Madras High Court
Abdul Nasser Madani vs State Of Tamil Nadu on 23 September, 1999
Equivalent citations: 2000CRILJ1258
ORDER A. Ramamurthi, J.
1. Petitioner/accused has preferred the revision aggrieved against the order passed in C.N.P. No. 10760 of 1998 on the file of learned Judicial Magistrate V, Coimbatore in Crime No. 151 of 1998 dated 3-12-98, cancelling the bail granted to him.
2. The case in brief is as follows :
The petitioner was arrested and remanded to judicial custody on 23-4-98 in Crime No. 151/98 for alleged offences under Sections 120B, 147, 148, 307, 302, 427 read with 149 of Indian Penal Code and also under Sections 3, 4 and 5 of the Explosive Substances Act. Al-Umma, the Muslim Fundamentalist Organisation planned a major attack on Hindus to wreak vengeance for the incidents that followed the murder of a Police Constable Coimbatore. The extremists hatched a conspiracy on 14-2-98, the day on which the B.J.P. Party President Thiru L.K. Advani had proposed to visit Coimbatore for election campaign and on 14-2-98 evening a series of bomb blast occurred in Coimbatore City which resulted in the death of 58 persons and injuring 243 persons. The Police party searched the Bapulal Complex at Thirumal Street, Coimbatore in the early hours of 15-2-98 and the extremist hiding there attacked the police party with bombs and the bomb explosion that occurred, 6 extremists died on the spot and 8 other extremists were arrested. In this connection, a case in B-1 Bazaar Police Station Crime No. 151/98 was registered. The investigation was later transferred to C.B.C.I.D. on 20-2-98 and a Special Investigation Team was formed to investigate all the bomb blast cases. Based on the confession given by one Mohamed Ashruf and on the confession of one Tajudeen alias Abu Mujahith, the petitioner is involved in the bomb blast case. The respondent failed to file charge sheet within 90 days and the learned Magistrate was pleaded to grant statutory bail under Section 167(2) of the Code of Criminal Procedure by an order dated 24-7-98 in C.M.P. No. 7501/98. The petitioner could not come out on bail as he was detained under National Security Act on 7-7-98. The respondent later filed the charge sheet on 28-9-98 and thereafter, the respondent filed a petition under Section 437(5) of the Code of Criminal Procedure in C.M.P. No. 10760/98 for cancellation of the bail already ordered on 24-7-98. The petition was filed on 22-10-98 and after hearing both sides, the learned Magistrate allowed the petition on 3-12-98 and aggrieved against this, the present revision petition has been filed.
3. The respondent filed a detailed counter affidavit. The petitioner is one of the prime accused concerned in the serial bomb blast cases. On 14-2-98 at about 4.00 p.m. around the time Thiru L.K. Advani, then President of B.J.P. was to address the election meeting at R.S. Puram, Coimbatore City. The Coimbatore City and its suburbs were hit by a series of 12 powerful bomb blasts killing 47 persons and injuring 218 persons, apart from causing extensive damages to properties, owned primarily by Hindus. The High intensity bombs/improvised explosive devices exploded all over the City and its suburbs, including near the venue of the public meeting and were targetted primarily at Hindu congregations and Hindu establishments as also at Thiru L.K. Advani, who was planned to be targetted by suicide squad members armed with instantaneous time bombs tied to their waists and throw time bombs. However, they could not materialise since they could not penetrate the Police cordon and reach near the dias of the public meeting place. The targets included the CMC Hospital as well as Railway Station also. The bomb blasts and related occurrence of post-blast violence had been planned and executed by the since-banned muslim fundamentalist organisation named 'Al-Umma' headed by S.A. Basha (first accused) as a brutal answer/retaliation to the killings of 18 muslims in communal riots and police firings and extensive damages to muslim properties running into crores of rupees during three days following the stabbing to death of a traffic Police Constable named Selvaraj.
