the Learned Counsel on either side,

At the outset it has to be pointed out that the learned Sessions judge was not alive to the legal petition that in an application for cancellation of bail, the conduct subsequent to release on bail and the supervening circumstances alone are relevant, but in an appeal against grant of bail, all aspects that were relevant u/s 439 read with Section 437, continued to be relevant. Therefore, this Court is not referring to all the decisions referred to by the counsel on either side, but in referring to some of the decisions which have got a direct baring on the issue to be decided in the above petition.

In the decision reported in State of U.P. v. Amarmani Tripathi, 2005 (4) CCC 589 (S.C.) : 2005 SCC (Cri.) 1960 m paragraph 17 the Apex Court has laid down as under: (See Cr.C.C, p.594, para 13)

They also relied on the decision in Samarendra Nath Bhattacharjee Vs. State of West Bengal and Another, Where the above principle is reiterated. The decisions in Dolat Ram, (supra) and Bhattacharjee, 2005 (1) ACJ 119(S.C.) : 2005 (1) CCC 164 (S.C.), cases relate to applications for cancellation of bail and not appeals against orders granting bail. In an application for cancellation, conduct subsequent to release on bail and the supervening circumstances alone are relevant. But in an appeal against grant of bail, all aspects that were relevant u/s 439 read with Section 437 continue to be relevant. We, however, agree that while considering and deciding the appeals against grant of bail, where the accused has been at large for a considerable time the post-bail conduct and supervening circumstances will also have to be taken note of. But they are not the only factors to be considered after in the case of applications for cancellation of bail.

(underlying supplied)

In the decision Gurcharan Singh and Others Vs. State (Delhi Administration), the Apex Court in paragraph 16 has laid down as under: -

...Under Section 439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIII by any Court including the Court of Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court. If, however, a Court of Session had admitted an accused person to bail, the State has two options It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court u/s 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court.

If the facts of the case on hand are considered in the light of the abovesaid law laid down by the Apex Court it could be seen that the learned Sessions Judge erred in entertaining the application filed by the State u/s 439(2) of the Criminal Procedure Code seeking cancellation of bail granted to the petitioners.

When a Court of Sessions had admitted an accused person to bail the State has two options:

(i) It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court; or

(ii) It may as well approach the High Court being the superior Court u/s 439(2) to commit the accused to custody, But, however, when the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the Suite to move the Sessions Judge, but the State is competent In law to move the High Court for appeal application of the bail.

A perusal of the averments contained in the affidavit filed by Thiru. S. Palanivel, Deputy Superintendent of Police, which has been extracted above, doesn''t reveal that any new circumstances have arisen which were not earlier known to him. Hence, it was not competent for the State to move the Sessions Judge seeking cancellation of bail. In such circumstances the State could have approached this Court alone u/s 439 (2) of the Criminal Procedure Code.

In the counter statement filed by the petitioners in Cri. M.P. No. 7111 of 2007 it has been specifically stated that Thiru. S. Palanivel, Deputy Superintendent of Police, was present in the Court in his uniform when the bail application in Cri. M.P. No. 7096 of 2007 was taken up for hearing by the learned Chief Judicial Magistrate and he was instructing the Public Prosecutor and such an averment has not been controverted by the State by filing any reply statement, A perusal of the affidavit filed by the said officer show that the case diary relating to Crime No. 686 of 2007 was sent to the High Court in connection with the bail application filed in Criminal O.P. No. 30076 of 2007 to the. Government Advocate and hence the same could not be produced before the learned Chief Judicial Magistrate when the bail application in Cri. M.P. No. 7096 of2007 was taken up for hearing. Therefore it is clear that the learned Public Prosecutor, as per the averments contained in the affidavit, could not bring to the notice of the learned Chief Judicial Magistrate the existing facts as revealed from the case diary, as the case diary had been sent to the Government Advocate to enable him to make proper representation in Criminal O.P. No. 30076 of 2007. It is not the case of the prosecution that new facts and circumstances have cropped up subsequent to the grant of bail to the petitioner herein which warrant the cancellation of bail granted to the petitioner. Therefore as laid down by the Apex Court in the decision reported in Gurcharan Singh and Others Vs. State (Delhi Administration), the State could have approached the High Court only u/s 439(2) of the Criminal Procedure Code and not the Sessions Court seeking cancellation of bail. This legal position has been overlooked by the learned Sessions Judge which amounts to a basic error and on this short ground the above criminal original petition could. be allowed.

