{"id":235345,"date":"2003-10-06T00:00:00","date_gmt":"2003-10-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-by-vs-p-rajagopal-on-6-october-2003"},"modified":"2015-02-15T09:39:34","modified_gmt":"2015-02-15T04:09:34","slug":"state-by-vs-p-rajagopal-on-6-october-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-by-vs-p-rajagopal-on-6-october-2003","title":{"rendered":"State By vs P. Rajagopal on 6 October, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
State By vs P. Rajagopal on 6 October, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 06\/10\/2003\n\nCORAM\n\nTHE HONOURABLE MR. JUSTICE M.KARPAGAVINAYAGAM\n\nCRL.M.P.No.7061 of 2003\nin\nCrl.O.P.No.4456 of 2002\n\n\n$State by\nInspector of Police,\nJ.7, Velachery Police Station,\nChennai-42.\n(Cr.No.1047 of 2001)                            ..Petitioner\n\n-Vs-\n\n$P. Rajagopal                                   ..Respondent\n\n        Petition to cancel the bail granted to the respondent by this Court on\n1.4.2002 in Crl.O.P.4456 of 2002 and  order  his  arrest  and  commit  him  to\ncustody  till the disposal of S.C.No.414 of 2002 on the file of the Additional\nSessions Judge, Chennai at Poonamallee.\n\n!For Petitioner :  Mr.  I.  Subramanian,\n                Public Prosecutor.\n\n^For Respondent:  Mr.  N.Natarajan, S.C.  For\n                Mr.G.Ravikumar.\n\n\n:O R D E R\n<\/pre>\n
        P.  Rajagopal, the respondent herein is the first accused in  S.C.No.4
\n14  of  2002 which relates to the offences of conspiracy, abduction and murder
\nof one Santhakumar, the husband  of  Jeevajothi,  the  complainant.    He  was
\ngranted bail by this Court on 1.4.2002.  The case was ripe for trial.  At that
\nstage,  the  respondent  along  with  other accused went to Thethakudi village
\nwhere the complainant, P.W.1 resides and attempted to tamper with her evidence
\nby compelling her to receive a  sum  of  Rs.6  lakhs.    On  her  refusl,  the
\nrespondent   and   his  henchmen  attempted  to  attack  the  inmates  of  the
\ncomplainant’s house.  The complainant’s brother sustained injuries.  Then, all
\nof them escaped from the  scene  and  sped  away.    With  reference  to  this
\nincident, a  case was registered.  The respondent and others were arrested and
\nproduced before the Judicial Magistrate, Thiruthuraipoondi.  On  the  strength
\nof  the  said incident, the State has now filed this application to cancel the
\nbail granted to the respondent by this Court on 1.4.2002 contending  that  the
\nrespondent misused his liberty of bail.\n<\/p>\n
        2.   The  brief  facts leading to the filing of the application are as
\nfollows:\n<\/p>\n
        “(a) The respondent Rajagopal is the owner of Saravana Bhavan Hotel at
\nChennai.  The complainant Jeevajothi and her husband Santhakumar were  working
\nunder the  Hotel Management.  The respondent wanted to marry Jeevajothi as his
\nthird wife.  This was resisted by both Santhakumar and Jeevajothi.  Therefore,
\nJeevajothi was abducted by the respondent and  others  with  an  intention  to
\ncompel her to marry him.\n<\/p>\n
        (b)  With  reference to this incident, on 9.11.2001, Jeevajothi gave a
\ncomplaint to J7 Velacherry Police Station, Chennai.   A  case  was  registered
\nagainst  Rajagopal  and  others  in  Crime No.1030\/2001 for the offences under
\nSections 147, 451, 352, 354, 365, 366, 342, 323, 327,  498  and  506(ii)  read
\nwith 109  IPC.   Pending investigation in this case, the respondent and others
\non 24.10.2001 abducted her husband Santhakumar from Chennai and  took  him  to
\nKodaikanal and murdered him, since the respondent felt that he was a stumbling
\nblock for  his ill-design to marry Jeevajothi.  A separate case was registered
\nfor this murder in Crime No.1047\/2001 for the offences under Sections  120(b),
\n147, 342, 364 and 302 I.P.C.  by the very same Police of Chennai.\n<\/p>\n
        (c)  On  23.11.2001,  Rajagopal  (A1)  surrendered before the Judicial
\nMagistrate, Kanchipuram.  In both the cases,  namely  Crime  No.1030\/2001  and
\nCrime  No.1047\/2001,  the  learned  IX  Metropolitan  Magistrate, Saidapet, on
\n27.2.2002, granted default bail to the respondent under Section 167(2) Cr.P.C.
\non the ground that charge sheets were not filed in time.\n<\/p>\n
        (d) Challenging the said order, the State earlier preferred a petition
\nbefore this Court in Crl.O.P.No.4456 of 2002 seeking to set  aside  the  same.
\nUltimately,  this  Court  by  the  order dated 1.4.2002 set aside the order of
\n‘default bail’ holding that the said order is illegal as the charge sheet  had
\nalready  been  filed  even  before the filing of the application under Section
\n167(2) Cr.P.C.  However, this Court in the very  same  order  granted  regular
\nbail  to  the  respondent  accused  with  condition to reside at Cuddalore and
\nreport before the Chief Judicial Magistrate,  Cuddalore  every  day  till  the
\nexamination of  main witnesses before the trial Court is completed.  While the
\norder was passed by this Court, it was made clear that the accused should  not
\nattempt  to  tamper  with  the witnesses and if any complaint is received, the
\nbail granted to them will be cancelled.\n<\/p>\n
        (e) Subsequently, an application had been filed  for  modification  of
\nthe condition  in  Crl.M.P.No.4123  of  2002  before this Court.  By the order
\ndated 30.4.2002, this Court modified the condition  to  the  effect  that  the
\naccused  Rajagopal  to  remain  at  Kanchipuram and report before the Judicial
\nMagistrate for a period of two months.\n<\/p>\n
        (f) The case in Crime No.1030\/2001 relating to the  abduction  of  the
\ncomplainant  Jeevajothi  in  S.C.No.55  of  2003  is pending before the Mahila
\nCourt, Chennai.  The case in Crime No.1047\/2001 relating to the murder of  her
\nhusband  Santhakumar  in  S.C.No.414  of 2002 is pending before the Additional
\nSessions Judge, Chennai at Poonamallee.\n<\/p>\n
        (g) S.C.No.55 of 2003, pending trial before the Mahila Court,  Chenai,
\nwas ripe for  trial  and  the  same  was posted for examination of P.  Ws.  on
\n21.7.2003.  In the other case relating to murder in  S.C.No.414  of  2002  was
\nalso  posted  for  appearance  of  the  accused before the Additional Sessions
\nJudge, Chennai at Poonamallee on 18-7-2003.\n<\/p>\n
        (h) The prime witness, the de-facto complainant Jeevajothi is residing
\nat Thethakudi village at Nagapattinam District along with her parents.\n<\/p>\n
        (i) At this stage, according to the State, on 15.7.2003 at 9.00  p.m.,
\nRajagopal,  the  accused,  his  Legal  Adviser  Rajendran  and his men went to
\nThethakudi village with a cash of Rs.6 lakhs and odd and went to the house  of
\nthe  complainant and asked her not to give evidence in the murder case as well
\nas in the abduction case and compelled her to receive the cash more  than  six
\nlakhs.  Rajendran, the lawyer who was with him also asked her to give evidence
\nin the  murder  case  in favour of the defence.  When she refused for the same
\nand shouted at these people, her brother Ramkumar and other relatives came  to
\nthe main  hall  and  intervened.  Then, Rajagopal asked his henchmen to attack
\nthe complainant and her brother.  One of the accused took a knife and attacked
