The State vs Analagan and R. Dravida Maniselvam

G. Rajasuria, J.—This petition has been filed to cancel the bail granted to the respondent/accused by the Principal Sessions Judge,

Virudhunagar, in Cr.M.P. No. 804 of 2007, dated 08.03.2007.

A resume of facts absolutely necessary for the disposal of this petition would run thus:

(i) The police registered the case in Cr. No. 121 of 2007 for the offences punishable under Sections 147, 148, 307, 302 read with 109 I.P.C.

relating to the murder of one Annadurai Selvan, the husband of a Municipal Chairperson. The police in connection with that case, arrested the

petitioner herein and various other persons. Thereafter, the petitioner herein filed Cr.M.P. No. 671 of 2007 for releasing him on bail before the

learned Sessions Judge, Virudhunagar at Srivilliputtur. But, the learned Sessions Judge dismissed the petition on 26.02.2007 as under:

Considering the nature of the crime and taking note of the fact that investigation is pending in this case this Court is not inclined to grant bail to the

petitioner at this stage. Hence, this petition is dismissed.

(ii) Subsequently, Cr.M.P. No. 804 of 2007 was filed by the petitioner herein and the learned Sessions Judge granted bail on 08.03.2007, by

passing the following order:

Records perused. Considering the facts and circumstances of the case, this Court feels that the petitioner/accused can be granted bail with stringent

conditions.

Accordingly, the petitioner is ordered to be released on bail on his executing a bond for Rs. 10,000/- with two sureties for like sum each to the

satisfaction of the learned Judl. Magistrate No. II, Srivilliputtur and on further condition that the petitioner after being released on bail should reside

at Chennai and report before the Metropolitan Magistrate No. II, Egmore, Chennai every day at 10.30 A.M., until further orders of this Court and

he should not visit the scene of occurrence.

Being aggrieved by and dissatisfied with, the order granting bail, the State preferred this petition for cancellation of bail on the following inter alia

grounds:

The nitty-gritty, the gist and kernel of the grievance of the State is that the learned Sessions Judge after correctly dismissing Cr.M.P. No. 671 of

2007 on 26.02.2007, soon thereafter, without any reason much less valid reason, granted bail, vide order dated 08.03.2007 in Cr.M.P. No. 804

of 2007.

Heard the learned Government Advocate (Criminal Side) for the petitioner, the learned Counsel for the respondent and the learned Counsel for

the de facto complainant.

The point for determination is as to whether the order dated 08.03.2007 in Cr.M.P. No. 804 of 2007, granting bail to the respondent/accused

is liable to be set aside?

The Point:

The learned Government Advocate (Criminal Side) on behalf of the State would advance his arguments to the effect that as per the dictum of

the Honourable Apex Court in catena of decisions, the learned Sessions Judge was expected to furnish valid reasons for granting bail in the murder

case; the order dated 08.03.2007 is bereft of and niggard of any reasons and accordingly, that order is having no legs to stand and consequently, it

is liable to be set aside and that the respondent/accused should be committed to the judicial custody.

Whereas the learned Counsel for the respondent/accused would strenuously by way of torpedoing such arguments, would put forth his case to

the effect that absolutely there is no iota or shred of evidence to show that the petitioner after such release on bail, either misused his liberty or

tampered with the witnesses or hampered the investigation; the reasons that loomed large in the mind of the learned Sessions Judge was that while

the learned Sessions Judge dismissing Cr.M.P. No. 671 of 2007 on 26.02.2007, one Ramar who also sustained injury in the murder incident of

Annadurai Selvan, was in the hospital and he was lingering for life and thereupon alone, the learned Sessions Judge dismissed the earlier

application; whereas as on the date of considering the subsequent bail application on 08.03.2007, the said Ramar recovered from his injuries and

that weighed very much in the mind of the learned Sessions Judge and he granted bail; over and above, according to the learned Counsel for the

respondent, the learned Sessions Judge also considered that the respondent herein was an Advocate by profession having no political aspiration.

