Madras High Court
K.Umayavel vs The State Rep on 27 April, 2019
Author: M.Dhandapani
Bench: M.Dhandapani
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.04.2019
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
Crl.O.P.(MD)No.4142 of 2019
K.Umayavel ... Petitioner/defacto complainant
Vs.
1.The State rep., by
The Inspector of Police,
All Women Police Station,
Thoothukudi District.
(Crime No.19 of 2019) ... 1st Respondent / Complainant
2.Rajavel Subramanian ... 2nd Respondent/accused (single)
PRAYER: Criminal Original Petition is filed under Section 439(2) of the
Code of Criminal Procedure, to cancel the order of bail granted by the
learned Principal Sessions Judge (Mahila Court – Full in charge),
Thoothukudi, Thoothukudi District in Cr.M.P.No.1023 of 2019, dated
02.03.2019.
For Petitioner : Mr.R.Anand
For R-1 : Mr.K.K.Ramakrishnan
Additional Public Prosecutor
For R-2 : Mr.K.Mahendran
***
ORDER
This Criminal Original Petition has been filed to cancel the order of bail granted by the learned Principal Sessions Judge (Mahila Court – Full in charge), Thoothukudi, Thoothukudi District in Cr.M.P.No.1023 of 2019, dated 02.03.2019.
http://www.judis.nic.in 2
2.The case of the prosecution is that the petitioner/defacto complainant is the father of the victim girls in the present case, viz., Umayadharani and Janani, who are aged between 17 and 14 years. The second respondent/accused is none other than the defacto complainant's co-brother. The defacto complainant's wife and the second respondent's wife are sisters. Presently, the second respondent is employed as medical representative at Chennai. Whenever he visited Thoothukudi, to his father-in-law and the defacto complainant's house, taking advantage of the poor economic status of the defacto complainant's family, under the guise of presenting gifts to one of his daughters and taken advantage of taking her to Chennai during the vacation with sexual intent and had touched her body and that apart he has taken semi nude photographs through his mobile phone. Thereafter, he sent the same to her mobile phone and used to start threatening her so as to make his sexual demand. In the very same way, the second respondent came to the defacto complainant's house and make the victims to believe that he has got interest on their future and gifted the valuables to the victims. On 29.09.2018, the second respondent came from Chennai and taken the petitioner's daughters to Kodaikanal and thereafter, sent the children to the petitioner's house. Taking advantage of the situation that no one had been there to question the second respondent, he had indulged in harassing the petitioner's children sexually. Apart from that on 27.10.2018 at the time of Deepawali festival, the second respondent came to Thoothukudi, and http://www.judis.nic.in 3 showed the phonographic photos to the first victim girl and took a photo of her private part and again he committed the same act to the second victim girl and thereafter sent the photos to the third victim girl and threatened the victim girls by saying that if they disclose the matter to anybody, he would publish the photos through social media. Thereafter, the victim girls informed the same to the petitioner and thereafter, the petitioner filed a complaint before the first respondent police. After great difficulty, the first respondent police registered a case in Crime No.19 of 2019 for the offences under Sections 11(5) r/w.12 of POCSO Act, 2012 and under Section 506(1) of IPC.
3.The learned counsel for the petitioner would submit that though the cellphone was handed over to the Investigating agency, the sim card and the memory card have not been handed over and if the petitioner is allowed to be on bail, he will threaten and disturb the victims. The victims girls are also minors. He would further submit that the Sessions Court has not considered the statement of the victims given under Section 164 of Cr.P.C.
