T.S.Arun Kumar v. The S.H.O. Annamalai Nagar, Cuddalore District & Ors.

For respondent : Mr.A.Natarajan, Senior Counsel for Mr.A.S.VelmuruganR2 in Crl.OP.No.6184/08Sole Respondent in Crl.OP.6661/08COMMON ORDERCriminal Original Petition No.6184 of 2008 is filed by thebrother's son of the deceased who has been cited as one of thewitnesses to the crime of murder and Criminal Original petitionNo.6661 of 2008 is filed by the Inspector of Police, Annamalainagar,Cuddalore District seeking to cancel the anticipatory bail granted bythe learned Principal and District Sessions Judge, Cuddalore inCrl.M.P.No.679 of 2008. 2. As both the petitions are connected with each other and thegrounds set up in both the petitions are common, both the petitionswere taken up together for common disposal. 3. For the sake of convenience, the second respondent inCrl.O.P.No.6184 of 2008 who also figures as the sole respondent inCrl.O.P.No.6661 of 2008 is hereinafter referred as the respondent. 4. The core allegation found in the first information reportregistered in Crime No.36 of 2008 on the file of the Inspector ofPolice, Annamalainagar, Cuddalore District would read that on30.1.2008, at about 9.40 am, when the deceased was proceeding in hismotor cycle towards his office situated at Vice Chancellor BungalowRoad, some unidentified persons came in a motorcycle and one of themdrew out a sharp edged weapon viz., "Veecharival" and struck a heavyblow on the neck of the deceased who succumbed to the injuries. Thefirst information report was lodged by one Pandian and the case wasregistered originally for offence punishable under section 302 of theIndian Penal Code and later on, it was altered to one under sections147, 148, 341, 302 read with 149, 302 read with 120B and 302 readwith 109 of the Indian Penal Code. 5. The respondent filed an anticipatory bail application inCrl.M.P.No.679 on 6.2.2008. Learned Principal Sessions Judge,Cuddalore, having adverted to the facts and circumstances of thecase, granted anticipatory bail to the respondent on the followinggrounds:-There was no mention of the name of the assailant in the firstinformation report dated 30.1.2008. The case diary would reveal thatthere was no materials available to implicate the respondent herein.None of the witnesses was examined under section 161 of the Code of https://hcservices.ecourts.gov.in/hcservices/ Criminal Procedure. Absolutely there was no material to indicate theinvolvement of the accused in the case diary produced before him forperusal. The respondent has a social status and a permanent abode.Having cited the abovesaid reasons, the learned Principal SessionsJudge granted anticipatory bail to the respondent. 6. The petitioner in Crl.O.P.No.6184 of 2008 has contended thatthe application for anticipatory bail which was filed on 6.8.2008was original posted to 8.2.2008, but, the same was advanced and takenup on 7.2.2008 itself and order was passed at 8.00 pm in theChambers of the Judge. The Principal Sessions Judge, Cuddalore haschosen to modify and relax the conditions imposed in the ordergranting anticipatory bail in quick succession within a short span oftime. The application filed by the wife of the deceased seekingcancellation of anticipatory bail has been posted time and again forhearing and the same is still pending disposal. Some unknown personswarned the petitioner in Crl.O.P.No.6184 of 2008 and his familymembers with dire consequences. The wife of the deceased and herbrother were threatened on 14.2.2008 at Puthupatti in PudhukottaiDistrict. A case has now been registered as against the respondentby the Inspector of Police K.Puthupatti in Crime No.28 of 2008 undersections 294 and 506(I) of the Indian Penal Code. Therespondent/accused was granted a blanket order of pre-arrest bailwithout specifying the offences committed by him. He would tamperwith the evidence collected. With the aforesaid materialallegations, the petitioner in Crl.O.P.No.6184 of 2008 has sought forcancellation of anticipatory bail. 7. The Inspector of Police, Annamalainagar, Cuddalore District,who has filed Crl.O.P.No.6661 of 2008 has alleged in the applicationseeking cancellation of anticipatory bail in addition to theaforesaid grounds alleged for cancellation of anticipatory bail bythe petitioner in Crl.O.P.No.6184 of 2008 that the investigationwould reveal that the deceased was done to death only at the instanceof the respondent. The respondent was uncomfortable with the growthof the deceased which threatened the influence of the respondent inAnnamalai University. The actual occurrence is the result of theconspiracy hatched by the respondent with the other accused. Theanticipatory bail was disposed of on the very same day of filing.With the aforesaid grounds, the petitioner in Crl.O.P.No.6661 of 2008also sought for cancellation of