IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06/10/2003
CORAM
THE HONOURABLE MR. JUSTICE M.KARPAGAVINAYAGAM
CRL.M.P.No.7061 of 2003
in
Crl.O.P.No.4456 of 2002
$State by
Inspector of Police,
J.7, Velachery Police Station,
Chennai-42.
(Cr.No.1047 of 2001) ..Petitioner
-Vs-
$P. Rajagopal ..Respondent
Petition to cancel the bail granted to the respondent by this Court on
1.4.2002 in Crl.O.P.4456 of 2002 and order his arrest and commit him to
custody till the disposal of S.C.No.414 of 2002 on the file of the Additional
Sessions Judge, Chennai at Poonamallee.
!For Petitioner : Mr. I. Subramanian,
Public Prosecutor.
^For Respondent: Mr. N.Natarajan, S.C. For
Mr.G.Ravikumar.
:O R D E R
P. Rajagopal, the respondent herein is the first accused in S.C.No.4
14 of 2002 which relates to the offences of conspiracy, abduction and murder
of one Santhakumar, the husband of Jeevajothi, the complainant. He was
granted bail by this Court on 1.4.2002. The case was ripe for trial. At that
stage, the respondent along with other accused went to Thethakudi village
where the complainant, P.W.1 resides and attempted to tamper with her evidence
by compelling her to receive a sum of Rs.6 lakhs. On her refusl, the
respondent and his henchmen attempted to attack the inmates of the
complainant’s house. The complainant’s brother sustained injuries. Then, all
of them escaped from the scene and sped away. With reference to this
incident, a case was registered. The respondent and others were arrested and
produced before the Judicial Magistrate, Thiruthuraipoondi. On the strength
of the said incident, the State has now filed this application to cancel the
bail granted to the respondent by this Court on 1.4.2002 contending that the
respondent misused his liberty of bail.
2. The brief facts leading to the filing of the application are as
follows:
“(a) The respondent Rajagopal is the owner of Saravana Bhavan Hotel at
Chennai. The complainant Jeevajothi and her husband Santhakumar were working
under the Hotel Management. The respondent wanted to marry Jeevajothi as his
third wife. This was resisted by both Santhakumar and Jeevajothi. Therefore,
Jeevajothi was abducted by the respondent and others with an intention to
compel her to marry him.
(b) With reference to this incident, on 9.11.2001, Jeevajothi gave a
complaint to J7 Velacherry Police Station, Chennai. A case was registered
against Rajagopal and others in Crime No.1030/2001 for the offences under
Sections 147, 451, 352, 354, 365, 366, 342, 323, 327, 498 and 506(ii) read
with 109 IPC. Pending investigation in this case, the respondent and others
on 24.10.2001 abducted her husband Santhakumar from Chennai and took him to
Kodaikanal and murdered him, since the respondent felt that he was a stumbling
block for his ill-design to marry Jeevajothi. A separate case was registered
for this murder in Crime No.1047/2001 for the offences under Sections 120(b),
147, 342, 364 and 302 I.P.C. by the very same Police of Chennai.
(c) On 23.11.2001, Rajagopal (A1) surrendered before the Judicial
Magistrate, Kanchipuram. In both the cases, namely Crime No.1030/2001 and
Crime No.1047/2001, the learned IX Metropolitan Magistrate, Saidapet, on
27.2.2002, granted default bail to the respondent under Section 167(2) Cr.P.C.
on the ground that charge sheets were not filed in time.
(d) Challenging the said order, the State earlier preferred a petition
before this Court in Crl.O.P.No.4456 of 2002 seeking to set aside the same.
Ultimately, this Court by the order dated 1.4.2002 set aside the order of
‘default bail’ holding that the said order is illegal as the charge sheet had
already been filed even before the filing of the application under Section
167(2) Cr.P.C. However, this Court in the very same order granted regular
bail to the respondent accused with condition to reside at Cuddalore and
report before the Chief Judicial Magistrate, Cuddalore every day till the
examination of main witnesses before the trial Court is completed. While the
order was passed by this Court, it was made clear that the accused should not
attempt to tamper with the witnesses and if any complaint is received, the
bail granted to them will be cancelled.
(e) Subsequently, an application had been filed for modification of
the condition in Crl.M.P.No.4123 of 2002 before this Court. By the order
dated 30.4.2002, this Court modified the condition to the effect that the
accused Rajagopal to remain at Kanchipuram and report before the Judicial
Magistrate for a period of two months.
(f) The case in Crime No.1030/2001 relating to the abduction of the
complainant Jeevajothi in S.C.No.55 of 2003 is pending before the Mahila
Court, Chennai. The case in Crime No.1047/2001 relating to the murder of her
husband Santhakumar in S.C.No.414 of 2002 is pending before the Additional
Sessions Judge, Chennai at Poonamallee.
(g) S.C.No.55 of 2003, pending trial before the Mahila Court, Chenai,
was ripe for trial and the same was posted for examination of P. Ws. on
21.7.2003. In the other case relating to murder in S.C.No.414 of 2002 was
also posted for appearance of the accused before the Additional Sessions
Judge, Chennai at Poonamallee on 18-7-2003.
(h) The prime witness, the de-facto complainant Jeevajothi is residing
at Thethakudi village at Nagapattinam District along with her parents.
(i) At this stage, according to the State, on 15.7.2003 at 9.00 p.m.,
Rajagopal, the accused, his Legal Adviser Rajendran and his men went to
Thethakudi village with a cash of Rs.6 lakhs and odd and went to the house of
the complainant and asked her not to give evidence in the murder case as well
as in the abduction case and compelled her to receive the cash more than six
lakhs. Rajendran, the lawyer who was with him also asked her to give evidence
in the murder case in favour of the defence. When she refused for the same
and shouted at these people, her brother Ramkumar and other relatives came to
the main hall and intervened. Then, Rajagopal asked his henchmen to attack
the complainant and her brother. One of the accused took a knife and attacked
Ramkumar, the brother of the complainant and caused injury on right hand. In
the meantime, the villagers gathered there on hearing the hue and cry of the
inmates of the house. On noticing this, the accused persons swiftly got into
two Toyota Qualis cars and escaped from the spot. Unfortunately, Advocate
G.Rajendran was not able to get into the car and as such, he was caught
red-handed by the villagers.
