Madras High Court
R.Looyis Raj vs V.Malaikannan Alias Kallalagar ... 1St on 18 December, 2012
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/12/2012 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRL.R.C.(MD)No.595 of 2012 CRL.R.C.(MD)No.596 of 2012 CRL.R.C.(MD)No.597 of 2012 and M.P.(MD) Nos.1 and 1 of 2012 R.Looyis Raj ... Petitioner in all petitions Vs 1.V.Malaikannan alias Kallalagar ... 1st Respondent in Crl.R.C.Nos. 596,597/2012 2.The Inspector of Police, Uchipuli Police Station Crime No.301 of 2012 Ramnad District. ... Respondent in Crl.R.C.No.595/12 and 2nd respondent in Crl.R.C.Nos. 596,597/2012 PRAYER in Crl.R.C.(MD) No.595 of 2012 Criminal Revision Petition filed under Sections 397 read with and 401 of Cr.P.C., to call for the records and to set aside the orders passed in Crl.M.P.No.3050 of 2012 in Cr.M.P.No.2864 of 2012 on the file of the Principal Sessions Judge, Ramanathapuram dated 03.12.2012. PRAYER in Crl.R.C.(MD) No.596 of 2012 Criminal Revision Petition filed under Sections 397 read with and 401 of Cr.P.C., to call for the records and to set aside the orders passed in Crl.M.P.No.3203 of 2012 in Cr.M.P.No.2864 of 2012 on the file of the Principal Sessions Judge, Ramanathapuram dated 03.12.2012. PRAYER in Crl.R.C.(MD) No.597 of 2012 Criminal Revision Petition filed under Sections 397 read with and 401 of Cr.P.C., to call for the records and to set aside the orders passed in Crl.M.P.No.2955 of 2012 in Cr.M.P.No.2864 of 2012 on the file of the Principal Sessions Judge, Ramanathapuram dated 03.12.2012 and further modify the condition imposed in Cr.M.P.No.2864 of 2012. !For Petitioner in all petitions ... Mr.R.Anand ^For Respondents ... Mr.A.Ravichandra Ramavanni for R1 in Crl.R.C.Nos. 596,597/2012 Mr.P.Kandasamy, G.A. For Respondent in Crl.R.C. No.595/12 and 2nd respondent in Crl.R.C.Nos. 596,597/2012 :ORDER
The Petitioner/A3 has preferred the instant Criminal Revision Petitions as against the orders dated 03.12.2012 in Cr.M.P.No.3050, 3203 and 2955 of 2012 in Cr.M.P.No.2864 of 2012 respectively passed by the Learned Principal Sessions Judge, Ramanathapuram.
2.The Learned Principal Sessions Judge, Ramanathapuram, while passing the common order in Cr.M.P.No.3050, 3203 and 2955 of 2012 in Cr.M.P.No.2864 of 2012 has among other things observed that after obtaining conditional Bail on 31.10.2012, the Petitioner/A3 has not complied with the condition, but filed a petition for modification of conditional Bail order in Cr.M.P.No.2955 of 2012 dated 02.11.2012 and again filed a stay petition in Cr.M.P.No.3045 of 2012 on 09.11.2012 and further has not accepted the reasons for non compliance of the conditional Bail order as mentioned in the petitions therein and resultantly, dismissed the petitions.
3.The Learned counsel for the Revision Petitioner/A3 submits that the Respondent/Inspector of Police, Uchipuli Police Station, filed a petition in Cr.M.P.No.3050 of 2012, praying for Cancellation of Bail granted by the Learned Principal Sessions Judge in Cr.M.P.No.2864 of 2012 on 31.10.2012 and in the conditional Bail order granted in favour of the Petitioner/A3, he has been directed to appear before the Respondent police/Police Station daily at 10.00 a.m. until further orders. Further, the Learned Principal Sessions Judge, Ramanathapuram, has granted conditional Bail to the Petitioner/A3 taking note of his age, period of detention and absence of overt act against him, but, has cancelled the said Bail order even though no serious objection has been made on the side of the prosecution.
4.That apart, the Learned counsel for the Petitioner/A3 brings it to the notice of this Court that the Defacto Complainant has filed an intervener application in Cr.M.P.No.3203 of 2012 before the Learned Principal Sessions Judge, Ramanathapuram and that in law, the Complainant cannot file any intervener application. Furthermore, on the petition for cancellation of Bail filed in Cr.M.P.No.3050 of 2012 by the Respondent/Police, the conditional Bail granted in Cr.M.P.No.2864 of 2012 dated 31.10.2012 by the Learned Principal Sessions Judge, Ramanathapuram has been cancelled.