4. There were three other incidents of pipe bomb explosions at Poombuhar Town Hall at 5.00 p.m., Ukkadam Fish Market at 5.30 p.m. and at Karunanidhi Nagar at 9.00 p.m., in which one person was injured. On 15-2-98 there was a bomb explosion at about 4.00 a.m. at Thirumal Street, Coimbature City. There was another incident of bomb explosion on 15-2-98 at about 6.30 p.m. at the closed shop of 'Mohan Radios' at Oppanakkara Street. In which, the accused Mohammed Raft-sustained injuries and later died. There was an instance of pipe bomb explosion at Kuniyamuthur, Coimbatore on 16-2-98 and lastly, a bomb hidden in a field in Al-Amin Colony, Coimbatore had exploded on 17-2-98 killing four young muslim boys. In all, there was a total of 19 bomb explosion instances from 14-2-98 to 17-2-98, in which a total of 58 persons were killed. About 250 persons were injured and damages caused to the tune of Rs. 4.37 crores. Bombs and explosive materials, which were planted/concealed in 24 other places, were later recovered/defused by the Police. The petitioner along with others hatched conspiracy at Chennai, Coimbatore, Sathiamangalam in Tamilnadu and other places in Kerala and Karnataka States and decided to explode bombs at Coimbatore on 14-2-98.
5. The petitioner is the 15th accused in the Charge sheet and he is the President of People's Democratic Party of Kerala and formerly the President of the banned ISS of Kerala. He had telephonically discussed with S.A. Basha about the action to be taken in retaliation to the killing of 18 muslims. During investigation, clinching evidences have also been collected which established the above facts. In pursuance of the conspiracy, he actively involved himself in further incriminating acts such as procuring of explosives, arms and ammunitions, a part of which were later seized during the course of investigation. There is ample evidence collected in the investigation, which proved that in furtherance of the conspiracy, the petitioner published articles in 'Muslim Review' a monthly magazine of his party. The petitioner also met Tajudeen several times at Kerala and through him, he sent the high grade explosives which he procured through Army Raju/14th accused to be used in the small type box bombs means for suicide squad. One of the unused small type box bomb with the TEX' concealed by the 23rd accused was recovered during the course of investigation. The petitioner named these high grade explosives as 'Audio Cassettes' and 'Video cassettes'. On 11-10-98 at Rajahrnundry, some of the accused were arrested and on the basis of the confession statement of the accused, some properties were also recovered. These high grade explosives were supplied by the petitioner and accused Army Raju. During investigation, such clinching evidence as the bank transaction which took place for clearing of the amount due to Army Raju for having supplied the explosives and other relevant evidences were unearthed against the petitioner. He also procured and supplied illicit revolvers and ammunitions to the active Al-Umma cadres to be used on 14-2-98 and thereafter. Investigation revealed that one A.T. Mohammed Asraj/24th accused, of Kerala and an associate of the petitioner also procured and supplied arms and ammunitions to the accused 10 and 13 for the use of the accused in the occurrence on 14-2-98. During the course of investigation, 6 illicit revolvers and ammunitions were recovered which were supplied to Al-Umma cadres by accused A.T. Mohammed Ashraf.
6. Charge sheet has been submitted on 28-9-98 before the Court and modified charge sheet has also been submitted on 5-5-99. The petitioner was arrested on 13-4-98 and remanded to custody. The respondent stated that 44 cases were investigated by them. As there were so many instances of criminal conspiracy, purchase of explosive materials from various places including Karnataka, purchase of country made revolvers and ammunitions from Kerala and transporting them to Coimbatore, manufacturing of improvised types of explosive weapons such as box bombs, pipe bombs, car bombs, moped bombs, pushcart bombs etc. planting them at various places, the investigating officer had to carry on a lengthy and careful investigation. The ramifications of the investigation also extended to Kerala, Karnataka and Andhra Pradesh. Hence, charge sheet was filed after the expiry of 90 days. The petitioner filed an application under Section 167(2) of the Code of Criminal Procedure before the learned Magistrate and the order was passed on 24-7-98 imposing some conditions. On the basis of this order, the petitioner had not furnished any sureties and had also failed to comply with the conditions. Though the bail order was passed, the petitioner was not released on bail and no surety was offered by him and the order was not given effect to. When the bail bonds were not executed, the order is deemed to have been extinguished. The learned Magistrate had correctly passed an order under Section 437(5) of the Code of Criminal Procedure. It is settled position of law that the effect of release on bail under Section 167(2) of the Code of Criminal Procedure would be an order under Section 437(1) or 439(1) of the Code of Criminal Procedure. The power of cancellation can be traced to only under Section 437(5) or 439(2) of the Code. Section 437(5) could be invoked for cancelling the bail ordered under Secion 167(2) of the Code. The accused has committed serious offences and therefore, existed special and adequate reasons to cancel the bail and on the merits of the case, the learned Magistrate has got the right to cancel the bail. The petitioner was never released on bail as he failed to provide sureties before the learned Magistrate. Though the final report was filed in 25 cases on 28-9-98, a petition was also filed before the learned Magistrate to continue investigation in other cases. If the bail order was not cancelled, the person who belonged to a formerly banned fundamentalist organisation, he is likely to continue in indulging in such terrorist activities. Even from inside the prison, he has been making statements encouraging violence and lawlessness. He also assaulted one Reserve Sub-Inspector of Police on 6-5-98 in front of Central Prison, Coimbatore because the said Sub-Inspector refused to allow him to contact his relatives, for which a case in B-4 Race Course Police Station Crime No. 306/98 under Sections 341, 353 and 596 (ii) IPC was registered. The respondent had placed materials collected during investigation before the learned Magistrate. He stands charged with grave offences, he is likely to abscond and escape the process of law, being a powerful and affluent person in Kerala. It is not the proper stage to release the petitioner on bail as he has committed grave offences. The poor health condition of the person is not at all a ground for releasing him on bail. Section 437(5) of the Code of Criminal Procedure is very clear that any Court which ordered the bail can pass order of cancellation of bail. The order passed by the Court below is proper and correct and no interference is called for.
