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2014 DIGILAW 969 (MAD)

Palla Veera Venkata Surya Narayana v. State

2014-04-23

P.DEVADASS

body2014
Judgment : 1. Petition for anticipatory bail. 2. Offences alleged are under Sections 147, 450,449, 432, 342, 332, 120(B) r/w 149 I.P.C. r/w Sec.27 Arms Act. 3. The unique character of Union Territory of Puducherry is that it runs through several states. One such segment is Yanam, near Andhra Pradesh. There are also criminals, so police station and jail are bound to be. 4. In Yanam, there is a Central Prison to lodge undesirable elements and others. In this prison, undertrials, convicts are housed. One such life convict is Mani @ Murder Mani. His enemies have planned to murder him. Mani's arch rival is A-17, also a life convict. They have chalked out a programme to scale over the jail-wall and sneaked into the jail and murder Murder Mani. 5. On the wee hours of 29.8.2013, there was some strange sound in the vicinity of the jail premises. Attempt was made to scale over the jail-wall using a ladder and rope. But it was thwarted by the alert jail personnel. Murder Mani escaped. But not his opponents. A Jail official lodged the complaint. A case was registered. Investigation conducted. Some of the accused were arrested. Evidence collected. Final report was filed before the jurisdictional court. 6. The arrested were come out of jail on bail but not the petitioner/ A19 because he has eluded the police dragnet. Now, he seeks bail before jail, in other words, pre-arrest bail. 7. The learned Govt. Advocate (Crl. Side), Puducherry submitted that in as much as charge sheet (final report) has been filed, the right of the accused to ask for anticipatory bail has gone. 8. However, according to Mr.Sairam, the learned counsel for the petitioner, it is not. 9. Two things are involved, First, legal issue and second merit aspect. First one is maintainability and the second one is the eligibility of the petitioner to get advance/anticipatory bail. 10. Under the Old Code of Criminal Procedure 1898, there is no provision for anticipatory bail. It was suggested by the Law Commission of India that due to indiscriminate arrest of innocent persons on false allegations resulting in putting them to ridicule and humiliation, there need to be a provision for pre-arrest bail so as to preserve the honour and dignity of the individual. 11. It was suggested by the Law Commission of India that due to indiscriminate arrest of innocent persons on false allegations resulting in putting them to ridicule and humiliation, there need to be a provision for pre-arrest bail so as to preserve the honour and dignity of the individual. 11. The Law Makers accepted the views of the Law Commission of India and introduced Section 438 in the New Code of Criminal Procedure, 1973. 12. Section 438 runs as under: "438. Direction for grant of bail to person apprehending arrest. (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for direction under this section; and that court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. (2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including - (i) A condition that the person shall make himself available for interrogation by a police officer and when required; (ii) A condition that the person shall not, directly or indirectly,-make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer, (iii) A condition that the person shall not leave India without the previous permission of the court; (iv) Such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted -under that section. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the court under subsection (1)." 13. A regular bail does not mean there is irregular bail. There are bailable offences. A regular bail does not mean there is irregular bail. There are bailable offences. In these offences, bail is a matter of right (See section 436 Cr.P.C.). There are non-bailable offences. It does not mean not bailable. It is also bailable but bail is not a matter of right. Prosecution must be heard. Merit aspect has to be considered and then bail may be granted. (See section 437 Cr.P.C.). 14. Section 437 Cr.P.C. gives power to the subordinate courts to grant bail to the persons accused of having committed non-bailable offences. Section 439 Cr.P.C. gives concurrent power to the High Court and the Sessions Court for grant of bail. 15. Section 438 Cr.P.C. speaks of a direction to be given in the event of arrest. The word 'anticipatory bail' is not employed anywhere in the Code of Criminal Procedure. The word used in Section 438 Cr.P.C. is issuance of a 'direction' by the Court. 