Madras High Court
Subramanian @ Ravi Subramanian vs State Represented By on 16 December, 2013
Author: C.T.Selvam
Bench: C.T.Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 16.12.2013 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM Crl.O.P.No.32406 of 2013 Subramanian @ Ravi Subramanian .. Petitioner Vs State represented by Inspector of Police, E-5, Pattinapakkam Police Station, Chennai. Crime No.859 of 2002 .. Respondent Criminal Original Petition filed under section 482 of Criminal Procedure Code to direct the release of the petitioner/approver on bail in S.C.No.500 of 2005 on the file of the I Additional Sessions Judge, Chennai. For Petitioner : Mr.Shanmugasundaram, Senior counsel for Mr.V.Purushothaman For Respondent : Mr.C.Emalias, Additional Public Prosecutor O R D E R
The petitioner, who was treated as an approver in case pending trial in S.C.No.500 of 2005 on the file of learned I Additional Sessions Judge, Chennai, seeks his release on bail.
2. The prosecution case is that on 20.09.2002 at about 07.30 p.m., the de facto complainant was set upon and attacked by two persons wielding knives, within his residence. The de facto complainant suffered cut injuries to the right forearm at the hands of one of the assailants. The other caused bleeding injury to the left hand of the de facto complainant's wife. The domestic help of the de facto complainant has also suffered cut injuries at the hands of both assailants. The accused were charged for offences under Sections 120-B, 450, 326, 307 r/w 34 IPC. According to the prosecution, the first accused in the case sought a photograph of the de facto complainant from A3 and this petitioner having obtained such photograph from A3 had handed over the same to A5. Further, this petitioner had introduced A4 and A5 to A1.
3. The petitioner has been granted pardon under Section 306 Cr.P.C. by learned XI Metropolitan Magistrate, Saidapet, Chennai. He was examined before learned XXIII Metropolitan Magistrate, Saidapet, Chennai, in P.R.C.No.103 of 2005 on 11.08.2005 and 02.09.2005. After committal, the trial in S.C.No.500 0f 2005 commenced on 20.02.2012. The petitioner was examined as PW-2 on 03.07.2012 and 13.07.2012. He has been treated hostile by the prosecution and his cross-examination was concluded on 13.07.2012. So far, 24 out of 81 witnesses shown in the charge sheet have been examined. The petitioner is now seeking relief of bail in exercise of powers under Section 482 Cr.P.C.
4. Learned senior counsel for petitioner submits that though there was a bar under Section 306(4)(b) Cr.P.C. against release of the petitioner, who has been treated as an approver, on bail, since such provision requires his detention in custody until the termination of the trial, the same would not bar the grant of relief of bail in exercise of inherent powers under Section 482 Cr.P.C. Learned senior counsel further submitted that the purpose of requiring an approver to be detained in custody already stood served since the examination of the petitioner as a witness stood completed. The prosecution having treated him as hostile, there was not much likelihood of the petitioner coming to harm at the hands of the accused persons. Where the petitioner himself has come forward seeking relief of bail, his right thereto could not be denied on technicalities. In support of his contentions, learned senior counsel placed reliance on the following judgments:
(i)Suresh Chandra Bahri v. State of Bihar [1995 Supp (1) SCC 80];
(ii)Prem Chand v. State [1985 Cri. L.J.1534];
(iii)Noor Taki alias Mammu v. State of Rajasthan [ 1986 Cri. L.J.1488];
(iv)Shammi Firoz v. The National Investigation Agency [2011 Crl. L.J.1529];
(v)Munisamy v. The Superintendent, Central Prison, Salem [1988 L.W. (Crl.)189];
(vi)Rajesh Kumar v. State of Himachal Pradesh [2007 Cri. L.J. 2687]; and
(vii)A.L.Mehra v. The State [1958 Cri. L.J. 413]
5. Learned Public Prosecutor opposed the grant of bail to the petitioner submitting that the bar under Section 306(4)(b) Cr.P.C. was absolute. He too would rely on the decision of the Supreme Court in Suresh Chandra Bahri v. State of Bihar [1995 Supp (1) SCC 80] to submit that the ruling of the Supreme Court made it clear that the provisions of Section 306(4)(b) are based on statutory principles of public policy and public interest, violation of which could not be tolerated. Learned Public Prosecutor submits that as the petitioner has not complied with the conditions of pardon granted to him, the prosecution would seek his trial for the offence committed by him and once he again partook the nature of an accused, he then would be entitled to seek the relief of bail. Learned Public Prosecutor submits that the reason for not moving an application under Section 308 Cr.P.C. was because the trial in another case for offence under Section 302 IPC, wherein also the petitioner was granted pardon, was pending and the same just stands concluded.