\nRamkumar, the brother of the complainant and caused injury on right hand.   In
\nthe  meantime,  the villagers gathered there on hearing the hue and cry of the
\ninmates of the house.  On noticing this, the accused persons swiftly got  into
\ntwo Toyota  Qualis  cars  and  escaped from the spot.  Unfortunately, Advocate
\nG.Rajendran was not able to get into the  car  and  as  such,  he  was  caught
\nred-handed by the villagers.\n<\/p>\n
        (j)  Jeevajothi  gave  a complaint to the Vedaranyam Police Station on
\nthe same day at about 11.00 p.m.    and  the  case  was  registered  in  Crime
\nNo.701\/2003 under Sections 147, 148, 452, 506(ii), 324 and 307 I.P.C.  against
\nRajagopal, Rajendran  and  others.  The Vedaranyam police came to the spot and
\narrested A2 Advocate Rajendran who was caught by the villagers, at about  5.00
\na.m.  On 16.7.2003.\n<\/p>\n
        (k)  In the complaint, Jeevajothi gave the registration numbers of the
\ntwo Toyota Qualis cars by which the other accused escaped.  On  the  basis  of
\nthose  particulars, a wireless message was given to all the police stations in
\nthe district about the escape of two Toyota Qualis cars.  On receipt  of  this
\ninformation, Rajesekaran, Sub Inspector of Police, Tanjore Town Police Station
\nstopped  those  cars  and arrested A1 Rajagopal, who was found in the car, and
\nothers and recovered the cash of Rs.6,11,950\/- kept  in  the  car.    He  then
\nhanded over a special report on 16.7.2003 and produced the arrested accused in
\nVedaranyam Police  Station.    Then,  all the accused including Rajendran, the
\nAdvocate were sent to the Judicial Magistrate,  Thiruthuraipoondi  for  remand
\nalong with remand report.  Accordingly, they were remanded.\n<\/p>\n
        (l) On  the same day, i.e.  on 16.7.2003, the respondent and Rajendran
\nand other accused filed bail application before the Judicial Magistrate Court,
\nThiruthuraipoondi.  Rajendran, Advocate alone was released on bail subject  to
\nsome conditions  purely on medical ground.  The bail application by the others
\nwas dismissed.\n<\/p>\n
        (m)  On  18.7.2003,  the  State  filed  the  present  application   in
\nCrl.M.P.No.7061   of   2003  to  cancel  the  bail  granted  to  Rajagopal  in
\nCrl.O.P.No.4456 of 2002 mainly on the ground that Rajagopal along with  others
\ncame to Thethakudi village and attempted to tamper the main witness Jeevajothi
\nin the murder case.\n<\/p>\n
        (n)  In  the  meantime,  the  accused  Rajagopal  and  others filed an
\napplication for bail before the  Principal  Sessions  Court,  Nagapattinam  in
\nCr.M.P.No.3283 of  2003  and  the  same  was dismissed on 24.7.2003.  However,
\nagain he filed another application in Cr.M.P.No.3345 of 2003 and on 31.7.2003,
\nthe same was ordered by the Principal Sessions Judge granting bail.  As  such,
\nhe  has  come  out on bail in the case in respect of the incident of tampering
\nand threatening the witness in the murder case even  before  this  application
\nfor cancellation of bail was entertained by this Court.”\n<\/p>\n
        3.   The  present  application  for  cancellation  of bail came up for
\nadmission before this Court on 1.8.2003 and notice was ordered.  On receipt of
\nnotice, the learned senior counsel for the respondent appeared and  filed  the
\ncounter-affidavit.\n<\/p>\n
        4.   The  matter  was argued at great length by both Mr.I.Subramanian,
\nthe learned Public Prosecutor for the State and  Mr.N.Natarajan,  the  learned
\nsenior   counsel   representing  the  counsel  on  record  on  behalf  of  the
\naccused\/respondent.\n<\/p>\n
        5.  The submissions made by the Public  Prosecutor  in  brief  are  as
\nfollows:\n<\/p>\n
        “Jeevajothi,  the  de-facto complainant in both the cases in S.C.No.55
\nof 2003 relating to abduction pending in Mahila Court, Chennai and  S.C.No.414
\nof  2002  relating  to the murder of her husband pending before the Additional
\nSessions Judge, Poonamallee is the prime witness.  The case  in  S.C.No.55  of
\n2003 was  posted  for  trial on 21.7.2003.  The case in S.C.No.414 of 2002 had
\nbeen posted before the Additional Sessions Judge, Poonamallee on 18-7-2003 for
\nthe appearance of the accused Rajagopal.   Though  the  occurrence  had  taken
\nplace  in  Chennai  and the trial is pending before the Courts at Chennai, the
\nde-facto complainant and other witnesses left Chennai and started residing  in
\nThethakudi   village,   Nagapattinam  District  along  with  her  parents  and
\nrelatives.  Just before the commencement of trial, i.e.    on  15.7.2003,  the
\naccused  Rajagopal  along  with  his  legal  adviser  Rajendran,  a practising
\nadvocate at Chennai and with his other henchmen came  to  Thethakudi  village,
\nNagapattinam  District  in  two  Toyota  Qualis  cars  to  strike  a deal with
\nJeevajothi by asking her to resile from her earlier version and to support his
\ndefence.  They offered money more than six lakhs.  She was not amenable.   She
\nraised a hue  and  cry.    Her brother and others came and intervened.  At the
\ninstigation of Rajagopal, one of the  accused  attacked  her  brother  and  he
\nsustained knife  injury  on  his  right  hand.  Then, all the accused tried to
\nescape by getting into the cars.  Ultimately, they succeeded in  fleeing  away
\nfrom the  scene.    Unfortunately,Rajendran, the legal adviser was left in the
\nlurch in the village itself, thereby the villagers were able to catch hold  of
\nRajendran alone.   Immediately, the complaint was lodged with police at 1 1.00
\np.m.  itself and the case was registered.  On  receipt  of  message,  the  Sub
\nInspector  of  Police,  Tanjore intercepted the cars near Tanjore and arrested
\nthe accused and recovered the cash.  While the bail was granted by this  Court
\non  1-4-2002  to  the  accused  Rajagopal,  this  Court  specially imposed the
\ncondition directing the accused not to tamper with the witnesses and if  there
\nis any  complaint of tampering, the bail granted wouldl stand cancelled.  Now,
\nthe incident of tampering with the witnesses has taken place  on  the  eve  of
\ntrial.   Through  the  sufficient  materials  in  the form of statement of the
\nwitnesses, wound certificate, recovery of cash, the recovery of  the  chappals
\nbelonged to the accused from the spot, etc., the State has established the act
\nof  the  accused  in having made an attempt to tamper with the witness, by all
\nthe probabilities.  As such, the respondent misused his liberty  of  bail  and
\nconsequently, the same has to be cancelled.”\n<\/p>\n
        6.   In  reply  to  the above submissions, Mr.N.Natarajan, the learned
\nsenior counsel appearing for the respondent accused  has  made  the  following
\ncontentions:\n<\/p>\n
        “The  respondent  has  never gone to Thethakudi village to tamper with
\nthe witness.  The case is falsely foisted against him.  The affidavit  seeking
\nfor  cancellation  of bail has been filed only by the investigating officer in
\nS.C.NO.414 of 2002 and the officer who is the investigating the case over  the
\nincident  which took place at Thethakudi has not chosen to file any affidavit.
\nThe witnesses for the incident have never  filed  the  supporting  affidavits.