Apart from the above, it is pertinent to point out that the learned Sessions Judge while allowing the application filed by the State has observed as under: -

... the injured persons are still undergoing treatment, a tense situation prevails in the area, the facts and circumstances of the case and the involvement of the petitioners in the Cri. No. 690/07 wherein according to the prosecution the de facto complainant had been won over by the accused and therefore the grant of bail to the accused in the matter, in my opinion would only worsen the situation and; create complications leading to serious law and order problems.

For the said reasons only the bail granted to the petitioners has been cancelled by the learned Sessions Judge.

All the abovesaid reasons were within the knowledge of the Investigating Agency even at the time when the bail application was taken up for hearing on 05.10.2007 and none of the said facts can be said to be new facts or new circumstances which have cropped up subsequent to the grant of bail to the petitioners. Therefore the reasons given by the learned Sessions Judge cannot be considered to be justifiable reasons for cancelling the bail, but such reasons could have been justifiable reasons foretelling the bail if the State had preferred application u/s 439(2) of the Criminal Procedure Code before the High Court and placed the said reasons before the High Court.

It will be useful to refer to the decision of the Apex Court State (Delhi Administration) v, Sanjay Gandhi 1976 (2) SCC 411, wherein in the said decision in paragraph 13 the Apex Court has observed as follows:

Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bait granted in such a case. Cancellation of bait necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, i( would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over. A brother, a sister or a parent who has seen the commission of crime, may resile in the Court from a statement recorded during the course of investigation. That happens instinctively, out of natural love-and affection, not out of persuasion by the accused. The witness has a stake in the innocence of the accused and tries therefore to save him from the guilt. Likewise, an employee may, out of a sense of gratitude, oblige the employer by uttering an untruth without pressure or persuasion. In other words, the objective fact that witnesses have turned hostile must be shown to bear a casual connection with the subjective involvement therein of the respondent. Without such proof, a bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won over by the accused.

While considering as to what precisely is the nature of the burden which rests on the prosecution in an application for cancellation of bail, the Apex Court has observed in paragraph 14 as under:

...The same standard of proof as in a civil case applies to proof or incidental issues involved in a criminal trial like the cancellation of bail of an accused. The prosecution, therefore, can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or has tampered with his witnesses. Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail.

In paragraphs 24 and 25 of the same decision the Apex Court has further observed as follows:

Section 439(2) of the Code of Criminal Procedure confers jurisdiction on the High Court or Court of Session to direct that any person who has been released on bail under Chapter XXXIII be arrested and committed to custody. The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extraordinary nature, is meant to be exercised in appropriate cases when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. Refusal to exercise that wholesome power in such cases, few though they may be, will reduce it to a dead letter and will suffer the Courts to be silent spectators to the subversion of the judicial process. We might as well wind up the Courts and bolt their doors against all than permit a few to ensure that justice shall not be done.

The power to cancel bail was exercised by the Bombay High Court in Madhukar Purshottam Mondkar and Another Vs. Talab Haji Hussain and Others, where the accused was charged with a bailable offence. The test adopted by that Court was whether the material placed before the Court was such as to lead to the conclusion that there is a strong prima facie case that if the accused were to be allowed to be at large he would tamper with the prosecution witnesses and impede the course of justice.

An appeal preferred by the accused against the judgment of the Bombay High Court was dismissed by this Court. In Gurcharan Singh v. State (Delhi Administration), I978 Cri.LJ. 129, 137 while confirming the order of the High Court cancelling; the bail of the accused.

Learned Counsel for the appellant is correct on principles that mere assertion of an alleged threat to witnesses should not be utilized as a ground for cancellation of bail, routinely. Otherwise, there is ample scope for'' making each allegation to nullify the bail granted. The Court before which such allegations are made should in each case carefully weigh the acceptability of the allegations and pass orders as circumstances warrant in law. Such matters should be dealt with expeditiously so that actual interference with the ordinary and normal course of justice is nipped in the bud and an irretrievable stage is not reached.

Thus a conspectus or the abovesaid decisions makes it abundantly clear that only when a person to whom bail has been granted either tries to interfere with the course of justice or attempts to tamper with evidence or witnesses or threatens witnesses or indulges in similar activities which would hamper smooth investigation or trial, bail granted can be cancelled, but in the case on hand none of the abovesaid circumstances are either alleged or proved.

A perusal of the order of the learned Sessions Judge shows that the State had contended before the learned Sessions Judge that the petitioner who are involved in Crime No. 690 of 2007 had won over the de facto complainant therein, but the learned Sessions Judge has failed to see that such an averment is conspicuously absent in the affidavit filed in support of the petition seeking cancellation of bail. The casual manner in which the abovesaid plea had been accepted by the learned Sessions Judge vitiates the order passed by him.

