Madras High Court
Umarani vs Palaniandi on 14 September, 2007
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 14/09/2007 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.O.P.(MD).No.8490 of 2007 Umarani ... Petitioner Vs 1.Palaniandi 2.The Deputy Superintendent of Police, Jeeyapuram Division, Trichy District. ... Respondents Prayer Petition filed under Section 439(2) of the Code of Criminal Procedure, to set aside the order and cancel the bail granted to the first respondent herein by the I Additional District and Sessions Court (PCR), Trichy, in Crl.M.P.No.417 of 2007 dated 08.08.2007 in Cr.No.220 of 2007 on the file of the Inspector of Police, Somarasan Pettai Police Station, Trichy. !For Petitioner ... Mr.P.Rathinam ^For Respondents ... Mr.Siva.Ayyappan, Government Advocate (Crl. Side) for R.2 Mr.AR.L.Sundaresan, Senior Counsel for Mr.V.Ilanchezian, for R.1 :ORDER
This petition is focussed to get set aside the order in granting bail to the first respondent herein by the I Additional District and Sessions Court (PCR), Trichy, in Crl.M.P.No.417 of 2007 dated 08.08.2007 in Cr.No.220 of 2007 on the file of the Inspector of Police, Somarasan Pettai Police Station, Trichy.
2. A re'sume' of facts absolutely necessary and germane for the disposal of this petition would run thus:
The police registered the case in Cr.No.220 of 2007, consequent upon the complaint lodged by one Umarani, the wife of the deceased Purusothaman for the offences punishable under Sections 147, 148, 324 and 302 I.P.C read with Section 3(2)(5) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.
3. The nitty-gritty, the gist and kernel of the complaint is that on 29.07.2007 at about 09.30 p.m., at Somarasampettai, the accused persons namely
(i) Palaniandi, (ii) Periasamy (iii) Rajangam (iv) Balamurugan (v) Raja (vi) Manivel and others, constituted an unlawful assembly with the common object to murder Dalit community people and A.1 ordered the other accused to stage an attack on the Dalit community people who were there coming near the scene of occurrence and the deceased Purusothaman was one among them and in that attack, the deceased Purusothaman succumbed to his injuries.
4. According to the defacto complainant, the murder took place due to previous enmity. The police after registering the F.I.R and conducting some investigation, took into custody the first respondent, Palaniandi and some other accused and got them remanded to judicial custody. The bail application in Crl.M.P.No.417 of 2007 was filed before the I Additional District Judge (PCR), Tiruchirappalli, for releasing Palaniandi who is A.1 in that case on bail; thereupon, the written submissions was filed by the Deputy Superintendent Police who happened to be the Investigating Officer in view of the fact that the murdered person was a Dalit and under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and that only he has to conduct statutorily the investigation. The learned Judge ultimately released Palaniandi on bail within a period of about nine days of his judicial custody.
5. Being aggrieved by and dissatisfied with, such granting of bail within such a short span of nine days of judicial custody, the defacto complainant filed this petition for cancelling the bail on the main ground that absolutely there was no rhyme or reason on the part of the learned Sessions Judge to grant bail and the facts relied on by him are all false and concocted by the police. The relevant portion of the order of the learned Sessions Judge is extracted hereunder for ready reference:
"This Court after perusing the written submissions made by the Deputy Superintendent of Police, who has been investigating the case, from the reading of complaint and further statements, is of the view that the materials collected so far is not sufficient to implicate the petitioner in the commission of offence. The only allegation made against the petitioner is that, the petitioner instigated the offence. Whereas the further statement recorded from the wife of the deceased and Ilaman Sekar would show that the presence of petitioner in the scene of crime is doubtful.
This Court considering the inconsistencies in the statements recorded and further statements of the witnesses inclined to grant bail to the petitioner ......"
6. The mere perusal of the order would demonstrate that the learned Sessions Judge simply carried away by the written submissions filed by the Deputy Superintendent of Police to the effect that the defacto complaint and one other eye-witness namely Ilaman Sekar gave subsequent statements resiling from their earlier ones relating to implication of A.1 as the person who abetted the crime by being present at the scene of crime.
7. The learned Counsel for the petitioner/defacto complainant would vehemently contend that the alleged subsequent statement was not at all given by her and it was not recorded by the Investigating Officer after examining her for the second time as alleged in the written submission. Highlighting the facts, she filed the affidavit before this Court. The said Ilaman Sekar filed another affidavit to the same effect that he was not subsequently examined at all by the police.
