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Judgment
Shivappa, J.—The petitioner (C.B.I.) is seeking for cancellation of the bail granted to the respondent herein on 2.1.1996 by the learned
Principal Sessions Judge, Madras, in Crl. M.P. No. 7732 of 1995.
The brief facts are: On 21.7.1994 at 4.30 hrs. one Sri. K.N. Vijayan a practicing Advocate of Madras was attacked when he has about to
leave his house to New Delhi to attend a case before the Apex Court on 22.7.1994. According to the prosecution, the respondent played a key
role in organising this murderous attack on Advocate along with Sri. Madhavan, Leader of the M.G.R. Youth Wing in A.IA.D.M.K. Party. The
respondent herein is the Secretary of the Madras (South) District of the All India Anna Dravida Munnetra Kazhagam Party (A.I.A.D.M.K.). In
order to please certain persons who are powerfully placed, he organised the attack using hirelings, booking a room in a lodge and paying money.
When the complaint was registered at Kodambakkam Police Station while investigation was in progress, four unconnected persons to the Crime
were made to surrender at the instance of the local police and the investigation was changed from C.B.C.I.D. to C.B.I, as per the orders of the
Apex Court. The C.B.I, has filed the charge sheet on 6.12.1995 for offences under Sections 143, 147, 443, 324, 326, 307 and 120B read with
Section 149 of the Indian Penal Code. The Magistrate had taken cognizance and numbered it as P.R.C. No. 1 of 1995.
Before filing of the challan, the respondent herein filed an application for an anticipatory bail before this Court in Crl.O.P. No. 6091 of 1995 and
this Court rejected the prayer for anticipatory bail holding that there is a prima facie case against the respondent and other accused. Keeping in
view the past conduct, nature of accusation, severity of punishment, his behaviour, the manner adopted to attack namely, using the hirelings,
retraction in the confession of Madhavan, local police using their unlimited resources made certain unconnected persons to surrender before the
Magistrate pleading guilty, are factors weighed with the court to observe that there will be hostile atmosphere for conduct of proper investigation
and there will be likelihood of psychic fear in the minds of the witnesses to come forward to give evidence against the respondent and other
accused. The order rejecting the anticipatory bail was passed by this Court on 17.10.1995. When anticipatory bail was rejected, he surrendered
before XVII Metropolitan Magistrate and got remanded to judicial custody. While continuing in the hospital all efforts to get him to police custody
within first fourteen days of his remand railed due to medical grounds and afterwards getting police custody also did not succeed as the first
fourteen days period of remand expired by then. While he was in the hospital, he moved the learned Principal Sessions Judge, Madras for bail in
Crl. M.P. No. 7228 of 1995. Learned Principal Sessions Judge, Madras, by order dated 24.11.1995 observed thus:
The petitioner has enough clout to effectively interfere with investigation by intimidating the witnesses and resorting to other means of tampering
with evidence and therefore it is not proper to accept the plea for bail while the investigating machinery is facing an uphil task in discovering all the
facts about the conspiracy"".
Another application was filed by the petitioner while he was in the hospital in Crl. M.P. No. 7732 of 1995 before the same Judge. On 2.1.1996
(within five weeks). The Principal Sessions Judge, Madras, granted bail to the respondent herein holding that possibility of tampering with evidence
at the instance of the petitioner, who is well connected, is not an adequate ground for refusing bail. The circumstances weighed with the learned
Judge are, (1). health grounds (2) charge sheet already filed and (3). On materials, no chance of tampering of witness Mr. Jagadish.
This order of the learned Principal Sessions Judge, Madras, is attacked on the ground of propriety Judicial discipline, non- consideration of the
gravity of the case and other circumstances referred to in the earlier orders.
Broadly, the contention of the respondent can be summarised thus:
Petition u/s 482, Cr. P.C. is not maintainable when there is a specific provision u/s 439(2), Cr. P.C. is available.
