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2012 DIGILAW 1906 (MAD)

Nataraj v. State rep. by Inspector of Police

2012-04-16

M.M.SUNDRESH

body2012
Judgment : Common Order 1. In view of the fact that all the petitioners herein have been arrayed as accused in Crime No.RC 09(S)/2011/CBI/SCB/Chennai, seeking bail, all the cases have been taken together and a common order is passed. 2. In order to appreciate the contentions and rival contentions of the learned counsels appearing for both sides, it is rather necessary to recapitulate the factual matrix surrounding the case. Facts in brief: 3. The case of the prosecution is that there was a political enmity between the two parties during the Assembly Election conducted in the year 2006. The defacto complainant was a Minister for Education and Commercial Tax, Government of Tamil Nadu, at the relevant point of time. Both the parties belonging to the accused and the defacto complainant contested against each other. 4. The accused persons conspired with each other and in furtherance to it on 08.05.2006 sent hired criminal elements to attack the defacto complainant and his men. One of the person belonging to the group of the defacto complainant died and others injured. The properties of the defacto complainant was also damaged. 5. A case was registered by the local police in Crime No.164 of 2006 and taken up for investigation. 14 persons were named as accused. However, some of the attackers and conspirators were not fixed by the local police. On a protest petition filed by the defacto complainant, the learned Judicial Magistrate No.I, Tindivanam, ordered further investigation. In a Writ Petition filed by the defacto complainant in W.P.No.4183 of 2011, this Court in and by the order dated 29.10.2011 directed the change of investigation from the local police to the respondent CBI. Accordingly, the case was re-registered in R.C.No.09(S)/2011/CBI/SCB/Chennai on 18.11.2011 under Sections 147, 148, 302, 307, 506(ii), 323, 324, 120B and 427 IPC against the founder of the Pattali Makkal Katchi party, Dr.Ramadoss and 21 others. The petitioners who are A-4, A-20, A-6, A11, A-12, A-13, A-15, A-17, A-18, A-19, having been arrested, subjected to custodial interrogation, filed applications before the jurisdictional Sessions Court. The applications filed by the petitioners were rejected. Thereafter the petitioners have filed these petitions seeking enlargement on bail. 6. The petitioners who are A-4, A-20, A-6, A11, A-12, A-13, A-15, A-17, A-18, A-19, having been arrested, subjected to custodial interrogation, filed applications before the jurisdictional Sessions Court. The applications filed by the petitioners were rejected. Thereafter the petitioners have filed these petitions seeking enlargement on bail. 6. Crl.O.P.No.3201 of 2012 was filed by A-19 on 07.02.2012, Crl.O.P.No.3368 of 2012 was filed by A-20 on 07.02.2012, Crl.O.P.No.4936 of 2012 has been filed by A-4 on 24.02.2012, Crl.O.P.No.5582 of 2012 was filed by A-11, A-12, A-13, A-15, A-17, A-18, on 02.03.2012 and Crl.O.P.No.6132 of 2012 was filed by A-6 on 08.03.2012. These cases have been adjourned from time to time as the learned Special Public Prosecutor appearing for the respondent sought some more time citing the pendency of the investigation. Considering his submission that the investigation would be completed on or before 03.04.2012, the matter was once again adjourned. Thereafter, the investigation was completed and the charge sheet was filed before the Chief Judicial Magistrate, Chengalpattu, by way of a Final Report under Section 173 Cr.P.C. on 02.04.2012 for the alleged offences under Sections 120-B r/w 147, 148, 302, 307, 506 (ii), 323, 324 and 427 IPC and under Section 3 of the Tamil Nadu Public Property (Prevention of Damage & Loss) Act, 1992. 7. In the counter affidavit filed on 06.03.2012 which is much prior to the filing of the charge sheet it is stated that the investigation was at a crucial stage. However, it is seen on a perusal of the charge sheet that not all those persons named in the complaint are included in it. Submissions of the learned counsels appearing for the petitioners: 8. Shri.P.S.Raman, learned Senior Counsel appearing for the petitioner/A-4, would submit that the alleged occurrence was said to have happened due to the political rivalry between two parties. It was in the year 2006. A-4 was not in the scene of occurrence. The co-accused who have been named in the original complaint given by the defacto complainant were originally arrested and thereafter released on bail and the enlargement continuous as on today. The petitioner namely A-4 is 65 years old man having serious physical ailment. He needs urgent surgery as seen from the report submitted before this Court. In pursuant to the order of this Court, he was taken urgently to the Hospital but no sufficient treatment was given. The petitioner namely A-4 is 65 years old man having serious physical ailment. He needs urgent surgery as seen from the report submitted before this Court. In pursuant to the order of this Court, he was taken urgently to the Hospital but no sufficient treatment was given. A perusal of the report of the Urologist would throw light of the immediate necessity for a surgical procedure. The original investigation has exonerated the petitioner/A-4. The petitioner has been in custody from 25.01.2012. His custodial interrogation is over and the investigation is completed. Considering the scope and ambit of Section 439 Cr.P.C. vis-a-vis Article 21 of the Constitution of India, the petitioner will have to be enlarged on bail. Reliance has been made by the learned senior counsel on the judgment of the Honourable Apex Court in SANJAY CHANDRA vs. CENTRAL BUREAU OF INVESTIGATION [ (2012) 1 SCC 40 ]. 