6. In response, learned senior counsel for petitioner submits that the observations of the Supreme Court came about in negation of the submission that the release of an approver on bail would affect the validity of the pardon granted to him. Learned senior counsel further submits that all other accused in the case have been granted bail.
7. This Court has considered the rival submissions.
8 (a) The Honourable Apex Court in decision in Suresh Chandra Bahri v. State of Bihar [1995 Supp (1) SCC 80] has observed as follows:
"34. As regards the contention that the trial was vitiated by reason of the approver Ram Sagar being released on bail contrary to the provisions contained in clause (b) of sub- section (4) of Section 306 of the Code. It may be pointed out that Ram Sagar after he was granted pardon by the learned Magistrate by his order dated 9-1-1985, was not granted bail either by the committing Magistrate or by the learned Additional Judicial Commissioner to whose court the case was committed for trial. The approver Ram Sagar was, however, granted bail by an order passed by the High Court of Patna, Ranchi Bench in Criminal Miscellaneous Case No. 4735 of 1986 in pursuance of which he was released on bail on 21-1-1987 while he was already examined as a witness by the committing Magistrate on 30-1-1986 and 31-1-1986 and his statement in sessions trial was also recorded from 6-9-1986 to 19-11-1986. It is no doubt true that clause (b) of Section 306(4) directs that the approver shall not be set at liberty till the termination of the trial against the accused persons and the detention of the approver in custody must end with the trial. The dominant object of requiring an approver to be detained in custody until the termination of the trial is not intended to punish the approver for having come forward to give evidence in support of the prosecution but to protect him from the possible indignation, rage and resentment of his associates in a crime whom he has chosen to expose as well as with a view to prevent him from the temptation of saving his one time friends and companions after he is granted pardon and released from custody. It is for these reasons that clause (b) of Section 306(4) casts a duty on the court to keep the approver under detention till the termination of the trial and thus the provisions are based on statutory principles of public policy and public interest, violation of which could not be tolerated. But one thing is clear that the release of an approver on bail may be illegal which can be set aside by a superior court, but such a release would not have any affect on the validity of the pardon once validly granted to an approver. In these circumstances even though the approver was not granted any bail by the committal Magistrate or by the trial Judge yet his release by the High Court would not in any way affect the validity of the pardon granted to the approver Ram Sagar."
(b) The Full Bench of the Delhi High Court in the decision in Prem Chand v. State [1985 Cri. L.J.1534] has held as follows:
"17.The power available under this provision is notwithstanding anything else contained in the Code. In case the High Court is satisfied that an order needs to be made to prevent abuse of the process of any Court, or otherwise to secure the ends of justice, the inherent powers are available, and they are not limited or affected by anything else contained in the Code. We are not oblivious that these powers have not to be ordinarily invoked where specific provisions are contained in the Code or specific prohibitions enacted. However, in cases where the circumstances unmittigatingly bring out that a grave injustice is being done, and an abuse of process of court is taking place, either as a result of the acts of the accused taking place, either as a result of the acts of the accused or the unavoidable procedural delays in the Courts, we are of the firm opinion that the inherent powers should and need to be exercised. The approver's evidence in the present case has already been recorded, and no useful purpose is being served in his detention. The administration of justice is not in any manner likely to be affected by his release. There is no reason to suppose that the machinery of law would not be able to give protection to the petitioner in case any adventurism is sought to be displayed by his confederates, or their supporters. The conduct of the petitioner in seeking his release itself shows that he carries no apprehensions. It would not be, therefore, correct for the Court to still create such fears and profess to provide him unsolicited protection by detaining him for indefinite period. Thus in the case of A. L. Mehra 1958 Cri U 413 (supra) the Punjab High Court released the approver from confinement in exercise of inherent powers to prevent the abuse of the process of court, finding that he had been in confinement for several months. Similarly the Madras High Court in the case of Karuppa Servai 1953 Cri LJ 45 (supra) laid emphasis on the detention of an approver till he has deposed at the trial in the Sessions Court truly and fully to matters within his knowledge."