Cancellation being a harsh remedy, need not be resorted to unless there is misuse of liberty or likelihood of tampering with the witnesses and
If cancelled, his reputation, liberty, livelihood and health will be at stake.
In Bhagirathsinh Judeja Vs. State of Gujarat, , the Apex Court has held where the accused is likely to abuse the discretion granted in his favour
by tampering with evidence it constitutes a sufficient circumstance for cancellation of bail. The paramount consideration either in granting or
cancelling the bail is the fairness in administration of criminal justice. But there are no fetters to exercise the power if by circumstances of the case, it
would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. But in order to succeed in an application for
cancellation of bail, the prosecution has to show by preponderance of probabilities that there is reasonable apprehension that he will interfere with
the course of justice. The reasonable apprehension must be based on fact situation in each case. It is neither necessary to move the fact of
tampering with mathematical certainty nor beyond reasonable doubt. The test to be adopted is one of reasonable apprehension. Sometimes, the
incident by itself is sufficient to justify the State''s view that there is reasonable apprehension in the mind of the prosecution that the respondent is
likely to tamper with the witnesses in the event of release. Refusal to exercise the power wherever there is reasonable apprehension in the mind of
the prosecution will make the Court''s silent spectators to the subversion of the judicial process. If by the facts and circumstances in a given case,
there is likelihood of interference by intimidating the witnesses with the aid of State Police or an attempt to evade due course of justice or likelihood
of abuse of liberty or likelihood of indulging in criminal activities, in which event there may not be fair and proper atmosphere for further
investigation or proper trial and these circumstances exists in a given case, is sufficient to cancel the bail.
Before examining whether the release, of the respondent is conducive for fair trial, I would like to consider the reasoning weighed with the
learned Sessions Judge. Learned Sessions Judge has mainly taken into consideration in paragraph 6 of his order, the health condition, the fact that
challan has already been filed and on merits, there is no likelihood of tampering Jagadish the only witness according to the learned Judge,
implicating the petitioner. All these grounds are devoid of any merit.
In State Vs. Jaspal Singh Gill, it has been held that if the offence is grave and if release is not conducive and the accused is suffering from ill-
health, the Jail Authorities can very well look after the accused, if he needs constant medical attention and it should not be a ground for release. In
the instant case, the petitioner was involved in a robbery case in 1992 and he was appointed as the Chairman of the Tamil Nadu Fisheries
Development Corporation in 1994. There are no materials to show that he was suffering from any ailment till anticipatory bail was rejected.
Filing of a charge-sheet is only a complaince with the procedure within the stipulated period and it has nothing to do with the relative merits in
the case. It may be stated that filing of a charge sheet cannot be construed to be a substantial change in circumstance. So far as the merits of the
case is concerned, it is not appropriate to weigh the evidence at the stage of considering the prayer for bail. When this Court has already recorded
a finding that there is a prima facie case and even factually, the statement of the learned Judge is incorrect, because there are more man one witness
to speak to the participation or the part played by the respondent in the alleged commission of the offences.
In State of Maharashtra Vs. Captain Buddhikota Subha Rao, , the Apex Court has held that when identical request once rejected, there was
no justification in granting similar prayer, without there being a substantial change in facts and circumstances, as it amounts to overruling the earlier
decisions.
In The State Vs. Captain Jagjit Singh, the Supreme Court has held that the fact accused may not abscond by itself is not sufficient to induce the
court to grant bail. The Court has to take into consideration, the serious nature of the offence alleged among other considerations, how committed,
participation of the accused, impact of release on witnesses, prejudice it may likely to cause during trial and likelihood of tampering and the
atmosphere that may be created if released, are the circumstances that have to weigh with the Court.
