ANBU @ VEERAPATHIRAN 6 SENTILKUMAR @ ETTAYA SENTHIL 7 SEENI @ SEENIVASAN v. STATE THROUGHTHE INSPECTOR OF POLICE AVANIAPURAM POLICE STATION

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT( Criminal Jurisdiction )Friday, the Thirtieth day of September Two Thousand ElevenPRESENTTHE HON`BLE MS.JUSTICE R.MALACRL OP(MD) No.13154 of 20111 KARUPPU @ KARUPPASAMY 2 KARUNA @ KARUNANITHI 3 NAWAS 4 MANI 5 ANBU @ VEERAPATHIRAN 6 SENTILKUMAR @ ETTAYA SENTHIL 7 SEENI @ SEENIVASAN ... PETITIONERS/ACCUSED VsSTATE THROUGHTHE INSPECTOR OF POLICE AVANIAPURAM POLICE STATION,MADURAI.CRIME NO.130/2009 ... RESPONDENT/COMPLAINANTFOR PETITIONER : M/S.PREMRAJ AMBROSE ADVOCATEFOR RESPONDENT : MR.A.RAMAR ADDITIONAL PUBLC PROSECUTOR PETITION FOR BAIL UNDER SEC. 439 CR.P.C.ORDER : THE COURT MADE THE FOLLOWING ORDER :-The petitioners are arrayed as accused Nos.5, 7, 8, 9, 10, 14 and 15in Crime No.130 of 2009 for the alleged offence punishable under Section304 (A) @ 147, 148, 120(b), 364, 302 and 201 I.P.C, on the file of therespondent police and they were arrested and remanded to judicial custodyand hence, seek bail.2. The learned counsel for the petitioners would submit that thepetitioners are arrayed as accused Nos.5, 7, 8, 9, 10, 14 and 15 in crimeNo.130 of 2009. He would further submit that on the basis of thecomplaint given by the then Village Administrative Officer, Avaniyapuram,on 16.04.2009, a case has been registered for the offence under Section304(A) I.P.C. The cause of death has been mentioned and in thepostmortem certificate, it reveals that the deceased has consumed alcoholand the death was due to run over by the vehicle. He would furthersubmit that it was alleged that suddenly, on 30.07.2011, A4 hassurrendered before the present Village Administrative Officer,Avaniyapuram and gave an extra judicial confession and on that basisonly, the case has been altered into one under Sections 147, 148, 120(B),364, 302 and 201 I.P.C. 3. The learned counsel appearing for the petitioners would furthersubmit that the extra judicial confession alleged to be given by A4 isnot an admissible evidence, because a telegram has been sent on29.07.2011 by the wife of A4, wherein, she has stated that her husbandwas taken by the Police Inspector on 29.07.2011 at 1.30 p.m. and after A4was forcibly taken and extra judicial confession has been concocted bythe investigation agency, because of the present change of scenario. Hewould further submit that one Vinoth, Advocate has filed an applicationunder Section 97 Cr.P.C., before the learned Chief Judicial Magistrate, https://hcservices.ecourts.gov.in/hcservices/ Madurai and on that basis, the learned Chief Judicial Magistrate, Maduraihas deputed the learned Judicial Magistrate No.3, Madurai, to inspect theOomatchikulam police station, where, he found A4 in the police stationunder custody and thereafter only, A4 was produced before the Court on30.07.2011 at 8.40 p.m. along with the extra judicial confession. Onthe basis of the alleged extra judicial confession only, the provisionsof law has been altered and it is vitiated under Section 25 of the IndianEvidence Act. He would further submit that that when A4 has producedbefore the learned Judicial Magistrate, he has informed that he wasalready taken by the police two days before and hence, he is questioningthe validity of the extra judicial confession alleged to be given by A4.The learned senior counsel would submit that the overt act against thepetitioners are only they are abducting the deceased to A1's grove andthey have beaten the deceased with stick and hand respectively and theyare taken the body of the deceased into the ring road and except this, noovert act against the petitioners. He further submitted that thepetitioners are in custody from 30.07.2011, 01.08.2011, 02.08.2011 and03.08.2011 respectively and the investigation was over and hence, theyhave come forwarded with the present petitions for bail.4. Repudiating the same, the learned Additional Public Prosecutorwould submit that the case has been registered on the basis of thecomplaint given by the then Village Administrative Officer, Avaniyapuramon 16.04.2009 for the offence under Section 304(A) I.P.C., but after A4has surrendered before the present Village Administrative Officer,Avaniyapuram and gave an extra judicial confession only, the penalprovisions have been altered and the alteration report has also beenfiled. As per the extra judicial confession of A-4, the petitionerstaken the deceased Pandiyarajan to A1's grove and they beat and murderhim and then they took the body of Pandiyarajan from A1's grove toEchanodai ring road in the vehicle belonging to A1, which was driven byA4, in which A12 has been accompanying with other accused. 