\nThe  application  has  already  been  filed on 7.7.2003 by the prosecution for
\ntransfer of the case from Mahila Court to Poonamallee Sessions  Court  to  try
\nboth the  cases.    Even  then, subpoena was obtained on 14-7-2003 from Mahila
\nCourt to be served on the witnesses at Thethakudi.  Those summons  were  never
\nserved on  the witnesses.  On 15-7-2003, Rajagopal, the accused was travelling
\nwith other people to Vellore, carrying with him the cash of Rs.6 lakhs to meet
\nthe expenses for the function for a new branch hotel at Vellore to  be  opened
\non 1-9-2003.    On  the  way  to  Vellore,  he went to Thirunallar Saneeswarar
\ntemple, Tanjore District  and  after  darshan,  he  proceeded  to  Vellore-via
\nTanjore.  At that time, the Police intercepted and took them to the Vedaranyam
\nPolice Station.    One  Ramachandran, Assistant Commissioner of Police, Guindy
\nRange,Chennai was present at the Vedaranyam Police  Station  on  16-7-2003  at
\nabout 8.00  a.m.  Even though he is not the investigating officer in S.C.No.55
\nof 2003 and S.C.No.414 of 2002, from the beginning he has shown undue interest
\nin these cases .  The presence of the said officer attached to  Chennai  Range
\nin  Vedaranyam  Police Station on 16.7.2003 itself would show that a drama was
\nenacted only at the instance of the Assistant Commissioner of Police, Chennai,
\nin order to create a ground for cancellation of bail.    The  incident  is  so
\nartificial.   The place of the arrest of the accused is near Tanjore, which is
\nsituated 83 kms.  away from Thethakudi village.  The injury found on the right
\nhand of the witness was so simple and minor injury.  Therefore, it  cannot  be
\nsaid  that  there  was  an  attempt  to murder the brother of the complainant.
\nConsidering the situs and nature of the injury, the Sessions  Court  concluded
\nthat it cannot be a case of Section 307 I.P.C.  and granted bail.  Since there
\nare  no  sufficient materials produced by the prosecution to prove the alleged
\nincident took place on 15.7.2003 and in view of  the  materials  available  on
\nrecord  to  show  that  the defence case is more probable, the bail may not be
\ncancelled.”\n<\/p>\n
        7.  In view of the specific  allegations  made  against  Ramachandran,
\nAssistant  Commissioner of Plice, Guindy Range, in the counteraffidavit of the
\naccused, the learned Public Prosecutor filed the reply affidavit sworn  to  by
\nthe said  Ramachandran  denying those allegations.  According to the Assistant
\nCommissioner of Police, he is Guindy Assistant Commissioner of Police,  having
\njurisdiction  over  Velachery  Police  Station in which both the crime numbers
\nrelating to S.C.No.55 of 200 3 and S.C.No.414 of 2002  were  registered.    As
\nAssistant Commissioner of Police having jurisdiction over the Velachery Police
\nStation, he  was supervising in the investigation in these cases.  He received
\ninformation from the Inspector of Police, Vedaranyam  about  the  incident  of
\nthreatening  and  tampering  with  the witness which took place on the nigh of
\n15.7.2003 at Thethakudi village.  Since he was interested in  the  safety  and
\nwelfare  of  the  prime  witness-Jeevajothi,  he  rushed  to Vedaranyam Police
\nStationon 16.7.2003 and ascertained the facts and also  ensured  the  adequate
\nprotection  to  the  witness  and  returned  to the city on the very next day.
\nImmediately after the arrest of Advocate Rajendran, an intimation was sent  to
\nthe  relatives  of  Rajendran  at  Chennai  as well as to the President of the
\nAdvocates’ Association and the Hon’ble Chief Justice of High  Court  regarding
\nhis arrest  as  per  the  procedure.  He has never shown any undue interest in
\nthese cases.  Neither Rajendran nor Rajagopal had made any  complaint  against
\nthe  Assistant  Commissioner  of Police and other police regarding this to the
\nJudicial Magistrate, Thiruthuraipoondi who remanded them.   The  summons  were
\nnot  served  on  the witnesses in the cases, since on the application filed by
\nthe State for transfer of the cases to have joint  trial  in  one  Court,  the
\ncases were stayed by this Court.  As such, the allegations against the officer
\nare false.\n<\/p>\n
        8.   Both the counsel would cite a number of authorities of this Court
\nas well as the Supreme Court.\n<\/p>\n
        9.  The Public Prosecutor would cite the following decisions:\n<\/p>\n
        (i) AIR 1951 MADRAS 1042 (Public Prosecutor v.  George Williams)<\/a> ( ii)
\nAIR 1958 S.C.  376 (T.H.Hussain v.  M.P.Mondkar)\n<\/p>\n
        (iii) AIR 1978 S.C.  179 (Gurcharan Singh v.  State (Delhi Admn.)\n<\/p>\n
        (iv) AIR 1978 S.C.  961 (Delhi Admn.  v.  Sanjay Gandhi)<\/a>\n<\/p>\n
        (v) 1979 CRL.L.J.  455 (MAD.  H.  C.) (State v.  Veerapandy)<\/a>\n<\/p>\n
        (vi) 1987 CRL.L.J.  1872 (SC) (Shahzad v.  Ishtiaq)\n<\/p>\n
        (vii)1994 CRL.L.J.  841 (Delhi H.  C.)(State v.  Mahinder Singh)\n<\/p>\n
        (viii) 1994 Supp (2) S.C.C.  205:       (Sant Ram   v.      State   of
\nHaryana)        ( ix) 1996 (I) C.T.C.  249 (Mad) (State v.  Adi Rajaram)<\/p>\n
        10.   The  learned senior counsel appearing for the Respondent Accused
\nwould cite the following authorities:\n<\/p>\n
        (i) 1989 (3) S.C.C.  532 (Rajnikant Jivanlal v.  Intelligence Officer)<\/a>\n<\/p>\n
        (ii) 1992 (3) Crimes 597 (Aslam Babalal Desai v.  State of
\nMaharashtra)<\/a>\n<\/p>\n
        (iii) 1995 S.C.C.  (Cri) 237 (Dolat Ram v.  State of Haryana)<\/a>\n<\/p>\n
        (iv) 2000 S.C.C.(Cri) 1508 (Subhendu Mishra v.  Subrat Kumar Mishra)<\/a>\n<\/p>\n
(v) 2001 S.C.C.  (Cri) 1124 (Puran v.  Rambilas)<\/p>\n
        11.  I have carefully considered the submissions made by  the  learned
\nPublic Prosecutor and Mr.N.Natarajan, the learned senior counsel appearing for
\nthe respondent and perused the records.  I have given my anxious consideration
\nto the contentions urged on either side.\n<\/p>\n
        12.   Before dealing with the merits of the respective contentions, it
\nwould be appropriate to refer to the guidelines given by the various Courts in
\nthe decisions cited supra, while considering the application for  cancellation
\nof bail.  The guidelines are these:\n<\/p>\n
        A)  As  a  fair trial is the main objective of the criminal procedure,
\nany threat to the continuance of a fair trial must be immediately arrested and
\nthe smooth progress of a fair trial must be ensured.\n<\/p>\n
        B) A fair trial has naturally two objects in view; it must be fair  to
\nthe accused and must also be fair to the prosecution.  The test of fairness in
\na criminal trial must be judged from this dual point of view.  It is therefore
\nof  the  utmost importance that, in a criminal trial, witnesses should be able
\nto give evidence without any inducement or threat either from the  prosecution
\nor the  defence.    A  criminal  trial  must  never  be  so  conducted  by the
\nprosecution as would lead to the conviction of an innocent  person;  similarly
\nthe  progress  of a criminal trial must not be obstructed by the accused so as
\nto lead to the acquittal of a really guilty offender.\n<\/p>\n
        C) If an accused person, by his conduct,  puts  the  fair  trial  into
\njeopardy,  it  would  be  the primary and paramount duty of criminal Courts to
\nensure that the risk to the fair trial is  removed  and  criminal  Courts  are
\nallowed  to  proceed  with  the trial smoothly and without any interruption or
\nobstruction.\n<\/p>\n
        D) The question of cancellation of bail under Section  439(2)  Cr.P.C.