7. Heard the learned counsel of both sides.
8. Learned counsel for the petitioner contended that the Court below was not justified in allowing the application filed by the respondent to cancel the bail, which was granted under Section 167(2) of the Code of Criminal Procedure. It is a statutory right of the petitioner which has been granted by legislative mandate and the Court cannot interfere with the same. The petition for cancellation of bail was filed only on the ground that the charge sheet was filed and it is not maintainable as held by the Apex Court. The petitioner is a leader of People's Democratic Party and it is a registered political party, registered by the Election Commission of India. No material has been filed to show that the petitioner will abscond and indulge in large scale massacre of the people. None of the grounds required for cancellation of bail were brought to the notice of the Court for cancelling the bail. He will not tamper with the witnesses and will abide by any condition imposed by the Court. The health condition is deteriorating day by day due to high blood pressure, blood sugar and he could not walk due to the amputation of his leg and he requires the assistance of some one to look after all his needs. The learned Magistrate has no power to pass any order as the alleged offence is triable by the Court of Session. The detention order passed under National Security Act has been revoked by the Central Government.
9. Learned Government Advocate (Criminal side) mainly contended that charge sheet could not be filed since persons from other States were also involved and more than 2000 witnesses have been examined apart from the documents. 44 cases are investigated by the respondent and 19 cases relate to bomb explosion. The statutory bail was no doubt, granted to the petitioner on 24-7-98; but, however, he has not furnished sureties and executed the order. The charge sheet was filed on 28-9-98 and thereafter only, the respondent filed a petition under Section 437(5) of the Code of Criminal Procedure to cancel the bail already granted due to the reasons stated supra. Only after hearing all the parties, the learned Magistrate allowed the application on 3-12-98 and cancelled the order of bail passed on 24-7-98 and there is absolutely no illegality or infirmity in the order.
10. Section 167 of the Code of Criminal Procedure only enables the Court to grant statutory bail in a case where investigation agency was not in a position to file the final report or charge sheet within the period allowed. Section 167(2)(a)(ii) of the Code clearly discloses that on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purpose of that Chapter. It is, therefore, evidently clear that if a person is granted statutory bail under Section 167(2), Cr.P.C. it shall be deemed to be an order passed under Chapter XXXIII of the Code, which relates to bail and anticipatory bail, Now, the respondent filed the application under Section 437(5) of the Code of Criminal Procedure for cancellation of the bail on various grounds. Section 437(5) reads that "Any Court which has released a person on bail under Sub-section (1) or Sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody". There is no force in the contention of the learned counsel for the petitioner that when a person is ordered to be released on bail under Section 167(2) of the Code of Criminal Procedure, the respondent is not competent to file an application for cancellation. When once it is specifically mentioned that any order passed under Section 167(2) of the Criminal Procedure Code, is deemed to be an order passed under Chapter XXXIII, then naturally the Investigating Agency is entitled to invoke the provisions under Section 437(5) of the Code of Criminal Procedure.
11. Learned counsel for the petitioner relied on State (Delhi Admn.) v. Sanjay Gandhi, 1978 SCC (Cri) 223 : 1978 Cri LJ 952, wherein it is observed that "the power to take back in custody an accused who has been enlarged to bail has to be exercised with care and circumspection. But the power, though of an extraordinary nature, is meant to be exercised in appropriate cases when, by a preponderance of probabilities, it is clear that the accused in interfering with the course of justice by tampering with witnesses. Refusal to exercise that wholesome power in such cases, few though they may be, will reduce it to a dead letter and will suffer the Courts to be silent spectators to the subversion of the judicial process".