(j) Jeevajothi gave a complaint to the Vedaranyam Police Station on
the same day at about 11.00 p.m. and the case was registered in Crime
No.701/2003 under Sections 147, 148, 452, 506(ii), 324 and 307 I.P.C. against
Rajagopal, Rajendran and others. The Vedaranyam police came to the spot and
arrested A2 Advocate Rajendran who was caught by the villagers, at about 5.00
a.m. On 16.7.2003.
(k) In the complaint, Jeevajothi gave the registration numbers of the
two Toyota Qualis cars by which the other accused escaped. On the basis of
those particulars, a wireless message was given to all the police stations in
the district about the escape of two Toyota Qualis cars. On receipt of this
information, Rajesekaran, Sub Inspector of Police, Tanjore Town Police Station
stopped those cars and arrested A1 Rajagopal, who was found in the car, and
others and recovered the cash of Rs.6,11,950/- kept in the car. He then
handed over a special report on 16.7.2003 and produced the arrested accused in
Vedaranyam Police Station. Then, all the accused including Rajendran, the
Advocate were sent to the Judicial Magistrate, Thiruthuraipoondi for remand
along with remand report. Accordingly, they were remanded.
(l) On the same day, i.e. on 16.7.2003, the respondent and Rajendran
and other accused filed bail application before the Judicial Magistrate Court,
Thiruthuraipoondi. Rajendran, Advocate alone was released on bail subject to
some conditions purely on medical ground. The bail application by the others
was dismissed.
(m) On 18.7.2003, the State filed the present application in
Crl.M.P.No.7061 of 2003 to cancel the bail granted to Rajagopal in
Crl.O.P.No.4456 of 2002 mainly on the ground that Rajagopal along with others
came to Thethakudi village and attempted to tamper the main witness Jeevajothi
in the murder case.
(n) In the meantime, the accused Rajagopal and others filed an
application for bail before the Principal Sessions Court, Nagapattinam in
Cr.M.P.No.3283 of 2003 and the same was dismissed on 24.7.2003. However,
again he filed another application in Cr.M.P.No.3345 of 2003 and on 31.7.2003,
the same was ordered by the Principal Sessions Judge granting bail. As such,
he has come out on bail in the case in respect of the incident of tampering
and threatening the witness in the murder case even before this application
for cancellation of bail was entertained by this Court.”
3. The present application for cancellation of bail came up for
admission before this Court on 1.8.2003 and notice was ordered. On receipt of
notice, the learned senior counsel for the respondent appeared and filed the
counter-affidavit.
4. The matter was argued at great length by both Mr.I.Subramanian,
the learned Public Prosecutor for the State and Mr.N.Natarajan, the learned
senior counsel representing the counsel on record on behalf of the
accused/respondent.
5. The submissions made by the Public Prosecutor in brief are as
follows:
“Jeevajothi, the de-facto complainant in both the cases in S.C.No.55
of 2003 relating to abduction pending in Mahila Court, Chennai and S.C.No.414
of 2002 relating to the murder of her husband pending before the Additional
Sessions Judge, Poonamallee is the prime witness. The case in S.C.No.55 of
2003 was posted for trial on 21.7.2003. The case in S.C.No.414 of 2002 had
been posted before the Additional Sessions Judge, Poonamallee on 18-7-2003 for
the appearance of the accused Rajagopal. Though the occurrence had taken
place in Chennai and the trial is pending before the Courts at Chennai, the
de-facto complainant and other witnesses left Chennai and started residing in
Thethakudi village, Nagapattinam District along with her parents and
relatives. Just before the commencement of trial, i.e. on 15.7.2003, the
accused Rajagopal along with his legal adviser Rajendran, a practising
advocate at Chennai and with his other henchmen came to Thethakudi village,
Nagapattinam District in two Toyota Qualis cars to strike a deal with
Jeevajothi by asking her to resile from her earlier version and to support his
defence. They offered money more than six lakhs. She was not amenable. She
raised a hue and cry. Her brother and others came and intervened. At the
instigation of Rajagopal, one of the accused attacked her brother and he
sustained knife injury on his right hand. Then, all the accused tried to
escape by getting into the cars. Ultimately, they succeeded in fleeing away
from the scene. Unfortunately,Rajendran, the legal adviser was left in the
lurch in the village itself, thereby the villagers were able to catch hold of
Rajendran alone. Immediately, the complaint was lodged with police at 1 1.00
p.m. itself and the case was registered. On receipt of message, the Sub
Inspector of Police, Tanjore intercepted the cars near Tanjore and arrested
the accused and recovered the cash. While the bail was granted by this Court
on 1-4-2002 to the accused Rajagopal, this Court specially imposed the
condition directing the accused not to tamper with the witnesses and if there
is any complaint of tampering, the bail granted wouldl stand cancelled. Now,
the incident of tampering with the witnesses has taken place on the eve of
trial. Through the sufficient materials in the form of statement of the
witnesses, wound certificate, recovery of cash, the recovery of the chappals
belonged to the accused from the spot, etc., the State has established the act
of the accused in having made an attempt to tamper with the witness, by all
the probabilities. As such, the respondent misused his liberty of bail and
consequently, the same has to be cancelled.”
6. In reply to the above submissions, Mr.N.Natarajan, the learned
senior counsel appearing for the respondent accused has made the following
contentions:
“The respondent has never gone to Thethakudi village to tamper with
the witness. The case is falsely foisted against him. The affidavit seeking
for cancellation of bail has been filed only by the investigating officer in
S.C.NO.414 of 2002 and the officer who is the investigating the case over the
incident which took place at Thethakudi has not chosen to file any affidavit.
The witnesses for the incident have never filed the supporting affidavits.