5.At this stage, the Learned counsel for the Petitioner/A3 submits that on 02.11.2012 to 09.11.2012, the Petitioner/A3 has been admitted into Seyad-Sathya Hospital at Ramanathapuram and from 10.11.2012 to 21.11.2012, the Petitioner/A3 has been admitted into Vijaya Heart Foundation Hospital at Chennai as an inpatient. Also, the Petitioner/A3 sent a telegram on 11.11.2012 and also issued a communication by Registered post to the Respondent/Inspector of Police from Hospital and since he has been bedridden, he sent telegram and postal communication to the Police and on 11.11.2012, the telegram has been received by the Respondent Police and the letter sent by 'Registered Post with Acknowledgment Due' to the Respondent/Police has been received on 14.11.2012. On 19.11.2012, the Petitioner's body has been examined through scan and it has been found that he has four major blocks in his Heart and he has been advised to go for surgery-Angioplasty and right from 22.11.2012 till 24.11.2012, he has been advised to take treatment and in a separate Hospital viz., Rakshita Hospital in Chennai, he has taken treatment for intestine care and got discharged on 25.11.2012. But, these facts have been reported to the Respondent/Police on 23.11.2012 through telegraphic communication. Finally, on 25.11.2012, he has been re-admitted in Vijaya Heart Foundation Hospital for Angioplasty treatment and another telegram has been sent from the Vijaya Heart Foundation Hospital on 26.11.2012 to the Respondent/Police. Also, on the same day, he continued his treatment in the said Hospital as an inpatient. In the meanwhile, the Respondent/Police before the Learned Principal Sessions Judge, Ramanathapuram, on 09.11.2012, filed a petition in Cr.M.P.No.3050 of 2012, praying for Cancellation of Bail and the Learned Principal Sessions Judge has allowed the said application on 03.12.2012.
6.The Learned counsel for the Petitioner brings it to the notice of this Court that the Petitioner/A3 has come out on Bail on 02.11.2012, since the sureties have been executed on 01.11.2012. Continuing further, it is the contention of the Learned counsel for the Petitioner/A3 that in Cr.M.P.No.3050 of 2012, that a detailed counter has been filed by the Accused prior to his operation and that the date for operation for Angioplasty has been fixed on 28.11.2012, but, on the said date, the operation has not been conducted and another date has been given to him.
7.According to the Learned counsel for the Petitioner/A3 that the Petitioner/A3 has filed the modification petition on 02.11.2012 in regard to the conditional order of Bail granted in Cr.M.P.No.2864 of 2012 by the trial Court and in Cr.M.P.No.2864 of 2012, the Petitioner/A3 has not narrated/described his medical condition. On 09.11.2012, the Petitioner/A3 filed Cr.M.P.No.3045 of 2012 to stay the operation of the conditional Bail order (7 days later to the filing of modification petition). Hence, in the said petition, he has narrated his medical history.
8.In this connection, it is the stand of the Revision Petitioner/A3 that the Complainant has filed an intervener application and in fact, the Petitioner/A3 has been admitted into the Hospital on 25.11.2012 and the document relied on by the intervener shows the Petitioner/A3's readmission and in the instant case, it cannot be said that the Petitioner/A3 has not complied with the condition granted by the trial Court in Cr.M.P.No2864 of 2012 dated 31.10.2012. Moreover, it is the plea of the Petitioner/A3 that earlier, he has not obtained Bail citing health condition.
9.It is the contention of the Learned counsel for the Petitioner/A3 that the fault does not lie on the Revision Petitioner/A3 and purely on medical grounds alone, he has not followed the condition and also that in the cancellation of Bail petition, there is no reference to the tampering of the witnesses by the Petitioner/A3.
10.The Learned counsel for the Petitioner puts forward a legal plea that only when supervening circumstances exists in a given case, the Bail granted by the concerned Court can be cancelled, by a competent Court, because of the fact that the release of a person on Bail deals with the 'Liberty of an individual'.
11.The submission of the Learned counsel for the Petitioner/A3 is that only in rarest of rare cases, Bail is to be cancelled and in the present case, there is no misuse of liberty, no tampering of evidence and also there is no threatening of witnesses by the Petitioner/A3.
12.At this juncture, the plea of the Learned counsel for the Petitioner/A3 is that the Inspector of Police has not alleged any threat of witnesses in the Petition for Cancellation of Bail and only at the time of hearing the arguments, it might have been represented before the trial Court that there is a threat of witnesses.
13..The categorical stand taken by the Petitioner/A3 is that even if there is a violation of the condition imposed by the trial Court in Cr.M.P.No.2864 of 2012 dated 30.10.2012, then that cannot also be a ground for Cancellation of Bail granted earlier. Moreover, the violation must be clubbed with the further act of the Accused like in the form of threatening witnesses or in the form of hampering the investigation or involving in some other crime while he is on Bail.
14.The Learned counsel for the Petitioner/A3 submits that the Petitioner/A3 after being released on conditional Bail on 30.10.2012 immediately suffered Heart Attack and he got himself admitted into Vijaya Heart Foundation Hospital at Chennai and as far as the Petitioner/A3 is concerned, there is no misuse of liberty of Bail. As such, the contra view taken by the Learned Principal Sessions Judge in allowing the Cancellation of Bail petition and rejecting the modification petition filed by him is not correct in the eye of law.