\nof the Code is certainly different from admission to bail under Section 439(1)
\nCr.P.C.  Rejection of bail when bail is applied for is one thing, cancellation
\nof bail  already  granted  is  quite  another.   It is easier to reject a bail
\napplication in a non-bailable case than to cancel a bail  granted  in  such  a
\ncase.   Cancellation  of  bail  necessarily  involves the review of a decision
\nalready made and  can  by  and  large  be  permitted  only  if  by  reason  of
\nsupervening  circumstances, it would be no longer conducive to a fair trial to
\nallow the accused to retain his freedom during the trial.\n<\/p>\n
        E) It is not necessary for the prosecution to  prove  the  threatening
\nincident by  a mathematical certainty or even beyond a reasonable doubt.  In a
\nmatter of cancellation of bail, every incidental matter  in  a  criminal  case
\nneed  not  be  proved beyond a reasonable doubt like the guilt of the accused.
\nThough the guilt of the accused in cases which involve the assessment of facts
\nhas to be established beyond a reasonable doubt, these various facts  are  not
\nrequired to  be proved by the rigorous standard for cancellation of bail.  The
\nprosecution,  therefore,  can  establish  its  case  in  an  application   for
\ncancellation  of  bail by showing on a preponderance of probabilities that the
\naccused has attempted to tamper or has tampered with its witnesses.    Proving
\nby  the  test  of  balance  of  probabilities  that the accused has abused his
\nliberty or that there is a reasonable apprehension  that  he  would  interfere
\nwith the course of justice, is all that is necessary for the prosecution to do
\nin order to succeed in an application for cancellation of bail.\n<\/p>\n
        F)  The  power  to  cancel  the  bail  and to take back the accused in
\ncustody who has been enlarged on bail  has  to  be  exercised  with  care  and
\ncircumspection.   This  power, though of an extra-ordinary nature, is meant to
\nbe exercised in appropriate cases when, by a preponderance  of  probabilities,
\nit  is  clear  that  the  accused is interfering with the course of justice by
\ntampering with witnesses.  Refusal to exercise that wholesome  power  in  such
\ncases, few though they may be, will reduce it to a dead letter and will suffer
\nthe Courts to be silent spectators to the subversion of the judicial process.\n<\/p>\n
        G)  The  relevant  factor, while exercising the power, which should be
\ntaken by the court into consideration for  cancellation  of  bail  is  to  see
\nwhether  from  the affidavit filed by the prosecution has the prosecution by a
\npreponderance of probability, made clear whether the accused  are  interfering
\nwith the course of justice by tampering with the witnesses or have contravened
\nthe  conditions  imposed on them and thereby abused the liberty granted by the
\ncourt.\n<\/p>\n
        H) Once an accused has been enlarged  on  bail,  his  liberation  from
\ncustody cannot be lightly interfered with, but this does not mean that even in
\na  proper  case  where ends of justice would be defeated unless the accused is
\ncommitted to custody, power of the High Court to cancel  the  bail  cannot  be
\nexercised.\n<\/p>\n
        I)  Rejection  of bail stands on one footing, but cancellation of bail
\nis a harsh order because it interferes with the  liberty  of  the  individual.
\nHence, it must not be lightly resorted to.\n<\/p>\n
        J)  Rejection  of bail in a non-bailable case at the initial stage and
\nthe cancellation of bail so granted, have to be considered and dealt  with  on
\ndifferent basis.  Very cogent and overwhelming circumstances are necessary for
\nan order of cancellation of the bail already granted.  Generally speaking, the
\ngrounds  for  cancellation  of bail, broadly (illustrative and not exhaustive)
\nare:   interference  or  attempt  to  interfere  with  the   due   course   of
\nadministration of justice or abuse of the concession granted to the accused in
\nany manner.\n<\/p>\n
        13.   Keeping  in  view of the above guidelines, let me now enter into
\nthe question as to whether there is a situation warranting for cancellation of
\nbail, taking into consideration  the  rival  contentions  and  the  facts  and
\ncircumstances presented in the present case.\n<\/p>\n
        14.    Rajagopal,  the  first  accused,  called  as  ‘Saravana  Bhavan
\nRajagopal’ is the proprietor of a chain of hotels carrying on  business  under
\nthe name and style of “Hotel Saravana Bhavan” at various places in the city of
\nChennai, Delhi  and  in  foreign  countries.   Few years back, one Ramasamy of
\nThethakudi village, Nagapattinam District, was working as Assistant Manager in
\nthe Saravana Bhavan Hotel at Chennai.  He left for Malaysia leaving  his  wife
\nand daughter  Jeevajothi  and  son Ramkumar.  Jeevajothi fell in love with one
\nSanthakumar, a tuition teacher and married him in the year 1999.\n<\/p>\n
        15.  Rajagopal married one Valliammal and  through  her,  he  had  two
\nsons.   In  1994,  he married one Krithika, aged about 27 years, as his second
\nwife.  Earlier, the said Krithika got married  to  one  Ganesan,  who  was  an
\nemployee of  the  said  hotel.  Rajagopal persuaded him to break the matrimony
\nwith the said Kiruthika after making payment of money.  Having been  attracted
\nby  Jeevajothi, Rajagopal wanted to marry her also as his third wife and asked
\nher husband Santhakumar to sever  his  marital  tie  with  Jeevajothi.    Both
\nJeevajothi and her husband resisted the unlawful attempt of Rajagopal.\n<\/p>\n
        16.   One  day,  both  were  abducted  and  Jeevajothi  was taken to a
\nseparate place and she was threatened and beaten to marry him.  Regarding this
\nincident, on the complaint  of  Jeevajothi,  a  case  was  registered  against
\nRajagopal and others on 1.10.2001 in Crime No.1030\/2001 for the offences under
\nSections 147,  451,  352,  354,  364,  366,  342  and  506  Part II I.P.C.  On
\n24.10.2001, Santhakumar, the husband of  the  complainant  was  abducted  from
\nVelachery and taken to Kodaikanal at the instigation of Rajagopal, the accused
\nand  he  was  murdered  there  and  the  body  was  thrown  away in the hills.
\nRegarding this incident, another case was registered by  J7  Velachery  Police
\nStation  in  Crime No.1047\/200 1 against Rajagopal and others for the offences
\nunder Sections 120-B, 147, 342, 364 and 302 I.P.C.\n<\/p>\n
        17.  On 23.11.2001, Rajagopal surrendered  before  court  and  he  was
\nremanded  to  judicial  custody in respect of both the Crime Nos.1030\/2001 and
\n1047\/2001.  On 27.2.2002, he was released  on  bail  by  the  IX  Metropolitan
\nMagistrate, Saidapet  under  Section  167(2)  Cr.P.C.    under  the concept of
\n“default bail”.\n<\/p>\n
        18.  The State was constrained to  file  an  application  before  this
\nCourt to  set  aside  the  said  order.    This  Court in Crl.O.P.4456 of 2002
\naccepted the contention of the State and  set  aside  the  order  of  granting
\ndefault  bail  holding that the order was illegal and however, granted regular
\nbail to the accused Rajagopal by the order dated 1.4.2002 with  the  condition
\nthat  he  should  reside  at  Cuddalore  and  report before the Chief Judicial
\nMagistrate.  The further condition was specified stating that  he  should  not
\nattempt  to  tamper with the witnesses and if any complaint is received, it is
\nmade clear that the bail granted to him will be cancelled.    Thereafter,  the
\ncondition to reside at Cuddalore was modified to the effect that he may reside
\nat Kanchipuram  and  report  to the court only for two months.  After the said
\nperiod, the condition  to  stay  at  Kanchipuram  had  automatically  elapsed.