5. He would further submit that A13 along with other accused takenthe deceased to A1's grove and he was also one of the members of unlawfulassembly for the conspiracy to commit the murder of the deceased. Hewould further submit that A7's car was used to run over the body of thedeceased as if the deceased has died due to accident and therebyscreening the evidence. He would further submit that initially, threewitnesses alone have been examined and since the extra judicialconfession has been given only on 30.07.2011, after alteration of F.I.R.,11 witnesses were examined and the investigation is in initial stage andA1 has already detained under Act 14. He further submitted that at thetime of investigation, Investigating Officer has raised six questionsbefore the Medical Officer, out of which, five questions, reveals thefact that the death has happened due to murder and not an accident andhence, he prays for the dismissal of the applications.6. I have considered the rival submissions made on either side andperused the materials available on record.7. On the death of one Pandiyarajan, who was belonging to theCommunist Political Party, on the basis of the complaint given by onePeriyasami, the then Village Administrative Officer, Avaniyapuram, a casehas been registered for the offence under Section 304(A) I.P.C. since thevehicle belonging to the deceased Pandiyarajan has been placed near thebody and tyre marks are also there. But, till 30.07.2011, no changes inthe investigation. Thereafter, on the basis of the extra judicialconfession alleged to be given by A4 before the Village Administrative https://hcservices.ecourts.gov.in/hcservices/ Officer, Avaniyapuram, the case has been altered to one under Sections147, 148, 120(B), 364, 302 and 201 I.P.C.8. The learned counsel would mainly focus upon the extra judicialconfession alleged to be given by A4 and submit that the same has notbeen given voluntarily by A4. As per his version, A4 has been taken bythe police people on 28.07.2011 midnight and immediately, the wife of A4gave a telegram about the same. Furthermore, one Advocate viz., Vinothhas filed an application under Section 97 Cr.P.C., before the learnedChief Judicial Magistrate, in pursuant of which, the Judicial MagistrateNo.3, Madurai has visited the police station and found A4 in the policestation and then only, he was produced before the learned JudicialMagistrate concerned for judicial custody at 8.40 p.m. on 30.07.2011 andat that time also, he has stated that he has taken by the police two daysprior to produce him before the Court and hence, the learned seniorcounsel would submit that the extra judicial confession is not anadmissible evidence and hence, the basis for altering the provision ofcriminal offence and the entire prosecution is non exist in the eye oflaw. But, the above argument is premature during the bail applications.Deciding the fact that whether extra judicial confession is an admissibleone and it can be reliable and whether A4 has surrendered before theVillage Administrative Officer and gave extra judicial confession is apremature one at the time of considering the bail applications.9. Considering the facts and circumstances of this case and alsoconsidering the fact that the co-accused have already been granted bailand anticipatory bail and similarly placed accused A11 to A13 werealready enlarged on bail and the petitioners are in judicial custody forthe past 60 days and the interrogation is already over, I am inclined togrant bail to the petitioners with certain conditions.10. Accordingly, the petitioners are ordered to be released on bailon executing a separate bond for a sum of Rs.10,000/- (Rupees TenThousand only) with two sureties each for a like sum to the satisfactionof the learned Judicial Magistrate No.VI, Madurai, and on furthercondition that the petitioners shall report before the Court concerneddaily at 10.30 a.m. until further orders. sd/- 30/09/2011 / TRUE COPY /TO Sub-Assistant Registrar 1 THE JUDICIAL MAGISTRATE NO.VI, MADURAI.2 DO-THRO' THE CHIEF JUDICIAL MAGISTRATE, MADURAI.3 THE SUPERINTENDENT, CENTRAL PRISON, MADURAI.4 THE INSPECTOR OF POLICE, AVANIAPURAM POLICE STATION, MADURAI.5 THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. +1. CC TO M/S.PREMRAJ AMBROSE, ADVOCATE SR.NO.34513. ORDER IN CRL OP(MD) No.13154 of 2011 Date :30/09/20113P/7CRPB : 30.09.2011