15.In support of the proposition that there must be cogent and overwhelming reasons for Cancellation of Bail order, the Learned counsel for the Petitioner/A3 relies on the judgment in L.Krishna Reddy Vs. State, rep. by Inspector of Police, Muthialpet Police Station, Pondicherry and Another reported in 2007(1) MLJ (Crl) 200 at page 201, wherein, it is observed that "the Court cannot consider the merits and demerits of the materials available on record and also opined that to consider the main materials only for specific purpose to find out whether prima facie case is made out for granting Bail or not, two paramount consideration for grant of Cancellation of Bail are to be looked into viz., (i) likelihood of the Accused fleeing from justice; and (ii) tampering with prosecution evidence during the period he was on Bail. Also, it is observed that there is no whisper about any alleged tampering with the witness by Accused during this period and as such, the Bail granted by Sessions Court has not been interfered with.
16.He also cites the decision of the Hon'ble Supreme Court in Mehboob Dawood Shaikh V. State of Maharastra reported in 2004(1) Crimes 344, (SC) wherein, it is held 'that a mere assertion of an alleged threat to witnesses should not be utilised as a ground for Cancellation of Bail, routinely and further it is laid down that a Court before which such allegations are made should in each case carefully weigh acceptability of allegations and pass orders as circumstances warrant in Law, and that such matters should be dealt with expeditiously so that actual interference with ordinary and normal course of justice is nipped at the bud and an irretrievable stage is not reached'.
17.In addition to the aforesaid two decisions, the Learned counsel for the Petitioner/A3 cites the decisions of Hon'ble Supreme Court reported in Dolat Ram and others reported in 1995(1) SCC 349 at special page 350 and 351, wherein, in paragraph 4, it is held as under:
"Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are : interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the Court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted."
18.The Learned counsel for the Petitioner/A3 submits that the Criminal Revision Petition (MD) No. 596 of 2012 has been filed against the order passed by the trial Court in allowing the intervener petition in Cr.M.P.No.3203 of 2012 filed by the first Respondent/3rd Party, wherein, he has requested the trial Court that he be permitted to assist the prosecution and in fact, the intervener has to argue his case in support of the Investigation Officer and since the intervener application in Cr.M.P.No.3203 of 2012 filed by the first Respondent has been allowed by the Trial Court, Crl.R.C.(MD) No.596 of 2012 has been projected before this Court.
19.The Learned counsel for the Petitioner/A3 contends that Crl.R.C.(MD) No.597 of 2012 is filed by the Petitioner/A3 against the dismissal of Cr.M.P.No.2955 of 2012 (praying for modification of the Bail condition imposed by the trial Court in Cr.M.P.No.2864 of 2012) and in fact the Petitioner/A3 is ready and willing to abide by any condition even to reside at Chennai. Also, the plea taken on behalf of the Petitioner/A3 is that immediately after the grant of conditional Bail on 30.10.2012, the next day, the Petitioner/A3 filed a modification petition dated 02.11.2012 in Cr.M.P.No.2955 of 2012 and only with a genuine endeavour because of his health condition, the Petitioner/A3 has prayed for modification of the original conditional order of Bail granted by the trial Court in Cr.M.P.No.2864 of 2012.
20.Proceeding further, the Learned counsel for the Petitioner/A3 also submits that after the cancellation of Bail of the Petitioner/A3, Non Bailable Warrant has been taken by the Inspector of Police, Uchipuli Police Station and the Investigation Officer has visited the Vijaya Heart Foundation Hospital at Chennai, where the petitioner/A3 has been taking treatment and at Chennai, the Investigating Officer/Respondent Police raised an objection with the senior Doctor showing the Non Bailable Warrant of the Petitioner/A3 and an Ambulance has been made ready and the Petitioner has been put in a Stretcher and the Investigating Officer has taken the Petitioner from Madras and because of his serious health condition, now he is admitted into the Government Rajaji Hospital and on 10.12.2012, he has been shifted to Intensive Care Unit and his condition is critical.
21.Per contra, it is the submission of the Learned Government Advocate (Criminal Side) appearing for the respondent Police/State that the Petitioner/A3 has been doing Real Estate business and the problem has arisen when part of the loan could not be handed over to the other parties and as per the investigation made by the Respondent/Police, the Petitioner/A3 has still some interest and nexus over the property. Furthermore, there has been a dispute between the Revision Petitioner and Malaikallan, the only survivor in the family of the sixth deceased family.
22.The Learned Government Advocate (Criminal side) submits that the Learned Principal Sessions Judge, Ramanathapuram has granted a conditional Bail to the Petitioner/A3 in Cr.M.P.No.2864 of 2012 on 31.10.2012 not on account of any medical ground or his ill health and there has been no complaint or any chanCe for the Defacto Complainant to attack or kill the Petitioner/A3. Moreover, there is no truth in the plea of the Petitioner that he has been unable to appear before the Police Station to abide the Bail condition. As a matter of fact, the Petitioner/A3's health condition is exaggerated to mainly with a view to avoid the ordeal of coming to the Police Station to sign daily.
23.According to the Learned Government Advocate (Criminal Side) appearing for R2, the Petitioner/A3 is a rich person and that the only survivor of the deceased family is working as a labourer. Besides this, he brings it to the notice of this Court that the Respondent Police filed a petition in Cr.M.P.No.3050 of 2012 before the Learned Principal Sessions Judge, Ramanathapuram, praying for Cancellation of Bail granted to the Petitioner and that the Cancellation of Bail has been ordered by the Learned Principal Sessions Judge on 03.12.2012.
