V. Janagaraj vs V. Rajavelu and 2 others

Thangamani, J.—The marriage between first Respondent Rajavelu and Malarselvi daughter of Petitioner Janagaraj took place on

26.8.1990. A son was born to them on 8.8.1991. On 11.1.1994 at 12 Noon Janagaraj lodged a complaint in H.3, Tondiarpet Police Station in

Crime No. 78/94 u/s 306 and 498-A I.P.C. against first Respondent Rajavelu, second Respondent Ramalingam and one Saradha alleging that his

daughter was found dead with burn injuries at 12:20 mid-night on 10.1.1994. A.2 and A.3 are the parents of Rajavelu. A.1 and A.2 are stated to

have been arrested at 4. P.M. on 13.1.1994. it appears that on the same day they were remanded to custody for 15 days by XV Metropolitan

Magistrate, George Town, Madras. In the meanwhile, on 12.1.1994 A.3 preferred an application for anticipatory bail. And on 13.1.94 learned

Principal Sessions Judge, Madras has granted anticipatory bail to A.3 mother in Cr.M.P. No. 267 of 1994 on condition that she must report

before H.3, Police Station daily at 10 A.M. until further orders. It is stated that this order granting anticipatory bail was passed by learned Sessions

Judge in the morning at about 10:30 A.M. on obtaining permission to move a lunch motion on the same day. The bail application filed by accused

1 and 2 in Cr.M.P. No. 279 of 1994 came up for hearing before learned Sessions Judge in the afternoon. After hearing both sides, the Court

passed an order granting bail on condition that they report before H.3 Police Station daily at 10:00 A.M. The bail order makes mention of the

representation that one of the co-accused has already been granted bail and on the same condition A.l and A.2 also could be released on bail. On

28.1.1994 in Cr.M.P. No. 498 of 1994 the condition was modified and A.1 and A.2 were directed to report before the Respondent at 10 A.M.

every Monday. On the same day in Cr.M.P. No. 490 of 1994 the condition enjoined on A.3 mother was also modified similarly. On 3.3.1994 in

Cr.M.P. No. 1284 of 1994 and Cr.M.P. No. 1285 of 1994 accused 1 to 3 were directed to report on the 1st and 16th of every month thereafter.

On 11.4.1994 in Cr.M.P. No. 2214 and 2215 of 1994 condition was completely relaxed for all the three. Records also disclose that on

13.5.1994 in Cr.M.P. No. 2952 of 1994 accused 1 and 2 were granted conditional anticipatory bail by Principal Sessions Judge, Madras, in the

event of arrest u/s 498-A I.P.C. by C.5, Kothavalchavadi Police Station.

Now Janagaraj, the father of the deceased and the complainant in Crime No. 78/94 has come forward with the present Cr.O.P. No. 916 of

1994 for cancellation of the bail granted to the accused 1 and 2 impleading Inspector of Police, H.3 Police Station as third Respondent stating that

learned Public Prosecutor has made wrong representations before the Principal Sessions Court on 13.1.1994 during the hearing of the bail

application false instructions given to him with the intention of helping the accused to get them released on bail. Besides, the third Respondent

Police did not take any interest in investigation. Even after obtaining the post-mortem certificate, they did not choose to alter the offence under

Sections 306 and 498-A I.P.C. to Section 304-B, I.P.C. Accused resisted this application contending that the complainant wants to have a pre

trial detention on false accusations.

Mr. A. Natarajan, learned Counsel for the complainant submitted that as per the postmortem certificate the deceased would appear to have

died of cumulative effects of head injuries and burns. Though this certificate was obtained by the Police on 31.1.1994, they have not chosen to get

the crime altered to one u/s 304-B I.P.C. Besides, bail was moved for accused 1 and 2 before the Sessions Court after obtaining permission for

lunch motion simultaneously when they were produced before the XV Metropolitan Magistrate on the same day. Even though no accused had

been granted bail at that time, representation was made by Public Prosecutor before learned Sessions Judge that co-accused has already been

released on bail. And it does not appear that learned Public Prosecutor made any objection when conditions were relaxed subsequently step by

step within a short duration. Whereas Thiru K. Doraisamy.l learned senior Counsel for Respondents 1 and 2 argues that there was no

misrepresentation before the Sessions Court. Only the granting of anticipatory bail to the third accused mother in the morning was brought to the

notice of the Court when the bail application for present Respondents 1 and 2 were moved before learned Principal Sessions Judge in the

afternoon. Besides, the Petitioners were remanded on 13.1.1994 which was Thursday. Friday, the 14th January, 1994 happened to be a Pongal

Holiday. The two succeeding days were Saturday and Sunday. Only because of the intervening holidays permission was sought to move lunch

motion for their bail. And learned Public Prosecutor was aware of the entire circumstances when he made the representation in Court. He also

pointed out that the head injuries mentioned in the post-mortem certificate might also have been due to the victim falling down when caught under

fire. So, there is no change in the gravity of the offence. However, learned Additional Public Prosecutor in this Court has stated that as per his

instructions no notice was served on the Public Prosecutor in the Sessions Court either in the morning or in the evening of 13.1.1994. And the

Public Prosecutor did not say no objection for granting of bail. This version of learned Additional Public Prosecutor before this Court is contra to

the content of the bail order dated 13.1.1994 which expressly recites that both sides were heard before the order was passed. And one Selvi S.

Ram appeared on behalf of City Public Prosecutor. So, it cannot be said with certainty that all was not well in granting bail to the Respondents 1

and 2 herein on 13.1.1994.

The considerations for cancellation of the bail are different from the considerations taken into account for grant of bail. As pointed out by the

Apex Court in Bhagirathsinh Judeja Vs. State of Gujarat, very cogent and overwhelming circumstances are necessary for an order seeking

cancellation of the bail. It is now well settled by a catena of decisions of the Supreme Court that the power to grant bail is not to be exercised as if

the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily

available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. If there is no prima facie case

there is no question of considering other circumstances. But even where a prima facie case is established, the approach of the Court in the matter

of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial

or that he is likely to abuse the discretion granted in his favour by tampering with evidence. Aslam Babalal Desai v. State of Maharashtra (A.I.R.

1993 S.C.I) has laid down that a bail granted u/s 437(1) or (2) or 439(1) can be cancelled where (i) the accused misuses his liberty by indulging in

similar criminal activity, (ii) interferes with the course of investigation (iii) attempts to tamper with evidence of witnesses, (iv) threatens witnesses or

indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make

himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his

surety, etc. These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but

cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to. And the

circumstances of the present case do not come under any of the instances enumerated above. So, I find no difficulty in rejecting this application.

In the. result, the petition is dismissed.