BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Thursday, the Twenty Ninth day of September Two Thousand Eleven PRESENT THE HON`BLE MS.JUSTICE R.MALA CRL OP(MD) Nos.12955 & 13072 of 2011 K.MANIKANDAN ...PETITIONER/ACCUSED NO.11 IN CRL.OP.NO.12955/2011 KARTHIK @ KARTHIKEYAN IBRAHIM SULTHAN SAIT ...PETITIONERS/ACCUSED 13 & 12 IN CRL.OP.NO.13072/2011 Vs STATE REP. BY THE INSPECTOR OF POLICE AVANIAPURAM POLICE STATION, MADURAI. CRIME NO.130 OF 2009 ... RESPONDENT/COMPLAINANT IN BOTH THE PETITIONS FOR PETITIONER : M/S.PREMRAJ AMBROSE ADVOCATE IN CRL.OP.NO.12955/2011 FOR PETITIONERS : M/S.A.ARIVUCHANDRAN ADVOCATE IN CRL.OP.NO.13072/2011 FOR RESPONDENT : MR.A.RAMAR ADDITIONAL PUBLIC PROSECUTOR IN BOTH THE PETITIONS PETITION FOR BAIL UNDER SEC.439 CR.P.C. IN BOTH THE PETITIONS ORDER : THE COURT MADE THE FOLLOWING ORDER :- The petitioners are arrayed as A11 to A13 and A11 was arrested and remanded to judicial custody on 30.07.2011 and A12 and A13 was arrested and remanded to judicial custody on 13.09.2011 for the alleged offence punishable under Section 304 (A) @ 147, 148, 120(b), 364, 302 and 201 I.P.C, in Crime No.130 of 2009 on the file of the respondent police and hence, seek bail. 2. The learned senior counsel for the petitioners would submit that the petitioners are arrayed as A11 to A13 in crime No.130 of 2009. He would further submit that on the basis of the complaint given by the then Village Administrative Officer, Avaniyapuram, on 16.04.2009, a case has been registered for the offence under Section 304(A) I.P.C. The cause of death has been mentioned and in the postmortem certificate, it reveals that the deceased has consumed alcohol and the death was due to run over by the vehicle. He would further submit that it was alleged that suddenly, on 30.07.2011, A4 has surrendered before the present Village Administrative Officer, Avaniyapuram and gave an extra judicial confession and on that basis only, the case has been altered into one under Sections 147, 148, 120(B), 364, 302 and 201 I.P.C. https://hcservices.ecourts.gov.in/hcservices/ 3. The learned senior counsel would further submit that the extra judicial confession alleged to be given by A4 is not an admissible evidence, because a telegram has been sent on 29.07.2011 by the wife of A4, wherein, she has stated that her husband was taken by the Police Inspector on 29.07.2011 at 1.30 p.m. and after A4 was forcibly taken and extra judicial confession has been concocted by the investigation agency, because of the present change of scenario. He would further submit that one Vinoth, Advocate has filed an application under Section 97 Cr.P.C., before the learned Chief Judicial Magistrate, Madurai and on that basis, the learned Chief Judicial Magistrate, Madurai has deputed the learned Judicial Magistrate No.3, Madurai, to inspect the Oomatchikulam police station, where, he found A4 in the police station under custody and thereafter only, A4 was produced before the Court on 30.07.2011 at 8.40 p.m. along with the extra judicial confession. On the basis of the alleged extra judicial confession only, the provisions of law has been altered and it is vitiated under Section 25 of the Indian Evidence Act. He would further submit that that when A4 has produced before the learned Judicial Magistrate, he has informed that he was already taken by the police two days before and hence, he is questioning the validity of the extra judicial confession alleged to be given by A4. The learned senior counsel would submit that the overt act against the petitioners are only they are abducting the deceased to A1's grove and they have beaten the deceased with stick and hand respectively and they are taken the body of the deceased into the ring road and except this, no overt act against the petitioners. He further submitted that the petitioners are in custody from 30.07.2011 and 13.09.2011 respectively and the investigation was over and hence, they have come forwarded with the present petitions for bail. 4. Repudiating the same, the learned Additional Public Prosecutor would submit that the case has been registered on the basis of the complaint given by the then Village Administrative Officer, Avaniyapuram on 16.04.2009 for the offence under Section 304(A) I.P.C., but after A4 has surrendered before the present Village Administrative Officer, Avaniyapuram and gave an extra judicial confession only, the penal provisions have been altered and the alteration report has also been filed. As per the extra judicial confession of A-4, the petitioners taken the deceased Pandiyarajan to A1's grove and they beat and murder him and then they took the body of Pandiyarajan from A1's grove to Echanodai ring road in the vehicle belonging to A1, which was driven by A4, in which A12 has been accompanying with other accused. 