9. The learned counsels appearing for the other accused would submit that under Section 439 Cr.P.C. there is no express bar for the Court to exercise its power merely because a charge sheet is filed. The Court of Session has rejected the application on merits against which the petitioners have filed these applications. The petitioners have not filed the applications under Section 167(2) Cr.P.C. but under Section 439 Cr.P.C. Even a person who was caught red-handed in pursuant to the alleged occurrence was let out on bail. In so far as A-20 is concerned, there is no specific overt act against him. He is only present at the scene of occurrence. Similarly as against A-19 also is said to be present at the scene of occurrence and there is no incriminating material to implicate him. The petitioners have been in custody for quite some time. In support of their contentions, a reliance has been made on the judgment of this Court in NATTURASU AND OTHERS vs. THE STATE [1998 CRI.L.J.1762] for the proposition of law that the High Court has ample powers to grant anticipatory bail even after the filing of the charge sheet as the factum of taking cognizance would not affect its power. Submissions of the learned Special Public Prosecutor: 10. The Special Public Prosecutor would submit that considering the nature of allegations the petitioners shall not be enlarged on bail. It is only in pursuant to the directions issued by this Court the petitioners have been charged. Submissions of the learned Special Public Prosecutor: 10. The Special Public Prosecutor would submit that considering the nature of allegations the petitioners shall not be enlarged on bail. It is only in pursuant to the directions issued by this Court the petitioners have been charged. The petitioners have in fact filed the applications seeking benefit under Section 167(2) of the Cr.P.C. Even though the charge sheet has been filed pending applications before this Court, in view of the said development this Court shall not go into the merits of the case. When once a charge sheet is filed, it is for the Trial Court to exercise the power under Section 309 Cr.P.C. Therefore, these applications will have to be rejected. In support of his submissions, the learned Special Public Prosecutor has made reliance upon the judgment of the learned Single Judge in CENTRAL BUREAU OF INVESTIGATION vs. DINESH DALMIA [CRL.R.C.NO.1173 OF 2006], which has been confirmed by the Honourable Apex Court in DINESH DALMIA vs. CENTRAL BUREAU OF INVESTIGATION [CRI.APPEAL NO.1279 OF 2007]. A further reliance has been made on the judgment of the learned single Judge of the Honourable Andhra Pradesh High Court in STATE REP. BY CENTRAL BUREAU OF INVESTIGATION vs. Y.SRILAKSHMI [CRL.P.NO.13302 OF 2011] and the decision of the Honourable Apex Court in Y.SRILAKSHMI vs. STATE REP.BY C.B.I. ANTI CORRUPTION [SPECIAL LEAVE TO APPEAL (Crl).NO.84 OF 2012]. Discussions: 11. As culled out from the arguments of the learned Special Public Prosecutor, his substantial objections are two fold. They are (i) The petitioners right to get bail during investigation have been lost in pursuant to the filing of the charge sheet, (ii) Hence, the only option left for them is to approach the Court of Session seeking to exercise the power under Section 309 Cr.P.C. This is the sum and substance of the submissions of the learned Special Public Prosecutor, although he faintly submitted that considering the allegation the petitioners shall not be let out on bail. 12. It is seen from the records that the alleged occurrence was in the year 2006. These petitioners have been implicated in pursuant to the directions issued by this Court in a Writ Petition filed by the defacto complainant. Thereafter investigation has been taken over by the respondent herein. 12. It is seen from the records that the alleged occurrence was in the year 2006. These petitioners have been implicated in pursuant to the directions issued by this Court in a Writ Petition filed by the defacto complainant. Thereafter investigation has been taken over by the respondent herein. The petitioners were arrested long back, custodial interrogation was given and the investigation was duly completed by the filing of the charge sheet. This is the fact situation. Perhaps the respondent might invoke the provisions of the Section 173 (8) Cr.P.C. over the alleged involvement of other persons whose names were originally found in the complaint but subsequently left out in the charge sheet. As on today, the respondent has not initiated any such action and hence, this Court is not willing to speculate over the same. Moreover no submission has been made by the learned Special Public Prosecutor to that effect. 