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2011 DIGILAW 3881 (MAD)

A. Senthilkumar v. S. Rajendran

2011-09-06

M.VENUGOPAL

body2011
Judgment : 1 .The petitioner/complainant (third party) has filed, the present Miscellaneous Petition praying for Cancellation of Bail granted by this Court to the 1 respondent/Accused dated 20.5.2010 in Crl. O.P. No. 11535 or 2010. 2. The 1st respondent/petitioner/Accused in. Crl. O.P. No. 11535 of 2010 has been granted the Anticipatory Bail by this Court on 20.5.2010. This Court, while, releasing the 1st respondent/Accused on Anticipatory Bail, has ordered that he be released on bail in the event of arrest or on his appearance before the Learned Magistrate concerned, on his executing a bond for a sum of Rs. 10,000/- (Rupees Ten Thousand Only) with two sureties each for a likesum to the satisfaction of the Learned Judicial Magistrate, Kangayam. Further, a direction has been issued to the 1st respondent/petitioner/Accused to appear before the 2nd respondent/Police daily at. 11.00 a.m. until further orders. 3. According to the petitioner/Complainant, the 1st respondent/Accused has cheated him toy fabricating the Demand Draft and also manipulating the Court, record and therefore, the learned Judicial Magistrate, Kangayam forwarded the petitioner‘s complaint to the 2nd respondent/Police and gave direction in Crl. M.P. No. 2113 of 2010 to register the case and based upon the same, the 2nd Respondent/Police was registered a Criminal Case against the 1st Respondent./Accused in Crime No. 1131 of 2010 under Section 420 ,.-468 and 471 of Indian Penal Code. 4. It is the further case of the Petitioner/Complainant that on 27.09.2010 at 9.00 a.m. the Petitioner/Complainant was threatened with his life by the 1st respondent/Accused and also threatened to withdraw the complaint before the Judicial Magistrate, Kangayam and that he gave a complaint before the Kangayam Police on 29.3.2010. 5. The Learned Counsel for the petitioner/Complainant submits that even though the 1st respondent/petitioner/Accused has obtained an order of Anticipatory Bail from this Court on 20.5.2010 in Crl. O.P. No. 11535 of 2010, he has not appeared before the Learned Judicial Magistrate, Kangayam and as such not complied with the order passed by this Court. In short, the 1st respondent/Accused has violated the conditions imposed in the Anticipatory Bail order dated 20.5.2010 in Crl. O.P. No. 11535 of 2010. 6. O.P. No. 11535 of 2010, he has not appeared before the Learned Judicial Magistrate, Kangayam and as such not complied with the order passed by this Court. In short, the 1st respondent/Accused has violated the conditions imposed in the Anticipatory Bail order dated 20.5.2010 in Crl. O.P. No. 11535 of 2010. 6. The Learned Counsel for the petitioner/Complainant (Third Party) contends that only if the 1st respondent/Accused is arrested and interrogated in custody, it is not possible to find out the truth and as such, the petitioner/Complainant has invoked the jurisdiction of this Court as per Section 439 (2) of Cr.P.C. 7. It is to be borne in mind that the power of cancellation of bail vested in the High Court can be invoked by the State or by an aggrieved party. 8. The object of Anticipatory Bail is to relieve a person from disgrace or unnecessary apprehension in the case of an ordinary bail, the same is granted after arrest. Whereas the Anticipatory Bail is granted in anticipation of arrest and is, therefore, effective at the very moment of arrest, as opined by this Court. 9. Just because the Accused has not controverted the allegations made in the petition for Cancellation of Bail would not be a ground for cancellation of Anticipatory Bail as per decision in Shanmukaha Swamy v. State of Andra Pradesh, 2001 (2) Andra L.T. (Cri) 131 (132). 10. In the instant case on hand, in M. P. No. 1 of 2010 in Crl. O.P. No. 11535 of 2010 on 8.8.2011 Mr .N. Manokaran, Learned Counsel for the 1st respondent/Accused appeared before this Court. However, on the side of the petitioner/Complainant (Third Party), there has been no representation. On the side of the 2nd respondent/Complainant, Ms. M.F. Shabana, Learned Government Advocate (Crl. Side) appeared subsequently. 11. This Court, on 8.8.2011, has directed the petitioner/Third Party to serve a copy of M.P. No. 1 of 2010 (petition for cancellation of Anticipatory Bail) to the 1st respondent/Accused within four days here from and upon receipt of the copy of the said Miscellaneous Petition, the 1st respondent/Accused, has directed to file a counter within a week thereafter. Also, this Court has directed the Registrar (Judicial) to call for the Report from the Learned Judicial Magistrate, Kangayam as to whether ths 1st respondent/Accused abiding the conditions imposed by this Court in Crl. Also, this Court has directed the Registrar (Judicial) to call for the Report from the Learned Judicial Magistrate, Kangayam as to whether ths 1st respondent/Accused abiding the conditions imposed by this Court in Crl. O.P. No. 11535 of 2010 dated 20.5.2010 within three days from today, through Fax. 12. The Learned Judicial Magistrate, Kangayam, in Letter D. No.1151 dated 9.8.2011 addressed to the Chief Judicial Magistrate, Erode, has stated that the petitioner/Accused has not obeyed the High Court‘s Order in Crl. O.P. No. 11535 of 2010 dated 20.5.2010 and further, he has not signed before the Kangayam Police Station as well as the report received from the Inspector of Police, Kangayam. 13. The Learned Judicial Magistrate, Erode, through Fax, has informed the Registrar (Judicial), High Court on 10.8.2011 to the effect that the Judicial Magistrate, Kangayam has reported that the 1st respondent/Accused has not complied with the conditions imposed in the order and he has not appeared before the Police Station concerned. 