4.The learned counsel for the petitioner would further submit that the trial Court granted bail on the ground that there are good relationship maintained by the defacto complainant's wife and other sisters. However, it is contrary to the facts and they do not have good http://www.judis.nic.in 4 relationship, since the second respondent has taken a half nude photographs of the daughters of the other co-sister. Further, the trial Court recorded as if the victim girl voluntarily taken a selfie and sent it to the defacto complainant. However, the fact remains, as per the direction of this Court only, the said cell phone was handed over by the second respondent and not voluntarily by himself to the Law Enforcing Agency. He would further submit that unless the entire photos are recovered from the second respondent, the future of the young children, who are aged between 17 and 14 years, and other sister's daughter, will be spoiled. He would further submit that the trial Court taken the matter very leniently and contrary to the direction of the Hon'ble Apex Court and entertained the bail application and the surrender application and passed orders, which is unsustainable one. Considering the offence committed by the second respondent and considering the overwhelming and supervening circumstances arisen in the present case, the bail granted to the defacto complainant is necessarily to be cancelled.
5.In support of his contention, the learned counsel for the petitioner, has relied upon the following Judgments:-
(i).In PURAN v. RAMBILAS, reported in AIR 2001 SC 2023, wherein at paragraph No.9, the Hon'ble Apex Court, has observed as follows:-
“Mr. Lalit next submitted that once bail has been granted it should not be cancelled unless there is evidence that the conditions of bail are being infringed. In support of http://www.judis.nic.in 5 this submission he relied upon the authority in the case of Dolat Ram & Ors. State of Haryana . In this case it has been held that rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted have to be considered and dealt with on different basis. It has been held that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. It has been held that generally speaking the grounds for cancellation of bail broadly 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. It is, however, to be noted that this Court has clarified that these instances are merely illustrative and not exhaustive. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the Society. Therefore, an arbitrary and wrong exercise of discretion by the trial court has to be corrected.”
(ii).In Criminal Appeal No.1662 of 2012 (KANWAR SINGH MEENA Vs. STATE OF RAJASTHAN & ANOTHER), wherein at paragraph No.15, the Hon'ble Supreme Court, has held as follows:-
http://www.judis.nic.in 6 “At this stage, we do not want to comment on the credibility or otherwise of the evidence collected by the prosecution. Whether the statements of Kuldip Prajapati and Rita would ultimately help the prosecution to establish its case can be ascertained only when the trial is concluded. That is the function of the trial court. It would be inappropriate to discuss the evidence in depth at this stage because it is likely to influence the trial court. We, therefore, refrain from doing so. But, we must make it clear that the statements of Kuldip Prajapati and Rita, recorded under Section 164 of the Code, appear to be relevant as they prima facie indicate involvement of the accused in the crime in question. The High Court ought not to have ignored those statements. It is true that the High Court has referred to certain features of the prosecution case, but that reference is in the form of submissions made by counsel for the accused. The High Court has not discussed those features. It has expressed no opinion as to why it was releasing the accused on bail. It was imperative for the High Court to do so. We have been shown an extract from a relevant diary entry which does indicate that brother of the accused tried to bring pressure on the investigating agency. In his affidavit filed in this court, Mr. Yogesh Dadhich, Additional Deputy Commissioner of Police, Jaipur City (East), has confirmed that the accused had made an effort to influence the investigation. The fact that brother of the accused is an IPS officer is not denied by his counsel. This fact is not noticed by the High Court. If it was not brought to the notice of the High Court by the investigating agency, then, it will have to be said that the investigating agency adopted a very casual approach before the High Court. In any case, the order passed by the High Court releasing the accused involved in a heinous http://www.judis.nic.in 7 crime on bail, ignoring the relevant material, is legally not tenable. It suffers from serious infirmities. The High Court has exercised its discretionary power in an arbitrary and casual manner. We have also noticed that the incident took place on 19/5/2009 and the accused could be arrested only on 1/6/2011. His two attempts to get anticipatory bail, one from the Sessions Court and the other from the High Court, did not succeed. Assuming that the accused is not likely to flee from justice or after release on bail he has not tried to tamper with the evidence, that is no reason why a legally infirm and untenable order passed in arbitrary exercise of discretion releasing the accused involved in a gruesome crime on bail should be allowed to stand. This order needs to be corrected because it will set a bad precedent. Besides, it will have adverse effect on the trial.”