13. It is not in dispute that in all these cases, the petitioners have filed their respective applications invoking the power of the Court under Section 439 Cr.P.C. before the Court of Session. That is the reason why their applications were rejected on merit. The learned Sessions Judge has also taken note of the fact that the investigation is pending at that relevant point of time. It is also not as if the petitioners are involved in numerous other cases of similar nature. By construing the provisions of Section 439 Cr.P.C. in the touch stone of Article 21 of Constitution of India which in unequivocal terms speaks about the protection of life and liberty, this Court will have to consider these applications. As held by the Honourable Apex Court repeatedly, bail is the rule and jail is the exception. An accused is presumed to be innocent until found to be guilty and a prolonged custody cannot be justified by perceiving it as a punitive measure. The other accused who are also said to have been involved by various witnesses as per the original complaint have been released on bail long back. There is no material to suggest about the possible tampering with the witnesses if any by the petitioners as the attack is said to be made by the members of one political party against other. Incidentally the defacto complainant's party is ruling the state at present in which he is a Honourable Minister. There is no material to suggest about the possible tampering with the witnesses if any by the petitioners as the attack is said to be made by the members of one political party against other. Incidentally the defacto complainant's party is ruling the state at present in which he is a Honourable Minister. The petitioners are also hailing from the locality and they are not likely to abscond. Therefore considering the above said facts, this Court is of the view that the petitioners are entitled for enlargement on bail on merit. 14. It is said: "Liberty is a delicate fruit of a matured civilisation. It is a very quintessence of a civilised existence and an essential requirement of a modern man". 15. The objections of the learned Special Public Prosecutor that as the charge sheet is laid the petitioners can only approach the Court of Session does not have any legal basis. Section 439 will have to construed by a proper reading of the said provision. While construing a penal statute restrains and conditions should not be read into as it deals with the personal liberty of a person concerned as envisaged under Article 21 of the Constitution of India. In other words, there can be no fetters on the powers of the Court in exercise of the power under Section 439 Cr.P.C. Considering the said position of law it has been held by the Honourable Apex Court in GURBAKSH SINGH SIBBIA vs. STATE OF PUNJAB [ (1980) 2 SCC 565 ] in the following manner: "12 ........ By any known canon of construction, words of width and amplitude ought not generally to be cut down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose. This is especially true when the statutory provisions which falls for consideration is designed to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep-grained in our Criminal Jurisprudence as the presumption of innocence." 16. This is especially true when the statutory provisions which falls for consideration is designed to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep-grained in our Criminal Jurisprudence as the presumption of innocence." 16. The following passage of the Honourable Apex Court in SANJAY CHANDRA vs. CENTRAL BUREAU OF INVESTIGATION [ (2012) 1 SCC 40 ] is apposite: Scope of Section 439 Cr.P.C.: "21.) In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless, it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. 22.) From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. 23.) Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. 25.) The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual." 17. There can be only two ways by which an application for bail has to be considered. The first is to consider the application on merits. The other is when an accused seeks bail by default under Section 167(2) Cr.P.C. It is thus an exception to the earlier one by statutory prescription. In other words, in a case where the prosecution has failed to complete the investigation and did not file a charge sheet within the period granted under the statute an indefeasible, accrued right would enure to the benefit of the accused for the enlargement on bail. Therefore one has to see the object behind Section 139 and 167(2) Cr.P.C. These provisions have been introduced by the legislature keeping in consonance with the lofty principles enshrined in Article 21 of the Constitution of India. Considering the liberty of a individual Justice V.R.Krishna Iyer in his inimitable style in GUDIKANTI NARASIMHULU vs. PUBLIC PROSECUTOR, HIGH COURT OF ANDHRA PRADESH [ (1978) 1 SCC 240 ] as follows: "1.) The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. . . . After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Article 21 are the life of that human right." 18. . . . After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Article 21 are the life of that human right." 18. The said decision has been quoted with approval by the Constitutional Bench in GURBAKSH SINGH SIBBIA vs. STATE OF PUNJAB [ (1980) 2 SCC 565 ]. 19. Similarly in SIDDHARAM SATLINGAPPA MHETRE vs. STATE OF MAHARASHTRA [ (2011) 1 SCC 694 ], the Honourbale Apex Court has observed as follows: "116.) Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case." 20. The said decision was quoted with approval in SANJAY CHANDRA vs. CENTRAL BUREAU OF INVESTIGATION [ (2012) 1 SCC 40 ]. 