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2014 DIGILAW 4251 (MAD)

Petitioner v. Respondent

2014-11-14

G.M.AKBAR ALI

body2014
Judgment 1. The petitioner, who apprehends arrest for the offence punishable under Sec.307, subsequently altered into 302 IPC, on the file of the respondent police, seeks anticipatory bail. 2. The petitioner is charged for an offence under Sec.307, subsequently altered into 302 IPC. The case relates to the murder of one Doctor S.B. Subbiah, a retired Neuro Surgeon from Government General Hospital, Chennai, who has subsequently joined as a Consultant in a private hospital at Raja Annamalaipuram. 3. According to the prosecution, the deceased was owning 2¼ acres of land in a village at Kanyakumari District and there is a property dispute subsisting between the deceased and one Ponnusamy, who is closely related to him. There are civil and criminal cases pending against the parties, which culminated into a criminal conspiracy to do away with the doctor by the family of the said Ponnusamy. 4. The family of Ponnusamy consists of (1) P. Annapazham, (A.1) aged 82 years, the mother, (2) Ponnusamy (A.2), (3) Mary Pushpam, (A.3) wife, (4) P.M. Basil, an Advocate, (A.4), and (5) P.M. Boris,(A.5), both are sons. The petitioner, an advocate was arrayed as A.6, and is said to be the Senior to A4. One Yesurajan, is A.7, who was helping the family. The actual assailants were at large, who were engaed. 5. The sum and substance of the case of the prosecution is that the family of Ponnusamy and Dr. S.B. Subbiah were in logger head in respect of the above mentioned property and civil and criminal proceedings are pending. Doctor was warned by A.6 and A.7 on behalf of A.1 to A.5 and was threatened that he will not live longer unless he gives up his rights in the property. 6. On 14.9.2003, around 5.00 pm, after attending the private hospital, the Doctor was about to reach his car, bearing registration No.TN 07-BE-2493 at Raja Annamalaipuram, Ist, Main road. He was confronted by three unknown persons of same age group and was assaulted brutally with deadly weapons. He was immediately taken to the same hospital, where he was working, in a critical condition. 7. One A.A. Mohan, the brother-in-law of the Doctor gave a complaint, on which, a case was registered against the said family of Ponnusamy and others under Sec.307 IPC. Subsequently, the doctor succumbed to injuries and case was altered into under Sec.302 IPC. 8. He was immediately taken to the same hospital, where he was working, in a critical condition. 7. One A.A. Mohan, the brother-in-law of the Doctor gave a complaint, on which, a case was registered against the said family of Ponnusamy and others under Sec.307 IPC. Subsequently, the doctor succumbed to injuries and case was altered into under Sec.302 IPC. 8. According to the prosecution, having suffered humiliation and made to face many civil and criminal cases, the family of Ponnusamy, instigated by A.1, the mother of Ponnusamy, conspired with the petitioner and Yesurajan to do away with the deceased Doctor and they engaged the hired assailants and accordingly, the conspiracy was executed. 9. The present petitioner, who is a practising Advocate, was arrayed as A.2 in the case. He filed an application for anticipatory bail along with prime accused, which came up for consideration before this Court in Crl.O.P.No.24092 of 2013 and this Court, by order dated 29.10.2013, dismissed the application, observing as follows: 22. Therefore, anticipatory bail in murder case cannot be granted when the investigation is incomplete. The status of the accused person is immaterial as all are equal before law. The only contention of the learned counsel for the petitioner is that a practising advocate should not be implicated at the whims and fancies of the prosecution with ulterior motive and the dignity of the bar has to be protected. 23. It is also necessary to state that it is equally the duty of the members of the Bar to uphold the dignity of the Bar. This court without being blinded by the status or the profession of the person accused, is bound by the legal principles and guidelines issued by the Apex Court brought out in the above mentioned judgments. 24. This court has carefully gone through records. Though initially the name of the 1st petitioner is not mentioned in the First Information Report, in the subsequent statements, complainant has implicated him to the effect that he is deeply involved in the cause of the family of the accused. The accused persons were taken on police custody and they have also implicated the 1st petitioner. 25. Though initially the name of the 1st petitioner is not mentioned in the First Information Report, in the subsequent statements, complainant has implicated him to the effect that he is deeply involved in the cause of the family of the accused. The accused persons were taken on police custody and they have also implicated the 1st petitioner. 25. Though such statement is the confession statement of the co-accused which cannot be given much credence, the fact remains that some persons were engaged to assassinate the deceased doctor and the strong motive and suspicion is on the family of the accused. 26. The identity of the engaged persons are yet to be established. The entire case of the prosecution is that the 1st petitioner is the main person to have engaged such hired killers along with the 4th accused Basil. This court is satisfied that it is not a case of mere relationship of senior and junior between the first petitioner and A4 but, his association and support is beyond that. There is no case made out for falsely implicating the 1st petitioner with an intention to humiliate or degrade. The investigation is incomplete and the actual assailants are still at large. 