6.Per contra, the Mr.K.Mahendran, learned counsel for the second respondent would submit that the defacto complainant has not committed any offence as alleged by the prosecution. It is only the victim girl has taken the selfie in her cellphone and thereafter forwarded the same to the second respondent. The petitioner has not threatened the victims. The second respondent has also handed over the cellphone to the Law Enforcing Agency. He would further submit that initially the second respondent filed an anticipatory bail application before this Court. This Court, by its order dated 10.01.2019 granted interim anticipatory bail and directed the second respondent to co-operate with the investigation and thereafter, he appeared before the Investigating Officer http://www.judis.nic.in 8 and subjected himself for interrogation and given his cell phone to the first respondent. Again the matter was listed before this Court and this Court by order dated 11.02.2019, dismissed the anticipatory bail application and as against the same, the second respondent preferred an appeal before the Hon'ble Apex Court. The Hon'ble Apex Court in its order dated 21.02.2019 though dismissed the anticipatory bail application, granted liberty to the petitioner to surrender before the Court and file a regular bail. If any regular bail is filed, the Sessions Court has to consider the same on the same day on merits. After recording the submission of the learned Public Prosecutor and examining 25 witnesses, the trial Court granted regular bail in favour of the second respondent, which cannot be cancelled in a routine and mechanical manner. In fact, in the present case, the cell phone, which was handed over by the second respondent to the Law Enforcing Agency was sent for expert opinion to the Deputy Director of Forensic Science Laboratory, Chennai. Since the cell phone and other things are pending for an expert opinion, passing any order in the present case, adversely the affect the interest of the second respondent. Further, the second respondent would submit that normally, the bail granted by the Sessions Court, cannot be cancelled in a routine manner, unless overwhelming or supervening circumstances arises. In the present case, no overwhelming or supervening circumstances arises for cancelling the bail granted by the Sessions Court. As per the direction of the Hon'ble Apex Court only, the petitioner has filed a bail application http://www.judis.nic.in 9 before the lower Court and on the same day, a copy of the application was served to the learned Public Prosecutor, after giving 48 hours notice and thereafter, after two days, the defacto complainant surrendered before the Sessions Court and hence, after due compliance of the Hon'ble Apex Court only, the trial Court has granted bail and it cannot be interfered with and therefore, there is no violation of the order passed by the Hon'ble Supreme Court. In support of his contention, the learned counsel has relied upon the Judgment in SUNDEEP KUMAR BATNA v. STATE OF MAHARASHTRA, reported in AIR 2014 SC 1745, wherein at paragraph No.3, it has observed as follows:-
“In the impugned Judgment, the learned Single Judge has opined that when the Appellant’s plea to surrender before the Court is accepted and he is assumed to be in its custody, the police would be deprived of getting his custody, which is not contemplated by law, and thus, the Appellant “is required to be arrested or otherwise he has to surrender before the Court which can send him to remand either to the police custody or to the Magisterial custody and this can only be done under Section 167 of CrPC by the Magistrate and that order cannot be passed at the High Court level.” Learned Senior Counsel for the Appellant have fervidly assailed the legal correctness of this opinion. It is contended that the Magistrate is not empowered to grant bail to the Appellant, since he can be punished with imprisonment for life, as statutorily stipulated in Section 437(1) CrPC; CR No.290 of 2013 stands registered with P.S. Mahim for offences punishable under Sections 288, 304, http://www.judis.nic.in 308, 336, 388 read with 34 and Section 120-B of IPC.10
Learned Senior Counsel further contends that since the matter stands committed to Sessions, the Magistrate is denuded of all powers in respect of the said matter, for the reason that law envisages the commitment of a case and not of an individual accused.”
7.The learned Additional Public Prosecutor would submit that the Public Prosecutor before the trial Court, has inadvertently reported that the investigation has been completed. In fact, the Law Enforcing Agency recorded the statement of the victims under Section 164 of Cr.P.C. and without perusing the statement recorded by the Law Enforcing Agency and without getting the expert opinion, the learned Public Prosecutor for the trial Court, has inadvertently reported before the trial Court as if the investigation is completed. In fact, the investigation has not been completed and it is only a preliminary stage and since the offence committed by the second respondent is heinous one against the children, who are his own co-brother's daughter, it cannot be viewed lightly. Therefore, the custody of the petitioner is essentially required for the purpose of conducting further investigation.