8. The pith and marrow of the contention of the learned Counsel for the petitioner is that the contention of the police as though the defacto complainant and the said Ilaman Sekar gave a clean chit to A.1 to the effect that A.1 was not present at the scene of occurrence and that those witnesses were constrained to implicate A.1 due to the pressure exerted on them by the Dalit group, around the time of lodging the F.I.R.
9. Normally, in a murder case while considering the bail application and that too, within a short span of time so to say, nine days of judicial custody, the learned Sessions Judge should have been on his vanguard to see that he guarded discretion was not exercised liberally.
10. The fact remains that the alleged subsequent statements of the defacto complainant and the said Ilaman Sekar were not got recorded before a Magistrate. It is a serious case. Indubitably and incontrovertibly, A.1 happened to be the Secretary of the locality of the ruling party and his two brothers are the actual assailants and earlier F.I.R would implicate A.1 as the person who was physically present and instigated his brothers and other accused to stage the attack as against the Dalit community people. In such a case, the learned Sessions Judge should have looked for authenticity about the subsequent statements which allegedly emerged just on the date of filing of the bail application so to say, on 07.08.2007.
11. The fact remains that the Deputy Superintendent of Police who is expected to investigate thoroughly under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, did not arrive at final opinion himself is concerned whether A.1 was involved in the occurrence or not. However, the learned Sessions Judge of his own accord considered as though there is prevaricative statements by the defacto complainant and on that basis, he could release the accused on bail.
12. The learned Senior Counsel for the first respondent/A.1 would point out that the learned Sessions Judge was perfectly right in releasing A.1 on bail, because the liberty of a citizen should not be curtailed under one reason or other and that too, when there were prevaricative statements by the complainant herself and one other eye-witnesses.
13. The entire issue hinges on the prevaricative statements of the defacto complainant and one Ilaman Sekar. At this stage, this Court is fully conscious of the fact that while cancelling the bail, it is expected to be hesitant to do so, unless there are glaring reasons pointing towards the perversity of the order passed by the learned Sessions Judge. The learned Sessions Judge at the earliest stage, was not expected to concentrate solely on that prevaricative statements and jump to the conclusion that the accused was entitled to bail. In this connection, I would like to refer to the following decisions of the Honourable Apex Court:
(i) Anwari Begum v. Sher Mohammad and another reported in 2005 SAR (Criminal) 745
(ii) Kalyan Chandra Sarkar v. Rajesh Ranjan reported in AIR 2005 SUPREME COURT 921.
(iii) Anil Kumar Tulsiyani v. State of U.P and another reported in 2006 (2) Supreme Court Cases (Cri) 565.
(iv) State of T.N v. S.A.Raja reported in 2006 (1) Supreme Court Cases (Cri) 58.
14. An excerpt from the dictum of the Honourable Apex Court in Kalyan Chandra Sarkar v. Rajesh Ranjan reported in AIR 2005 SUPREME COURT 921, would run thus:
"34. It is already noticed that the impugned order is pursuant to an application for grant of bail made by the respondent within 11 days of the order made by this Court in second of the appeals referred to hereinabove. It is also an admitted fact that during these 11 days no fresh material had come into existence nor has been pleaded by the respondent in the present application for bail before the High Court. A perusal of the impugned order clearly shows that the High Court proceeded to reconsider the very same two questions namely the existence of a prima facie case and the evidentiary value of retracted confession and by substituting its subjective satisfaction practically overruled the findings of this Court as well as that of the High Court recorded in the earlier orders, without even discussing these findings and as if the case was being argued and considered by the Court for the first time even though the previous orders of this Court as well as that of the High Court were on record. This reconsideration and recording of a new finding was without there being any fresh factual or legal basis."
15. The Honourable Apex Court in the aforesaid decisions unambiguously and categorically posited and highlighted the proposition that in a serious murder case, the Court should not be liberal in granting bail. The perusal of the aforesaid decisions would demonstrate one other point that releasing the accused on bail in a murder case is not a matter of routine and the accused cannot demand as of right and only on valid reasons alone, such release could be ordered. None of the criteria contemplated by the Honourable Apex Court in the aforesaid decisions have been even considered by the learned Sessions Judge. When the learned Sessions Judge wanted to rely upon only the point that those two alleged subsequent statements were favourable to the accused, then he ought to have probed into the matter further in detail as to whether such subsequent statements were in fact emerged voluntarily or not, but he did not do so and it had been become all the more significantly warranting where those two statements were not recorded by a Magistrate under Section 164 Cr.P.C even though the police claims that subsequently for other witnesses, the Investigating Officer resorted to such practice of getting the statements recorded under Section 164 Cr.P.C by the learned Magistrate.