(c) The Full Bench of the Rajasthan High Court in the decision in Noor Taki alias Mammu v. State of Rajasthan [ 1986 Cri. L.J.1488] has observed as follows:
"19. A perusal of the aforesaid cases coupled with that of many other cases, like that of Sunil Batra v. Delhi Administration: 1980 Cri LJ 1099 : (AIR 1980 SC 1579), and yet another case of Hussainara Khatoon reported in AIR 1979 SC 1360 : (1979 Cri LJ 1036), we have no hesitation in holding that detention of a person even by due process of law has to be reasonable, fair and just and if it is not so, it will amount to violation of Article 21 of the Constitution. Reasonable expeditious trial is warranted by the provisions of the Criminal Procedure Code and in case this is not done and an approver is detained for a period which is longer than what can be considered to be reasonable in the circumstances of each case, this Court has always power to declare his detention either illegal or enlarge him to bail while exercising its inherent powers. Section 482, Cr.P.C, gives wide power to this Court in three circumstances. Firstly, where the jurisdiction is invoked to give effect to an order of the Court. Secondly if there is an abuse of the process of the Court and thirdly, in order to secure the ends of justice. There may be occasions where a case of approver may fall within latter two categories. For example in a case where there are large number of witnesses a long period is taken in trial where irregularities and illegalities have been committed by the Court and a re-trial is ordered and while doing so, the accused persons are released on bail, the release of the approver will be occasioned for securing the ends of justice. Similarly, there may be cases that there may be an abuse of the process of the Court and the accused might be trying to delay the proceedings by absconding one after another, the approver may approach this Court for seeking indulgence. But this too will depend upon the facts and circumstances of each case. Broadly, the parameters may be given but no hard and fast rule can be laid down. For instance, an approver, who has already been examined and has supported the prosecution version, and has also not violated the terms of pardon coupled with the fact that no early end of the trial is visible, then he may be released by invoking the powers under Section 482, Cr.P.C. Section 482, Cr.P.C. gives only power to the High Court. Sessions Judge cannot invoke the provisions of the same. High Court therefore in suitable cases can examine the expediency of the release of an approver. We are not inclined to accept the contention of the learned Public Prosecutor that since there is a specific bar under Section 306(4)(b), Cr.P.C., Section 482, Cr.P.C., should not be made applicable. Their Lordships of the Supreme Court has said in times without number, that there is nothing in the Code to fetter the powers of the High Court under Section 482, Cr.P.C. Even if there is a bar in different provisions for the three purposes mentioned in Section 482, Cr.P.C., and one glaring example quoted is that though Section 397 gives a bar for interference with interlocutory orders yet Section 482, Cr.P.C. has been made applicable in exceptional cases. Second revision by the same petitioner is barred yet this Court in exceptional cases invokes the provisions of Section 482, Cr.P.C. Therefore, Section 482, Cr.P.C. gives ample power to this Court. However, in exceptional cases to enlarge the approver on bail, we answer the question that according to Section 306(4)(b), Cr.P.C. the approver should be detained in custody till the termination of trial, if he is not already on bail, at the same time, in exceptional and reasonable cases the High Court has power under Section 482, Cr.P.C., to enlarge him on bail or in case there are circumstances to suggest that his detention had been so much prolonged, which would otherwise outlive the period of sentence, if convicted, his detention can be declared to be illegal, as violative of Article 21 of the Constitution."