8.The learned Additional Public Prosecutor would further submit that in fact, the Hon'ble Apex Court has not inclined to interfere with the order of this Court and dismissed the Special Leave Petition, however, granted time to the petitioner to surrender before the trial Court within http://www.judis.nic.in 11 two weeks and apply for regular bail. If regular bail application is moved, after giving 48 hours notice to the concerned Public Prosecutor, the said application can be decided on its own merits. However, in the present case, even as per the affidavit filed by the learned counsel for the second respondent in paragraph No.10, he has specially averred that he has filed a bail application in Cr.M.P.No.1023 of 2019 on 28.02.2019 before the Principal Sessions Court (Mahila Court – Full in charge), Thoothukudi, Thoothukudi District and a copy of the said application has been served upon the learned Public Prosecutor on the same day and thereafter, the petitioner surrendered before the Sessions Court on 02.03.2019, which is contrary to the order of the Hon'ble Apex Court. The Hon'ble Apex Court makes it clear that the second respondent has to surrender before the Sessions Court first and thereafter he is permitted to move a regular bail application, after giving 48 hours time, but the learned Judge failed to note the above said order and on that score, the bail granted by the Sessions Court is liable to be cancelled.
9.I have heard the learned counsel for the petitioner; the learned Additional Public Prosecutor appearing for the first respondent and the learned counsel for the second respondent.
10.The present petition has been filed by the petitioner on the ground that the offence committed by the petitioner is heinous one. http://www.judis.nic.in 12 Admittedly, the petitioner and the second respondent are co-brothers. The allegation in the complaint is that whenever he used to visit Thoothukudi, taking advantage of the poor economic status of the defacto complainant's family, under the guise of presenting gifts to one of his daughters and taken advantage of taking her to Chennai during the vacation with sexual intent and had touched her body and that apart he has taken semi nude photographs through his mobile phone. Thereafter, he sent the same to her mobile phone and used to start threatening her so as to make his sexual demand. In the very same way, the second respondent came to the defacto complainant's house and make the victims to believe that he has got interest on their future and gifted the valuables to the victims. On 29.09.2018, the second respondent came from Chennai and taken the petitioner's daughters to Kodaikanal and thereafter, sent the children to the petitioner's house. Taking advantage of the situation that no one had been there to question the second respondent, he had indulged in harassing the petitioner's children sexually. Apart from that on 27.10.2018 at the time of Deepawali festival, the second respondent came to Thoothukudi, again he threatened the victim girls by showing the photographs. Thereafter, the victim girls informed the same to the petitioner and thereafter, the petitioner filed a complaint before the first respondent police. http://www.judis.nic.in 13
11.This is also an admitted fact that on an earlier occasion, this Court dismissed the anticipatory bail application and the same was challenged before the Hon'ble Apex Court and the Hon'ble Apex Court has also dismissed the bail application, giving liberty to the petitioner to surrender before the Court and file a regular bail. If any regular bail is filed, the Sessions Court has to consider the same on the same day on merits.
