Vijayan vs The State and 3 others

S.M. Sidickk, J.—This is an application filed by the injured petitioner under S. 439(2) of Cr.P.C. to cancel the anticipatory bail order dated

17.9.1997 granted to the respondents 2 to 4 herein in Crl.O.P. No. 11947/97 on the file of this Court.

The material averments in the affidavit of the petitioner filed in support of this application to cancel the anticipatory bail are as follows:

The petitioner is one of the injured persons in the case in Crime No. 248/97 on the file of the Inspector of Police, Kollancode Police Station. The

Respondents 2 to 4 herein and others were charged for the offences under Ss. 147, 452 and 323 of I.P.C. in Crime No. 248/97 by the 1st

Respondent viz., the Inspector of Police, Kollancode Police Station. The Respondents 2 to 4 herein and others moved an application for

anticipatory bail in Crl.O.P. No. 7750/97 in this Court. On 3.7.1997 M. Karpagavinayagam, J. granted anticipatory bail in respect of others and

dismissed the said application in respect of the Respondents 2 to 4 herein. In para 7 of the said order dated 3.7.1997 in Crl.O.P. No. 7750/97

Justice M. Karpagavinayagam, clearly held that the Respondents 2 to 4 herein are not entitled to anticipatory bail, and it is open to them to

surrender before the lower Court where the FIR is pending and seek regular bail before the appropriate Court. The Respondents 2 to 4 herein

without moving the Court below as ordered by the High Court on 3.7.1997 in Crl.O.P. No. 7750/97 had moved this High Court once again for

anticipatory bail in Crl.O.P. No. 11947/97. No doubt the Respondents 2 to 4 herein stated in their anticipatory bail application in Crl.O.P. No.

11947/97 that the earlier anticipatory bail application in Crl.O.P. No. 7750/97 was dismissed but the Respondents 2 to 4 herein deliberately

suppressed the material fact on what ground the earlier bail application in Crl.O.P. No. 7750/97 was dismissed. Had the real fact been disclosed

in the subsequent anticipatory bail application in Crl.O.P. No. 11947/97, the learned Judge would not have entertained the anticipatory bail

application once again. Since the Respondents 2 to 4 herein suppressed the material fact in their subsequent anticipatory bail application, their

continuance on anticipatory bail order passed in Crl.O.P. No. 11947/97 is not proper and opposed to the principles of justice. After coming out

on anticipatory bail as ordered on 17.9.1997 in Crl.O.P. No. 11047/97 the 2nd respondent herein by name Fredy committed certain crimes on

23.9.1997 at Marthadanthurai. The said Fredy, who is the 2nd respondent herein, along with others armed with Kambu, Thadi, Iron Bar and

vettukathi broke open the houses of Solomi, Mary and Aral Soolie, who are the relatives of the petitioner/injured and caused damage to the

articles worth Rs. 85,000/- and immediately telegrams were sent to the Government as well as to the police officials and the 3rd Respondent

herein by name Seshayan was also a party to the acts of violence that took place on 23.9.1997. He along with Fredy and others committed the

offences on that day. On 24.9.1997 also the 2nd Respondent herein Fredy committed certain offences along with others at the same place and the

properties belonging to one Belavendran, relative of the complainant, was damaged in the occurrence that took place on 24.9.1997. Because of

such atrocities committed by the Respondents 2 to 4 herein, the petitioner and his relatives could not live in safety. In these circumstances it is just

and necessary to cancel the anticipatory bail granted to the Respondents 2 to 4 herein in Crl.O.P. No. 11947/97 on 17.9.997.

These averments in the affidavit of the petitioner were not controverted by any one of the Respondents 2 to 4 by filing a counter statement.

These allegations in the affidavit of the petitioner go unchallenged as there was no written denial on the said of the Respondents 2 to 4 herein.

Therefore on the face value these allegations are entitled to acceptance in this case.

The Learned Counsel for the petitioner contended that the Respondents 2 to 4 herein moved three anticipatory applications, and they are the

Petitions in Crl.O.P. Nos. 7750/97, 10685/97 and 11947/97 relating to Crime No. 248/97 and the first anticipatory bail application in Crl.O.P.

No. 7750/97 was dismissed by M. Karpagavinayagam, J. with a direction for the Respondents 2 to 4 herein to surrender before the lower Court

where the FIR is pending and seek regular bail before the appropriate Court, and the 2nd bail application in Crl.O.P. No. 10685/97 was

withdrawn and so it was dismissed as withdrawn on 11.8.1997, and the 3rd anticipatory bail petition in Crl.O.P. No. 11947/97 was filed without

mentioning the observation made by M. Karpagavinayagam, J. in the first bail application in Crl.O.P. No. 7750/97, but merely stating that the first

bail application in Crl.O.P. No. 7750/97 was dismissed on 3.7.1997, and thus the Respondents 2 to 4 herein have deliberately suppressed the

observation made in the first bail application in Crl.O.P. No. 7750/97 and thereby misled the Court and obtained the anticipatory bail subsequently

which became an instrument for them to indulge in acts of violence committed by them on 23.9.1997 and 24.9.1997, and therefore the anticipatory

bail granted to the Respondents 2 to 4 herein must be cancelled.

