Madras High Court
M.Gnanasekaran vs V.Udhayakumar ... 1St
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 12.11.2019
Pronounced on : .11.2019
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
Crl.O.P.No.1100 of 2019
and
Crl.O.P.No.1107 of 2019
M.Gnanasekaran
... Petitioner in both the Crl.O.Ps.
Vs.
1.V.Udhayakumar ... 1st respondent in Crl.O.P.No.1100 of 2019
2.P.Boobalan ... 1st respondent in Crl.O.P.No.1107 of 2019
3.State rep.by Inspector of Police,
Thirubuvanai Police Station,
Puducherry, Crime No.40/2017
Investigated by CBCID Police Station,
Puducherry.
... 2nd respondent in both the Crl.O.Ps.
Common Prayer: Criminal Original Petitions filed under Section
439(2) Cr.P.C. to cancel the bail granted by the learned Single Judge
of this Court in Crl.A.Nos.72 and 81 of 2018 dated 12.02.2018 to the
appellants therein.
For Petitioner : Mr.C.S.Dhanasekaran
(in both the Crl.O.Ps.)
http://www.judis.nic.in
2
For R1 : Mr.R.John Sathyan
in Crl.O.P.No.1100 of 2019
For R1 : Mr.B.Mohan
in Crl.O.P.No.1107 of 2019
For R2 : Mr.R.Kamesh kumar,
Special Public Prosecutor, Puducherry,
in both the Crl.O.Ps.
ORDER
Crl.O.P.No.1100 of 2019 has been filed under Section 439(2) Cr.P.C., seeking to cancel the bail granted to the 1st respondent/A1, V.Udhayakumar, appellant in Crl.A.No.72 of 2018 granted in the said Criminal Appeal, by order dated 12.02.2018, which appeal had been filed under Section 14(A)(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. By the said order in the aforesaid Criminal Appeal, a learned Single Judge of this Court had examined the dismissal of bail petition preferred by the appellant therein by the II Additional Sessions Court, Puducherry and by common order in Crl.A.No.72 of 2018 and Crl.A.No.81 of 2018 dated 12.02.2018, had thought it fit to allow the appeals and set aside the order dismissing the bail petition dated 30.01.2018 and had granted bail to the appellant.
2. Crl.O.P.No.1107 of 2019 has been filed under Section 439(2) Cr.P.C., seeking to cancel the bail granted to the first respondent-A8 (appellant in Crl.A.No.81 of 2018) granted in the aforesaid criminal appeal, by order dated 12.02.2018, which appeal has been filed under Section http://www.judis.nic.in 3 14(A)(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. By the said order in the aforesaid criminal appeal, a learned Single Judge of this Court had examined the dismissal of bail petition preferred by the appellants therein by the Special Judge, II Additional Sessions Court, Puducherry, and by common order in Crl.A.No.72 of 2018 and Crl.A.No.81 of 2018 dated 12.02.2018, had thought it fit to allow the appeals and set aside the order dismissing the bail petitions dated 30.01.2018 and had granted bail to the appellant.
3. In the said common order, the learned Single Judge had imposed with conditions to stay at Karaikal for a period of one month and with further directions to appear before the Court on all hearing dates. Subsequently, the condition to stay at Karaikal, was also relaxed. It is to be mentioned that the accused are facing trial in S.C.No.33 of 2017 on the file of the Special Judge, II, Additional Sessions Court, for offences under Sections, 148, 302 I.P.C r/w 149 and 109 I.P.C and Section 3 of Explosive Substances Act 1908 @ 143, 120(b), 109.449, 427 and 302 of I.P.C r/w 149 and Section 3,4,5 and 6 of Explosive Substances Act, 1908 and 3(2)(v) of SC/ST (Prevention of Atrocities) Act, 2015.
4. This common order was then taken up in appeal before the Hon'ble Supreme Court in S.L.P.(Criminal) Diary No(s).8672 of 2018 and by order dated 26.03.2018, the Hon'ble Supreme Court held as follows:
http://www.judis.nic.in 4 “Permission to file special leave petition is granted. We have heard the learned counsel appearing for the petitioner and perused the impugned order passed by the High Court of Judicature at Madras.
We are not inclined to interfere with the impugned order by which the High Court had granted bail to the respondents-accused.
However, in case respondents-accused, namely, V.Udayakumar S/o. Venkatasamy and Boobalan S/o. Purushothaman, misuse their bail, it will be open for the petitioner to approach the High Court for cancellation of their bail.
The special leave petition stands disposed of in the above terms.
Pending applications stand disposed of.” (emphasis supplied)
5. Taking recourse to the permission granted by the Hon'ble Supreme Court that it would be open to the petitioner/defacto complainant, Gnanasekaran to approach the High Court to cancel the bail in case the said accused misused their bail, these petitions have been filed before this Court seeking cancellation of the bail.