12.The crucial question involved in this case is whether the trial Court applied its judicial mind before granting bail to the petitioner. In the present case, the learned Sessions Judge, granted bail to the second respondent on two grounds viz., (i)the relationship of the petitioner and the second respondent is very good and the victim girls mothers did not make any complaint and only the petitioner alone made a complaint against the second respondent; and (ii).all the sisters of the second respondent's wife are stated to be in good relationship and due to grudge over the affection shown by the accused and also he liked by all the family members and due to misunderstanding, the petitioner filed a false complaint. Further, recording the statement of the learned Public Prosecutor that the investigation has been completed and the statement of the victims under Section 164 of Cr.P.C. was also recorded and on perusal of material objects, the lower Court granted bail. http://www.judis.nic.in 14
13.Though a detailed discussion in respect of merits of the First Information Report is not permissible while entertaining the bail application, however, the Hon'ble Apex Court has dismissed the anticipatory bail application and issued a direction to the trial Court to consider the matters on merits. The merits of the case has already been discussed above and the learned counsel for the petitioner produced the whatsapp message allegedly sent by the second respondent to his daughter and the conversation reads as follows:-
“Hi anushiya ena pandra' (Hi Anushiya, what are you doing) 'Sollunga Chithapa' (Tell me Chithappa) 'naan unaku oru photo anuparan adhu yaarnu kandupudi papom' (I will send you one photo, find out, whose photo is it?) 'The private part of the alleged victim (half nude photos of the victim girl)' 'Solunga' (Tell me) 'teriyala' ( I don't know) 'onaku terium!...' (You know) 'dharani'ya?????' (Is it Dharani?) 'Ama ........' (Yes.....) 'Ne Ena avoid pandra apudiyea erukatum...ne nandri maranthuta Nan vangi kuduthadha ellaam marantutta.' http://www.judis.nic.in 15 (You are avoiding me, it's ok, you are not grateful to me and you have forgotten the things, which I have bought for you) 'ungala enga appa madhiri nenachaen indha vishayam elarukum terinja ungala yaarum mathika maatanga.' (I think that you are like my father.
If it is known to others, they will not respect you) 'nude photo of the private part of the defacto complainant' 'yapudi eruku' (How is it?)
14.On perusal of the above photos and messages, there is no doubt that the photos were sent by the second respondent to the victim girl. On perusal of the above conversation, it reveals the ill-motive of the second respondent. Further, recent past the crime against children and women rapidly increased by the unscrupulous fellows and without considering the relationship and morality, they are destroying the basic and fundamental relationship of our society. This Court is well aware that once the bail is granted by the Sessions Court, the same cannot be cancelled in a routine and mechanical manner, unless overwhelming or supervening circumstances arises. However, in the present case, the learned Sessions Judge has completely lost his judicial mind and without perusing the 164 statement of the victim girls and without perusing the http://www.judis.nic.in 16 relevant materials, granted bail in the case of heinous offence under POCSO Act, which cannot be accepted. Further, the Hon'ble Apex Court in its order makes it very clear and directed the second respondent to surrender first and thereafter, to apply for bail, after giving 48 hours notice to the Public Prosecutor. However, the learned Sessions Judge, circumvent the order of the Hon'ble Apex Court and without understanding the order of the Hon'ble Apex Court, the trial Court entertained the bail application accepting the surrender of the defacto complainant and granted bail without applying his judicial mind.
15.Considering the allegations levelled against the second respondent and also considering the fact that though the half nude photos, of the young girl children, allegedly taken by the second respondent and sent to the victim girls, were recovered by the Law Enforcing Agency, it is not known how many photos of the victim girls were available in his cell-phone and other devices and also considering the future of the young girl children's life, this Court is of the opinion that there must be a proper investigation in this matter by securing the accused and hence, the bail granted to the accused deserves to be cancelled.
16. In the result, this Criminal Original Petition is allowed and the bail granted to the accused / second respondent herein in Crl.M.P.No. http://www.judis.nic.in 17 1023 of 2019 in Cr.No.19 of 2019 on 02.03.2019 by the learned Principal Sessions Judge (Mahila Court – Full in charge), Thoothukudi, Thoothukudi District is cancelled. The accused is directed to surrender before the learned Principal Sessions Judge forthwith, failing which, the Police shall arrest and remand him to custody.
27.04.2019 Index : Yes / No Internet : Yes / No rj2 To
1. The Principal Sessions Judge, (Mahila Court – Full in charge), Thoothukudi, Thoothukudi District.
2.The Inspector of Police, All Women Police Station, Thoothukudi District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 18 M.DHANDAPANI, J.
rj2 Crl.O.P.(MD)No.4142 of 2019 27.04.2019 http://www.judis.nic.in