24.Also that, the Learned Judicial Magistrate No.2, Ramanathapuram issued Non Bailable Warrant against the Petitioner/A3 on 04.12.2012 and was arrested on 06.12.2012 and produced before the Learned Judicial Magistrate No.2, Ramanathapuram on 07.12.2012 and that he was remanded to judicial custody and now he is a remand prisoner at Madurai Central Prison.
25.It is to be pointed out that the power to cancel a Bail vests in the Court that granted it as per decision Sadashiv (1989) 22 Bom 549. Further, when a person is involved in a heinous offence punishable with death or imprisonment for life, the Court is not expected to be unduly influenced by the 'Concept of Liberty' discarding the evidence of the case as per decision Narasimha Murthy V. State 1991 Crl.L.J. 3205 at 3207 (Kant).
26.As a matter of fact, the power of Cancellation of Bail must be exercised with care and circumspection and only in proper case as per decision of the Honourable Supreme Court in Delhi Administration V. Sanjay Gandhi AIR 1978 SC 961, wherein, it is held as under:
"Rejection of bail when bail is applied for is one thing, cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances,. It would be no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over. The objective fact that witnesses have turned hostile must be shown to beat a casual connection with the subjective involvement therein of the accused. Without such proof, a bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won over by the accused. Inconsistent testimony can no more be ascribed by itself to the influence of the accused than consistent testimony, by itself, can be ascribed to the pressure of the prosecution."
27.An Accused's conduct subsequent to the grant of Bail application and supervening circumstances are alone relevant as per decision State through Central Bureau of Investigation V. Amarmani Tripathy 2005 Crl.L.J. 4149 at special page 4154, 4155 (SC).
28.If there is no violation of terms of the order granting Bail/anticipatory order, Cancellation of Bail is not justified as per decision in D.Chandran V. State of Assistant Commissioner of Police, Madras 1997 Crl.L.J. 1945 (Madras). The Cancellation of Bail will jeopardise the personal liberty of a person as per decision in Justin D. Cunha V. State 2002(3) Crimes 249 Bom.
29.It is to be borne in mind that Cancellation of Bail necessarily involves the review of decision already made and can by and large be permitted only, if by reason of supervening circumstances, it would no longer conducive to a fair trial to allow the Accused to retain his freedom during trial. It cannot be gainsaid that notice to Accused before Cancellation of Bail is a must as per decision Indirakumar V. State reported in 1990(3) Crimes 674 at 676 (Madras).
30.Also that, notice to the Accused is not necessary when he fails to appear before this Court in pursuance of the undertaking given by him in the security bond granted. One cannot ignore a vital fact that Bail can be cancelled only on very cogent grounds. The grounds for cancellation of Bail are interference or an endeavour to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner.
31.The grounds for cancellation of Bail should be those which arose after the grant of Bail and should be referable to the conduct of the Accused while on Bail as per decision in Nityananda Roy V. State of Bihar reported in 2005 Crl.L.J.2187 at 2189 (S.C.). In support of the Cancellation of Bail Affidavit filed by the concerned Police Officer may be received and considered and the affidavits cannot be considered as 'Hear Say' evidence, as opined by this Court.
32.The power of the High Court in regard to the Cancellation of Bail is stated in the decision of Hon'ble Supreme Court in Gurcharan Singh V. State (Delhi Administration) reported in (1978) 1 SCC 118, whereby and where under, it is laid down as follows:
"Section 437(1), Cr.P.C. 1973 takes care of the situation arising out of an accused being arrested by the police and produced before a Magistrate. While Section 497(1), Cr. P.C. Of the old Code, in terms, refers to an accused being "brought before a Court", Section 437(1) Cr.P.C. uses the expression "brought before a court other than the High Court or a Court of Session". This change does not affect the true legal position. What has been the rule of production of accused person after arrest by the police under the old Code has been made explicity clear in Section 437(1) of the new Code by excluding the High Court or the Court of Session. There is no provision in the Code whereby the accused is for the first time produced after initial arrest before the Court of Session or before the High Court.
`The principle underlying Section 437 is towards granting of bail except in cases where there appear to be reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life and also when there are other valid reasons to justify the refusal of bail. From sub-section (1) to sub-section (7) the change is from 'reasonable grounds for believing the accused guilty' to 'reasonable grounds for believing the accused not guilty'. At the stage of Section 437(1) the limited enquiry before the Magistrate relates to materials for basing the suspicion.
Since the Sessions Judge or the High Court will be approached by an accused only after refusal of bail by the Magistrate, it is not possible to hold that the mandate of the law of bail under Section 437, Cr.P.C. for the Magistrate, namely, considerations of likelighood of the accused being guilty of an offence punishable with death or imprisonment for life, will be ignored by the High Court or the Sessions Judge.
Under Section 439(1) the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail. The over-riding considerations in granting bail which are common both in the case of Section 437(1) and Section 439(1), of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out. Of these, on the two paramount considerations, viz., likelihood of the accused fleeing from justice and his tampering with prosecution evidence relate to ensuring a fair trial of the case in a Court of justice, due and proper weight should be bestowed.