anticipatory bail. 8. In the counter filed by the respondent, it has been statedthat the application seeking anticipatory bail filed by therespondent on 6.2.2008 was disposed of on 7.2.2008 after counter wasfiled by the Public Prosecutor and also after hearing elaboratearguments submitted before the Principal Sessions Judge. Therespondent has been regularly and promptly complying with theconditions before the court. No proper ground has been alleged inthe petitions seeking cancellation of anticipatory bail. There is https://hcservices.ecourts.gov.in/hcservices/ absolutely no material connecting the respondent with the crime. Thepetition filed for cancellation of anticipatory bail by the wife ofthe deceased is being adjourned by the learned Principal SessionsJudge as she did not make her appearance before the Sessions Court.No complaint was lodged with police alleging that the respondent sentsome unknown persons to the residence of the petitioner inCrl.O.P.No.6184 of 2008 and threatened him and his family memberswith dire consequences. No date, time and place of the saidoccurrence was detailed in the petition filed in Crl.O.P.No.6184 of2008. A detailed and elaborate interrogation was also conducted andthe respondent also co-operated with the process of investigation on14.2.2008 and 15.2.2008. The wife of the deceased, who is neither aneyewitness nor the de facto complainant, has come out with a falsecomplaint as against the respondent before K.Puthupatti PoliceStation. In the application filed for cancellation of anticipatorybail before the Principal Sessions Judge, Cuddalore subsequent tosuch alleged occurrence, there is no reference to the saidoccurrence. As the respondent has not misused the concession ofanticipatory bail granted to him and he has been ready and willing toco-operate with the process of investigation, the question ofcancelling the anticipatory bail granted to the respondent does notarise. 9. Elaborate arguments made by the counsel appearing for thepetitioner in Crl.O.P.No.6184 of 2008 and the learned GovernmentAdvocate (Criminal Side) appearing for the Inspector of Police,Annamalainagar, Cuddalore District, the petitioner in Crl.O.P.No.6661of 2008 and the submissions made by the learned Senior Counselappearing for the respondent were heard. 10. It has been held by the Supreme Court in GURUCHARAN SINGH v.STATE (DELHI ADMN.) (1978 CRI. L.J. 129) as follows:-"The overriding considerations in granting bail towhich we adverted to earlier and which are commonboth in the case of S.437(1) and S.439(1), Cr.P.Cof the new Code are the nature and gravity of thecircumstances in which the offence is committed;the position and the status of the accused withreference to the victim and the witnesses; thelikelihood, of the accused fleeing from justice;of repeating the offence; of jeopardising his wonlife being faced with a grim prospect of possibleconviction in the case; of tampering withwitnesses; the history of the case as well as ofits investigation and other relevant groundswhich, in view of so many variable factors, cannotbe exhaustively set out."In the above case, the Supreme Court has indicated the material https://hcservices.ecourts.gov.in/hcservices/ considerations that shall engage the attention of the court whilegranting bail both under section 437(1) and section 439(1) of theCode of Criminal Procedure. The aforesaid considerations arerelevant not only for disposal of the application seeking regularbail but also for the determination of the application seekinganticipatory bail.11. The Supreme Court in RAM GOVIND UPADHYAY v. SUDARSHAN SINGH &OTHERS (2002(2) SUPREME 457) has held as follows:-"Apart from the above, certain other (factors)which may be attributed to be relevantconsiderations may also be noticed at thisjuncture though however, the same are onlyillustrative and nor exhaustive neither there canbe any. The considerations being:a) While granting bail the Court has to keepin mind not only the nature of the accusations,but the severity of the punishment, if theaccusation entails a conviction and the nature ofevidence in support of the accusations.b) Reasonable apprehensions of the witnessesbeing tampered with or the apprehension of therebeing a threat for the complainant should alsoweigh with the Court in the matter of grant ofbail. c) While it is not accepted to have the entireevidence establishing the guilt of the accusedbeyond reasonable doubt but there ought always tobe a prima facie satisfaction of the Court insupport of the charge. d) Frivolity in prosecution should always beconsidered and it is only the element ofgenuineness that shall have to be considered inthe matter of grant of bail and in the event ofthere being some doubt as to the genuineness ofthe prosecution, in the normal course of events,the accused is entitled to an order of bail."It has also been observed therein that considerations applicable togrant of bail and considerations applicable to cancellation of suchbail are independent and do not overlap each other. 