The application has already been filed on 7.7.2003 by the prosecution for
transfer of the case from Mahila Court to Poonamallee Sessions Court to try
both the cases. Even then, subpoena was obtained on 14-7-2003 from Mahila
Court to be served on the witnesses at Thethakudi. Those summons were never
served on the witnesses. On 15-7-2003, Rajagopal, the accused was travelling
with other people to Vellore, carrying with him the cash of Rs.6 lakhs to meet
the expenses for the function for a new branch hotel at Vellore to be opened
on 1-9-2003. On the way to Vellore, he went to Thirunallar Saneeswarar
temple, Tanjore District and after darshan, he proceeded to Vellore-via
Tanjore. At that time, the Police intercepted and took them to the Vedaranyam
Police Station. One Ramachandran, Assistant Commissioner of Police, Guindy
Range,Chennai was present at the Vedaranyam Police Station on 16-7-2003 at
about 8.00 a.m. Even though he is not the investigating officer in S.C.No.55
of 2003 and S.C.No.414 of 2002, from the beginning he has shown undue interest
in these cases . The presence of the said officer attached to Chennai Range
in Vedaranyam Police Station on 16.7.2003 itself would show that a drama was
enacted only at the instance of the Assistant Commissioner of Police, Chennai,
in order to create a ground for cancellation of bail. The incident is so
artificial. The place of the arrest of the accused is near Tanjore, which is
situated 83 kms. away from Thethakudi village. The injury found on the right
hand of the witness was so simple and minor injury. Therefore, it cannot be
said that there was an attempt to murder the brother of the complainant.
Considering the situs and nature of the injury, the Sessions Court concluded
that it cannot be a case of Section 307 I.P.C. and granted bail. Since there
are no sufficient materials produced by the prosecution to prove the alleged
incident took place on 15.7.2003 and in view of the materials available on
record to show that the defence case is more probable, the bail may not be
cancelled.”
7. In view of the specific allegations made against Ramachandran,
Assistant Commissioner of Plice, Guindy Range, in the counteraffidavit of the
accused, the learned Public Prosecutor filed the reply affidavit sworn to by
the said Ramachandran denying those allegations. According to the Assistant
Commissioner of Police, he is Guindy Assistant Commissioner of Police, having
jurisdiction over Velachery Police Station in which both the crime numbers
relating to S.C.No.55 of 200 3 and S.C.No.414 of 2002 were registered. As
Assistant Commissioner of Police having jurisdiction over the Velachery Police
Station, he was supervising in the investigation in these cases. He received
information from the Inspector of Police, Vedaranyam about the incident of
threatening and tampering with the witness which took place on the nigh of
15.7.2003 at Thethakudi village. Since he was interested in the safety and
welfare of the prime witness-Jeevajothi, he rushed to Vedaranyam Police
Stationon 16.7.2003 and ascertained the facts and also ensured the adequate
protection to the witness and returned to the city on the very next day.
Immediately after the arrest of Advocate Rajendran, an intimation was sent to
the relatives of Rajendran at Chennai as well as to the President of the
Advocates’ Association and the Hon’ble Chief Justice of High Court regarding
his arrest as per the procedure. He has never shown any undue interest in
these cases. Neither Rajendran nor Rajagopal had made any complaint against
the Assistant Commissioner of Police and other police regarding this to the
Judicial Magistrate, Thiruthuraipoondi who remanded them. The summons were
not served on the witnesses in the cases, since on the application filed by
the State for transfer of the cases to have joint trial in one Court, the
cases were stayed by this Court. As such, the allegations against the officer
are false.
8. Both the counsel would cite a number of authorities of this Court
as well as the Supreme Court.
9. The Public Prosecutor would cite the following decisions:
(i) AIR 1951 MADRAS 1042 (Public Prosecutor v. George Williams) ( ii)
AIR 1958 S.C. 376 (T.H.Hussain v. M.P.Mondkar)
(iii) AIR 1978 S.C. 179 (Gurcharan Singh v. State (Delhi Admn.)
(iv) AIR 1978 S.C. 961 (Delhi Admn. v. Sanjay Gandhi)
(v) 1979 CRL.L.J. 455 (MAD. H. C.) (State v. Veerapandy)
(vi) 1987 CRL.L.J. 1872 (SC) (Shahzad v. Ishtiaq)
(vii)1994 CRL.L.J. 841 (Delhi H. C.)(State v. Mahinder Singh)
(viii) 1994 Supp (2) S.C.C. 205: (Sant Ram v. State of
Haryana) ( ix) 1996 (I) C.T.C. 249 (Mad) (State v. Adi Rajaram)
10. The learned senior counsel appearing for the Respondent Accused
would cite the following authorities:
(i) 1989 (3) S.C.C. 532 (Rajnikant Jivanlal v. Intelligence Officer)
(ii) 1992 (3) Crimes 597 (Aslam Babalal Desai v. State of
Maharashtra)
(iii) 1995 S.C.C. (Cri) 237 (Dolat Ram v. State of Haryana)
(iv) 2000 S.C.C.(Cri) 1508 (Subhendu Mishra v. Subrat Kumar Mishra)
(v) 2001 S.C.C. (Cri) 1124 (Puran v. Rambilas)
11. I have carefully considered the submissions made by the learned
Public Prosecutor and Mr.N.Natarajan, the learned senior counsel appearing for
the respondent and perused the records. I have given my anxious consideration
to the contentions urged on either side.
12. Before dealing with the merits of the respective contentions, it
would be appropriate to refer to the guidelines given by the various Courts in
the decisions cited supra, while considering the application for cancellation
of bail. The guidelines are these:
A) As a fair trial is the main objective of the criminal procedure,
any threat to the continuance of a fair trial must be immediately arrested and
the smooth progress of a fair trial must be ensured.
B) A fair trial has naturally two objects in view; it must be fair to
the accused and must also be fair to the prosecution. The test of fairness in
a criminal trial must be judged from this dual point of view. It is therefore
of the utmost importance that, in a criminal trial, witnesses should be able
to give evidence without any inducement or threat either from the prosecution
or the defence. A criminal trial must never be so conducted by the
prosecution as would lead to the conviction of an innocent person; similarly
the progress of a criminal trial must not be obstructed by the accused so as
to lead to the acquittal of a really guilty offender.
C) If an accused person, by his conduct, puts the fair trial into
jeopardy, it would be the primary and paramount duty of criminal Courts to
ensure that the risk to the fair trial is removed and criminal Courts are
allowed to proceed with the trial smoothly and without any interruption or
obstruction.