(2)The question of cancellation of bail under Section 439(2) of the new Code is certainly different from admission to bail under Section 439(1). The approach is whether the order granting bail was vitiated by any serious infirmity for which it was right and proper for the High Court, in the interest of justice, to interfere. Ordinarily the High Court will not exercise its discretion to interfere with an order of bail granted by the Sessions Judge in favour of an accused.
Under Section 498(2) of the old Code, a person who had been admitted to bail by the High Court could be committed to custody only by the High Court. Similarly, if a person was admitted to bail by a Court of Session, it was only the Court of Session that could commit him to custody. This restriction upon the power of entertainment of an application for committing a person, already admitted to bail, to custody, is lifted in the new Code under Section 439(2). under Section 439(2) of the new Code, a High Court may commit a person released on bail under Chapter XXXIII by any Court including the Court of Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court. If, however, a Court of Session had admitted an accused person to bail, the State has two options. it may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those which already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a- vis the High Court.
Comparing provisions of Section 397(3) with Section 435(1) and (4) of the old Code, the High Court has undoubtedly jurisdiction to entertain the application under Section 439(2), Cr.P.C. for cancellation of bail notwithstanding that the Sessions Judge had earlier admitted the appellants to bail.
However there cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail."
33.The power under Section 439(2) of Cr.P.C. is to be used with care and caution as per decision of Hon'ble Supreme Court in Delhi Administration V. Sanjay Gandhi AIR 1978 SC 961 When there are good grounds for cancelling the Bail, a Court of Law has to pass a judicial order in terms of Section 439 of Cr.P.C., directing that person to be arrested and committed custody. On Cancellation of Bail and on being arrested and committed to custody, a direction must be given for discharging both the personal bond and surety bond. It is legally not possible to cancel one of the two and keep the other alive and operative as per decision in Ram Shankar V. State reported in 1990 Crl.L.J. 2519 (All - DB).
34.It will not be in accordance with law to direct for the purpose of committing to custody a person who has been released on Bail that the Bail is suspended and only the personal bond executed by him is cancelled and surety bond furnished is not cancelled. It is only the Public Prosecutor who can file application for Cancellation of Bail granted to the Accused. The complainant's relatives or persons interested in the deceased have no locus-standi to file an application for Cancellation of Bail as per decision in Sardela Damodar V. State of Andhra Pradesh reported in 1998 Crl. L.J. 277, 283 (A.P.)
35.At this juncture, this Court deems it appropriate to quote the decision of Gauhati High Court in Khagendra Nath Bayan and another V. The State of Assam, Opposite Party reported in 1982 Crl.L.J.2109, wherein, it is held as follows:
"The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection in appropriate cases, when by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. The Court has to strike a balance between two necessities, namely, necessity of not allowing the course of justice to be deflected and that of allowing liberty to the accused until he is found guilty. In the impugned order of the Sessions Judge cancelling the bail there is no discussion about any supervening circumstances like abuse of liberty, tampering with witnesses, absconding etc. The impugned order must, therefore, be set aside. 1978 Crl.L.J. 129(SC) and 1978 Crl.L.J. 952 (SC) Followed."
Also, the power to cancel Bail is also stated in the following decision of the Madras High Court in State V. Veerapandy and others reported in 1979 Crl.L.J.455, wherein, it is held as follows:
"The relevant factor which should be taken by the court into consideration for cancellation of bail is to see whether from the affidavit filed by the prosecution has the prosecution by the preponderance of probability, made clear whether the accused are interfering with the course of justice by tampering with witnesses or have contravened the conditions imposed on them and thereby abused the liberty granted by court. It is no doubt true that when the accused have been let off or enlarged on bail, courts have to be careful and cautious in exercising power of taking back the accused in custody unless there is a reasonable apprehension that the accused would interfere and pollute justice which warrants the cancellation of bail.
Where it was made clear by the affidavit filed by the Inspector of Police that the accused had not only contravened the conditions imposed on them while granting bail but were trying to see that the sole eye witness viz., the some of the deceased, was either kidnapped or was also finished so that no evidence was available for the prosecution to substantiate their case, the bail must be cancelled."
36.In fact, Section 437 of Cr.P.C., presupposes that principle of Bail is not to be misused in any manner, since grant of Bail in Non Bailable offence is a concession to Accused as per decision in Emperor V. Jiwan Lal Gauba reported in AIR 1936 Lahore 730. No wonder an order of Bail is a judicial act. Furthermore, the word 'Appear' means 'physical appearance' and not through pleader as per decision in Sagri Bhagat and others V. The State of Bihar reported in AIR (38) 1951 Patna 497 (C.N.38). Indeed, a Court of Law should consider the probability of Accused appearing to take trial and not his supposed guilt or innocence.
