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2001 DIGILAW 571 (MAD)

Sanjay Dalmia and others v. Assistant Commissioner of Police, R-3, Police Station, Saidapet, Chennai and another

2001-05-03

MALAI SUBRAMANIAN

body2001
ORDER: The revision petitioner in Crl.R.C. No.586 of 2000 against whom a case for an offence under Sec.302, I.P.C. was registered in Cr.No.187/2001 of R-3 Police Station Saidapet Range, filled an application for bail in Crl.M.P. No.3065 of 2001 and the same came up before the learned first Additional Sessions Judge, Chennai. The petitioners in Crl.R.C. No.587 of 2001 filed similar bail applications in Crl.M.P. No.3169 of 2001 in the same crime Number and the same also came up for hearing before the very same first Additional Sessions Judge, Chennai. The learned First Additional Sessions Judge passed separate orders releasing the petitioners on bail on the ground that the investigation was almost completed and in case of grant of bail, there was no possibility of tampering with the witnesses. Aggrieved by the order passed by the learned First Additional Sessions Judge, the father of the deceased who is the second respondent in both the criminal revision cases filed petitions for cancellation of bail before the very same Court in Crl.M.P. Nos.4099 and 4100 of 2001. Both the petitions were taken up by the learned Principal Sessions Judge, Chennai and a common order was passed cancelling the bail granted to the petitioners in both the Crl.R.Cs. with a direction that they shall surrender before the XVII Metropolitan Magistrate immediately, failing which the XVII Metropolitan Magistrate shall issue N.B.W. against them and remand them to judicial custody. Since the bail granted to all the petitioners in both the petitions was cancelled by the learned Principal Sessions Judge, Chennai, these two revisions have been filed to set aside the order passed by the learned Sessions Judge thereby restoring the original orders of bail. 2. Bail application for the first accused was filed on 5.3.2001 and bail application for the remaining accused was filed on 7.3.2001. Both the petitions were disposed of by the Additional Sessions Judge by his separate orders dated 9.3.2001. Even before filing these bail applications, the brother of the deceased approached this Court in Crl.O.P.No.2656 of 2001 for change of investigating agency. While the petition was pending, another petition in Crl.O.P. No.3279 of 2001 was filed by Perna Welfare Association and both the petitions were heard and disposed of by this Court by its order dated 27.2.2001, wherein this Court ordered to hand over investigation to C.B. C.I.D., Chennai. While the petition was pending, another petition in Crl.O.P. No.3279 of 2001 was filed by Perna Welfare Association and both the petitions were heard and disposed of by this Court by its order dated 27.2.2001, wherein this Court ordered to hand over investigation to C.B. C.I.D., Chennai. This fact was not brought to the notice of the I Additional Sessions Judge. The CD. file was perused by him and he was satisfied that investigation was almost completed. This Court while passing order in both the Crl.O.Ps. found that investigation was not properly conducted in that case and the doctor was also not properly examined; there was also no explanation as to how there was extensive extra crenial haemetoma over the vault of the skull measuring 8 x 7 x 6.2 cms. certain photographs produced in public Court were also perused. Therefore, this Court came to the conclusion that the matter required further probe by a different independent agency and only on that count, investigation was ordered to be handed over to C.B. C.I.D., Chennai. 3. The learned counsel appearing for the petitioners accused in both the revision petitions contends that the grounds for cancellation of bail as enunciated by the Apex Court rendered in the case of Aslam Babalal Desai v. State of Maharashtra, A.I.R. 1993 S.C. 1, have not been found to be considered this case by the learned Principal Sessions Judge while cancelling bail. The Apex Court has held that bail can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. Therefore, the contention of the learned counsel appearing for the revision petitioners that bail can be cancelled only on any one of the above grounds, cannot be appreciated. Of course, the above said grounds no doubts are valid grounds for cancellation of bail. 4. These grounds are illustrative and not exhaustive. Therefore, the contention of the learned counsel appearing for the revision petitioners that bail can be cancelled only on any one of the above grounds, cannot be appreciated. Of course, the above said grounds no doubts are valid grounds for cancellation of bail. 4. But here is a case where there was improper investigation and the same was found out by this Court and change of investigation was ordered by an independent agency. It is the duty of the investigating agency to have brought the same to the knowledge of the I Additional Sessions Judge while considering the bail application filed by all these petitioners. Mere production of the C.D., file to the Court without informing the Court about the change of investigation, does not seen to be a fair play on the part of the erstwhile investigating agency. This itself is a strong ground to believe that the earlier investigating agency was supporting the accused. The learned Principal Sessions Judge cancelled the bail ordered by the First Additional Sessions Judge on the ground that this Court passed an order in the open Court transferring investigation into C.B. C.I.D. and the C.D. file speaks about the transfer of the case to C.B. C.I.D., but the learned I Additional Sessions Judge failed to look into the same. He would further say that the observation of the First Additional Sessions Judge that investigation was almost completed, is wrong, since investigation by the C.B. C.I.D. was yet to start. According to the learned Principal Sessions Judge, the first accused was in jail for 18 days and the other accused were in detention for 10 days. They were only admitted in Government Royapettah Hospital, though remanded to judicial custody. According to the learned Principal Sessions Judge, it is too early to grant bail to these accused. This is a case of bride burning due to non-compliance of demand of dowry and the C.B. C.I.D. started investigation recently and under those circumstances, the learned Principal Sessions Judge cancelled the