12. In POKAR RAM v. STATE OF RAJASTHAN (1985 SCC (CRI.) 297), ithas been held as follows:- https://hcservices.ecourts.gov.in/hcservices/ "Before we conclude this judgment, it must be madedistinctly clear that some very compellingcircumstances must be made out for granting bail toa person accused of committing murder and that toowhen the investigation is in progress. In fact,the Investigating Officer did not even attempt toarrest the appellant (sic accused) though theinitial accusation was under Section 307 of theIndian Penal Code punishable with imprisonment forlife. And as soon as the victim of the assaultsuccumbed to his injuries and an offence underSection 302 was registered, promptly an applicationfor anticipatory bail was made and granted. Ifsuch an order is allowed to stand, faith of publicin administration of justice is likely to beconsiderably shaken. Therefore, we have no optionbut to cancel the order granting anticipatorybail."It has further been held therein that the status of the accused inlife and his affluence or otherwise are hardly relevantconsiderations while examining the request for granting anticipatorybail. Therefore, the court, while granting bail or anticipatory bail,will have to consider the nature of charge, the severity of thepunishment, the nature of evidence available on record, theapprehension that the witnesses would be tampered with and thepossibility of abscondence will have to be necessarily consideredwhile granting bail or anticipatory bail in a heinous crime. 13. It is found that the learned Principal Sessions Judge had anopportunity to go through the case diary on the date when theapplication seeking anticipatory bail was taken up for considerationon 7.2.2008. He has categorically stated in the order that exceptthe alleged confession of one co-accused by name Natarajan, nothingwas available on record to indicate the involvement of the petitionerin the crime of murder. No statement under section 161 of the Codeof Criminal Procedure was recorded from any of the witnesses touchingupon the version found in the confession statement of the co-accusedNatarajan. Such an observation was not assailed by either of theparties in the application seeking cancellation of the anticipatorybail. Therefore, the court will have to hold that as on the date ofconsidering the application seeking anticipatory bail moved by therespondent, there was virtually no material to indicate theinvolvement of the respondent except the stray reference by one ofthe co-accused Natarajan. 14. It is submitted by the learned counsel appearing for thepetitioner that the anticipatory bail application was taken up on7.2.2008 and the same was disposed of on the very same day. On aperusal of the entire records, it is found that the application https://hcservices.ecourts.gov.in/hcservices/ seeking anticipatory bail filed by the respondent was taken on fileby the learned Principal Sessions Judge on 6.2.2008 and the matterwas posted on 7.2.2008. He, having given an opportunity to filecounter, disposed of the same on the very same day. There is nothingon record to suggest that the application which was taken on file on6.2.2008 was posted straight to 8.2.2008 and the learned PrincipalSessions Judge advanced the hearing to 7.2.2008 and disposed of thematter hurriedly. On record, it is found that the Inspector ofPolice, Annamalainagar, Cuddalore District has filed counter to thepetition filed by the respondent seeking anticipatory bail. Thepetitioner has not alleged that they were not heard fully by thelearned Principal Sessions Judge, Cuddalore. It is found that thepetitioner has come out with a false allegation that the applicationwas taken up on the day of filing and the same was disposed of byadvancing the hearing. 15. It is also submitted by the learned counsel appearing for thepetitioner that a blanket order of anticipatory bail was passed bythe learned Principal Sessions Judge. To fortify their submission,the authority reported in GURBAKSH SINGH v. STATE OF PUNJAB (AIR 1980SC 1632) was cited before this court. It has been observed thereinas follows:-"We agree that a 'blanket order' of anticipatorybail should not generally be passed. This flowsfrom the very language of the section which asdiscussed above, requires the applicant to showthat he has "reason to believe" that he may bearrested. A belief can be said to be founded onreasonable grounds only if there is somethingtangible to go by on the basis of which it can besaid that the applicant's apprehension that he maybe arrested is genuine. That is why, normally, adirection should not issue under S.438(1) to theeffect that