The learned Counsel for the respondent cited the following decisions:

(i) Ramachandran v. State of Madhya Pradesh reported in 2006 (1) SCC (Cri) 511.

(ii) Nithiyanand Rai v. State of Bihar and Anr. reported in 2005 (8) SCC (Cri) 1159.

(iii) Samarendra Nath Bhattacharjee Vs. State of West Bengal and Another, .

(iv) Mehaboob Dawood Saiq v. State of Maharastra reported in 2004 SCC (Cri) 551.

(v) Dolath Ram and Anr. v. State of Hariyana reported in 1995 (1) SCC (Cri) 349.

(vi) Aslam Babalal Desai Vs. State of Maharashtra, .

(vii) L. Krishna Reddy v. State reported in (2007) 1 M.L.J. (Cri) 200.

The learned Counsel for the respondent/accused would buttress and fortify his contention that bail once granted should not be cancelled simply

because a different view could be taken by the higher forum and that even in respect of misapprehension of factual position, had the trial Court

granted bail, still no interference of the High Court is warranted.

The learned Counsel for the respondent/accused would canvass his case by placing reliance on the first decision cited supra, to the effect that

even if the learned Sessions Judge on misapprehension of factual position, granted bail, yet the High Court should not interfere with it.

The perusal of the aforesaid first decision of the Honourable Apex Court cited by the learned Counsel for the respondent, would highlight that

there should be reasons cited for granting bail by the trial Court and in such an eventuality, the High Court suo motu cannot interfere with it on the

ground that the lower Court granted bail on misapprehension of factual position. In other words, the aforesaid decision of the Honourable Apex

Court would highlight that the High Court would not be justified in suo motu exercising its power of cancelling the bail. But, here the State being

aggrieved by and dissatisfied with, such an impugned order of the learned Sessions Judge approached this Court. I would be fully in agreement

with the argument of the learned Counsel for the respondent provided the impugned order is a reasoned one. As highlighted supra, the order of the

learned Sessions Judge, is niggard, denude and bereft of reasons. The learned Counsel for the respondent would try to ferret out reasons from the

order. The law is not to that effect. The learned Sessions Judge having chosen to grant bail and that too, shortly after ten days from the earlier

dismissal of the application, should have thought fit to detail and delineate, express and expatiate reasons, but he had not done so. The impugned

order falls foul of the mandate of the Honourable Apex Court in Anwari Begum v. Sher Mohammad and Anr. reported in 2005 SAR (Cri) 745

and Kalyan Chandra Sarkar etc. Vs. Rajesh Ranjan @ Pappu Yadav and Another, , cited on the prosecution side.

At the first blush, no doubt, the argument of the learned Counsel for the respondent/accused would be attractive to the effect that admittedly

and unarguably, indubitably and incontrovertibly, the accused has been complying with the condition meticulously and that he is away from the

place of occurrence. But, the core question here arises whether the order passed on 08.03.2007 is sustainable in the wake of the following

decisions of the Honourable Apex Court:

(i) Anwari Begum v. Sher Mohammad and Anr. reported in 2005 SAR (Criminal) 745

(ii) Kalyan Chandra Sarkar etc. Vs. Rajesh Ranjan @ Pappu Yadav and Another, .

(iii) Anil Kumar Tulsiyani v. State of U.P and Anr. reported in 2006 (2) SCC (Cri) 565.

(iv) State of T.N v. S.A. Raja reported in 2006 (1) SCC (Cri) 58.