\nHowever, the condition “that he should not attempt to tamper the witnesses and
\nif  any such complaint is received, the bail granted to him will be cancelled”
\nis in tact.\n<\/p>\n
        19.  There is no dispute in the fact that S.C.No.414 of 2002  relating
\nto  the  murder  of  the  de-facto complainant’s husband and S.C.No.55 of 2003
\nrelating to the abduction of P.W.1 with an  intention  of  compelling  her  to
\nmarry Rajagopal  were nearing the trial stage.  As a matter of fact, S.C.No.55
\nof 2003 was specifically posted for trial on 21.7 .2003 and S.C.No.414 of 2002
\nwas posted for the appearance of the accused on 18.7.2003.  In  that  context,
\nthe occurrence in question has taken place on 15.7.2003.\n<\/p>\n
        20.   According  to  the  State,  on 15-7-2003 at about 9.00 p.m., the
\nfirst accused Rajagopal, his legal adviser Rajendran (A2)  and  other  accused
\ncame  in  two  Toyota  Qualis  cars  to  Thethakudi  village where P.W.1 , the
\nde-facto complainant is residing and  they  entered  into  the  house  of  the
\ncomplainant  Jeevajothi  for  the purpose of tampering and intimidating her in
\norder to prevent her to give evidence in the murder case in S.C.No.414 of 2002
\nagainst Rajagopal and offered to pay the money of Rs.6 lakhs and odd and  when
\nthe  same  was  resisted, the witnesses were threatened with dire consequences
\nand one of the witnesses  sustained  knife  injury  at  the  instance  of  the
\nrespondent accused and on noticing the crowd of villagers coming to the scene,
\nthe  respondent  and  others  speedily got into the two Toyota Qualis cars and
\nsped away, without knowing that the respondent’s legal  adviser  was  left  in
\nfront of the house of the complainant and he was caught by the villagers.\n<\/p>\n
        21.   While  refuting this accusation, the senior counsel Mr.Natarajan
\nwould contend on the strength of the counter-affidavit filed by Rajagopal (A1)
\nthat he never went to Thethakudi for tampering with the witnesses, and on  the
\nother  hand,  he  went  in  the  two  Toyota Qyalis cars along with his men on
\n15.7.2003 to Vellore in order to supervise  the  arrangement  being  made  for
\nopening  of  a  branch  of  his hotel to be held on 1.9.2003 and on the way to
\nVellore, he went to Thirunallar Saneeswaran Temple and after Darshan,  he  was
\nproceeding  towards  Vellore  through  Tanjore and at that time, the cars were
\nstopped and the accused were taken to Vedaranyam Police Station and  as  such,
\nthe incident is a make-belief affair which has been enacted for the purpose of
\ncreating  a  ground  for cancellation of bail at the instance of Ramachandran,
\nthe Assistant Commissioner of Police who has  taken  undue  interest  in  this
\ncase.\n<\/p>\n
        22.   At  the  outset, it shall be stated that while this Court begins
\nthe process of deciding the issue relating to cancellation of bail, this Court
\nshall be reminded of the legal position that the grounds for rejection of bail
\nis one thing, and the grounds for cancellation of bail is altogether different
\nthing as in fact, the order of cancellation is a  so  harsh  and  it  requires
\nconvincing overwhelming materials to take back the accused in custody so as to
\nlose his  liberty  of bail.  Similarly, this Court is conscious of the settled
\nlaw that the materials regarding the incident in question need not  be  proved
\nbeyond reasonable doubt by the prosecution as the burden of the prosecution to
\nestablish the same is not that much onerous as that of the burden to prove the
\nguilt  of  the  accused  in  a  trial  and  the  incident  in  question can be
\nestablished through the preponderance of probability.\n<\/p>\n
        23.  While considering the said aspect, this Court has to  necessarily
\nrefer to  one  important  element  which  is  noticed  in this case.  When the
\ndefault bail was granted by the IX Metropolitan Magistrate, Chennai, the State
\nfiled an application before this Court to set aside the same, since  the  said
\norder  is  illegal as the order has been passed subsequent to the charge sheet
\nhad been filed in the case.  This Court rightly by the  order  dated  1.4.2002
\nheld that  the  order  under the concept of “default bail” is wrong.  However,
\nthis Court graciously granted regular bail in the very same order even in  the
\nabsence  of  any  application by the accused seeking for bail by imposing some
\nconditions.  The State was not aggrieved over this order.  As far as the State
\nis concerned, it felt satisfied that “At least the operation was  successful”.
\nIn other words, the State has not chosen to show any interest to challenge the
\nsaid order  of bail by taking to the Supreme Court.  The original condition in
\nthe bail order imposed by this Court on 1.4.2002 is that the  respondent  must
\nreside  at  Cuddalore and report before the court till the examination of main
\nwitness is  completed.    But,  the  respondent  filed   an   application   in
\nCr.M.P.No.4123  of 2002 seeking for modification of the condition to allow him
\nto reside at Chennai.  This Court by the order dated  30.4.2002  modified  the
\ncondition to the effect that the respondent\/accused must reside at Kanchipuram
\nand report  to  the court only for a period of two months.  This order conveys
\nthe meaning that after two months, he could come to Chennai and stay there  or
\nany other  place  wherever  he  likes.    By virtue of this order, the earlier
\ncondition that was imposed on 1.4.2002 that he shall reside at  Cuddalore  and
\nreport  before  the  court  till  the  examination  of  the  main witnesses is
\ncompleted in Chennai court has automatically relaxed.   Despite  this  freedom
\ngiven  explicitly  and impliedly by the order of this Court, the State has not
\nchosen to file any application to restore the original condition, namely,  not
\nto come  to Chennai till the main witnesses are examined.  This would indicate
\nthat the State did not seriously oppose the relaxation of the  condition  with
\nreference to  the  stay  at Chennai.  Thus, it is clear that the State was not
\ninterested in opposing each and every application filed by the accused nor had
\ninsisted for the earlier condition nor for any other condition so as to  cause
\nhardhip to the respondent accused.\n<\/p>\n
        24.   However,  it  is  to  be noted that the condition which has been
\nimposed by this Court on 1.4.2002 that the petitioner should not  tamper  with
\nthe  witnesses  at any cost failing which, the bail will be cancelled, has not
\nbeen ‘allowed’ to be relaxed.  It is also pertinent to note that the State has
\nnever shown any undue interest from 1.4.2002, the date of order of  bail  till
\n15.7.2003,  the date of the incident, either by taking steps in sustaining the
\ncondition to reside at somewhere else till the examination of  main  witnesses
\nis  completed  or  in getting him back in custody to enable the trial is go on
\nwithout giving room for intimidation.\n<\/p>\n
25.  In the light of  the  said  fact  situation,  let  me  now  consider  the
\nmaterials regarding the incident in question.\n<\/p>\n
26.   After hearing the arguments of both the counsel, this Court summoned the
\nrecords from  the  Judicial  Magistrate,  Thiruthuraipoondi,  such  as  remand
\nreport, the statement of the accused before remand court, remand order and the
\nbail  applications filed by the accused persons before the Judicial Magistrate
\nCourt, Thiruthuraipoondi as well as the records from  the  Principal  Sessions
\nJudge,  Nagapattinam relating to the bail applications and the dismissal order
\nat the first instance and the second application  filed  and  the  bail  order
\npassed  for  the purpose of proper appraisal of the contentions made on either
\nside.  Accordingly, on receipt of those records from both the courts, the said
\nrecords were perused.  The case diary produced by the Public  Prosecutor  also
\nwas perused.\n<\/p>\n
27.   On  a  careful  perusal  of  those  records,  the  following factors are
\nrevealed.\n<\/p>\n
28.  The arrest memo relating to Rajendran, legal adviser and  Rajagopal,  the
\nrespondent  herein,  another  accused,  available  on  record  would show that
\nRajendran, legal adviser was arrested near the house  of  the  complainant  at
\nThethakudi  village  and  Rajagopal  along  with the others were arrested near
\nTanjore when they were travelling in the Toyota Qualis cars at 12.10 mid night
\non 15.7.2003, the Sub Inspector of Police, Tanjore on receipt of the  wireless
\nmessage  from  Vedaranyam  Police  and the cash of Rs.6,11,950\/- was recovered
\nfrom Rajagopal.  Immediately after the arrest, the Sub  Inspector  of  Police,
\nTanjore  presented  a  special  report and produced the accused along with the
\ncars and the cash recovered before Vedaranyam Police on 16.7.2003 at 8.30 a.m.