As laid down by the Apex Court the prosecution can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused had attempted to tamper or has tampered with his witnesses. But as pointed out above, in this case, not even such a whisper has been made in the affidavit filed in support of the petition seeking cancellation of bail and therefore the question of proving the same by preponderance of probabilities does not even arise. A bald assertion made during the course of hearing of the application has been accepted by the learned Sessions Judge, which is contrary to the laws laid down in the above referred to decisions of the Apex Court.

As far as the contention of the learned Government Advocate (Cri. Side) that the petitioners are not entitled to approach this Court u/s 482 of the Criminal Procedure code, but instead should have filed a petition seeking for bail u/s 439 of this Court observed that the only question which the Court had to consider at that stage was whether there was "prima facie case made out, as alleged, on the statements of the witnesses and on other materials", that "there was a likelihood of the appellants tampering with the prosecution witnesses. It is by the application of this test that we have come to the conclusion that the respondent''s bail ought to be cancelled.

In the decision Samarendra Nath Bhattacharjee v. State of W.B., 2005 (1) ACJ 119 (S.C.) : 2005 (1) CCC 164 (S.C.) : 2004 (3) Crimes 329 (SC) an application was filed by the complainant before the High Court for cancellation of bail on the ground that the accused was regularly threatening through an Lin-identified person to the members of the family of the complainant and accepting the same, the High Court cancelled the bail granted to the accused and aggrieved by that the accused filed an appeal before the Apex Court and while disposing of the appeal, the Apex Court has observed as under in paragraph l2:(See Cr.C.C. p. 165)

This finding, in our opinion, could be construed as a finding accepting the allegation of the complainant which might prejudice the case of the defence, at any rate these findings are unnecessary while considering a petition for cancellation of bail. That apart, since the only ground on which the cancellation could have been ordered being the ground of intimidation which, in our opinion, is not satisfactorily proved, the High Court erred in cancelling the bail granted to the appellant.

It will be useful to refer to the decision of the Apex Court Mehboob Dawood Shaikh Vs. State of Maharashtra, wherein after referring to the decisions of the Apex Court reported in Aslam Babalal Desai Vs. State of Maharashtra, in paragraph 8 it has been laid down as follows: (See Cr.C.C, p.563, para 9)

It is, therefore, clear that when a person to whom bail has been granted either tries to interfere with the course of justice or attempts to tamper with evidence or witnesses or threatens witnesses or indulges in similar activities which would hamper smooth investigation or trial, bail granted can be cancelled. Rejection of bail stands on one footing, but cancellation of bail is a harsh order because it takes away the liberty of an individual granted and is not to be lightly resorted to.

In the same decision the Apex Court has observed in paragraph 1 I as under:

The Criminal Procedure Code is concerned, it has to be pointed out that the petitioners are entitled to question the correctness of the order passed by the learned Sessions Judge in the application tiled by the State seeking cancellation of bail. The validity of the order can be challenged only by filing a petition u/s 482 of the Criminal Procedure Code, as it was contended by the learned Government Advocate (Criminal Side) that a revision is not maintainable in view of the bar contained u/s 397(2) of the Criminal Procedure Code. Therefore the said contention of the learned Government Advocate (Criminal Side) is liable to be rejected and accordingly rejected.

For the reasons stated the Criminal Original Petition No. 34899 of 2007 is allowed. Consequently the connected. MP is closed.

The petitioner have also filed Criminal O.P. No. 33423 of 2007 seeking relaxation of the contentions imposed on them by order dated 05.10.2007 passed in Criminal M.P. No. 7096 of 2007 on the file of the Learned Sessions Judge, Nagapattinam. According to the petitioners, since Criminal O. P. No. 34899 of 2007 was pending before this Court the relaxation petition filed by the petitioners was not entertained by the learned Sessions Judge and hence they have filed the petition before this Court. Now that the above criminal original petition has been allowed, there is no impediment for the learned Sessions Judge to entertain such a petition at the behest of the petitioners.

Hence this Court is not going into the merits of the above petition, but instead the petitioners are given liberty to tile a fresh petition seeking relaxation of the conditions imposed on them before the learned Sessions Judge and if such a petition is filed, the same will be considered by the learned Sessions Judge in accordance with law.

With the above observation, Criminal O.P. No. 33423 of 2007 is disposed of.