D) The question of cancellation of bail under Section 439(2) Cr.P.C.
of the Code is certainly different from admission to bail under Section 439(1)
Cr.P.C. Rejection of bail when bail is applied for is one thing, cancellation
of bail already granted is quite another. It is easier to reject a bail
application in a non-bailable case than to cancel a bail granted in such a
case. Cancellation of bail necessarily involves the review of a decision
already made and can by and large be permitted only if by reason of
supervening circumstances, it would be no longer conducive to a fair trial to
allow the accused to retain his freedom during the trial.
E) It is not necessary for the prosecution to prove the threatening
incident by a mathematical certainty or even beyond a reasonable doubt. In a
matter of cancellation of bail, every incidental matter in a criminal case
need not be proved beyond a reasonable doubt like the guilt of the accused.
Though the guilt of the accused in cases which involve the assessment of facts
has to be established beyond a reasonable doubt, these various facts are not
required to be proved by the rigorous standard for cancellation of bail. The
prosecution, therefore, can establish its case in an application for
cancellation of bail by showing on a preponderance of probabilities that the
accused has attempted to tamper or has tampered with its witnesses. Proving
by the test of balance of probabilities that the accused has abused his
liberty or that there is a reasonable apprehension that he would interfere
with the course of justice, is all that is necessary for the prosecution to do
in order to succeed in an application for cancellation of bail.
F) The power to cancel the bail and to take back the accused in
custody who has been enlarged on bail has to be exercised with care and
circumspection. This power, though of an extra-ordinary nature, is meant to
be exercised in appropriate cases when, by a preponderance of probabilities,
it is clear that the accused is interfering with the course of justice by
tampering with witnesses. Refusal to exercise that wholesome power in such
cases, few though they may be, will reduce it to a dead letter and will suffer
the Courts to be silent spectators to the subversion of the judicial process.
G) The relevant factor, while exercising the power, which should be
taken by the court into consideration for cancellation of bail is to see
whether from the affidavit filed by the prosecution has the prosecution by a
preponderance of probability, made clear whether the accused are interfering
with the course of justice by tampering with the witnesses or have contravened
the conditions imposed on them and thereby abused the liberty granted by the
court.
H) Once an accused has been enlarged on bail, his liberation from
custody cannot be lightly interfered with, but this does not mean that even in
a proper case where ends of justice would be defeated unless the accused is
committed to custody, power of the High Court to cancel the bail cannot be
exercised.
I) Rejection of bail stands on one footing, but cancellation of bail
is a harsh order because it interferes with the liberty of the individual.
Hence, it must not be lightly resorted to.
J) Rejection of bail in a non-bailable case at the initial stage and
the cancellation of bail so granted, have to be considered and dealt with on
different basis. Very cogent and overwhelming circumstances are necessary for
an order of cancellation of the bail already granted. Generally speaking, the
grounds for cancellation of bail, broadly (illustrative and not exhaustive)
are: interference or attempt to interfere with the due course of
administration of justice or abuse of the concession granted to the accused in
any manner.
13. Keeping in view of the above guidelines, let me now enter into
the question as to whether there is a situation warranting for cancellation of
bail, taking into consideration the rival contentions and the facts and
circumstances presented in the present case.
14. Rajagopal, the first accused, called as ‘Saravana Bhavan
Rajagopal’ is the proprietor of a chain of hotels carrying on business under
the name and style of “Hotel Saravana Bhavan” at various places in the city of
Chennai, Delhi and in foreign countries. Few years back, one Ramasamy of
Thethakudi village, Nagapattinam District, was working as Assistant Manager in
the Saravana Bhavan Hotel at Chennai. He left for Malaysia leaving his wife
and daughter Jeevajothi and son Ramkumar. Jeevajothi fell in love with one
Santhakumar, a tuition teacher and married him in the year 1999.
15. Rajagopal married one Valliammal and through her, he had two
sons. In 1994, he married one Krithika, aged about 27 years, as his second
wife. Earlier, the said Krithika got married to one Ganesan, who was an
employee of the said hotel. Rajagopal persuaded him to break the matrimony
with the said Kiruthika after making payment of money. Having been attracted
by Jeevajothi, Rajagopal wanted to marry her also as his third wife and asked
her husband Santhakumar to sever his marital tie with Jeevajothi. Both
Jeevajothi and her husband resisted the unlawful attempt of Rajagopal.
16. One day, both were abducted and Jeevajothi was taken to a
separate place and she was threatened and beaten to marry him. Regarding this
incident, on the complaint of Jeevajothi, a case was registered against
Rajagopal and others on 1.10.2001 in Crime No.1030/2001 for the offences under
Sections 147, 451, 352, 354, 364, 366, 342 and 506 Part II I.P.C. On
24.10.2001, Santhakumar, the husband of the complainant was abducted from
Velachery and taken to Kodaikanal at the instigation of Rajagopal, the accused
and he was murdered there and the body was thrown away in the hills.
Regarding this incident, another case was registered by J7 Velachery Police
Station in Crime No.1047/200 1 against Rajagopal and others for the offences
under Sections 120-B, 147, 342, 364 and 302 I.P.C.
17. On 23.11.2001, Rajagopal surrendered before court and he was
remanded to judicial custody in respect of both the Crime Nos.1030/2001 and
1047/2001. On 27.2.2002, he was released on bail by the IX Metropolitan
Magistrate, Saidapet under Section 167(2) Cr.P.C. under the concept of
“default bail”.
18. The State was constrained to file an application before this
Court to set aside the said order. This Court in Crl.O.P.4456 of 2002
accepted the contention of the State and set aside the order of granting
default bail holding that the order was illegal and however, granted regular
bail to the accused Rajagopal by the order dated 1.4.2002 with the condition
that he should reside at Cuddalore and report before the Chief Judicial
Magistrate. The further condition was specified stating that he should not
attempt to tamper with the witnesses and if any complaint is received, it is
made clear that the bail granted to him will be cancelled. Thereafter, the
condition to reside at Cuddalore was modified to the effect that he may reside
at Kanchipuram and report to the court only for two months. After the said
period, the condition to stay at Kanchipuram had automatically elapsed.