14. Even the Inspector of Police, Kangayam Police Station has informed the Judicial Magistrate, Kangayam that the 1st respondent/Accused, after obtaining the Anticipatory Bail, is not affixing his signature in the Police Station and further, in the Case Diary, there is no Note seen as to the 1st respondent/Accused putting his signature before. 15. It is to be made mention of that an Anticipatory Bail is not to be granted as a matter of rule. It is only to be granted when the Court is convinced that the Accused will not misuse the liberty or he would not abscond as per decision Narsinglal Daga, 1977 Cr. L.J 1776. When there is a chance of repetition of the offence, the prayer for Anticipatory Bail should be rejected as per decision in Harji, 1983 Cr. L.J. 1938. It cannot be gainsaid Section 438 of Cr.P.C is an extraordinary remedy and it should be resorted to only in 2 exceptional cases as per decision in Bal Chand 1977 Cr LJ 255 . The question of grant or cancellation of Bail depends on the facts and circumstances of each case. A cogent and overwhelming circumstances are very much essential for an order directing the cancellation of Bail already granted. 16. Admittedly, power under Section. The question of grant or cancellation of Bail depends on the facts and circumstances of each case. A cogent and overwhelming circumstances are very much essential for an order directing the cancellation of Bail already granted. 16. Admittedly, power under Section. 438 of is not to be exercised in a vacuum but only, on the satisfaction of the conditions mentioned in the Section, it cannot be extended in a blanket fashion. 17. Notice to the 1st respondent/Accused in M.P. No. 1 ot 2010 has been dispatched by this Registry on 15.12.2010. The Learned Counsel for the petitioner/Complainant has filed a proof of service of notice on the 1st respondent/Accused by means of an acknowledgment received from him. 18. A perusal of the acknowledgment shows that the 1st respondent/Accused has signed in the acknowledgment in token of the notice sent to him. Mr. N. Manokaran, Learned Counsel for the 1st respondent/Accused informs this Court that he has sent a telegram to the 1st respondent/Accused, but there has been no response. On behalf of the 1st respondent/Accused, no counter, controverting the averments made in M.P. No. 1 of 2010 has been filed before this Court. 19. In the instant case, the 1st respondent /Accused in respect of alleged offences under Section 420, 468 and 411 of I.P.C in Crime No. 1131 of 2010 on the file of the 2nd respondent /Police has been granted the Anticipatory Bail by this Court in Crl. O.P. No. 11535 of 2010 on 20.5.2010. From 20.5.2010 till this date, the 1st respondent/Accused has not executed the Anticipatory Bail Order granted by this Court on 20.5.2010 in Crl. O.P. No. 11535 of 2010. He has not made any endeavour to appear before the Learned Judicial Magistrate concerned to execute the bond for a sum of Rs. 10,000/-with two sureties each for a likesum to the satisfaction of the Learned Judicial Magistrate, Kangayam. Also, he has not appeared before the respondent/Police daily at 11.00 a.m. until further orders as per the condition imposed in Crl. O.P. No. 11535 of 2010 on 20.5.2010. 20. It is a matter of surprise that the 2nd respondent /Police has not moved before this Court in regard to the cancellation of Bail when the 1st respondent/Accused has not executed, the order of Anticipatory Bail dated 20.5.2010 granted by this Court in Crl. O.P. No. 11535 of 2010. 21. O.P. No. 11535 of 2010 on 20.5.2010. 20. It is a matter of surprise that the 2nd respondent /Police has not moved before this Court in regard to the cancellation of Bail when the 1st respondent/Accused has not executed, the order of Anticipatory Bail dated 20.5.2010 granted by this Court in Crl. O.P. No. 11535 of 2010. 21. At this stage, to prevent an aberration of justice, this Court worth recalls the decision of Hon‘ble Supreme Court in State of Maharashtra and Another v. Mohd. Sajid Husain Mohd. S. Husain AIR 2008 SC 155 : (2008) 1 SCC (Cr) 176 : LNIND 2007 SC 1192 : (2008) 1 MLJ (Crl) 1472 (NOC) , whereby and whereunder, it is laid down as follows: “In an application for cancellation of bail, conduct subsequent to release on bail and the supervening circumstances alone are relevant. But the Court while considering an appeal against grant of anticipatory bail would keep in mind the parameters laid down therefor. The matter, however, may be different for deciding an appeal from an order granting bail, where the accused has been at large for a considerable time, in which event, the post-bail conduct and other supervening circumstances will also have to be taken note of.” 22. To put it precisely, the 1st respondent/Accused, has not executed the Anticipatory Bail Order of this Court dated 20.5.2010 in Crl. O.P. No. 11535 of 2010 in true letter and spirit. Therefore, this Court is of the considered view that the 1st respondent/Accused cannot misuse the liberty granted by this Court. 23. Inasmuch the 1st respondent/Accused has violated the spirit of the Anticipatory Bail Order granted toy this Court in Crl. O.P. No. 11535 of 2010 dated 20.5.2010 and misused his liberty, on this simple ground alone, this Court sets aside the Order of Anticipatory Bail granted by this Court on 20.5.2010 in Crl. O.P. No. 11535 of 2010 under Section 439(2) of Cr.P.C. and direct the 1st respondent /Accused to surrender before the appropriate Court within a week from today and to secure ordinary Bail in the manner known to law and in accordance with law. 24. It is open to the petitioner/complainant/Third Party to pursue his course of action before the appropriate forum in regard to the threatening purportedly made by the 1st respondent/Accused. 25. Accordingly the Miscellaneous Petition is allowed, as indicated above.