(d) In the decision in Shammi Firoz v. The National Investigation Agency [2011 Crl. L.J.1529], the Kerala High Court has held as follows:
"12. Once an accused person is granted pardon he ceases to be an accused person and becomes a witness for the prosecution. Since an approver is not a person accused of an offence, Sections 437 and 439 Cr.P.C. cannot be pressed into service by an approver for his enlargement on bail. In such a contingency, notwithstanding the bar under Section 306 (4) (b) Cr.P.C. it has been held in the decisions relied on by the petitioner that the High Court can in a given case release the approver on bail by invoking the inherent power under Section 482 Cr.P.C. Formerly, Courts were very rigid in enforcing the legislative mandate under Sec. 306 (4) (b) corresponding to Sec. 337 (3) of the old Code ( See A.L. B.A. Nos. 6203 and 6215 of 2010:13:-
Mehra v. State - AIR 1958 Punjab 72; Bhawani Singh v. The State - AIR 1956 Bhopal 4 ; In re Pajerla Krishna Reddi - 1953 Crl.L.J. 50 (Madras) ; Haji Ali Mohammed v. Emperor - AIR 1932 Sind 40; Dev Kishan v. State of Rajasthan - 1984 Crl.L.J. 1142 (Rajasthan). But after the fundamental right guaranteed under Article 21 of the Constitution of India has been laid on a wider canvass through the epoch making judicial pronouncements of the Apex Court, Courts have diluted the rigour of Section 306 (4) (b) Cr.P.C. to make it in conformity with the rights under Article 21 of the Constitution of India . That explains the emerging view that despite the embargo under Sec. 306 (4) (b) Cr.P.C., the High Court may in a given case release the approver on bail by calling into aid its inherent power under Section 482 Cr.P.C. FACTS SPECIFIC IN THE CASE ON HAND"
(e) The Himachal Pradesh High Court in the decision in Rajesh Kumar v. State of Himachal Pradesh [2007 Cri. L.J. 2687] has observed as follows:
"4. The submission made by the learned counsel for the applicant is that keeping the applicant in detention for too long would amount to depriving him of his liberty, even though he is no longer an accused and as an approver also his statement has been recorded. He says that since the applicant himself has sought his release, it can be presumed that he does not have any fear, apprehension or even potential threat of danger to his life at the hands of those against whom he has deposed, by turning approver. His submission is that keeping an approver in detention for too long is contrary to the spirit of justice and the Court, in exercise of its power, under Section 482, Cr.P.C., may order his release. In support of his submission, he has placed reliance upon two judicial precedents. These are Full Bench judgments of two different High Courts, namely Delhi High Court and Rajasthan High Court. The citations are : 1985 Cri LJ 1534 (Delhi High Court), Prem Chand v. State (Full Bench), and AIR 1987 Raj 52 : (1986 Cri LJ 1488), Noor Taki alias Mammu v. State of Rajasthan (Full Bench).
5. The facts of the precedent of Delhi High Court, relied upon by the learned counsel for the applicant, were that a man involved in robbery, along with several other persons, turned approver. He had been in detention for 2 1/2 years. His statement, as a witness, during trial had been recorded. The Full Bench of the Delhi High Court observed that keeping in detention the approver was not going to serve any useful purpose and that his having himself applied for release indicated that there was no threat to his life or any harm to his body and that the Court, in exercise of its inherent power, under Section 482, Cr. P.C., had the jurisdiction to release him to prevent the abuse of the process of the Court and to meet the ends of justice. Similar view has been expressed by the Raj as than High Court in the aforesaid Full Bench judgment."
(f) The Punjab and Haryana High Court in the decision in A.L.Mehra v. The State [1958 Cri. L.J. 413], has held as follows:
"15. Nor is there any substance in the contention that, notwithstanding the provisions of Sub-section (3) of Section 337, this Court has inherent power to admit an approver to bail if he is able to produce facts at the hearing sufficient to entitle him to bail. A Court possesses inherent power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction, but it is impossible to hold that power to grant bail is reasonably necessary for the administration of justice or that in the absence of this power it is impossible for this Court to per-form the functions which have been vested in it by law. In any case the inherent power, if any, has been expressly taken away by the enactment of Sub-section (3)."
(g) The Division Bench of this Court in Munisamy v. The Superintendent, Central Prison, Salem [1988 L.W. (Crl.)189] also was pleased to observe as follows:
"3. No doubt, under S.306(4)(b), Cr.P.C., 1973, the approver shall be detained in custody until termination of the trial, unless he is already on bail. But that does not mean that he can be kept in detention without any limit on the ground that some of the accused are absconding and the trial could not go on. That would amount to grave injustice to a citizen and deprivation of life and personal liberty guaranteed under Art.21 of the Constitution of India. The extra-ordinary circumstances of the case call for our interference and we think that this is a fit case for releasing the approver on bail. The learned Public Prosecutor has no objection thereto."