In Gurucharan Singh v. State AIR 1978 SC 179 the Supreme Court has considered as to what should be given proper weigh while
considering the grant or refusal of bail? The two paramount considerations being likelihood of accused fleeing from justice and likelihood of
tampering with the prosecution evidence relating to ensuring fair trial of the case in a Court of justice. The position and status of the accused is also
a relevant consideration. Investigation of an offence is the field exclusively reserved for police, they are expected to exercise power legitimately
incompliance with the provisions of law, but without indulging in taking human dignity. In the instant case, persons unconnected were produced
before court and were made to admit heinous offences. Such being the influence that can be put on a machinery meant for law and order, the
release will not allow any sane person to .... depose without fear during trial. The accused being involved in a robbery case, engaging hirelings and
provided money for arranging room in a lodge shows the manner how he dominated the will of men with poor moral fibre. If released, he will
resort to anything to erase the evidence or to deter evidence being placed before Court.; It is this which comes within the ambit of likelihood of
tampering or likelihood of not ensuring fair trial. By release, there is every possibility of creating a non-conducive atmosphere for further
investigation and trial. This aspect of the case is totally lost sight of by the Principal Sessions Judge.
In State (Delhi Administration) Vs. Sanjay Gandhi, paragraph 14, the Supreme Court has observed that cancellation of bail necessarily
involves the review of decision already made and can be cancelled if it is no longer conducive to a fair trial, to allow the accused to retain his
freedom during trial. This can be established by preponderance of probabilities. When questioned, whether investigation is complete or continuing
the learned Special Public Prosecutor Mr. P. Rajamanickam submitted that the investigation so far as the other persons are concerned, is still
continuing with all promptitude and the investigating agency is making all efforts to unearth the evidence for successful, prosecution against certain
political and bureaucratic higherups. It is also stated that investigation is meeting with lot of obstacle as persons are not willing to furnish materials
against these persons who are powerfully placed higherups and the prosecution is making sincere efforts to collect supporting evidence against
these people and also submitted necessary action will be taken against bureaucrats and higherups who are responsible for the alleged incident. In
the interest of further investigation, it is not necessary to refer more details about the persons involved. (The synopsis furnished by the learned
Special Public Prosecutor for C.B.I, as ''Confidential'' is ordered to be placed in Court custody, but should not form part of the case papers for
the present).
So far as the contention of the respondent herein is concerned, that the cancellation of bail is a harsh act, it should be on misuse of liberty, is
misconception. The Apex Court has held likelihood of abuse and likelihood of tampering could be a relevant circumstance for cancellation. Tamper
means to meddle so as to alter a thing to make illegal by promises, threats, persuasive or money or any other means adopted to bring about a
change undoing the existing thing. If there is likelihood of doing all these things, that is sufficient consideration to cancel the bail. Learned Sessions
Judge on an earlier occasion when he dismissed the application on 24.11.1995 held he has sufficient clout to undo the existing thing and tamper the
witnesses and the same situation when continued, the judicial discipline propriety and comity demanded, impugned order should not have been
passed reversing the earlier order only passed 2couple of days before, that too in the absence of a substantial change in tact situation.
This Court in Narayanan v. State 1989 (1) MWN 1 has held that tampering may have two phases, one during investigation preventing the
Investigating Agency from collecting the evidence and the other during trial, preventing the prosecution from placing the evidence so sollected
before the Court. In fact, the second phase is 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 be preserved and placed
before the court and if in the intervening stage, through the operation of extraneous forces the evidence is allowed to be underlined or erased, the
entire investigation become an exercise of futility and the guilty excape the arms of justice. The possibility of the evidence being tamper is,
therefore, serious aspect to which the court has to give due consideration.
The application for cancellation has been filed u/s 439(2) read with section 482 Cr. P.C.I. see no reason to hold that it is not maintainable and
the contention deserves to be rejected. In State v. Mahinder Singh 1994(1) Crimes 56, and Jayanthi Prasad Goel v. Sumitra Jain and Ors. 1994
(I) CCR 174, the High Court of Delhi has held that if it is found that bail has been granted improperly, can always be cancelled. The propriety and
illegality of the order passed by the Court of Session can be examined by the High Court. Therefore, I see no merit in the contention that the
petition is not maintainable.