21. Therefore on a consideration of the ratio laid down by the Honourable Apex Court and also by applying the doctrines of reading together of two provisions of an enactment and purposive interpretation on the touchstone of the object of the enactment which inturn draws its support from the Constitution, this Court is of the view that the submissions of the learned Special Public Prosecutor cannot be accepted. Scope of Section 309 Cr.P.C.: 22. The matter can be looked from a different angle as well. If the contention of the learned Special Public Prosecutor is accepted in all those cases where a charge sheet is filed, the High Court cannot exercise its power under Section 439 Cr.P.C. Such an attempt if accepted would be disastrous as it would negate the very provisions contained under Section 439 Cr.P.C. Likewise the reliance made upon Section 309 also deserved to be rejected. Section 309 deals with the procedural law. It only deals with the power to postpone or adjourn proceedings. Explanation No.1 of the Section would make the position very clear. The power under Section 309 can be exercised by the Court only if sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence. It further mandates that if it would appears likely that further evidence may be obtained by a remand then the Court can remand the said accused. It also mandates a reasoned order with a maximum period of fifteen days of remand indicating the limited extent of power for a specified purpose. It further mandates that if it would appears likely that further evidence may be obtained by a remand then the Court can remand the said accused. It also mandates a reasoned order with a maximum period of fifteen days of remand indicating the limited extent of power for a specified purpose. Therefore the ambit and scope of Section 309 is totally different. The power under Section 309 has to be exercised at a later stage by the Court for the purpose of remand based upon the relevant materials. Hence the said provision is an exception to be exercised by the Court on the facts situation of a given case. It is not necessary for the accused to file an application seeking exercise of such a power. In any case, the same cannot be a bar for exercising of the power under Section 439 Cr.P.C. Moreover the case is yet to be taken on file before the Court of Session and the process of committal is yet to be completed. Scope of Section 167(2) Cr.P.C.: 23. It is rather well settled by now that a Court while dealing with an application under Section 167(2) Cr.P.C. has to decide the said application only under the said provision. In other words the Court shall not decide the application on merits when an accused seeks bail by default. Similarly, when a charge sheet is filed an indefeasible right cannot be claimed by a accused taking umbrage under Section 167(2) Cr.P.C. and the application will have to be decided on merits alone. There is no difficulty in appreciating the said proposition of law. However when an application has been filed seeking enlargement on bail on merits and the same was rejected by the Trial Court and during the pendency of the bail application before the High Court a charge sheet is filed it cannot be said by no stretch of imagination that the said application has become infructuous and the accused will have to file a fresh application before the Trial Court. The Honourable Apex Court PRAGYNA SINGH THAKUR vs. STATE OF MAHARASHTRA [ (2011) 10 SCC 445 ] has held as follows: "46. Essentially Section 160 of Cr.P.C. deals with the procedure to be adopted by Police Officer at pre- arrest stage. Once a person is arrested and is in judicial custody the prayer for Bail will have to be considered on merits. Essentially Section 160 of Cr.P.C. deals with the procedure to be adopted by Police Officer at pre- arrest stage. Once a person is arrested and is in judicial custody the prayer for Bail will have to be considered on merits. Prayer for Bail cannot be automatically granted on establishing that there was procedural breach irrespective of, the merits of matter. The appellant has not claimed bail on merits. Therefore, even if assuming that procedure mentioned in Section 160 was not followed, the prayer of bail cannot be granted at this stage....... 48. So far as the merits of the case are concerned, under the Criminal Procedure Code, bail has to be only on consideration of merits, except default bail which is under Section 167(2)......... 54. There is yet another aspect of the matter. The right under Section 167(2) of Cr.P.C. to be released on bail on default if charge sheet is not filed within 90 days from the date of first remand is not an absolute or indefeasible right. The said right would be lost if charge sheet is filed and would not survive after the filing of the charge sheet. In other words, even if an application for bail is filed on the ground that charge sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if charge sheet is filed, the said right to be released on bail would be lost. After the filing of the charge sheet, if the accused is to be released on bail, it can be only on merits. This is quite evident from Constitution Bench decision of this Court in Sanjay Dutt vs. State (1994) 5 SCC 410 [Paras 48 and 53(2)(b)]. The reasoning is to be found in paras 33 to 49. 