16. The probabilities could rightly be discussed hereunder:
The deceased belonged to Dalit community and that the defacto complainant happens to be his wife and the said Ilaman Sekar belongs to the same Dalit community. The judicial mind should have posed the question as to whether after giving such categorical version in the F.I.R before the police by the wife of the deceased and similar earlier statements by other people belonged to Dalit community, who are injured, would have even chosen to give subsequent statement to the effect as though they were pressurised on earlier occasion by the Dalit community people and that was why they were constrained to give such false statements implicating A.1. It is too big a pill to swallow. The learned Sessions Judge by applying common sense theory could have thought over the matter in a pragmatic way.
17. I am of the considered opinion that if really, such subsequent statements were given by the defacto complainant and the said Ilaman Sekar to the police, then they would not have come with the present affidavits swearing that they had not give such subsequent statements to the police.
18. The subsequent statements relied on by the learned Sessions Judge were having the effect of even cutting at the very root of the genuineness of the F.I.R itself and in such a case, it had become all the more important for the Judge to see whether the wife of the deceased and the witnesses would have in such a supine and lucid manner stated before the police that they were pressurised earlier to rope in A.1 in their statements.
19. The learned Senior Counsel for the accused would submit that there are other witnesses whose statements were recorded by the learned Magistrate under Section 164 Cr.P.C, would show that they had given clean chit to A.1. At this stage, I do not finally give any finding on facts. If an occurrence took place, some witnesses might say one version and some other witnesses might say some other version and after thorough investigation only, a decision could be arrived at.
20. I could understand from the submission of the learned Government Advocate (Criminal Side) that so far the police has not filed any alteration report or sent any communication to the learned Magistrate that the Investigating Officer is dropping the action as against A.1 and as such, the matter is still pending.
21. The learned Senior Counsel for the first respondent would also submit that even for arguments sake, it is taken that the learned Sessions Judge granted bail within a short span of time of judicial custody, yet as on date, almost more than forty days elapsed; that no purpose would be served by sending him back to custody; pre-trial detention should not be by way of punishment and that at the most, if the Court chooses to do so, it could impose further stringent bail conditions on A.1.
22. The learned Counsel for the petitioner would try to torpedo such an argument by contending that if such an argument is countenanced, then in no case, the accused need be kept in judicial custody and that only after conviction alone, the convicts could be detained in jail. The Honourable Apex Court in catena of decisions cancelled the bail granted by the High Courts even after long lapse of time, taking into consideration the seriousness of the case. As already highlighted supra and even to the risk of repetition, without being tautologous, I would like to point out that this murder took place due to communal violence. Furthermore, A.1 happened to be the office bearer of the ruling party concerned. The deceased belonged to Dalit community. Earlier, ill-will, spite, malice, were brewing between the two groups and according to the defacto complainant, the murder took place due to such factor. Consequent upon, such murder incident, there were rioting and also a case was booked by the police. The factors such as, trepidation prevailing at and around the area of violence, the likelihood of witnesses being terrorised , the likelihood of similar such offences occurring, hampering the investigation, tampering the witnesses, were not considered at all by the learned Sessions Judge while granting bail to A.1 by the learned Sessions Judge. Hence, in this serious matter, the learned Sessions Judge ought not to have released A.1 even on the ninth day of his judicial custody in this case and such an order should be interfered with and accordingly, the bail granted to A.1 is hereby cancelled and he is ordered to surrender before the learned Magistrate concerned and thereupon, A.1 shall be remanded to judicial custody. Meanwhile, the learned Magistrate shall also issue non-bailable warrant for securing A.1's presence and committing him to jail.
23. At this juncture, the learned Counsel for the first respondent/A.1 made an extempore submission to the effect that after such surrender and some lapse of time, he might be given liberty to file regular bail application. It goes without saying that A.1's right to file bail application cannot be denied and the same shall be considered taking into account the changed circumstances if any, that would be brought to the knowledge of the Court.
rsb To
1.The Deputy Superintendent of Police, Jeeyapuram Division, Trichy District.
2.The I Additional District and Sessions Court (PCR), Trichy.
3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.