37.It is the categorical stand of the Petitioner/A3 that even though Bail has been granted to him by the Learned Principal Sessions Judge, Ramanathapuram in Cr.M.P.No.2864 of 2012 on 31.10.2012, he has produced the surety bond on 01.11.2012 and has come out of the jail. On 02.11.2012, he has filed the modification petition in Cr.M.P.No.2955 of 2012, wherein, he has requested the Learned Principal Sessions Judge, Ramanathapuram, to modify the conditional Bail granted in Cr.M.P.No.2864 of 2012 dated 31.10.2012. According to the Petitioner/A3 in the said modification petition, he has expressed his apprehension endangering his life and limb and that the Defacto Complainant had stated that he would kill the petitioner while coming for complying the condition. On 02.11.2012 after filing of Cr.M.P.No.2955 of 2012, he suddenly incurred Heart Attack. As per the stand taken by him, from 02.11.2012 to 09.11.2012, he has been admitted into Sathya Hospital, Ramanathapuram and only on 09.11.2012, he has filed a Miscellaneous Petition for stay of the operation of the conditional order of Bail granted to him in Cr.M.P.No.3045 of 2012.
38.From 10.11.2012 to 21.11.2012, the Petitioner was admitted into Vijaya Heart Foundation Hospital, Chennai. It is the case of the Petitioner/A3 that he sent telegram on 11.11.2012 on registered post to the Respondent/Police mentioning his medical treatment. The Respondent/Police received telegram on 11.11.2012, even the communication sent by the Petitioner/A3 was received by the Respondent Police on 14.11.2012. On 19.11.2012, according to the Petitioner/A3, on Angioplasty scan, it was found out that in four places there were blocks in his Heart and from 22.11.2012 to 24.11.2012, he took continuous treatment, for his damage to the intestine, the treatment taken at Rakshitha Hospital, Chennai. Again, on 23.11.2012, the petitioner sent a telegram and registered post communicated to the Respondent Police intimating his whereabouts and on 25.11.2012, he was admitted into Vijaya Heart Foundation Hospital, Chennai for Angioplasty treatment. On 26.11.2012, he sent telegram and communication through registered post to the Respondent/Police intimating about the said fact of his admission into the Hospital and his Angioplasty treatment. On 03.12.2012, Angioplast operation was performed on him and from 25.11.2012 he was in the Hospital as an in patient.
39.A perusal of Cr.M.P.No.3050 of 2012 (filed by the respondent Police praying for Cancellation of the Bail granted to the petitioner in cr.M.P.No.2864 dated 31.10.2012) shows that the request for Cancellation of Bail was sought on the ground that the Petitioner/A3 had not appeared before the Police Station ever since, he came out on Bail. The sworn affidavit filed by the respondent Inspector of Police was dated 09.11.2012.
40.The Petitioner/A3 filed typed set of Papers (Vol-2) and a perusal of the same shows that on 30.05.2000, the Petitioner took X-ray, Scan and there was an ECG report and also he filed the inpatient case sheet dated 02.11.2012, Medical Bills, Echo report of various dates etc. He produced a discharge summary dated 21.11.2012. A perusal of the discharge summary shows that the Petitioner/A3, was admitted into Vijaya Heart Foundation Hospital (Vijaya Medical and Educational Trust) on 16.11.2012 and discharged on 21.11.2012.
41.It transpires that the Petitioner/A3 was recently detected to be hypertensive, presented with history of dyspnea on exertion (class II) since 1 year, progressed and associated with episodic chest pain since 4 days and giddiness. He underwent surgery for hernia & hydrocele in the past (details not available). On examination, patient, conscious, oriented, obese with pulse rate of 90/min, BP 180/110 mm Hg. Systemic examination was clinically normal. Trop T was negative. ECG revealed sinus rhythm, Q in LIII, aVF, ST size & systolic function (EF 71%) with mild diastolic dysfunction and normal RV function. USG abdomen revealed fatty pancreas and bilateral mildly increased renal sinus echoes. Chest X ray (bed side) revealed grade II pulmonary venous hypertension. He was stabilized with NTG, heprain, antiplatelets, betalblockers, antihypertensives and other supportives. After stabilization, he underwent coronary angiography on 19.11.2012. The study revealed right dominant system, severe LAD and LCX disease, borderline distal RCA disease. In view of the above findings, he was advised PCI versus CABG surgery. His post procedure period was uneventfu. He is being discharged with the following advice and medications etc. Finally, was requested to review with Dr. P.Mahesh Babu for PCI at VHF OPD with prior appointment.
42.Also, on 03.12.2012, a certificate from the Vijaya Heart Foundation Hospital at Chennai was produced by the Petitioner/A3 in the Vol-II of typed set of papers from which, it was seen that the Petitioner/A3 was stabilised for severe diarrhea and also he underwent Angioplasty and stenting to LAD on 03.12.2012.
43.The crucial aspect to be considered as a point for rumination by this Court is that whether the Learned Principal Sessions Judge, Ramanathapuram is correct in allowing the Cr.M.P.No.3050 of 2012 filed by the Respondent Police for Cancellation of Bail granted to the petitioner in Cr.M.P.No.2864 of 2012. Also, it is to be looked into whether the modification petition in Cr.M.P.2955 of 2012 filed by the Petitioner/A3 has been dismissed by the Learned Principal Sessions Judge on 03.12.2012 rightly.