\nThis special report signed by the Sub Inspector of Police,  Tanjore  and  also
\nthe  voucher  signed  by  the Inspector of Police, Vedaranyam are available on
\nrecord.\n<\/p>\n
29.  Similarly, it is noticed that the complaint was given by Jeevajothi,  the
\nde-facto  complainant  in  her  own handwriting and the same was registered on
\n15.7.2003 at about 11.00 p.m.  In this  complaint,  she  mentioned  about  the
\nregistration  numbers  of  the Toyota Qualis cars in which the accused persons
\nexcept Rajendran, legal adviser, escaped.  This complaint was received by  the
\nJudicial Magistrate at  7.30  a.m.   on 16.7.2003.  Only after registration of
\nthe case, the accused Rajagopal and others were arrested and the  said  Toyota
\nQualis cars  and  the  cash  were  recovered at about 12.10 mid night.  In the
\ncommon remand report submitted by the Inspector of Police,  Vedaranyam,  while
\nremanding  all  the accused including A2 Rajendran, legal adviser together, he
\nhas mentioned all these factors.\n<\/p>\n
30.  According to the statements of witnesses, when the accused got  into  the
\ncars  and  tried to escape, one car hit against a tree and the car glasses got
\nbroken and Rajagopal escaped in the car after leaving his chappals in front of
\nthe house of the complainant.  The observation mahazar  and  recovery  mahazar
\nand  the  records would show that the car glass pieces found near the tree and
\nthe chappals belonged to the  accused  Rajagopal  have  been  recovered.    In
\nsupport of the complaint, the Inspector of Police obtained statements from her
\nbrother  Ramkumar,  the  injured  witness  and  relatives Thavamani, Ramasamy,
\nThasamani, the villagers Govindasamy, s\/o Subramania Gounder and  Govindasamy,
\ns\/ o  Kuppusamy Gounder.  Ramkumar, the injured was taken to hospital where he
\nwas treated.  The accident register was also issued by the  Doctor  mentioning
\nthe  injury  found on his right hand which was alleged to be caused with knife
\nin the incident took place on 15.7.2003 at 9.30 p.m.  near his residence.\n<\/p>\n
31.  While dealing  with  these  materials,  this  Court  is  so  cautious  as
\ncautioned  by  the  Supreme  Court that this Court should not give any finding
\nwith reference to the veracity of the statements of  the  witnesses  including
\nthe complainant.   This Court is also conscious that this Court is only called
\nupon to find out whether the incident in question has been established by  the
\nState by  preponderance  of  probabilities.  To decide whether these materials
\ncan be considered to be prima facie materials to conclude  that  the  incident
\nhas  been  established,  it  would  be  worthwhile to refer to the case of the
\ndefence at this stage itself.  If the case of the defence  is  more  probable,
\nthen  it  is quite easy for this Court to say that the incident in question is
\nimprobable.  Considering this situation, let me  now  deal  with  the  defence
\ntheory.\n<\/p>\n
32.   According  to  the  counter-affidavit of the accused Rajagopal, he along
\nwith others went in two Toyota Qualis cars to Thirunallar and had  Saneeswaran
\ndarshan and on the way to Vellore via.  Tanjore, they were intercepted and the
\ncars  and  cash  were  recovered  from  them  and brought to Vedaranyam Police
\nStation.\n<\/p>\n
33.  Even at the threshold, it must be stated that this defence story has been
\nprojected by the respondent\/accused only in the counteraffidavit sworn  to  by
\nhim which has been filed before this Court on 15.9.2003.  In other words, this
\ncase  of  the  defence has been mentioned neither before the court in which he
\nwas remanded nor in the first  bail  application  filed  before  the  Judicial
\nMagistrate,  Thiruthuraipoondi on 16.7.2003 nor in the bail application before
\nthe Sessions Court, Nagapattinam on 18.7.2003 which was dismissed on 24.7.2003
\nnor in the second application filed by the accused before the  Sessions  Court
\non 2  5.7.2003,  which was ordered on 31.7.2003.  Thus, it is clear that there
\nis no material placed before this Court as to  why  such  a  defence  was  not
\nplaced  before  the other courts earlier and there is no other material placed
\nat least now before this Court in support of his defence, excepting  to  state
\ndefence  story  in  the  counter-affidavit  filed  by the accused on 15.9.2003
\nbefore this Court.\n<\/p>\n
34.  The remand order passed by  the  Judicial  Magistrate,  Thiruthuraipoondi
\ndated  16.7.2003  would  show that when A2 Rajendran was produced, he reported
\nthat the case filed against him  is  false  and  one  policeman  in  ununiform
\nobtained his  statement  under  duress.    When A1\/ respondent, A3 and A4 were
\nproduced before the court, those accused said that they had  nothing  to  make
\nany complaint against the police.  These statements were recorded.  Therefore,
\nthe   arrest  of  the  Advocate(A2)  near  the  complainant’s  house  and  the
\nrespondent(A1) and others near Tanjore had not been disputed.\n<\/p>\n
35.  Though there is a statement in the handwriting of the advocate  available
\nin  the  case  diary  to  the effect that he came along with the first accused
\nRajagopal to meet the Vedaranyam M.L.A.  and on the  way,  Rajagopal  went  to
\nThethakudi  village  and  had some conversation with P.W.1, the said statement
\nneed not be given any importance at this  stage,  especially  when  he  stated
\nbefore  the  Magistrate  that  some statement has been obtained from him under
\nduress.  But, the other materials found in the case diary as well  as  in  the
\nlower  court records would show that the said Rajendran, Advocate has been the
\nlegal adviser for Rajagopal, the first accused for about 4 or 5 years.\n<\/p>\n
36.  As indicated earlier, the fact  that  Rajendran,  the  legal  adviser  of
\nRajagopal,  was  arrested  near  the  house  of  the  complainant has not been
\ndisputed.  As a matter of fact, Advocate Rajendran (A2) has filed an affidavit
\nbefore the Judicial Magistrate, Thiruthuraipoondi on 16.7.2003  while  he  was
\nremanded  admitting  that  he  came from Chennai to Thiruthuraipoondi for some
\nprofessional work and was having heart ailment and  as  such,  he  has  to  be
\nreleased on bail.  Only on the basis of the medical ground, he was released on
\nbail   on   the  same  day  by  the  Judicial  Magistrate,  Thiruthuraipoondi.
\nTherefore, there are prima facie materials to show  that  A2  Rajendran  found
\nnear  the residence of the complainant was caught by the villagers who kept in
\ntheir custody, while the other accused sped away.   He  was  produced  to  the
\npolice by  the  villagers  at  about  5.00  a.m.   when the police came to the
\nvillage Thethakudi.\n<\/p>\n
        37.  It is also noticed  that  immediately  after  the  arrest  of  A2
\nAdvocate, the intimation about the arrest was sent to his relatives as well as
\nto the  President of the Advocates’ Association, High Court, Madras.  From the
\ncase diary, it is also noticed that intimation was sent to the  Hon’ble  Chief
\nJustice  of  this  Court  through the Registrar, High Court, from Control Room
\nthrough Head Constable 1534.  The copy of the intimation is  available.    The
\nsame is as follows:\n<\/p>\n
“Advocate  Tr.G.Rajendran,Aged 58\/03 S\/o Govindasamy, No.51, South Usman Road,
\nT.Nagar, Chennai, the legal adviser of  P.Rajagopal,  the  owner  of  Saravana
\nBhavan Hotels,  was  arrested  on  16.7.2003 at 5.00 hrs.  at Thethakudi North
\nvillage in  Vedaranyam  P.S.    limit  in  connection  with  Vedaranyam   P.S.