The Learned Counsel for the Respondents 2 to 4 herein repudiated the above arguments of the Learned Counsel for the petitioner and

contended that the respondents 2 to 4 herein did not suppress any material fact, and in fact they disclosed in para 4 of their 3rd anticipatory bail

application in Crl.O.P. No. 11947/97 that the earlier bail application filed by them before this Court in Crl.O.P.No. 7750/97 was dismissed on

3.7.1997, and the 2nd application filed by them before this Court in Crl.O.P. No. 10685/97 was dismissed as withdrawn on 11.8.1997, and the

occurrence and the incidents that took place on 23.9.1997 and 24.9.1997 are independent transactions and they have nothing to do with the

occurrence in Crime No. 248/97, and it is a fresh cause of action, and the Respondents 2 to 4 herein have been complying with the conditions

imposed in the anticipatory bail application in Crl.O.P. No. 11947/97 and they did not violate any condition of the bail order granted to them, and

in those circumstances the anticipatory bail granted to them in Crl.O.P. No. 11947/97 should not be cancelled.

I am unable to accept the above arguments of the Learned Counsel for the respondents 2 to 4 herein for the following reasons. The question is

whether there is wilful and deliberate suppression of material fact before even the Respondents 2 to 4 got an order of anticipatory bail in their

favour. In the 1st bail application in Crl.O.P. No. 7750/97 filed by the Respondents 2 to 4 and others, the learned Judge Mr. M.

Karpagavinayagam, J. in paras 3 and 7 of his Order dated 3.7.1997 stated as follows:

Fredy, Seshayan and Jerome Benjamin, who are the petitioners 1 to 3 in Crl.O.P. No. 7946 of 1997, are alleged to have caused injuries by

weapons. So they are not entitled to anticipatory bail. It is open to them to surrender before the lower Court in which first information report is

pending and then seek for regular bail.

As far as the petitioners 1, 5 and 15 in Crl.O.P. No. 7750/97, they are not entitled to anticipatory bail as stated above. It is open to them to

surrender before the lower Court where the First Information Report is pending and seek for regular bail at the appropriate stage before the

appropriate Court.

This fact was wilfully suppressed in the subsequent anticipatory bail application filed by the Respondents 2 to 4 herein in Crl.O.P. No.

11947/97 even though they made reference to the dismissal of the earlier bail application in Crl.O.P. No. 7750/97. It is not the case of the

Respondents 2 to 4 herein that by inadvertence or by mistake they failed to mention the observation of M. Karpagavinayagam, J. in their later bail

application. There is conscious attempt on the part of the Respondents 2 to 4 herein to by pass the observations made by M. Karpagavinayagam,

J. wherein it is stated that they are not entitled to anticipatory bail and it is open to them to surrender before the lower Court and then seek the

regular bail. If these observations made by the learned Judge M. Karpagavinayagam, J. were brought to the notice in the subsequent anticipatory

bail application in Crl.O.P. No. 11947/97, then different consideration would have arisen for adjudication, and that has been wilfully suppressed

by the Respondents 2 to 4 herein. That apart all the allegations made in the affidavit of the petitioner filed in support of this application were not at

all questioned or challenged by the Respondents 2 to 4 herein by filing any counter-statement. The Respondents 2 to 4 herein have not even stated

about the observation made by M. Karpagavinayagam, J. in the earlier bail application order in Crl.O.P. No. 7750/97 dated 3.7.1997 in the 2nd

bail application filed by the Respondents 2 to 4 herein in Crl.O.P. No. 10685/97. In these circumstances I am of the view that it is a fit case to

cancel the anticipatory bail granted to the Respondents 2 to 4 herein on 11.9.1997 in Crl.O.P. No. 11947/97, and they should comply with the

earlier order dated 3.7.1997 passed by M. Karpagavinayagam, J. in Crl.O.P. No. 7750/97, and so this application is allowed, and consequently I

answer this point in favour of the petitioner and as against the Respondents 2 to 4 herein.

In the result this petition is allowed and the anticipatory bail order dated 17.9.1997 granted to the Respondents 2 to 4 herein in Crl.O.P. No.

11947/97 on the file of this Court is hereby cancelled, and the Respondents 2 to 4 herein are directed to approach the lower Court by

surrendering themselves and seek regular bail as ordered by M. Karpagavinayagam, J. in his order dated 3.7.997 in Crl.O.P. No. 7750/97.