6. It is to be mentioned that the de-facto complainant had lodged a complaint which was registered as Crime No.40 of 2017, originally by the http://www.judis.nic.in 5 Inspector of Police, Thirubuvanai Police Station on 19.04.2017 and later the investigation had been handed over to CBCID Police Station as charge sheet No.8 of 2017. After investigation, a final report was filed under Sections 143, 120(B), 109, 449, 427 and 302 of IPC r/w 149 of IPC and under Sections 3, 4, 5 and 6 of the Explosive Substances Act, 1908, against A1/Udhayakumar, A2/Senkathiravan, A3/Rathinavel, A4/Karthikeyan @ Ramesh, A5/Sivaraman @ Sivaramakrishnan, A6/Janarthanan @ Jana, A7/Karthi @ Karthikeyan and A8/Boobalan.
7. An additional charge sheet was filed on 03.01.2018 against the accused persons including the offences under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, apart from the original Section under which the first charge sheet was filed. The accused filed bail petition before the Special Court for Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, namely, II Additional Sessions Court, Puducherry. By order dated 30.01.2018, the bail petitions were dismissed. As against the said dismissal, Criminal Appeal No.72 of 2018 was filed by the respondent/A8 and Criminal Appeal No.81 of 2018 was filed by the respondent/A8 under Sections 14(A)(2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and an order was passed by the learned Single Judge of this Court as stated above, allowing the appeals and granting bail to the A1 and A8. This common order is now questioned by the de-facto complainant.
http://www.judis.nic.in 6 Crl.O.P.No.1100 of 2019:
8. In the affidavit filed in support of Crl.O.P.No.1100 of 2019, it had been stated that the 1st respondent/A1-V.Udhayakumar was during the period when he was on bail, involved in Crime No.44 of 2018 for offence under Section 153A read with Section 34 of I.P.C, wherein he had instigated non Dalith people against Dalith people and had created law and order problem in the area. A complaint had been given by one M.Manivannan. It was therefore stated that this involvement in Cr.No.44 of 2018 was in direct violation of the conditions of grant of bail and consequently, it is urged that this Court should cancel the bail granted.
9. Notice was served on the 1st respondent/A1 and learned counsel also entered appearance. Heard arguments advanced.
10. It is the contention of the learned counsel for the petitioner that the 1st respondent/A1 in S.C.No.19 of 2018 had violated the conditions of bail by involving himself in an offence punishable under Section 153A read with Section 34 of I.P.C, by creating disturbances between Dalith and non Dalith people. It was therefore stated that the bail granted should be cancelled since the accused had misused the terms of the bail.
11. On the other hand, the learned counsel for the 1st respondent/A1, stated that this Court cannot re-examine the order granting bail and the learned counsel primarily relied on the judgment of a learned Single Judge of Allahabad High Court in Sushil Kumar V. State of U.P., http://www.judis.nic.in 7 and another, reported in 2018(6) ADJ 337 : 2018 (2) All. Crl. Rulings 1876, wherein, the learned Single Judge of the Allahabad High Court had stated that cancellation of bail would amount to review of the earlier order which is impermissible under Section 362 of Cr.P.C., whereby, final orders cannot be re-examined except for typographical errors.
12. With due respects to the learned Single Judge, it must be mentioned that any order granting bail is not a final order coming under the purview of Section 362 of Cr.P.C. Bail is granted with conditions and when there is violation of any condition, the Criminal Procedure Code in Section 439(2) gives the power to the High Court to revisit the order granting bail.
13. It must be mentioned that the accused are facing charges under Sections 143, 120(B), 109, 449, 427 and 302 I.P.C., read with 149 I.P.C and Sections 3, 4 and 6 of the Explosive Substances Act, 1908 and under Section 3(2)(v) of SC/ST (Prevention of Atrocities) Amended Act, 2015. The petitioner herein is the defacto complainant in that case. There are as many as eight accused. It is stated that the accused had committed the murder of one Velazhagan, knowing that he was a member of the Schedule Caste and in the commission of such offence the accused also used bombs which attracted the provisions under Explosive Substances Act.
14. As stated above, the learned Sessions Judge had rejected the bail application and in the appeals filed as against that, a learned Single Judge of this Court had granted bail. That order was challenged in the http://www.judis.nic.in 8 Hon'ble Supreme Court. The Hon'ble Supreme Court held that the order cannot be interfered with, but however gave permission to the present petitioner to seek cancellation of the order, if there is misuse of bail condition.
15. Pursuant the complaint given by one M.Manivannan, the Inspector of Police, Thirubuvanai, Puducherry, had registered a case in Crime No.44 of 2018, but in that case, it is represented that the learned Judicial Magistrate had discharged the accused.
16. It is no doubt true, the Hon'ble Supreme Court had granted permission to seek any remedy if there is violation of the terms of the bail condition. But however, it is seen that the accused have been discharged by the learned Judicial Magistrate No.IV, Puducherry, in C.C.No.761 of 2019 in Crime No.44 of 2018. Consequently, registration of Crime No.44 of 2018 cannot be held as against the respondent.