12. Learned counsel also relied on Dolat Ram v. State of Haryana, 1995 SCC (Cri) 237 that the 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. Learned counsel further relied upon a Full Bench decision of the Orissa High Court in Bijayaketan Mohanty v. State of Orissa, 1982 Cri LJ 1954, wherein it is observed that re-committal can be ordered also if the Court finds that the accused is involved in tampering of evidence or that the accused being at large would not be in the interests of justice. The order of release on bail made under the proviso to Section 167(2) should have been permitted to be worked out and then only the question of cancellation of the bail should have come for consideration. Reliance was also placed upon Raghubir Singh v. State of Bihar, 1986 SCC (Cri) 511 : 1987 Cri LJ 157, wherein it is observed that "An order for release on bail made under the proviso to Section 167(2) is not defeated by lapse of time, the filing of the charge sheet or by remand to custody under Section 309(2). There is no limit of time within which the bond may be executed after the order for release on bail is made. Sections 441 and 442 are in the nature of provisions for the execution of orders for the release on bail of accused persons. The accused persons are not to be deprived of the benefit of the order for release on bail in their favour because of their inability to furnish bail straightaway.... Therefore, an order for release under the proviso to Section 167(2) is also subject to the provisions of Sections 437(5) and 439(2) and may be extinguished by an order under either of these provisions. When an accused person is granted bail, whether under the proviso to Section 167(2) or under the provisions of Chapter XXXIII the only way the bail may be cancelled is to proceed under Section 437(5) or Section 439(2)... Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in 60 days, after the defect is cured by the filing of a chargesheet, the prosecution may seek to have the bail cancelled on the ground that there, are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody".
13. The petitioner also relied on B.S. Rawat v. Leidomann Heinrich, 1991 Cri LJ 552 (Bombay), wherein it is observed that "Moreover, the language used in Sub-section (2) of Section 439 of the Cr.P.C. as very clear and explicit. When it uses the expression "any person who has been released on bail", it would mean that the accused is not only granted bail but has availed of the same and is released from his jail custody. It is only then that this Court can direct a person to be arrested and committed to custody as provided in Section 439(2) of the Cr.P.C. In fact, no question of his rearrest or recommittal to custody can arise unless the Accused is actually released on bail granted to him continues to be in custody and no question of his arrest and committed to custody can therefore arise.... The application for cancellation of bail of the accused before his release on bail would thus be premature".
14. Learned counsel further relied upon Dr. Bipin Shantilal Panchal v. State of Gujarat, 1996 SCC (Cri) 200 : 1996 Cri LJ 1652, wherein it is observed that if an accused person fails to exercise his right to be released on bail for the failure of the prosecution to file the charge sheet within the maximum time allowed by law, he cannot contend that he had an indefeasible right to exercise it at any time notwithstanding the fact that in the meantime allowed by law and is released on bail under such circumstances he cannot be rearrested on the mere filing of the charge sheet. The principle is exactly applicable to the case on hand.
15. Per contra, the learned Government Advocate (Criminal Side) relied upon Chitu Sahni v. State of Bihar, (1995) 1 Crimes 381, wherein it is held that the bail granted to the accused under Section 167(2), Cr.P.C. can be recalled after the filing of charge sheet and before accused could furnish surety for his release. They also relied upon another decision of this Court in Shankar alias Gouri Shankar v. State, 1991 Mad LW (Crl) 202 : 1991 Cri LJ 1745 wherein it is held that "The command of the Legislature in proviso (a) to Section 167(2) of the new Code is that the accused person has got to be released on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation is still proceeding.... An order for release on bail under proviso (a) to Section 167(2) is an order on default. The accused is entitled to be released on bail on account of default on the part of the prosecution to file charge sheet witin the prescribed period if he is prepared to and does furnish bail. It is a legislative command and not Court's discretion.... The accused cannot claim any special right to remain on bail. In other words, the accused cannot claim that his right to remain on bail can, under no circumstances, be defeated. If the investigation reveals that (i) the accused has committed a serious offence; and (ii) charge sheet is filed, the bail granted under proviso (a) to Section 167(2) could be cancelled. If the accused has not made application for his release on bail, after expiry of the period prescribed by the proviso (a) to Section 167(c) and before filing of the charge sheet, he has no right to claim his release on bail after filing of the charge sheet/final report, solely on the ground that the charge sheet/final report was not submitted within the prescribed period". This decision is also applicable to the case on hand.