57. It is well settled that when an application for default bail is filed, the merits of the matter are not to be gone into. This is quite evident from the principle laid down in UNION OF INDIA vs. THAMISHARASI AND OTHERS [ (1995) 4 SCC 190 ], SCC para 10, placita c-d. 58. 57. It is well settled that when an application for default bail is filed, the merits of the matter are not to be gone into. This is quite evident from the principle laid down in UNION OF INDIA vs. THAMISHARASI AND OTHERS [ (1995) 4 SCC 190 ], SCC para 10, placita c-d. 58. From the discussion made above, it is quite clear that even if an application for bail is filed on the ground that charge sheet was not filed within 90 days, before the consideration of the same and before being released on bail if charge sheet is filed, the said right to be released on bail, can be only on merits. So far as merits are concerned the learned counsel for the appellant has not addressed this Court at all and in fact bail is not claimed on merits in the present appeal at all." 24. Therefore considering the said ratio laid down in the judgment referred supra and applying the same to the facts of this case, this Court is of the view that the petitioners have not filed applications seeking default bail under Section 167(2) but on the contrary contended only on merits as reflected in the order of the Trial Court. Hence this Court is of the considered view that there is no bar for this Court to decide the applications on merits notwithstanding the fact that a charge sheet has been laid during their pendency. Applicability of the decisions: 25. Since the learned Special Public Prosecutor has made reliance upon the judgment of the Apex Court as upheld by the Honourable Apex Court, this Court thinks it to be imperative to discuss the said pronouncements as well. In the judgment of the Honourable Apex Court in PRAGYNA SINGH THAKUR vs. STATE OF MAHARASHTRA [ (2011) 10 SCC 445 ], and the judgments in CENTRAL BUREAU OF INVESTIGATION vs. DINESH DALMIA [CRL.R.C.NO.1173 OF 2006] and DINESH DALMIA vs. CENTRAL BUREAU OF INVESTIGATION [CRI.APPEAL NO.1279 OF 2007], the accused persons sought the benefit under Section 167(2) on the ground that the charge sheet having not been filed within the period mentioned under Section 167 (2) the benefits will have to be given by way of a default bail. Repelling the contentions this Court as well as the Honourable Apex Court have held that the moment a charge sheet is filed the accused stands on a different footing and the matter has to be considered on merits. Further in the said case, an absconding charge sheet was filed and thereafter the accused was arrested which is not the factual position herein. In the said case after the arrest of the accused further investigation has been taken up under Section 173(8) Cr.P.C. as he was not available for interrogation prior to the filing of the charge sheet. Therefore, the facts involved in this case are totally different from the judgments relied upon by the learned Special Public Prosecutor. 26. The other judgments relied upon by the learned Special Public Prosecutor are also not relevant for deciding this case. What was before the Honourable Andhra Pradesh High Court was an issue regarding the cancellation of bail. When the learned single Judge of the Andhra Pradesh High Court dealt with the matter the investigation was pending and thereafter when the matter was taken up by the Honourable Apex Court a supplementary charge sheet was filed. Considering the facts and circumstances of the said case, the Honourable Apex Court disposed of the Special Leave Petition filed by merely observing that in view of the subsequent development of filing the supplementary charge sheet it is not going into correctness of the order passed by the Honourable Court of Andhra Pradesh. While disposing of the matter, it was further observed that as and when an application is filed before the Trial Court for grant of bail, the same will have to be considered on merits without being influenced by any of the observation made by the High Court. It is trite law that an observation made by the superior Court applicable to the facts and circumstances of a particular case cannot be a binding precedent that too in the teeth of specific provisions of law. Considering the fact that this Court is exercising the power under Section 439 Cr.P.C. and the Honourable Apex Court has passed the order in exercise of its power under Article 136 of the Constitution of India, this Court is of the view that the said decision relied upon by the learned Special Public Prosecutor cannot be applied to the case on hand. 27. In fine all these applications are ordered. 27. In fine all these applications are ordered. The petitioners are directed to be released on bail, subject to the following conditions:- (i) Each of the petitioner shall execute a bond for a sum of Rs.10,000/- (Rupees Ten Thousand only), with two sureties each for a like sum to the satisfaction of the learned Chief Judicial Magistrate, Chengalpattu; (ii) The petitioners shall report before the Chennai George Town Police Station daily at 10.30a.m. until further orders. However, it is made clear that the granting of bail by this Court to the petitioners will not prevent the respondent from filing an appropriate application under Section 173(8) of the Cr.P.C. for further investigation and it's consequential right to seek further custody based upon any new material that might arise during such investigation.