17. It is pointed out by the learned Special Public Prosecutor that the accused are not appearing before the Court regularly in the Sessions case. That is an issue which has to dealt with by the learned Sessions Judge and this Court cannot interfere with the proceedings of the Sessions case.
18. In view of the aforesaid reasons, this Court is not inclined to cancel the bail already granted in Crl.A.No.72 of 2018 to the 1st accused. However, the learned Sessions Judge, may explore the possibility of http://www.judis.nic.in 9 obtaining a bond from the 1st accused/Udhayakumar, under Section 88 of Cr.P.C., for appearance before the Court on every hearing date. Crl.O.P.No.1107 of 2019:
19. In this Criminal Original Petition, notice was directed to the first respondent/A8. Notice was served. The learned counsel entered appearance on behalf of the first respondent/A8.
20. Heard arguments advanced by both the sides.
21. The substantial ground raised to seek cancellation of the bail was that in the Criminal Appeal No.81 of 2018 filed before this Court, the appellant in Crl.A.No.81 of 2018 had not impleaded the defacto complainant as a party/respondent. The learned Single Judge, who heard the appeal had also, unfortunately, not issued notice to the defacto complainant. The Criminal Appeal was allowed on the basis that the co-accused has been enlarged on bail and that the first respondent/A8 (appellant in Crl.A.No.81 of 2018) has been in custody for about one year and that charge sheet has been filed before the Court and that the Sessions Case was posted for framing of charges.
22. Section 15A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 deals with rights of victim and witnesses. Section 15A(3) and (5) and as follows:
“15-A.Rights of victims and witnesses. http://www.judis.nic.in 10
-------
-------
(3) A victim or his dependent shall have the right to reasonable, accurate, and timely notice of Court proceeding including any bail proceeding and the Special Public Prosecutor or the State Government shall inform the victim about any proceedings under this Act.
-------
(5) A victim or his dependent shall be entitled to be heard at any proceeding under this Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submission on conviction, acquittal or sentencing.
-------
-------”
23. As is evident from a plain reading of the Section, the victim or his deponent must be served with the notice of the bail application and must be provided an opportunity to be heard and advance arguments. When a statute specifically provides a right to the victim/dependent to be heard at any proceedings in respect of bail, if the court fails to provide such opportunity then there is an inherent failure of justice. This procedure cannot be bypassed.
24. As against the said order of the High Court granting bail, the de-facto complainant had also moved a petition before the Hon'ble Supreme Court and the Hon'ble Supreme Court, had declined to interfere with the order granting bail. However, it had been stated that it would be open to the http://www.judis.nic.in 11 petitioner to approach the High Court for cancellation of bail. The records are not available before this Court whether attention was drawn before the Hon'ble Supreme Court, that respondent/A8 – Boobalan in Crl.A.No.81 of 2018 had not even chosen to show the defacto complainant as respondent/party and that there was a violation of a mandatory provision is not known to this Court. However, the Hon'ble Supreme Court had upheld the order granting bail and had granted permission to move the High Court seeking cancellation of bail only if the accused misused the bail. There is no record to show that A8/Boobalan had misused the bail. Consequently, Crl.O.P.No.1107 of 2019 is dismissed.
25. However, this Court has to keep in mind, the dictum of the Honourable Supreme Court which is oft repeated namely, that judicial discipline must be maintained particularly when examining the judgment of a Co-ordinate Bench of the same Court. In Vikramjit Singh Vs. State of Madhya Pradesh reported in 1992 Crl LJ 516, it had been held as follows:
“It appears that the learned Judge while passing the impugned order, failed to appreciate that no Bench can comment on the functioning of a Co-ordinate Bench of the same Court, much less sit in judgment as an Appellate Court over its decision ........ That which could not be done directly could also not be done indirectly........ Besides, it was not consistent with the judicial discipline which must be maintained by Courts both in the interest of http://www.judis.nic.in 12 administration of justice by assuring the binding nature of an order which becomes final, and the faith of the people in the judiciary.”
26. It is pointed out by the learned Special Public Prosecutor that the accused are not appearing before the Court regularly in the Sessions case. That is an issue which has to dealt with by the learned Sessions Judge and this Court cannot interfere with the proceedings of the Sessions case.
27. In view of the aforesaid reasons, this Court is not inclined to cancel the bail already granted in Crl.A.No.81 of 2018 to the 8 th accused. However, the learned Sessions Judge, may explore the possibility of obtaining a bond from the 8th accused/Boopalan, under Section 107 of Cr.P.C., for appearance before the Court on every hearing date.
28. In the result, both the Crl.O.P.No.1100 of 2019 and Crl.O.P.No.1107 of 2019 are dismissed.
.11.2019 smv http://www.judis.nic.in 13 C.V.KARTHIKEYAN,J.
Smv Crl.O.P.Nos.1100 and 1107 of 2019 .11.2019 http://www.judis.nic.in