9. This Court finds itself in full agreement with the observation of the Full Bench of the Delhi High Court in Prem Chand v. State [1985 Cri. L.J.1534](extracted supra). This Court may also add that the observations of Kerala High Court in Shammi Firoz v. The National Investigation Agency [2011 Crl. L.J.1529](extracted supra) succinctly expresses the prevalent view. Again as informed in the judgment of the Himachal Pradesh High Court in Rajesh Kumar v. State of Himachal Pradesh [2007 Cri. L.J. 2687], in circumstance where the petitioner himself has sought his release, it can be presumed that he does not have any fear or apprehension of threat of danger to his life at the hands of the accused. This only can be even more so in a case where the approver has been treated hostile by the prosecution.
10. Though this Court finds some substance in the submission of learned Public Prosecutor that violation of Section 306(4)(b) Cr.P.C. cannot be tolerated and the decision of the Apex Court also suggests that release of an approver on bail may amount to illegality, we are to consider the effect of the prosecution not taking recourse to Section 308 Cr.P.C. with due despatch.
11. Section 308 Cr.P.C. reads as follows:
308. Trial of person not complying with conditions of pardon.- (1) Where, in regard to a person who has accepted a tender of pardon made under section 306 or section 307, the Public Prosecutor certifies that in his opinion such person has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered or for any other offence of which he appears to have been guilty in connection with the same matter, and also for the offence of giving false evidence:
Provided that such person shall not be tried jointly with any of the other accused:
Provided further that such person shall not be tried for the offence of giving false evidence except with the sanction of the High Court, and nothing contained in section 195 or section 340 shall apply to that offence.
(2) Any statement made by such person accepting the tender of pardon and recorded by a Magistrate under section 164 or by a court under sub-section (4) of section 306 may be given in evidence against him at such trial.
(3) At such trial, the accused shall be entitled to plead that he has complied with the condition upon which such tender was made, in which case it shall be for the prosecution to prove that the condition has not been complied with.
(4) At such trial, the court shall-
(a) If it is a Court of Session, before the charge is read out and explained to the accused;
(b) If it is the Court of a Magistrate before the evidence of the witnesses for the prosecution is taken, ask the accused whether he pleads that he has complied with the conditions on which the tender of pardon was made.
(5) If the accused does so plead, the Court shall record the plea and proceed with the trial and it shall, before passing judgment in the case, find whether or not the accused has complied with the conditions of the pardon, and, if it finds that he has so complied, it shall, notwithstanding anything contained in this Code, pass judgment of acquittal.
12. In the instant case, the examination of the petitioner has been completed on 13.07.2012. It is not in dispute that no application under Section 308 Cr.P.C. stands made till date i.e., despite the passage of a period of 17 months. In such circumstance, this Court would hold that the observations of the Apex Court relied upon by learned Public Prosecutor cannot aid the prosecution in denying the petitioner the right to bail. If we are to so strictly construe Section 306(4)(b) Cr.P.C., then we would be left with a situation wherein, the prosecution having treated a witness who has been granted pardon, hostile, could continue to deny him the relief of bail by not moving with due despatch in keeping with Section 308 Cr.P.C.
13. For the above reasons and following the decisions cited before us including that of the Division Bench of this Court and also taking note of the fact that all the other accused in the case have been granted bail, this Court is inclined to release the petitioner on bail. Accordingly, the petitioner is ordered to be released on bail subject to the following conditions:
(i)the petitioner shall execute a bond for a sum of Rs.10,000/-(Rupees ten thousand only) with two sureties each for the like sum to the satisfaction of learned XXIII Metropolitan Magistrate, Saidapet, Chennai;
(ii)the petitioner shall appear before the trial Court viz., I Additional Sessions Court, Chennai, on all dates of hearings till the conclusion of the trial except on those days by filing petition u/s.317 Cr.P.C., by assigning valid reasons.
14. Accordingly, this Criminal Original Petition is ordered.
16.12.2013 Note to office:
Issue order copy by 17.12.2013 Index:yes/no Internet:yes/no gm To
1.The I Additional Sessions Judge, Chennai.
2.The Inspector of Police, E-5, Pattinapakkam Police Station, Chennai.
3.The Public Prosecutor, High Court, Madras.
C.T.SELVAM, J.
gm Crl.O.P.No.32406 of 2013 16.12.2013