However, the condition “that he should not attempt to tamper the witnesses and
if any such complaint is received, the bail granted to him will be cancelled”
is in tact.
19. There is no dispute in the fact that S.C.No.414 of 2002 relating
to the murder of the de-facto complainant’s husband and S.C.No.55 of 2003
relating to the abduction of P.W.1 with an intention of compelling her to
marry Rajagopal were nearing the trial stage. As a matter of fact, S.C.No.55
of 2003 was specifically posted for trial on 21.7 .2003 and S.C.No.414 of 2002
was posted for the appearance of the accused on 18.7.2003. In that context,
the occurrence in question has taken place on 15.7.2003.
20. According to the State, on 15-7-2003 at about 9.00 p.m., the
first accused Rajagopal, his legal adviser Rajendran (A2) and other accused
came in two Toyota Qualis cars to Thethakudi village where P.W.1 , the
de-facto complainant is residing and they entered into the house of the
complainant Jeevajothi for the purpose of tampering and intimidating her in
order to prevent her to give evidence in the murder case in S.C.No.414 of 2002
against Rajagopal and offered to pay the money of Rs.6 lakhs and odd and when
the same was resisted, the witnesses were threatened with dire consequences
and one of the witnesses sustained knife injury at the instance of the
respondent accused and on noticing the crowd of villagers coming to the scene,
the respondent and others speedily got into the two Toyota Qualis cars and
sped away, without knowing that the respondent’s legal adviser was left in
front of the house of the complainant and he was caught by the villagers.
21. While refuting this accusation, the senior counsel Mr.Natarajan
would contend on the strength of the counter-affidavit filed by Rajagopal (A1)
that he never went to Thethakudi for tampering with the witnesses, and on the
other hand, he went in the two Toyota Qyalis cars along with his men on
15.7.2003 to Vellore in order to supervise the arrangement being made for
opening of a branch of his hotel to be held on 1.9.2003 and on the way to
Vellore, he went to Thirunallar Saneeswaran Temple and after Darshan, he was
proceeding towards Vellore through Tanjore and at that time, the cars were
stopped and the accused were taken to Vedaranyam Police Station and as such,
the incident is a make-belief affair which has been enacted for the purpose of
creating a ground for cancellation of bail at the instance of Ramachandran,
the Assistant Commissioner of Police who has taken undue interest in this
case.
22. At the outset, it shall be stated that while this Court begins
the process of deciding the issue relating to cancellation of bail, this Court
shall be reminded of the legal position that the grounds for rejection of bail
is one thing, and the grounds for cancellation of bail is altogether different
thing as in fact, the order of cancellation is a so harsh and it requires
convincing overwhelming materials to take back the accused in custody so as to
lose his liberty of bail. Similarly, this Court is conscious of the settled
law that the materials regarding the incident in question need not be proved
beyond reasonable doubt by the prosecution as the burden of the prosecution to
establish the same is not that much onerous as that of the burden to prove the
guilt of the accused in a trial and the incident in question can be
established through the preponderance of probability.
23. While considering the said aspect, this Court has to necessarily
refer to one important element which is noticed in this case. When the
default bail was granted by the IX Metropolitan Magistrate, Chennai, the State
filed an application before this Court to set aside the same, since the said
order is illegal as the order has been passed subsequent to the charge sheet
had been filed in the case. This Court rightly by the order dated 1.4.2002
held that the order under the concept of “default bail” is wrong. However,
this Court graciously granted regular bail in the very same order even in the
absence of any application by the accused seeking for bail by imposing some
conditions. The State was not aggrieved over this order. As far as the State
is concerned, it felt satisfied that “At least the operation was successful”.
In other words, the State has not chosen to show any interest to challenge the
said order of bail by taking to the Supreme Court. The original condition in
the bail order imposed by this Court on 1.4.2002 is that the respondent must
reside at Cuddalore and report before the court till the examination of main
witness is completed. But, the respondent filed an application in
Cr.M.P.No.4123 of 2002 seeking for modification of the condition to allow him
to reside at Chennai. This Court by the order dated 30.4.2002 modified the
condition to the effect that the respondent/accused must reside at Kanchipuram
and report to the court only for a period of two months. This order conveys
the meaning that after two months, he could come to Chennai and stay there or
any other place wherever he likes. By virtue of this order, the earlier
condition that was imposed on 1.4.2002 that he shall reside at Cuddalore and
report before the court till the examination of the main witnesses is
completed in Chennai court has automatically relaxed. Despite this freedom
given explicitly and impliedly by the order of this Court, the State has not
chosen to file any application to restore the original condition, namely, not
to come to Chennai till the main witnesses are examined. This would indicate
that the State did not seriously oppose the relaxation of the condition with
reference to the stay at Chennai. Thus, it is clear that the State was not
interested in opposing each and every application filed by the accused nor had
insisted for the earlier condition nor for any other condition so as to cause
hardhip to the respondent accused.
24. However, it is to be noted that the condition which has been
imposed by this Court on 1.4.2002 that the petitioner should not tamper with
the witnesses at any cost failing which, the bail will be cancelled, has not
been ‘allowed’ to be relaxed. It is also pertinent to note that the State has
never shown any undue interest from 1.4.2002, the date of order of bail till
15.7.2003, the date of the incident, either by taking steps in sustaining the
condition to reside at somewhere else till the examination of main witnesses
is completed or in getting him back in custody to enable the trial is go on
without giving room for intimidation.
25. In the light of the said fact situation, let me now consider the
materials regarding the incident in question.
26. After hearing the arguments of both the counsel, this Court summoned the
records from the Judicial Magistrate, Thiruthuraipoondi, such as remand
report, the statement of the accused before remand court, remand order and the
bail applications filed by the accused persons before the Judicial Magistrate
Court, Thiruthuraipoondi as well as the records from the Principal Sessions
Judge, Nagapattinam relating to the bail applications and the dismissal order
at the first instance and the second application filed and the bail order
passed for the purpose of proper appraisal of the contentions made on either
side. Accordingly, on receipt of those records from both the courts, the said
records were perused. The case diary produced by the Public Prosecutor also
was perused.
27. On a careful perusal of those records, the following factors are
revealed.