So far as submissions touching reputation, humiliation, liberty and livelihood these are the normal feelings of any person who is involved in a
serious crime and it is always hard of those who are close to him because they too suffer. Of course he should have thought of them before
indulging in the alleged crime. The first duty of the court is to preserve and enhance human life, ensure safety to fellow human beings, preserve the
rights of the citizens and see law and order is properly maintained for an orderly society. Mistakes cannot be put right unless there is proper
atmosphere to investigate or to try the case alleged against persons responsible, without any obstacles by those who arc alleged to have been
responsible, whoever he is and whatever he or they have done must be ascertained with all care and caution and certainty. That cannot be done
and will never be done, if obstacles are mounted by pressures by using power, he or they possess. Therefore, I see no merit in the contention
touching the alleged hardship to the respondent.
Before I part with this case, it is better I place my view on record about the judicial conduct of the principal District and Sessions Judge,
Madras. A Division Bench of this Court in ""Sushil Sharma''s case (Crl,O.P.Nos.4700 and 4709 of 1995) observed that the principal sessions
judge has been totally negligent in performing his judicial duties expected of him, more so when he is concerned with the right of an individual on
the one side and the interest of the community as a whole, on the other side"". In another case, where a Director of Food Corporation of India was
burnt alive by putting a bomb while he was travelling in his car, he granted bail to the accused person which was cancelled by this court at the
instance of the investigating agency. It has become a normal feature with this Judge to pass orders disregarding the settled precedents on the
question of law. In the instant case, he has not even adverted to the earlier order passed by this Court on 17.10.1995 rejecting the prayer of the
respondent herein for an anticipatory bail. Of course, Judges differ in their outlooks, their attitudes and this is bound to be so; when experiences
are different but where the ratio on a principle of law is settled by the Apex Court or this Court irrespective of one''s personal view the settled
principles have to be followed in order to maintain judicial discipline. With the Principal Sessions Judge, Madras, the decisional process has no
settled standard and the cases instanced above, including the impugned order, show they are ""a bit out of the ordinary"" in the words of ShettyJ. If
the conduct is as likely substantially to reduce the confidence in the public as a whole in a Judge''s ability to reach correct decision in the cases he
tries, constitutes judicial misbehaviour. In the words of Lord Denning ""Justice is deep- rooted in confidence."" Learned Judge dismissed the
application on 24.11.1995 within five weeks, without any substantial change in circumstances, in spite of the Apex Court cautioning not to review
the earlier decision made unless what is required is not cosmetic change, but a substantial change in circumstances. He did not even bother to refer
to the settled principles. Not that he should agree with a precedent if not apt on the point, but he should have indicated the reason for
disagreement. This attitude of the learned Judge requires deprecation and I size up his judicial conduct as one of judicial misbehaviour. I thought of
not expressing my view about the Judge, but since such conduct is repeated very often, I am constrained to put it on record in the interest of
discipline in judicial administration.
In my considered view, the reasons assigned by the Principal Sessions Judge, Madras, granting bail are not in conformity with the well settled
principles enunciated by the Apex Court and this Court. He has lost sight of the fact that there will be likelihood of tampering, consequences of
release may create an unconducive atmosphere for trial, impact on society and witnesses and public justice system. Ultimately, the court is the
guardian of the people and their rights. It seems logical and right to protect and enhance value of life and especially human life meaningful. The cruel
streak in men should be suppressed and the life enhancers can do that provided conducive atmosphere is ensured. For that calculated crime should
be cautiously probed during trial with proper atmosphere without obstacles.
For these reasons, I consider it fit and proper to cancel the bail granted to the respondent herein.
Accordingly, petition is allowed. The bail granted to the respondent herein on 2.1.1996 by the Principal Sessions Judge, Madras, is cancelled and
direct that he be arrested and taken into custody.