27. Therefore, weighing the facts and circumstances and after applying the factors as laid down in the above said various judgments of the Apex court , this court is of the view that pre-arrest bail cannot be casually granted in a murder case where the involvement of the accused persons are evident on the face of the record. More so, when the engaged persons are still at large and whose identity has to be established and the custodial interrogation is a must, this court is not inclined to grant anticipatory bail to the petitioners.” 10. Meanwhile, some of the accused were arrested and some of the accused were surrendered except this petitioner. 11. More so, when the engaged persons are still at large and whose identity has to be established and the custodial interrogation is a must, this court is not inclined to grant anticipatory bail to the petitioners.” 10. Meanwhile, some of the accused were arrested and some of the accused were surrendered except this petitioner. 11. This petitioner filed a second anticipatory bail in Crl.O.P.No.11550 of 2014 before this court, which was dealt by another learned Single Judge of this Court, and on 16.5.2014, anticipatory bail was granted holding as follows: “However, this Court, considering the nature and extent of participation of the accused in the occurrence and nature of the materials available against him and also considering the stage of the investigation, major part of which is already completed as per the counter statement and the release of the co-accused and also considering the professional status of the petitioner, is of the view that the custodial interrogation of the petitioner is not necessary at this stage and it is a fit case, wherein, the petitioner can be released on anticipatory bail subject to certain conditions, as he is not likely to tamper with the evidence and hamper the fair investigation and he is not likely to flee away or abscond, in the event of his being released on anticipatory bail.” 12. The intervenor, who has filed the present petition in MP No.1 of 2014, filed an appeal before the Apex Court in Special Leave to Appeal (Crl.) Nos.6186-6187/2014. The Hon'ble Supreme Court set aside the order of granting of anticipatory bail and directed the matter to be placed before the same Judge, who had dealt with the matter earlier and thus, the above matter is placed before this court for consideration. The order of the Hon'ble Supreme Court reads as follows: “Heard learned counsel for both the parties. The impugned order passed by the High Court granting bail to the first respondent herein is hereby set aside and the matter is remanded to the High Court with a request to Hon'ble Chief Justice to place the bail petition of the accused before the Judge, who had passed the earlier order dated 29.10.2013. The impugned order passed by the High Court granting bail to the first respondent herein is hereby set aside and the matter is remanded to the High Court with a request to Hon'ble Chief Justice to place the bail petition of the accused before the Judge, who had passed the earlier order dated 29.10.2013. We have passed this order keeping in view the decision of this court referring the legal principles laid down that the bail petition heard by particular learned Single Judge and rejected on the subsequent occasion, the bail petition filed by the same accused shall be placed before the same learned Single Judge, that has not been done in this case. Therefore, we are of the view that the order of the grant of anticipatory bail in favour of the first respondent herein by another Judge of the High Court on subsequent application is wholly unsustainable in law. We have not expressed any opinion on merits of the case. It is needless to mention that the bail application shall be disposed of within two weeks from the receipt of copy of this order and till then first respondent shall not be arrested. The appeals are disposed of with the aforesaid observations and directions.” 13. On this back ground, Mr. M. Ajmal Khan, the learned Senior Counsel, representing Mr. R.S. Srinivasan, learned counsel for the petitioner, would submit the following for consideration of anticipatory bail. (a) There is an alleged dispute of land at Anjugrammam village of Kanyakumari District between the family of one Ponnusamy and the deceased Dr. Subbiah. There were civil and criminal cases pending against the parties. (b) According to the prosecution, the family of Ponnusamy, conspired to take revenge and do away with Dr. Subbiah, engaged hired assailants and in pursuant to the conspiracy, on 14.9.2013, the said doctor was brutally attacked with deadly weapons in front of a private hospital and subsequently, he succumbed to injuries. (c) One Basil, son of the said Ponnusamy, is also an advocate. He worked as a Junior under the petitioner, who is a practising advocate, both at Madras and Madurai. After the incident, one Sub Inspector of Police came to the campus of High Court, Madras and tried to apprehend the said Basil, which was objected and prevented by the present petitioner. A case was also filed against the Sub Inspector of Police. After the incident, one Sub Inspector of Police came to the campus of High Court, Madras and tried to apprehend the said Basil, which was objected and prevented by the present petitioner. A case was also filed against the Sub Inspector of Police. (d) Infuriated by the said lawful action of the petitioner in protecting the rights of his Junior, the police have implicated the petitioner as if he has conspired and arranged for the hire assailants and on his instructions, the doctor was done to death. (e) The petitioner is a practising advocate and he has nothing to do with the occurrence. The respondent police seemed to have obtained statement from the co-accused to implicate the petitioner as if he is party to the conspiracy and made arrangement for