28. The arrest memo relating to Rajendran, legal adviser and Rajagopal, the
respondent herein, another accused, available on record would show that
Rajendran, legal adviser was arrested near the house of the complainant at
Thethakudi village and Rajagopal along with the others were arrested near
Tanjore when they were travelling in the Toyota Qualis cars at 12.10 mid night
on 15.7.2003, the Sub Inspector of Police, Tanjore on receipt of the wireless
message from Vedaranyam Police and the cash of Rs.6,11,950/- was recovered
from Rajagopal. Immediately after the arrest, the Sub Inspector of Police,
Tanjore presented a special report and produced the accused along with the
cars and the cash recovered before Vedaranyam Police on 16.7.2003 at 8.30 a.m.
This special report signed by the Sub Inspector of Police, Tanjore and also
the voucher signed by the Inspector of Police, Vedaranyam are available on
record.
29. Similarly, it is noticed that the complaint was given by Jeevajothi, the
de-facto complainant in her own handwriting and the same was registered on
15.7.2003 at about 11.00 p.m. In this complaint, she mentioned about the
registration numbers of the Toyota Qualis cars in which the accused persons
except Rajendran, legal adviser, escaped. This complaint was received by the
Judicial Magistrate at 7.30 a.m. on 16.7.2003. Only after registration of
the case, the accused Rajagopal and others were arrested and the said Toyota
Qualis cars and the cash were recovered at about 12.10 mid night. In the
common remand report submitted by the Inspector of Police, Vedaranyam, while
remanding all the accused including A2 Rajendran, legal adviser together, he
has mentioned all these factors.
30. According to the statements of witnesses, when the accused got into the
cars and tried to escape, one car hit against a tree and the car glasses got
broken and Rajagopal escaped in the car after leaving his chappals in front of
the house of the complainant. The observation mahazar and recovery mahazar
and the records would show that the car glass pieces found near the tree and
the chappals belonged to the accused Rajagopal have been recovered. In
support of the complaint, the Inspector of Police obtained statements from her
brother Ramkumar, the injured witness and relatives Thavamani, Ramasamy,
Thasamani, the villagers Govindasamy, s/o Subramania Gounder and Govindasamy,
s/ o Kuppusamy Gounder. Ramkumar, the injured was taken to hospital where he
was treated. The accident register was also issued by the Doctor mentioning
the injury found on his right hand which was alleged to be caused with knife
in the incident took place on 15.7.2003 at 9.30 p.m. near his residence.
31. While dealing with these materials, this Court is so cautious as
cautioned by the Supreme Court that this Court should not give any finding
with reference to the veracity of the statements of the witnesses including
the complainant. This Court is also conscious that this Court is only called
upon to find out whether the incident in question has been established by the
State by preponderance of probabilities. To decide whether these materials
can be considered to be prima facie materials to conclude that the incident
has been established, it would be worthwhile to refer to the case of the
defence at this stage itself. If the case of the defence is more probable,
then it is quite easy for this Court to say that the incident in question is
improbable. Considering this situation, let me now deal with the defence
theory.
32. According to the counter-affidavit of the accused Rajagopal, he along
with others went in two Toyota Qualis cars to Thirunallar and had Saneeswaran
darshan and on the way to Vellore via. Tanjore, they were intercepted and the
cars and cash were recovered from them and brought to Vedaranyam Police
Station.
33. Even at the threshold, it must be stated that this defence story has been
projected by the respondent/accused only in the counteraffidavit sworn to by
him which has been filed before this Court on 15.9.2003. In other words, this
case of the defence has been mentioned neither before the court in which he
was remanded nor in the first bail application filed before the Judicial
Magistrate, Thiruthuraipoondi on 16.7.2003 nor in the bail application before
the Sessions Court, Nagapattinam on 18.7.2003 which was dismissed on 24.7.2003
nor in the second application filed by the accused before the Sessions Court
on 2 5.7.2003, which was ordered on 31.7.2003. Thus, it is clear that there
is no material placed before this Court as to why such a defence was not
placed before the other courts earlier and there is no other material placed
at least now before this Court in support of his defence, excepting to state
defence story in the counter-affidavit filed by the accused on 15.9.2003
before this Court.
34. The remand order passed by the Judicial Magistrate, Thiruthuraipoondi
dated 16.7.2003 would show that when A2 Rajendran was produced, he reported
that the case filed against him is false and one policeman in ununiform
obtained his statement under duress. When A1/ respondent, A3 and A4 were
produced before the court, those accused said that they had nothing to make
any complaint against the police. These statements were recorded. Therefore,
the arrest of the Advocate(A2) near the complainant’s house and the
respondent(A1) and others near Tanjore had not been disputed.
35. Though there is a statement in the handwriting of the advocate available
in the case diary to the effect that he came along with the first accused
Rajagopal to meet the Vedaranyam M.L.A. and on the way, Rajagopal went to
Thethakudi village and had some conversation with P.W.1, the said statement
need not be given any importance at this stage, especially when he stated
before the Magistrate that some statement has been obtained from him under
duress. But, the other materials found in the case diary as well as in the
lower court records would show that the said Rajendran, Advocate has been the
legal adviser for Rajagopal, the first accused for about 4 or 5 years.
36. As indicated earlier, the fact that Rajendran, the legal adviser of
Rajagopal, was arrested near the house of the complainant has not been
disputed. As a matter of fact, Advocate Rajendran (A2) has filed an affidavit
before the Judicial Magistrate, Thiruthuraipoondi on 16.7.2003 while he was
remanded admitting that he came from Chennai to Thiruthuraipoondi for some
professional work and was having heart ailment and as such, he has to be
released on bail. Only on the basis of the medical ground, he was released on
bail on the same day by the Judicial Magistrate, Thiruthuraipoondi.
Therefore, there are prima facie materials to show that A2 Rajendran found
near the residence of the complainant was caught by the villagers who kept in
their custody, while the other accused sped away. He was produced to the
police by the villagers at about 5.00 a.m. when the police came to the
village Thethakudi.