the applicant shall be released on bail"whenever arrested for whichever offencewhatsoever". That is what is meant by a 'blanketorder' of anticipatory bail, an order which servesas a blanket to cover or protect any and every kindof allegedly unlawful activity, in fact anyeventuality, likely or unlikely regarding which noconcrete information can possibly be had."That was a case where a blanket order to release the petitioner onbail "whenever arrested for whichever offence whatsoever" was grantedby the court which dealt with the application seeking anticipatorybail. But, in this case, it is found that the crime number and theoffence alleged to have been committed are scrupulously referred toin the order under challenge by the learned Principal Sessions Judge,Cuddalore. https://hcservices.ecourts.gov.in/hcservices/

16. Of course, the learned Principal Sessions Judge, in theoperative portion of the order, should have mentioned the crimenumber in which the order of bail was granted. The court will haveto go through the entire text of the order passed by the court below.The operative portion of the order cannot be truncated from theearlier portion of the order which discloses the crime in which andthe offence under which the respondent was implicated. At any rate,it is found that the order passed by the learned Principal SessionsJudge, Cuddalore imposing certain conditions on the first respondentand also directing him to co-operative with the process ofinvestigation as and when required by the investigation agency cannotbe classified as a blanket order of anticipatory bail. 17. It is submitted by the learned counsel appearing for thepetitioner that the modification and relaxation of the conditionsimposed in the order of anticipatory bail had been passed by thelearned Principal Sessions Judge within a short span of time. Ofcourse, this court also is not happy with the manner in which theapplications seeking modification and relaxation of the conditionswere entertained by the learned Principal Sessions Judge within ashort span of time. But, such modification, in the aftermath of theorder of anticipatory bail, granted by the learned Principal SessionsJudge cannot be a substantial ground for cancelling the anticipatorybail already granted. But, it is found that the respondent hasscrupulously complied with whatever conditions which have beenimposed on him. 18. It is urged before this court by the learned counselappearing for the petitioner in Crl.O.P.No.6184 of 2008 that theapplication filed by the wife of the deceased seeking cancellation ofbail is pending disposal even today. On a careful perusal of therecords produced before this court, it is found that the learnedPrincipal Sessions Judge has insisted upon the presence of the wifeof the deceased who is not an ocular witness or a person who lodgedthe first information report to verify the authenticity of thepetition filed seeking cancellation of bail. The records wouldreflect that the wife of the deceased as expected by the learnedPrincipal Sessions Judge, had not appeared to vouchsafe the petitionseeking cancellation of bail. Even otherwise, the pendency of such anapplication for cancellation of bail at the portals of the learnedPrincipal Sessions Judge cannot be a ground to cancel the bail moreespecially when the conditions imposed by the learned PrincipalSessions Judge has been scrupulously complied with by the respondent.19. It has been very vaguely alleged in the petition inCrl.O.P.No.6184 of 2008 that the petitioner therein and his familymembers were threatened at Cuddalore by some unidentified persons.Firstly, as right contended by the learned Senior Counsel for therespondent, no complaint had been lodged alleging that there was a https://hcservices.ecourts.gov.in/hcservices/ threat wielded to him and his family members. Secondly, the date andtime of such occurrence have not been given in the said petitionviz., Crl.O.P.No.6184 of 2008. Therefore, the court finds that thesaid story has been reeled out with a view to influence the mind ofthe court to cancel the bail. 20. There is also an allegation that the wife and brother of thedeceased were threatened at Cuddalore on 14.2.2008. But, it isfound that in the application seeking cancellation of anticipatorybail filed by the wife of the deceased on 16.2.2008, she has notwhispered anything about such a threat wielded over phone by therespondent. If at all, a threat had been wielded to a witness or aclose relative of the deceased, that is a substantial ground forcancellation of the anticipatory bail. The wife of the deceased wouldhave definitely referred to such a threat in the application filedseeking cancellation of anticipatory bail on 16.2.2008, if at allthere had been such a potential threat emanated from the respondent.There is no explanation from the