the hired assailants. (f) When the petitioner approached this court, this court dismissed the anticipatory bail on the ground that the investigation was at the initial stage and the hired assailants were still at large. When the second application for anticipatory bail was moved, all the accused were either arrested or surrendered and substantial investigation was over and also considering that the custodial interrogation was not necessary, this court granted bail. (g) In pursuant to the conditions imposed on him, the petitioner had surrendered before the learned Magistrate and executed sureties and complied with the conditions appearing before the respondent on many times and cooperated with the investigation. Statements were obtained from the petitioner. (h) Since the petitioner has already appeared before the respondent and was enquired, there is no necessity for custodial interrogation and at present stage, the charge sheet is to be filed at any time and such change of circumstances have to be considered. (i) The Hon'ble Apex Court has set aside the order of granting anticipatory bail only on the ground that the matter has to be considered by the same learned Judge, who dealt with the matter earlier and had also ordered that the petitioner shall not be arrested till the disposal of the present petition and the petitioner is on bail from May 2013 till date. 14. 14. Reiterating the above submissions the Learned Senior Counsel would relay on the decision In 2011 1 SCC 694 , (Siddharam Satlingappa Mhetre vs. State of Maharashtra and others) where the Hon'ble Supreme court has dealt with granting of anticipatory bail holding that personal liberty under Article 21 of the Constitution of India to be kept in mind in considering anticipatory bail. 15. He also relied on the decision In 2007 4 SCC 266 (Prakash Kumar vs. State of Gujarat), where the Apex court has held that confession of the co-accused by itself is not sufficient to hold the other accused guilty and such confession is fragile and feeble type of evidence. 16. He would further relay on 2008 (13) SCC 431 (Parvinderjit Singh and another vs. State), where the Hon'ble Supreme court was considering the case where there was a restraining order by the Apex Court not to arrest the accused and directed the accused to cooperate with the investigation. 17. On the other hand, Mr. Shanmugavelayutham, learned Public Prosecutor would submit that there were two independent witnesses to speak about the involvement of the petitioner as a conspirator and further arranged for the hired assailants. He would further submit that though in pursuant to the earlier anticipatory bail, the accused petitioner was appearing before the Investigating Officer, he has not given any statement. It is his further contention that after the cancellation of bail by the Apex Court, even the enquiry conducted by the Investigating Officer becomes non-est and custodial interrogation is necessary to find out the involvement of the petitioner accused. 18. This Court also heard Mr. A. Natarajan, learned Senior counsel for the intervenor. 19. The learned Senior Counsel opposed for granting anticipatory bail, stating that the complicity of the petitioner has been established from the beginning and he has been evading arrest and custodial interrogation, for more than one year and granting of anticipatory bail in an offence of murder is deprecated by this Court and the Hon'ble Supreme Court on various occasions. 20. Heard and perused the materials available on record. 21. The facts and circumstances of the case are admitted. The present petitioner is a practising advocate. One Mr. Basil is said to be the Junior counsel of the petitioner. The motive for the murder of Dr. 20. Heard and perused the materials available on record. 21. The facts and circumstances of the case are admitted. The present petitioner is a practising advocate. One Mr. Basil is said to be the Junior counsel of the petitioner. The motive for the murder of Dr. Subbiah in day light in front of a private hospital is said to be the property dispute between the family of the said Basil and the deceased Dr. Subbiah. 22. According to prosecution, the petitioner, who is a practising advocate, has not only involved in the dispute, but also conspired and assisted in engaging hired assailants along with one Dr. James. Admittedly, the investigation is almost completed, but charge sheet is yet to be filed. 23. This Court has elaborately considered the principles laid down by the Hon'ble Supreme Court in 2011 1 SCC 694 , (Siddharam Satlingappa Mhetre vs. State of Maharashtra and others). This court considered the following points while dismissing the petition. i) Though initially the name of the 1st petitioner is not mentioned in the First Information Report, in the subsequent statements, complainant has implicated him to the effect that he is deeply involved in the cause of the family of the accused. The accused persons were taken on police custody and they have also implicated the 1st petitioner; ii) The identity of the engaged persons are yet to be established. The entire case of the prosecution is that the 1st petitioner is the main person to have engaged such hired killers along with the 4th accused Basil. The investigation is incomplete and the actual assailants are still at large. iii) This court is of the view that pre-arrest bail cannot be casually granted in a murder case where the involvement of the accused persons are evident on the face of the record. More so, when the engaged persons are still at large and whose identity has to be established and the custodial interrogation is a must. 24. After a year, this court has to consider the following change of circumstances. More so, when the engaged persons are still at large and whose identity has to be established and the custodial interrogation is a must. 24. After a year, this court has to consider the following change of circumstances. (i) rightly or wrongly, this court has granted an anticipatory bail in May 2013 and the petitioner had appeared before the respondent for interrogation; (ii) the alleged hired assailants are also identified and either surrendered or arrested; (iii) the investigation is almost completed and even according to the prosecution, charge sheet has to be filed after obtaining the forensic lab report. (iv) though the Apex Court has set aside granting of anticipatory bail, it has also directed the respondent not to arrest the petitioner till the disposal of the present petition. 