37. It is also noticed that immediately after the arrest of A2
Advocate, the intimation about the arrest was sent to his relatives as well as
to the President of the Advocates’ Association, High Court, Madras. From the
case diary, it is also noticed that intimation was sent to the Hon’ble Chief
Justice of this Court through the Registrar, High Court, from Control Room
through Head Constable 1534. The copy of the intimation is available. The
same is as follows:
“Advocate Tr.G.Rajendran,Aged 58/03 S/o Govindasamy, No.51, South Usman Road,
T.Nagar, Chennai, the legal adviser of P.Rajagopal, the owner of Saravana
Bhavan Hotels, was arrested on 16.7.2003 at 5.00 hrs. at Thethakudi North
village in Vedaranyam P.S. limit in connection with Vedaranyam P.S.
Cr.No.701/2003 u/s 147, 148, 324, 452, 506(ii) and 307 I.P.C. and he has to
be sent for remand to the Court of Hon’ble Judicial Magistrate,
Thiruthuraipoondi.”
This shows that the investigating agency on receipt of the complaint and
arrest of the accused Advocate who was available in the scene, was careful
enough to intimate about the arrest to the relatives as well as to the
Advocates’ Association and to the Hon’ble Chief Justice immediately, as per
the guideline given by the Supreme Court.
38. It is seriously contended that the incident is nothing but a farce one
and it was nothing but a drama successfully enacted by Mr. Ramachandran,
Assistant Commissioner of Police, Guindy Range, who was present at the
Vedaranyam Police Station on the relevant date. It is true that the Assistant
Commissioner of Police himself admitted in his reply affidavit that he came to
the Vedaranyam Police Station next day, i.e. on 16.7.2003 and he was present
throughout the day and next day, he left for Chennai. According to the
Assistant Commissioner of Police, an intimation from the Vedaranyam Police was
received by him that the witnesses in the murder case at Thethakudi village
were threatened and intimidated and so he rushed to the Vedaranyam Police
Station in order to ensure protection to the witnesses to be examined in the
murder case pending in Chennai court. It is specifically mentioned in his
reply affidavit that as a superior officer, viz., Assistant Commissioner of
Police, Guindy Range, he was supervising the investigation conducted by
Velachery Police in S.C.No.55 of 2003 and S.C. No.414 of 2002. Under those
circumstances, this Court is unable to hold that he has shown undue interest
in this case and as such, he only enacted the drama. Even assuming that his
presence in the Vedaranyam Police Station on 16.7.2003 is unnecessary, there
is no necessity to show the arrest of the Advocate near the residence of the
complainant. No enmity has been attributed against Assistant Commissioner of
Police for booking a case against an Advocate. As it is noted earlier, there
are materials from the case diary as well as in the lower court records that
the second accused Rajendran was the legal adviser for the first accused
Rajagopal.
39. When this Court confronted with the senior counsel appearing for the
respondent/first accused as to why A1’s legal adviser was to be present near
the place of occurrence during the relevant time, the senior counsel on the
basis of the instruction given by the lower court counsel, who was present in
this Court, would submit that Rajendran had never been the legal adviser for
the respondent and so, he could not give any reason for the presence of the
advocate accused at the scene of occurrence. He would further emphatically
submit, on instruction from the lower court counsel, that the respondent has
no connection whatsoever with the said advocate. This Court further asked the
learned senior counsel as to whether the said aspect, namely that there was no
connection between the respondent accused and Advocate accused, has been
mentioned in the counter-affidavit filed by the respondent. The senior
counsel would fairly submit that such thing has not been mentioned. However,
he represented the same only on the basis of the instruction given by the
counsel appearing for the lower court counsel. This aspect, in my view, is
most important. It is the consistent case of the prosecution as mentioned in
F.I.R., Remand report and state of witnesses and the affidavit filed for
cancellation that A2 , as a legal adviser accompanied Rajagopal and others and
went to the complainant’s house and A1 and A2 both threatened the complainant.
But, it has never been mentioned in any of the applications filed before the
lower courts and in the counter affidavit filed by the respondent that A1 has
nothing to do with A2.
40. On the other hand, according to the State, all the people
consisting of A1 Rajagopal and A2 Rajendran, legal adviser along with the
other accused came together in two Toyota Qualis cars to Thethakudi village in
order to tamper with the witness by offering money and threatening and as
such, after arrest of all the accused, a common remand report was filed by the
Inspector of Police before the Judicial Magistrate, Thiruthuraipoondi.
41. In this context, it would be worthwhile to refer to the following aspect
found in the lower court records to show that the prosecution case is so
probable.
42. As soon as the common remand report was filed before the Judicial
Magistrate, Thiruthuraipoondi,one G.Dhananjeyan, Advocate filed memo of
appearance appearing for the accused 1 to 6. In the memo of appearance,
Rajagopal was mentioned as first accused and Rajendran, the advocate was
mentioned as 6th accused. But subsequently, the names of the accused 1 to 5
were struck off and bail application was filed on behalf of Rajendran by
Dhananjeyan, Advocate in Cr.M.P.No.5072 of 2 003. On the same day, bail
application was filed on behalf of the respondent/first accused and others in
Cr.M.P.No.5071 of 2003 by one V.Rudrapathy, Advocate. The perusal of the said
bail application filed before the Judicial Magistrate would indicate that
originally, Rajendran’s name was mentioned as one of the petitioners and
subsequently, it was struck off. In the same way, in the memo of appearance
also filed on behalf of the first accused/respondent Rajagopal, Rajendran’s
name was mentioned as second petitioner and then struck off. In the copy
petition under Section 339 Cr.R.P. Filed on 18.7.2003 asking for the copy of
the order, Rajendran’s name was originally mentioned and then struck off.
This would show that originally, a single counsel was engaged by all the six
accused inclusive of the respondent(A1) and A2 Rajendran, advocate and
application for bail was filed in Cr. M.P.No.5071 of 2003 through one
Rudrapathy and subsequently, Rajendran’s name was struck off and Rajendran
thereafter filed a separate application in Cr.M.P.No.5072 of 2003 through one
Dhananjeyan, Advocate. In such a situation, I am unable to accept the
representation made by the senior counsel on the basis of the instruction
given by Mr. Rudrapathy, the lower court counsel, who was present before this
Court that the respondent has no connection whatsoever with the said Rajendran
and he has never been the legal adviser, particularly when the same thing has
not been stated in his counter-affidavit.