44.The Learned counsel for the Petitioner/A3 made a strenuous endeavour before this Court in submitting that the Petitioner/A3, only because of Heart Ailment and because of health condition, was prevented from abiding condition imposed by the Learned Principal Sessions Judge in Cr.M.P.2864 of 2012 and inasmuch as he underwent some tests at the Vijaya Heart Foundation Hospital at Chennai and also underwent Angioploasty and stenting treatment etc., he was not in a position to follow the condition in true letter and spirit. In short, according to the Petitioner/A3, there was no willful disobedience on his part in regard to the conditional Bail order passed by the Learned Principal Sessions Judge, Ramanathapuram in Cr.M.P.No.2864 of 2012.
45.It is true that the Petitioner has some ailments relating to his health condition etc. But when he sent intimation through telegram and by registered post to the Inspector of Police, Uchipuli Police Station about the fact that he was admitted into the Hospital and his treatment etc., then nothing prevented him from contacting his Lower Court counsel by himself or through his representative agent and appraising him by whatever means as to the nature of his ailment and treatment taken by him at the Hospital. Though the Petitioner/A3 filed a modification petition in Cr.M.P.No.2955 of 2012, wherein, he sought for change of condition originally being imposed by the trial Court, the fact remains that he had not abided the condition imposed by the trial Court in Cr.M.P.No.2864 of 2012 in and by which, he was to appear before the Police Station to sign daily. In fact the Petitioner/A3 was reported to be ailing even ever since 05 of 2000 as per X-ray and ECG Report as mentioned by the Petitioner in his Vol-2 of the typed set of papers dated produced before this Court.
46.Suffice it for this court to point out that the Petitioner/A3 was sick/ailing from 05 of 2000 and was taking treatment, then it cannot be said at a later point of time that he suddenly suffered Heart Attack after projecting the modification petition in Cr.M.P.No.2955 of 2012 and was admitted as inpatient and subsequently took treatment at Vijaya Heart Foundation Hospital and also underwent Angioplasty and stenting treatment etc. and to put it shortly, his Ailment and period of detention etc. could not be projected as an excuse/ruse on his side for not adhering to or abiding the condition imposed by the Learned Principal Sessions Judge in Cr.M.P.No.2864 of 2012, in the considered opinion of this Court. Further, when he had not obeyed the condition imposed on him as per order dated 31.10.2012 in Cr.M.P.No.2864 of 2012 imposed by the Learned Principal Sessions Judge, Ramanathapuram, then, it is a clear cut case of violation of the terms of the conditional order of granting Bail in Cr.M.P.No.2864 of 2012, and as such, the Learned Principal Sessions Judge, Ramanathapuram is very much justified in allowing the application for Cancellation of Bail as per order dated 03.12.2012 in Cr.M.P.No.3050 of 2012, based on the facts and circumstances encircling the case.
47.That apart, although the Petitioner/A3 has not obtained Bail in his favour in Cr.M.P.No.2864 of 2012 as per order dated 31.10.2012 on the ground of Medical Certificate of Heart Ailment and other Ailments, yet the fact remains he cannot be permitted to violate the condition imposed in Cr.M.P.No.2864 of 2012 with impunity. Furthermore, the Petitioner/A3's Heart Ailment and other Ailments may not confer any premium or lever on his part to flout the orders of conditional Bail granted in his favour in Cr.M.P.No.2864 of 2012 dated 31.10.2012. In any event, those factors will not come to his rescue or aid in view of the fact that a Court of Law is to uphold the majesty of Law and cannot permit any one much less the Petitioner/A3 to escape from the predicament that he is in.
48.Coming to the aspect of the intervener petition filed in Cr.M.P.No.3203 of 2012, it comes to be known that the said petition has been closed by the Learned Principal Sessions Judge, Ramanathapuram, when dismissed the petitions in Cr.M.P.Nos.2955 of 2012 (modification of conditional Bail) and 3045 of 2012 (to stay the operation of conditional Bail order) and allowed the petition in Cr.M.P.No.3050 of 2012 filed by the Police seeking cancellation of bail. It is to be pointed out that in Cr.M.P.No.3203 of 2012, there is no whisper about the tampering of witnesses or there is a chance of tampering the witnesses by the Petitioner/A3 etc. However, the intervener is the last person of his family members and in fact in a criminal prosecution initiated by the State, if an intervener is permitted to take part, he can at best only assist the prosecution case, in the considered opinion of this Court. Further, if the request of the intervener seeking permission of the Court to assist the prosecution etc., is not acceded to by the Learned Principal Sessions Judge, Ramanathapuram, then in Law, the intervener is only the aggrieved person to file Revision Petition. As such, the Revision Petition filed by the Revision Petitioner in regard to Cr.M.P.No.3203 of 2012, viz., Crl.R.C.No.596 of 2012 is not maintainable, in the considered opinion of this Court.