\nCr.No.701\/2003 u\/s  147,  148, 324, 452, 506(ii) and 307 I.P.C.  and he has to
\nbe  sent  for  remand  to  the   Court   of   Hon’ble   Judicial   Magistrate,
\nThiruthuraipoondi.”\n<\/p>\n
This  shows  that  the  investigating  agency  on receipt of the complaint and
\narrest of the accused Advocate who was available in  the  scene,  was  careful
\nenough  to  intimate  about  the  arrest  to  the  relatives as well as to the
\nAdvocates’ Association and to the Hon’ble Chief Justice  immediately,  as  per
\nthe guideline given by the Supreme Court.\n<\/p>\n
38.   It  is  seriously contended that the incident is nothing but a farce one
\nand it was nothing but a drama successfully  enacted  by  Mr.    Ramachandran,
\nAssistant  Commissioner  of  Police,  Guindy  Range,  who  was  present at the
\nVedaranyam Police Station on the relevant date.  It is true that the Assistant
\nCommissioner of Police himself admitted in his reply affidavit that he came to
\nthe Vedaranyam Police Station next day, i.e.  on 16.7.2003 and he was  present
\nthroughout the  day  and  next  day,  he  left  for Chennai.  According to the
\nAssistant Commissioner of Police, an intimation from the Vedaranyam Police was
\nreceived by him that the witnesses in the murder case  at  Thethakudi  village
\nwere  threatened  and  intimidated  and  so he rushed to the Vedaranyam Police
\nStation in order to ensure protection to the witnesses to be examined  in  the
\nmurder case  pending  in  Chennai  court.  It is specifically mentioned in his
\nreply affidavit that as a superior officer, viz.,  Assistant  Commissioner  of
\nPolice,  Guindy  Range,  he  was  supervising  the  investigation conducted by
\nVelachery Police in S.C.No.55 of 2003 and S.C.  No.414 of 2002.   Under  those
\ncircumstances,  this  Court is unable to hold that he has shown undue interest
\nin this case and as such, he only enacted the drama.  Even assuming  that  his
\npresence  in  the Vedaranyam Police Station on 16.7.2003 is unnecessary, there
\nis no necessity to show the arrest of the Advocate near the residence  of  the
\ncomplainant.   No enmity has been attributed against Assistant Commissioner of
\nPolice for booking a case against an Advocate.  As it is noted earlier,  there
\nare  materials  from the case diary as well as in the lower court records that
\nthe second accused Rajendran was the  legal  adviser  for  the  first  accused
\nRajagopal.\n<\/p>\n
39.   When  this  Court  confronted  with the senior counsel appearing for the
\nrespondent\/first accused as to why A1’s legal adviser was to be  present  near
\nthe  place  of  occurrence during the relevant time, the senior counsel on the
\nbasis of the instruction given by the lower court counsel, who was present  in
\nthis  Court,  would submit that Rajendran had never been the legal adviser for
\nthe respondent and so, he could not give any reason for the  presence  of  the
\nadvocate accused  at  the  scene of occurrence.  He would further emphatically
\nsubmit, on instruction from the lower court counsel, that the  respondent  has
\nno connection whatsoever with the said advocate.  This Court further asked the
\nlearned senior counsel as to whether the said aspect, namely that there was no
\nconnection  between  the  respondent  accused  and  Advocate accused, has been
\nmentioned in the counter-affidavit  filed  by  the  respondent.    The  senior
\ncounsel would  fairly submit that such thing has not been mentioned.  However,
\nhe represented the same only on the basis of  the  instruction  given  by  the
\ncounsel appearing  for  the  lower court counsel.  This aspect, in my view, is
\nmost important.  It is the consistent case of the prosecution as mentioned  in
\nF.I.R.,  Remand  report  and  state  of  witnesses and the affidavit filed for
\ncancellation that A2 , as a legal adviser accompanied Rajagopal and others and
\nwent to the complainant’s house and A1 and A2 both threatened the complainant.
\nBut, it has never been mentioned in any of the applications filed  before  the
\nlower  courts and in the counter affidavit filed by the respondent that A1 has
\nnothing to do with A2.\n<\/p>\n
        40.  On the other  hand,  according  to  the  State,  all  the  people
\nconsisting  of  A1  Rajagopal  and  A2 Rajendran, legal adviser along with the
\nother accused came together in two Toyota Qualis cars to Thethakudi village in
\norder to tamper with the witness by offering  money  and  threatening  and  as
\nsuch, after arrest of all the accused, a common remand report was filed by the
\nInspector of Police before the Judicial Magistrate, Thiruthuraipoondi.\n<\/p>\n
41.   In this context, it would be worthwhile to refer to the following aspect
\nfound in the lower court records to show  that  the  prosecution  case  is  so
\nprobable.\n<\/p>\n
42.   As  soon  as  the  common  remand  report  was filed before the Judicial
\nMagistrate,  Thiruthuraipoondi,one  G.Dhananjeyan,  Advocate  filed  memo   of
\nappearance appearing  for  the  accused  1  to  6.  In the memo of appearance,
\nRajagopal was mentioned as first  accused  and  Rajendran,  the  advocate  was
\nmentioned as  6th  accused.  But subsequently, the names of the accused 1 to 5
\nwere struck off and bail application was  filed  on  behalf  of  Rajendran  by
\nDhananjeyan, Advocate  in  Cr.M.P.No.5072  of  2  003.   On the same day, bail
\napplication was filed on behalf of the respondent\/first accused and others  in
\nCr.M.P.No.5071 of 2003 by one V.Rudrapathy, Advocate.  The perusal of the said
\nbail  application  filed  before  the  Judicial Magistrate would indicate that
\noriginally, Rajendran’s name was mentioned  as  one  of  the  petitioners  and
\nsubsequently, it  was  struck off.  In the same way, in the memo of appearance
\nalso filed on behalf of the first  accused\/respondent  Rajagopal,  Rajendran’s
\nname was  mentioned  as  second  petitioner  and then struck off.  In the copy
\npetition under Section 339 Cr.R.P.  Filed on 18.7.2003 asking for the copy  of
\nthe  order,  Rajendran’s  name  was  originally mentioned and then struck off.