said petitioner as to why such animportant aspect had not been referred to in the application filedseeking to cancel the anticipatory bail on 16.2.2008. It ispertinent to note that on 15.2.2008 itself, the wife of the deceasedhad signed an affidavit filed in support of the application seekingcancellation of anticipatory bail. There is something fishy in theprojection of such a threat alleged to have been emanated from therespondent on 14.2.2008 over phone. There is no bona fides in suchwild allegations levelled against the respondent.21. The learned counsel appearing for the petitioner wouldseriously contend that the learned Principal Sessions Judge hasfallen in error in basing the social status of the respondent forgranting anticipatory bail. Of course, it is found that the socialstatus of the respondent had weighed in the mind of the PrincipalSessions Judge, Cuddalore, but, that is not the sole ground on whichthe order of anticipatory bail was based.22. The Supreme Court in STATE OF U.P. AND OTHERS v. JEET s.BISHT AND ANOTHER (2007(4) SUPREME 359) has held as follows:-"When it is said "be you howsoever so high, the lawis above you" this dictum applies even to the SupremeCourt, since the law is above the Supreme Court andthe Supreme Court is not above the law. The Judgesof the Supreme Court and High Court should have themodesty and humility to realize this."23. No doubt, no one is above law. But, it is to be noted thatthe aforesaid authority has been laid down by the Supreme Court in acase where a direction was issued by the High Court of the State ofUttar Pradesh to constitute atleast five State Consumer Fora at Statelevel as per section 16 of the Consumer Protection Act by making https://hcservices.ecourts.gov.in/hcservices/ necessary amendment. The aforesaid observation has been made in theappeal preferred as against such a direction. Therefore, the aboveobservation will not apply to the criminal case where the status ofan accused will have to be gone into to find whether such an accusedhas social roots or whether he has permanent abode or whether he hasgot unblemished track record in social life to avoid damage to thecourse of trial on account of his abscondence. 24. Therefore, nothing wrong in referring to the status of anaccused in the order of bail or anticipatory bail. But, if thestatus of a person is so much to influence the course of justice,then, such a status of the person will come under adverse notice ofthe court. It cannot be stated that the status of a person istotally irrelevant for considering the application seeking bail oranticipatory bail. 25. It has been observed in STATE V. ANIL SHARMA ((1997) 7 SCC187) as follows:-"We find force in the submission of the CBI thatcustodial interrogation is qualitatively moreelicitation-oriented than questioning a suspect whois well ensconced with a favourable order underSection 438 of the Code. In a case like thiseffective interrogation of a suspected person is oftremendous advantage in disinterring many usefulinformations and also materials which would havebeen concealed. Success in such interrogation wouldelude if the suspected person knows that he is wellprotected and insulated by a pre-arrest bail orderduring the time he is interrogated. Very ofteninterrogation in such a condition would reduce to amere ritual. The argument that the custodialinterrogation is fraught with the danger of theperson being subjected to third-degree methods neednot be countenanced, for, such an argument can beadvanced by all accused in all criminal cases. TheCourt has to presume that responsible policeofficers would conduct themselves in a responsiblemanner and that those entrusted with the task ofdisinterring offences would not conduct themselvesas offenders."26. The Supreme Court in STATE OF A.P. v. BIMAL KRISHNA KUNDU((1997) 8 SCC 104) has observed as follows:- https://hcservices.ecourts.gov.in/hcservices/ "We have absolutely no doubt that if therespondents are equipped with such an order beforethey are interrogated by the police it wouldgreatly harm the investigation and would impede theprospects of unearthing all the ramificationsinvolved in the conspiracy. Public interest alsowould suffer as a consequence."27. Here, in this case, it is found that there had been adirection to the respondent to make himself available forinterrogation by the investigating officer whenever required by himand that he should also co-operate with the process of investigation.In the light of the aforesaid observation of the learned PrincipalSessions Judge, Cuddalore, it is found that the Inspector of Police,Annamalainagar, Cuddalore District has issued summons under section160 of the Code of Criminal Procedure to the respondent for hisappearance on 14.2.2008 at 2.00 pm and subjected him tointerrogation. Again he was subjected to interrogation