16. "Anticipatory bail'', "Advance bail" are the words coined by the Courts based on the content, substance and effect of section 438 Cr.P.C. The power given to the Court under section 438 is not unguided. In certain aspects, the principles governing grant of regular bail can be considered for the purpose of Section 438 Cr.P.C. 17. A criminal case has several stages. A cognizable case, whether based on a private complaint or F.I.R., involves several stages, such as, enquiry, investigation, charge framing, trial and judgment. Now, the question is whether grant of anticipatory bail is limited to any particular stage of a criminal case. 18. The very same question arose before a Constitution Bench of the Hon'ble Apex Court in the celebrated SRI GURBAKSH SINGH SIBBIA VS. STATE OF PUNJAB ( 1980(2) SCC 565 ). 19. In GURUBAKSH SINGH SIBBIA (supra) (see Spl. Page 591) the Hon'ble Constitution Bench clearly held that the operation of an order granting anticipatory bail should not be limited to a period of time. It will not be limited to any particular stage of a case. Once granted, it will be in force unless it is set aside in a manner known to law. 20. Again, the question whether on filing of final report (charge sheet) accused is entitled to grant of anticipatory bail was raked up before the Hon'ble Supreme Court in RAVINDRA SAXENA VS. STATE OF RAJASTHAN (2010(1) SCC (Cri.) 883). Once granted, it will be in force unless it is set aside in a manner known to law. 20. Again, the question whether on filing of final report (charge sheet) accused is entitled to grant of anticipatory bail was raked up before the Hon'ble Supreme Court in RAVINDRA SAXENA VS. STATE OF RAJASTHAN (2010(1) SCC (Cri.) 883). The Hon'ble Supreme Court reiterated its Constitution Bench's decision in GURUBAKSH SINGH SIBBIA (supra) and held that filing of final report will not prevent an accused from seeking a direction under section 438 Cr.P.C. for release on bail in the event of his arrest. So legally, at this distant stage of the case also, the petitioner can seek anticipatory bail. 21. Now, we will go to the next aspect, namely, whether petitioner is eligible to get anticipatory bail. 22. It has been contended by the learned Govt. Advocate (Crl.Side), Puducherry that petitioner was instructed by A-17 through A-18 that A-19 will supply ladder and rope to facilitate scaling over the jail-wall to murder Murder Mani inside the jail. Therefore, on the point of criminality, petitioner cannot be differentiated from other accused because they are all partners in crime in equal degree. 23. The learned counsel for the petitioner would contend that petitioner is a mere mason. He will supply ladder and rope to anybody who pays him money. He is just a seller of ladder and rope. He is not concerned with their utility. In the facts and circumstances, he cannot be attached with any badge of criminality. Further, in as much as the co-accused were already granted bail, on principle of parity also, he may be granted the relief sought for. 24. I have anxiously considered the rival submissions, perused the averments in the anticipatory bail petition and the relevant case papers. 25. I am not trying the case as though a trial court. I cannot deal with this case as a trial Judge. I am hearing the submissions of the learned counsels on the question whether the petitioner has a prima facie case to get a direction from this court for his release on bail in the event of his arrest. 26. So far as the petitioner is concerned, the allegation is that he had supplied ladder and rope. I am hearing the submissions of the learned counsels on the question whether the petitioner has a prima facie case to get a direction from this court for his release on bail in the event of his arrest. 26. So far as the petitioner is concerned, the allegation is that he had supplied ladder and rope. He cannot be compared with the other accused who have presented themselves near the walls of Yanam jail and were alleged to have attempted to scale over the wall. Petitioner was not present at the scene of crime/jail premises. 27. Suspicion, however, strong is not substitute for legal proof. Suspicion never qualify for legal proof. Till a man is found guilty, he is presumed to be innocent. His right of such presumption itself is his human right. It will be replaced only by recording a finding of guilty that too after giving him reasonable opportunity to defend himself by a lawyer of his choice. (See Article 22(1), Constitution of India). 28. Petitioner has a prima facie case. He has fixed place of residence in Yanam. He has no bad antecedents. It is quite unlikely that he will flee away from justice. 29. Considering the legal and factual aspects, I am of the view that the petitioner is entitled to anticipatory bail. 30. (i) Anticipatory bail granted to the petitioner; (ii) Petitioner shall surrender before the learned Judicial Magistrate, Yanam within 15 days of receipt of a copy of the order; (iii) Petitioner shall execute a bond for Rs.10,000/-(Rupees ten thousand only) with two sureties each for a like sum to the satisfaction of the said Magistrate; (iv) Petitioner shall appear before the said Magistrate as and when so ordered by the learned Magistrate.