\nThis would show that originally, a single counsel was engaged by all  the  six
\naccused  inclusive  of  the  respondent(A1)  and  A2  Rajendran,  advocate and
\napplication for bail was filed  in  Cr.    M.P.No.5071  of  2003  through  one
\nRudrapathy  and  subsequently,  Rajendran’s  name was struck off and Rajendran
\nthereafter filed a separate application in Cr.M.P.No.5072 of 2003 through  one
\nDhananjeyan, Advocate.    In  such  a  situation,  I  am  unable to accept the
\nrepresentation made by the senior counsel on  the  basis  of  the  instruction
\ngiven by Mr.  Rudrapathy, the lower court counsel, who was present before this
\nCourt that the respondent has no connection whatsoever with the said Rajendran
\nand  he has never been the legal adviser, particularly when the same thing has
\nnot been stated in his counter-affidavit.\n<\/p>\n
43.  The learned senior counsel, however would  vehemently  contend  that  the
\nlong  knife,  if  had  been  used as stated by the prosecution, would not have
\ncaused such a minor injury and it is quite  artificial  to  contend  that  the
\naccused persons  covered  a  distance  of  83  kms.  from Thethakudi after the
\nincident and 11 items were returned to his counsel Rudrapathy and one  of  the
\nitems,  a  pair of chappals belonged to Rajagopal, but the same was scored out
\nby the Inspector of Police and that shows that the  chappals  would  not  have
\nbeen recovered  from  the  scene.  He would also submit that the investigating
\nofficer with reference to this incident has not filed any  affidavit  and  the
\nwitnesses  in  the  case have also not chosen to file any supporting affidavit
\nand as such, this would certainly create a serious doubt with  regard  to  the
\nnarration  of  the  events  alleged  by  the prosecution regarding the alleged
\ntampering.\n<\/p>\n
44.  None of these submissions would appeal to me, as, in my view,  there  are
\nplenty  of other materials prima facie to hold that the respondent’ along with
\nhis legal adviser and others went to Thethakudi village  in  order  to  tamper
\nwith the  prime witness, namely the complainant, P.W.1 Jeevajothi.  It is true
\nthat supporting affidavits have not been filed by the investigating officer of
\nthe instant case and also by the witnesses.  But, that  is  not  a  ground  to
\nignore the materials found in the case diary and in the lower court records in
\nthe form of complaint, statements, mahazar, recovered articles, etc.<\/p>\n
45.  As a matter of fact, when the first bail application was filed before the
\nPrincipal  Sessions  Judge, Nagapattinam, by the respondent and others, it was
\nargued that offence under Section 307 I.P.C.  is not made out and as such,  he
\nis entitled  to  bail.    The  Principal  Sessions  Judge while dismissing the
\napplication would observe that even assuming that Section 307 I.P.C.   is  not
\nmade  out,  there  is  a  serious  allegation that the accused persons came to
\nThethakudi village and trespassed into the complainant’s  house  and  attacked
\nthe  complainant’s relatives and intimidated P.W.1 not to give evidence in the
\nmurder case against him and as such, he is not entitled to  bail.    The  very
\nsame  Judge,  within  7 days, granted bail to the respondent holding that if a
\nlong knife produced before the court has been used to attack the witness, this
\nminor injury would not have been caused, and as such, he  is  entitled  to  be
\nreleased on bail.  Though this Court is not called upon to decide the legality
\nof the bail order in the incident case, I cannot but notice the change of view
\nof  the  Principal Sessions Judge, Nagapattinam, within 7 days for finding out
\nthe ground to grant bail, even though the said ground was not accepted by  him
\nearlier.  However, less said is better with reference to the same.\n<\/p>\n
46.   As  indicated earlier, this Court is only concerned with the prima facie
\nmaterials which would show that  the  respondent\/first  accused  went  to  the
\nvillage of the complainant and threatened and intimidated the prime witness in
\nthe murder  case and attempted to tamper with her.  At the risk of repetition,
\nthis Court is constrained to state that there are prima facie materials  which
\ngive out overwhelming circumstances which are cogent and convincing would show
\nthat  the  respondent  and  other  accused went to the complainant’s house and
\nattempted to tamper with her by intimidating,  threatening  and  offering  the
\nhuge  money of more than Rs.6 lakhs, thereby the respondent made an attempt to
\ninterfere with the due course of administration  of  justice  by  abusing  and
\nmisusing the liberty of bail granted to him earlier.\n<\/p>\n
47.   Apprehending  that  there  will  be a serious prejudice to trial, if the
\nrespondent is allowed to be on  bail,  the  learned  Public  prosecutor  would
\nstrenuously  contend  that the respondent\/first accused is a multi billionaire
\nowning a chain of Hotels in most of the cities and towns in the State of Tamil
\nNadu besides running a huge Hotel at the capital City of  Delhi  and  he  also
\nowns  Hotels  in  Dubai  and  United  States of America and as such, he wields
\nenormous money power and muscle power, which would in all probability be  used
\nby  the  respondent  to  interfere  again with the course of administration of
\njustice at the time of trial.\n<\/p>\n
48.  This apprehension expressed by the Public Prosecutor, in my  opinion,  is
\nwell founded  in view of the past conduct of the respondent.  Further, if this
\nCourt concludes that the material placed before the court is such as  to  lead
\nto  the conclusion that there is a strong prima facie case that if the accused
\nwere allowed to be at large, he would tamper with  the  prosecution  witnesses
\nand  impede  the course of justice, this Court will not refuse to exercise the
\nwholesome power to cancel  the  bail  as  the  courts  cannot  sit  as  silent
\nspectators to the subversion of the judicial process.\n<\/p>\n
49.   In  this  context,  the  observation  made by the Supreme Court in 20 02
\nCRI.L.J.1849 (Ram Govind Upadhyay v.  Sudarshan  Sisngh)<\/a>  is  quite  relevant.
\nThe observation is as follows:\n<\/p>\n
“While it is true that availability of overwhelming circumstances is necessary
\nfor an order as regards the cancellation of a bail order, the basic criterion,
\nhowever,  being  interference  or  even  an  attempt to interfere with the due
\ncourse   of   administration   of   justice   and\/or   any   abuse   of    the
\nindulgence\/privilege granted to the accused.”\n<\/p>\n
        50.  A fair trial is the main objective of the criminal procedure.  It
\nmust be  fair  to  the  accused  as well as to the prosecution.  In a criminal
\ntrial, witnesses should be able to give evidence  without  any  inducement  or
\nthreat either  from  the  prosecution  or  the defence.  A criminal trial must
\nnever be so conducted by the prosecution as would lead to the conviction of an
\ninnocent person.  Similarly, the progress of a criminal trial  should  not  be
\nobstructed  by  the  accused so as to lead to the acquittal of a really guilty
\noffender.  If any conduct on the part  of  an  accused  person  is  likely  to
\nobstruct a fair trial, there is occasion for the exercise of the power of this
\nCourt to  secure the ends of justice.  Any threat to the continuance to a fair
\ntrial must be immediately arrested and the smooth progress  of  a  fair  trial
\nmust be ensured.  This can be done only by the cancellation of bail.\n<\/p>\n
51.   Having  regard  to  the  totality  of  the circumstances of the case and
\nkeeping in view the guidelines laid down in the  aforesaid  judgments  of  the
\nvarious  High  Courts  and  the  Supreme  Court, I consider it to be a fit and
\nproper case for cancellation of bail granted to the respondent.   Accordingly,
\nthe  bail granted to the respondent by this Court dated 1.4.2002 is cancelled.
\nConsequently, the respondent has to be arrested and committed to custody  till
\nthe  disposal  of  the  murder  case  in S.C.No.414 of 2002 on the file of the
\nAdditional Sessions Court, Chennai at Poonamalle.\n<\/p>\n
52.  Before parting with this case, it is made  clear  that  the  observations
\nmade  by this Court in the earlier paragraphs would confine for the purpose of
\ndisposal of this petition alone and the trial Courts concerned  while  dealing
\nwith  the cases referred to above, would decide the matter uninfluenced by the
\nabove observations in any way, on the basis of  the  proved  materials  placed
\nbefore them.   The learned Public Prosecutor is directed to take steps to have
\na speedy trial in the murder case in S.C.No.414 of 2002 and the trial Court as
\nwell would dispose of the said case subject to the orders of this Court in the
\ntransfer application filed by the State before this Court, as expeditiously as
\npossible, since the respondent has to be incarcerated till the trial  of  this
\ncase is over.\n<\/p>\n
Index:Yes
\nInternet:Yes<\/p>\n
mam<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court State By vs P. Rajagopal on 6 October, 2003 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-235345","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nState By vs P. Rajagopal on 6 October, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-by-vs-p-rajagopal-on-6-october-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State By vs P. 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