43. The learned senior counsel, however would vehemently contend that the
long knife, if had been used as stated by the prosecution, would not have
caused such a minor injury and it is quite artificial to contend that the
accused persons covered a distance of 83 kms. from Thethakudi after the
incident and 11 items were returned to his counsel Rudrapathy and one of the
items, a pair of chappals belonged to Rajagopal, but the same was scored out
by the Inspector of Police and that shows that the chappals would not have
been recovered from the scene. He would also submit that the investigating
officer with reference to this incident has not filed any affidavit and the
witnesses in the case have also not chosen to file any supporting affidavit
and as such, this would certainly create a serious doubt with regard to the
narration of the events alleged by the prosecution regarding the alleged
tampering.
44. None of these submissions would appeal to me, as, in my view, there are
plenty of other materials prima facie to hold that the respondent’ along with
his legal adviser and others went to Thethakudi village in order to tamper
with the prime witness, namely the complainant, P.W.1 Jeevajothi. It is true
that supporting affidavits have not been filed by the investigating officer of
the instant case and also by the witnesses. But, that is not a ground to
ignore the materials found in the case diary and in the lower court records in
the form of complaint, statements, mahazar, recovered articles, etc.
45. As a matter of fact, when the first bail application was filed before the
Principal Sessions Judge, Nagapattinam, by the respondent and others, it was
argued that offence under Section 307 I.P.C. is not made out and as such, he
is entitled to bail. The Principal Sessions Judge while dismissing the
application would observe that even assuming that Section 307 I.P.C. is not
made out, there is a serious allegation that the accused persons came to
Thethakudi village and trespassed into the complainant’s house and attacked
the complainant’s relatives and intimidated P.W.1 not to give evidence in the
murder case against him and as such, he is not entitled to bail. The very
same Judge, within 7 days, granted bail to the respondent holding that if a
long knife produced before the court has been used to attack the witness, this
minor injury would not have been caused, and as such, he is entitled to be
released on bail. Though this Court is not called upon to decide the legality
of the bail order in the incident case, I cannot but notice the change of view
of the Principal Sessions Judge, Nagapattinam, within 7 days for finding out
the ground to grant bail, even though the said ground was not accepted by him
earlier. However, less said is better with reference to the same.
46. As indicated earlier, this Court is only concerned with the prima facie
materials which would show that the respondent/first accused went to the
village of the complainant and threatened and intimidated the prime witness in
the murder case and attempted to tamper with her. At the risk of repetition,
this Court is constrained to state that there are prima facie materials which
give out overwhelming circumstances which are cogent and convincing would show
that the respondent and other accused went to the complainant’s house and
attempted to tamper with her by intimidating, threatening and offering the
huge money of more than Rs.6 lakhs, thereby the respondent made an attempt to
interfere with the due course of administration of justice by abusing and
misusing the liberty of bail granted to him earlier.
47. Apprehending that there will be a serious prejudice to trial, if the
respondent is allowed to be on bail, the learned Public prosecutor would
strenuously contend that the respondent/first accused is a multi billionaire
owning a chain of Hotels in most of the cities and towns in the State of Tamil
Nadu besides running a huge Hotel at the capital City of Delhi and he also
owns Hotels in Dubai and United States of America and as such, he wields
enormous money power and muscle power, which would in all probability be used
by the respondent to interfere again with the course of administration of
justice at the time of trial.
48. This apprehension expressed by the Public Prosecutor, in my opinion, is
well founded in view of the past conduct of the respondent. Further, if this
Court concludes that the material placed before the court is such as to lead
to the conclusion that there is a strong prima facie case that if the accused
were allowed to be at large, he would tamper with the prosecution witnesses
and impede the course of justice, this Court will not refuse to exercise the
wholesome power to cancel the bail as the courts cannot sit as silent
spectators to the subversion of the judicial process.
49. In this context, the observation made by the Supreme Court in 20 02
CRI.L.J.1849 (Ram Govind Upadhyay v. Sudarshan Sisngh) is quite relevant.
The observation is as follows:
“While it is true that availability of overwhelming circumstances is necessary
for an order as regards the cancellation of a bail order, the basic criterion,
however, being interference or even an attempt to interfere with the due
course of administration of justice and/or any abuse of the
indulgence/privilege granted to the accused.”
50. A fair trial is the main objective of the criminal procedure. It
must be fair to the accused as well as to the prosecution. In a criminal
trial, witnesses should be able to give evidence without any inducement or
threat either from the prosecution or the defence. A criminal trial must
never be so conducted by the prosecution as would lead to the conviction of an
innocent person. Similarly, the progress of a criminal trial should not be
obstructed by the accused so as to lead to the acquittal of a really guilty
offender. If any conduct on the part of an accused person is likely to
obstruct a fair trial, there is occasion for the exercise of the power of this
Court to secure the ends of justice. Any threat to the continuance to a fair
trial must be immediately arrested and the smooth progress of a fair trial
must be ensured. This can be done only by the cancellation of bail.
51. Having regard to the totality of the circumstances of the case and
keeping in view the guidelines laid down in the aforesaid judgments of the
various High Courts and the Supreme Court, I consider it to be a fit and
proper case for cancellation of bail granted to the respondent. Accordingly,
the bail granted to the respondent by this Court dated 1.4.2002 is cancelled.
Consequently, the respondent has to be arrested and committed to custody till
the disposal of the murder case in S.C.No.414 of 2002 on the file of the
Additional Sessions Court, Chennai at Poonamalle.
52. Before parting with this case, it is made clear that the observations
made by this Court in the earlier paragraphs would confine for the purpose of
disposal of this petition alone and the trial Courts concerned while dealing
with the cases referred to above, would decide the matter uninfluenced by the
above observations in any way, on the basis of the proved materials placed
before them. The learned Public Prosecutor is directed to take steps to have
a speedy trial in the murder case in S.C.No.414 of 2002 and the trial Court as
well would dispose of the said case subject to the orders of this Court in the
transfer application filed by the State before this Court, as expeditiously as
possible, since the respondent has to be incarcerated till the trial of this
case is over.
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