bail. 5. According to the learned Principal Sessions Judge, it is too early to grant bail to these accused. This is a case of bride burning due to non-compliance of demand of dowry and the C.B. C.I.D. started investigation recently and under those circumstances, the learned Principal Sessions Judge cancelled the bail. 5. Though, the learned Principal Sessions Judge chose to cancel bail on the ground that the bail granted to all the petitioners was too early in a case of bride burning due to non compliance of dowry demand, still it is a fit case where we can hold that investigation is now in the half way by the C.B. C.I.D. and since the investigation is not completed, it is not just to keep the petitioners at large. When they were at large, we have seen how far the investigation had sided the accused and with great pains this Court in Crl.O.P. Nos.2656 and 3279 of 2001 looked into the photographs submitted in open Court and also the post mortem certificate and the injuries found on the deceased and came to a conclusion that the investigation was not properly conducted. Not only that, the doctor gave an opinion that the deceased would appear to have died of shock due to burns without taking note of dried up streaks of blood stains over the outer aspect of the left fore-arm and left palm with small lacerations on the lateral aspect of left thener eminence. There was also superficial split laceration on the dorsum of left hand in the second metacarpal region of the index finger measuring 4 x 5 x 1 cms. On dissection, the doctor found bruising of the scalp over the vault of the skull and also on the left temporal region. There was extensive extra crenial haemetoma over the vault of the skull measuring 8 x 7 x 6.2 cms. on further dissection, the doctor found a thin film of subdural haemorrhage all over the brain. Inspite of these injuries, the doctor gave an opinion that the deceased would appear to have died of shock due to burns. Antemortem injuries were found to have been inflicted on the deceased. There was no further opinion of the police surgeon with regard to the cause of death. Inspite of these injuries, the doctor gave an opinion that the deceased would appear to have died of shock due to burns. Antemortem injuries were found to have been inflicted on the deceased. There was no further opinion of the police surgeon with regard to the cause of death. These are the instances to show that investigation was not proceeding on the right direction when the petitioners were at large and this would only lead to an irresistible inference that the accused were able to manage with the investigating agency to get a clean chit from their hands. That is why change of investigation was ordered in the. interest of unearthing the truth of the episode and in the interest of justice. But it is unfortunate that the then investigating agency suppressed all these facts as stated in the order of this Court and did not inform the learned I Additional Sessions Judge about the same, though the order passed by this Court was dated 27.2.2001, while the learned First Additional Sessions Judge granted bail only on 9.3.2001. Coming back to the cancellation of bail, though the learned Principal Sessions Judge has not given any more grounds for cancellation of bail and confined himself with the early release on bail in the case of bride burning, it is very much evident that in case the accused are released on bail pending investigation, they will definitely interfere with the course of investigation and will attempt to tamper the evidence as well as witnesses. Therefore, I do no think that the order passed by the learned Principal Sessions Judge cancelling the bail given to these revision petitioners suffers from any infirmity. Further, the learned Principal Sessions Judge could have afforded more grounds for cancellation of bail, but his absence to do so does not entitle the petitioners to enjoy the fruits and bail. 6. The next point urged by the learned counsel appearing for the revision petitioners is that bail being granted by one Sessions Judge has been cancelled by another Sessions Judge. But the circumstances that led to such an event has to be considered in this case. 6. The next point urged by the learned counsel appearing for the revision petitioners is that bail being granted by one Sessions Judge has been cancelled by another Sessions Judge. But the circumstances that led to such an event has to be considered in this case. Originally when bail was granted, the investigating agency was the regular police and according to the arrangements made in the City Sessions Court, Principal Sessions Judge has to take up bail applications regarding the cases pending investigation before the Crime Branch and the First Additional Sessions Judge has to take up cases regarding some police stations and so on. Since the C.B. C.I.D. took up the investigation, necessarily cancellation of bail has to be moved before the Principal Sessions Judge. Though technically it is argued that the act of the learned Principal Sessions Judge in cancelling the bail granted by the First Additional Sessions Judge is not correct since both of them exercise equal powers, I am told that the First Additional Sessions Judge was not presiding over the First Additional Sessions Court, Chennai at the time when the petition for cancellation of bail was moved and he was transferred already. Therefore, I do not think that it is wrong on the part of the learned Principal Sessions Judge to take up the petitions for cancellation of bail he being the master of the roster. Even in case, no petition for cancellation of bail has been filed before the learned Principal Sessions Judge and the same was filed before this Court, this Court would have no hesitation to cancel the bail granted to these revision petitioners on flimsy grounds. 7. In view of the above discussions, I hold that the order passed by the learned Principal Sessions Judge does not suffer from any infirmity and I see no reason to interfere with the said order. If these revision petitioners have not yet surrendered before the XVII Metropolitan Magistrate as directed by the learned Principal Sessions Judge, this Court orders the C.B. C.I.D., who is incharge of investigation to rearrest and produce these revision petitioners before the concerned Magistrate for being remanded to judicial custody. 8. With this observation, the petitions stand dismissed. Consequently, connected Crl.M.Ps. are closed.