49. It is to be taken into account that it is the case of the Prosecution that on 01.12.2011, due to land dispute, the Petitioner/A3 in Cr.M.P.No.2864 of 2012 and other Accused unlawfully assembled with the common intention to kill the deceased Karuppiah and his family members setting fire his hut in which the deceased Karuppiah and 5 of his family members while sleeping in the hut and murdered them and thereby committed the aforesaid offence. Out of the total nine accused, who were arrested and remanded to custody by the Inspector of Police, Uchipuli Police Station, only the Petitioner/A3 was originally released on conditional Bail and one of the conditions was that he should sign at Uchipuli Police Station daily at 10.00 a.m. until further orders.
50.The Learned counsel for the Petitioner/A3 made a persistent plea before this Court that the Petitioner/A3 is an old person and there was no direct overt act against him and the Learned Principal Sessions Judge, Ramanathapuram granted Bail to the Petitioner/A3 only when the Public Prosecutor had no serious objection to the grant of Bail to the Petitioner/A3 and as such, subsequently when the Petitioner's health condition was not alright that only prevented him from not following the Bail condition originally imposed by the Learned Principal Sessions Judge in Cr.M.P.No.2864 of 2012 dated 31.10.2012 cannot be made in a routine or in an automatic fashion, when there are enough grounds and bonafide reasons which hampered the Petitioner/A3 in not following the condition as stated earlier.
51.At this stage, this Court points out that the conditional Bail order granted by the Learned Principal Sessions Judge in Cr.M.P.No.2864 of 2012 cannot be taken advantage of by the Petitioner/A3 (notwithstanding the fact that there was no direct overt act against him) because of the simple reason that if the Petitioner had not followed the condition of appearing before the Uchipuli Police Station at 10.00 a.m. Daily until further orders, then that order cannot be flouted in a cavalier fashion or in a whimsical fashion, or even under the guise of his Health condition by the Heart Ailment or other Ailments, in the considered opinion of this Court. Ordinarily the concept of 'Bail or Jail' is a blurred area of criminal jurisprudence, where the competent Court or the concerned Judge exercises his judicial discretion in regard to the grant or refusal of Bail based on the facts and circumstances encircling the case. Merely because the Public Prosecutor has no serious objection to the grant of Bail to the Petitioner/Accused as stated in the order in Cr.M.P.No.2864 of 2012 dated 31.10.2012 cannot be the yardstick or negotiating factor which can initiate the Court in regard to the grant of Bail.
52.To put it succinctly, the concerned Court or the Learned Principal Sessions Judge, while granting or refusing the Bail will have to take into account all the facts and circumstances of the case, in a cumulative fashion and also to adopt a dispassionate and independent approach while dealing with the Bail application. Of course while deciding the Bail application it is not necessary for the concerned Court/Learned Principal Sessions Judge to go into the detail examination or merits of the matter in threadbare. But, necessarily, the concerned Court of the Learned Principal Sessions Judge has to take into account the necessary and just vital facts which are germane to the just decision of the grant or refusal of the Bail petition as the case may be depending upon the facts and circumstances governing the given case.
53.It is true that the Bail originally granted cannot be annulled or cancelled or varied in a casual manner. As stated already, cogent convincing reasonable and genuine reasons are to be furnished by the concerned Court when it decides the Cancellation of Bail. In the instant case on hand, the Petitioner/A3 by not abiding or adhering to the condition prescribed in the Bail order in Cr.M.P.No.2864 of 2012 dated 31.10.2012 had not obeyed the condition imposed in Cr.M.P.No.2864 of 2012 bonafide which perforced the Respondent/Police to file Cr.M.P.No.3050 of 2012 for Cancellation of Bail. In fact, he acted detriment to his interest in not adhering to the condition imposed by the Learned Principal Sessions Judge in Cr.M.P.No.2864 of 2012. His Heart Ailment, Medical treatment, intestine cate etc. will not come to Petitioner/A3's side when he wants to fly/escape from the arms of justice in not abiding the condition imposed in Cr.M.P.No.2864 of 2012 by the Learned Principal Sessions Judge, Ramanathapuram.
54.Suffice it for this Court to point out that when the Petitioner/A3's conduct in not abiding the condition imposed by the Principal Sessions Judge, Ramanathapuram (although reason assigned on his side that he was medically prevented from following the condition etc.) could not be an excuse or ruse in regard to the predicament/plight that he is in, in the considered opinion of this Court. In short, the purported medical treatment taken by the Petitioner/A3 at the Vijaya Heart Foundation Hospital and Angioplasty and stenting performed on him could not come to his aid when he had disobeyed the orders of the Learned Principal Sessions Judge as opined by this Court.
55.Looking at from any angle, as on date based on the issuance of Non Bailable Warrant against the Petitioner/A3, he was arrested on 06.12.2012 and produced before the Learned Judicial Magistrate No.2, Ramanathapuram on 07.12.2012 and he is in judicial custody. Now, he is admitted into the Government Rajaji Hospital, Madurai and he is taking treatment as inpatient in the Intensive Care Unit.
56.In the light of qualitative and quantitative discussions mentioned aforesaid, the Criminal Revision Petitions san merits. In the result, the Criminal Revision Petitions are dismissed. Consequently, connected miscellaneous petitions are also dismissed.
Arul To
1.The Principal Sessions Judge, Ramanathapuram.
2.The Inspector of Police, Uchipuli Police Station Ramnad District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.