on issuanceof summons under the aforesaid provision of law on 15.2.2008 also.The present petition has been filed only after a lapse of about 45days. If the investigating officer had felt that custodialinterrogation was required, he would not have rest content with mereinterrogation when the respondent was at large. He would havedefinitely challenged the said order forthwith and sought forcancellation of the order of anticipatory bail on the ground thatcustodial interrogation was very much required. The very fact thatthe investigating officer had not cared to subject the respondent forany further interrogation and had not chosen to immediately file anypetition to cancel the bail on the ground that custodialinterrogation was necessitated would go to show that theinterrogation with the respondent as to the role he had played wascompleted. 28. The case diary would also reflect that the material part ofthe investigation was over inasmuch as the statements of thewitnesses under section 161 of the Code of Criminal Procedure, theconfessions of the accused and the statements under section 164 ofthe Code of Criminal Procedure from some of the witnesses werealready recorded and the identification parade was also completed.That might have been the reason why the investigating agency had notshown any interest for about 45 days to move any petition seekingcancellation of bail on the ground that custodial interrogation wasrequired. https://hcservices.ecourts.gov.in/hcservices/

29. The Supreme Court in STATE OF U.P. v. AMARMANI TRIPATHI (2005SCC (CRI.) 1960(2)) has held as follows:-"That a balance has to be drawn by the court toprotect fair trial and to secure justice being doneto the society by preventing the accused who is setat liberty by the bail order from tampering withthe evidence in a heinous crime and if there isdelay in such a case the underlying object ofcancellation of bail practically loses all itspurpose and significance to the great prejudice andthe interest of the prosecution. The Court summedup the principle that the ground to deny bail willbe when by testing the balance of probabilities itappears that the accused has abused his liberty orthat there is a reasonable apprehension that hewill interfere with the course of justice. It wasnoticed by the Court that one a person is releasedon bail in serious criminal cases where thepunishment is stringent and deterrent, the accusedin order to get away from the clutches of the sameindulge in various activities like tampering withthe prosecution witnesses, threatening the familymembers of the victim and also create problems oflaw and order."In the case on hand, there is a serious doubt in the version of thepetitioners herein that the respondent attempted to tamper with theprosecution witnesses. It is to be noted that the wife of thedeceased was neither the first informant nor a material witness whowitnessed the occurrence. The alleged threat emanated from thesecond respondent also is found not acceptable. 30. The court finds that the respondent has social roots in thecity of Chennai and has a permanent abode. Therefore, the questionof fleeing from justice would not arise. In fact, he had compliedwith the conditions imposed by the Principal Sessions Judge,Cuddalore without any fail. If at all, the investigating agencyrequires his presence for the purpose of further interrogation tocomplete the course of investigation, he can be at any time summonedfor interrogation. Such a liberty has been given to theinvestigating agency by the Principal Sessions Judge, Cuddalore. 31. Of course, the prosecution has come out with a case ofheinous crime of murder. But, the Principal Sessions Judge,Cuddalore, having gone through the case diary at the time when thepetition seeking anticipatory bail was argued, had observed thatthere was no statement recorded under section 161 of the Code of https://hcservices.ecourts.gov.in/hcservices/ Criminal Procedure from any of the witnesses to substantiate the soleconfession statement available at that point of time from the co-accused Natarajan. 32. In the above facts and circumstances, the court finds thatthe question of cancelling the anticipatory bail granted to therespondent at this distance of time merits not consideration. Boththe petitions, therefore, stand dismissed. The connectedMiscellaneous Petition also stands dismissed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ssk. To1.The Principal Sessions Judge,Cuddalore.2.The Judicial Magistrate No.1Chidambaram.3.Do thro Chief Judicial MagistrateCuddalore.4.The Inspector of PoliceAnna Malai Nagar,Cuddalore District.5.The Public ProsecutorHigh Court Chennai.+ 1 CC to Mr. A.S.Velmurugan Advocate SR NO.18661+ 1 The Public Prosecutor, High Court, Madras.SR.No.18668. P.D. ORDER IN Crl.O.P.Nos.6184 & 6661 of 2008RS(CO)JJM(03.04.08)