16. Learned Government Advocate raised one other contention to show that the order of cancellation of the bail is only an interlocutory order and, as such, no revision is maintainable. In support of his contention, he relied on Chitra Sankaranarayanan v. State, XXXIX M.L.J. Reports (Crl) 216, wherein it is observed as follows :
When the order of bail granted by the Judicial First Class Magistrate has been cancelled by the Sessions Judge, certainly, the accused party is entitled to move again before the Sessions Judge, who cancelled the bail, to grant the "bail under Section 439(1) of the Code. Therefore, the order of cancellation of the bail will not be a final order as any number of bail applications can be filed and in view of this reason, the order passed by the Sessions Judge is only an interlocutory order.
17. The decisions cited supra can be made applicable and depend upon the facts and circumstances in each case. However, in the present case, it has been admitted that the default bail has been granted to the petitioner under Section 167(2) of the Code of Criminal Procedure when the prosecution was not able to file the charge sheet within the period. However, it is necessary to keep in mind that the petitioner was not prepared to furnish survey and come out on bail. The order remains only in paper and after the filing of the charge sheet only, the respondent filed the application under Section 437(5) of the Code of Criminal Procedure on various grounds to cancel the bail. It is pertinent to point out that the order of cancellation is not sought merely on the ground of filing of the charge sheet, but the petitioner is involved in a grave crime of number of bomb blasts in Coimbatore and there is a possibility that he would indulge in similar offence and his release on bail may not be in public interest. The language employed under Section 439(2) is also to the effect that only "if a person released on bail" is important to be considered, The order for release on bail in this case is not an order on merits, but an order what one may call an order of default. The order can be rectified for special reasons after the defect was cured. The order was made long ago. But for one reason or the other, the accused failed to take advantage of the order for several months. When once it is established that the petitioner failed to furnish surely and come out on bail and after the filing of the charge sheet, the prosecution is able to establish that the order of bail already granted is liable to be cancelled on valid grounds, the Court has got power to cancel the same and, accordingly, the order has been passed by the trial Court.
17A. Learned counsel for the petitioner contended that there is no valid cause for cancellation of the order of bail already granted. I am unable to agree with the contention. The counter clearly disclosed that there was a total of 19 bomb explosion instances from 14-2-98 to 17-2-98, in which a total of 58 persons were killed, about 250 persons were injured and damages caused to the private and public properties to the tune of more than Rs. 4 Crores. Moreover, bomb and explosive materials, which were planted/concealed in 24 other places were later recovered/defused by the Police. Even while he was in custody on 1-9-98 in Central Prison, the members of his party in violent rioting at Karunagapalli, Kerala demanded his release and caused heavy loss to private and public properties. The petitioner also assaulted one Reserve Sub-Inspector of Police on 6-5-98 in front of Central Prison, Coimbatore because he refused to allow him to contact his relatives and for which, a case in Crime No. 306/98 was also registered. Considering the aforesaid circumstances only, the order on bail has been properly and validly cancelled by the Court below.
18. Learned counsel for the petitioner further pointed out that copies have not been furnished although the petitioner is languishing in custody for more than one year. He relied upon decision in Subhash v. State of M.P., 1989 Cri LJ 1553 (Madh Pra), for the proposition that furnishing copies of challan papers to the accused is mandatory. He also relied upon another decision in Sridhar Das v. State, (1998) 2 Crimes 559 (Cal), wherein it is stated that when accused had not been supplied all the copies of charge sheet, he could be said to have had opportunity to make effective representation for bail and rejection of his earlier bail applications could not be a bar to consider his subsequent bail application on merits. It appears that the petitioner filed a petition and for which, the learned Magistrate passed an order that the copies of final report have not been prepared since about 40 lakhs pages have to be prepared, the Court has written to the High Court to address the Government to instal a copy printer. It is also necessary to point out that after the cancellation of the bail on 3-12-98, the petitioner filed a petition under Section 439 of the Code of Criminal Procedure also in C.M.P. 1993/99 on 31-5-99 before the Sessions Court, Coimbatore and the same was dismissed on 7-6-99. It is, however, open to the petitioner to move the Court for bail again taking into consideration of the delay in furnishing of the copies. The materials now projected on the side of the respondent clearly established that the order of cancellation of bail already granted is proper and correct and no inteference is called for.
19. For the reasons stated above, the revision fails and is dismissed.