25. From the above circumstances, this Court has to consider whether custodial interrogation is necessary at this stage. 26. Custodial interrogation implies that an accused person is interrogated by the Law Enforcement Authorities, during which period, some of the rights of the accused is on hold, except the basic fundamental human rights. 27. The scope of Sec.161 Cr.P.C does include actual accused and suspects and therefore, the police have power to question a person, who then was or in the future, may incarnate as an accused person. Any person in Sec.161 Cr.P.C would include the accused also. Any person, supposed to be acquainted with the facts and circumstances of the case, includes an accused person, who fills that role because the police suppose him to have committed the crime and must therefore, be familiar with the facts. Questioning the accused is to impart knowledge in respect of relevant fact. 28. In case of Nadini Satpati v P.L. Dhani (A.I.R 1978 SCC 1075) the Supreme Court upheld the right against self incrimination and right to silence of the accused. It is upheld that if there is any mode of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the police in obtaining information from the accused, it becomes compelled testimony is violative of the right against self incrimination. The Court also held that compulsion may be presumed in the case of custodial interrogation by the police “unless certain safeguards erasing duress are adhered to”. It further observed that the police ought to permit a lawyer to assist the accused if he can afford one. The Court also held that compulsion may be presumed in the case of custodial interrogation by the police “unless certain safeguards erasing duress are adhered to”. It further observed that the police ought to permit a lawyer to assist the accused if he can afford one. However, it did not opine that the State is under an obligation to provide a lawyer to the accused if he is poor. It also acknowledged the right to silence against self-incrimination. The accused is not bound to answer self-incriminatory questions. But he does not have right to complete silence. In other words non-incriminatory questions can be asked and the accused is “bound to answer where there is no clear tendency to criminative”. 29. In 1997 7 SCC 187 (State by CBI vs. Anil Sharma), the Hon'ble Supreme Court was considering the cancellation of an anticipatory bail on the ground of necessity of custodial interrogation. The Hon'ble Supreme Court held "6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation orientated than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of suspected person is of tremendous advantage is disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogatio in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible Police Officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. 30. As stated earlier, the purpose of questioning the accused is to impart his knowledge in respect of relevant fact. The investigation so far conducted would show prima-facie evidence for a conspiratory theory motive for murder and abutting of crime, by engaging hire assailant. 31. 30. As stated earlier, the purpose of questioning the accused is to impart his knowledge in respect of relevant fact. The investigation so far conducted would show prima-facie evidence for a conspiratory theory motive for murder and abutting of crime, by engaging hire assailant. 31. Though there are change of circumstances, the petitioner figures not only an accused but may incarnate also as a witness, who may impart knowledge, in respect of relevant facts regarding the offence. It may sometime helpful to the petitioner also. Questioning the accused in custody is desirable not only to bring the relevant facts but also to protect the accused. 32. This court fails to understand as to why the petitioner has not surrendered, when he is wanted in an offence of grave nature?. According to him, he may be innocent and has been falsely implicated. But why he feels shy of facing a custodial interrogation, where the relevant facts within his knowledge could have been imparted to the prosecution ?. The conduct of the accused who thinks that he, being an Advocate, cannot be implicated or arrested, sends a wrong message to the Society. 33. Paucity of time does not mean that it can be weighed in his favour. As a lawyer and law abiding citizen, he ought to have surrendered and subjected himself for custodial interrogation and imparted relevant facts within his knowledge to prove his innocence. Therefore, this court is of the considered view that the petitioner is not entitled to be granted pre-arrest bail. 34. Even now it is not too late for the petitioner to surrender and on such surrender within a period of two weeks from the date of receipt of copy of this order, the court may consider a few days for custodial interrogation, if the prosecution requires such custody. He may be interrogated in the presence of a counsel of his desire. Thereafter, he can approach this court for granting of bail which may be considered sympathetically. 35. In the result, the petition is dismissed with the above observation.