An excerpt from the dictum of the Honourable Apex Court in Kalyan Chandra Sarkar etc. Vs. Rajesh Ranjan @ Pappu Yadav and Another, ,

would run thus:

It is already noticed that the impugned order is pursuant to an application for grant of bail made by the respondent within 11 days of the order

made by this Court in second of the appeals referred to hereinabove. It is also an admitted fact that during these 11 days no fresh material had

come into existence nor has been pleaded by the respondent in the present application for bail before the High Court. A perusal of the impugned

order clearly shows that the High Court proceeded to reconsider the very same two questions namely the existence of a prima facie case and the

evidentiary value of retracted confession and by substituting its subjective satisfaction practically overruled the findings of this Court as well as that

of the High Court recorded in the earlier orders, without even discussing these findings and as if the case was being argued and considered by the

Court for the first time even though the previous orders of this Court as well as that of the High Court were on record. This reconsideration and

recording of a new finding was without there being any fresh factual or legal basis.

The aforesaid excerpt would show that in that case, within eleven days after rejection of the earlier bail application, the bail was granted,

whereupon the Honourable Apex Court looked askance at it and the said order was declared as an illegal order.

The aforesaid decision of the Honourable Apex Court is squarely applicable to the case at hand and the order of the learned Sessions Judge,

dated 08.03.2007, falls foul of the said dictum of the Honourable Apex Court. Here, the learned Sessions Judge in paragraph No. 3 of his order

dated 08.03.2007, simply, stated that he was satisfied and accordingly granting bail without specifying any reason.

At the time of even rejection of bail application, reasons should be stated and while granting bail in a murder case and that too, soon after

rejecting previous bail application, adequate reasons ought to be given in the order. The broad based rowing enquiry on the part of the Judge while

dealing with the bail application is deprecated and unwarranted also, but that does not mean that the learned Judge is given ''carte blanche'' to grant

or refuse bail without citing any reason. In our advisorial system of justice, we have the prosecution on the one side and the defence on the other

side. So, the balance should be struck between the two; both for dismissal as well as for allowing the bail application, there should be reasons

found set out in the order so that the higher forum could see it. The Honourable Apex Court while finding fault with the Courts below, highlighted

that reasons expected to be stated in the judgments are not for the purpose of casting any burden on the Judges, but it is for the purpose of

enabling the higher forum or fora to look into that the reasons cited and correct the error in the order passed by the lower Courts.

Applying the aforesaid standard as found set out in the Honourable Apex Court''s judgments, if the order dated 08.03.2007 is scrutinised, it is

glaringly and obviously, apparently and candidly clear that the impugned order has to be set aside.

The learned Counsel for the petitioner would submit that absolutely there was no iota or shred of evidence available as against the respondent

except those inadmissible portions of confession of A.1, for which the learned Government Advocate (Criminal Side) would submit that as per the

confession of A.1, recoveries were effected including one motor cycle belonging to one of the accused Inbathamilan and also some weapons of

offence; A.1 who gave confession happened to be very close to the family of the deceased Thamaraikani and his sons, including the respondent

herein and other accused in this case and such of those accused who are the conspirators in this case, are all the descendants of deceased

Thamaraikani. As per the prosecution case, the police is still investigating into the matter and gathering evidence. Hence, in view of all these

circumstances and in this factual matrix, the learned Judge who granted bail ought to have looked for some reasons to be cited in his order, but he

failed to do so. The motive part of the crime is very strong pointing towards the descendants of the said Thamaraikani. The statement of one

Rajesh also deserves considerations. While holding so, I am of the considered opinion that this is not a case wherein the accused should be

detained in jail till the end of the trial itself. Since investigation is pending and during arguments, the learned Government Advocate (Criminal Side)

drew my attention to various parts of evidence so far gathered, I am of the considered view that the order passed by the learned Sessions Judge in

Cr.M.P. No. 804 of 2007 has to be set aside.

In the result, the order of the learned Principal Sessions Judge, Virudhunagar, in Cr.M.P. No. 804 of 2007 dated 08.03.2007, is set aside and

the learned Magistrate concerned shall issue non-bailable warrant to the respondent/accused and secure his presence and commit him to judicial

custody.