5. He would further submit that A13 along with other accused taken the deceased to A1's grove and he was also one of the members of unlawful assembly for the conspiracy to commit the murder of the deceased. He would further submit that A7's car was used to run over the body of the deceased as if the deceased has died due to accident and thereby screening the evidence. He would further submit that initially, three witnesses alone have been examined and since the extra judicial confession has been given only on 30.07.2011, after alteration of F.I.R., 11 witnesses were examined and the investigation is in initial stage and A1 has already detained under Act 14. He further submitted that at the time of investigation, Investigating Officer has raised six questions before the Medical Officer, out of which, five questions, reveals the fact that the death has happened due to murder and not an accident and hence, he prays for the dismissal of the applications. https://hcservices.ecourts.gov.in/hcservices/ 6. I have considered the rival submissions made on either side and perused the materials available on record. 7. On the death of one Pandiyarajan, who was belonging to the Communist Political Party, on the basis of the complaint given by one Periyasami, the then Village Administrative Officer, Avaniyapuram, a case has been registered for the offence under Section 304(A) I.P.C. since the vehicle belonging to the deceased Pandiyarajan has been placed near the body and tyre marks are also there. But, till 30.07.2011, no changes in the investigation. Thereafter, on the basis of the extra judicial confession alleged to be given by A4 before the Village Administrative Officer, Avaniyapuram, the case has been altered to one under Sections 147, 148, 120(B), 364, 302 and 201 I.P.C. 8. The learned senior counsel would mainly focus upon the extra judicial confession alleged to be given by A4 and submit that the same has not been given voluntarily by A4. As per his version, A4 has been taken by the police people on 28.07.2011 midnight and immediately, the wife of A4 gave a telegram about the same. Furthermore, one Advocate viz., Vinoth has filed an application under Section 97 Cr.P.C., before the learned Chief Judicial Magistrate, in pursuant of which, the Judicial Magistrate No.3, Madurai has visited the police station and found A4 in the police station and then only, he was produced before the learned Judicial Magistrate concerned for judicial custody at 8.40 p.m. on 30.07.2011 and at that time also, he has stated that he has taken by the police two days prior to produce him before the Court and hence, the learned senior counsel would submit that the extra judicial confession is not an admissible evidence and hence, the basis for altering the provision of criminal offence and the entire prosecution is non exist in the eye of law. But, the above argument is premature during the bail applications. Deciding the fact that whether extra judicial confession is an admissible one and it can be reliable and whether A4 has surrendered before the Village Administrative Officer and gave extra judicial confession is a premature one at the time of considering the bail applications. 9. Considering the facts and circumstances of this case and also considering the fact that A6 has already been granted anticipatory bail and the petitioners are in judicial custody from 30.07.2011 and 13.09.2011 respectively and the interrogation is already over, I am inclined to grant bail to the petitioners with certain conditions. 10. Accordingly, the petitioners are ordered to be released on bail on executing a separate bond for a sum of Rs.10,000/- (Rupees Ten Thousand only) with two sureties each for a like sum to the satisfaction of the learned Judicial Magistrate No.VI, Madurai, and on further condition that the petitioners shall report before the Court concerned daily at 10.30 a.m. until further orders. sd/- 29/09/2011 / TRUE COPY / Sub-Assistant Registrar (C.S.) Madurai Bench of Madras High Court, Madurai - 625 023. https://hcservices.ecourts.gov.in/hcservices/ TO 1 THE JUDICIAL MAGISTRATE NO.VI, MADURAI. 2 DO-THOR' THE CHIEF JUDICIAL MAGISTRATE, MADURAI. 3 THE SUPERINTENDENT, CENTRAL PRISON, MADURAI. 4 THE INSPECTOR OF POLICE, AVANIAPURAM POLICE STATION, MADURAI. 5 THE SUPERINTENDENT, CENTRAL PRISON, PALAYAMKOTTAI. 6 THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. +1 CC TO M/S.PREMRAJ AMBROSE, ADVOCATE SR.NO.33963. +1 CC TO M/S.A.ARIVUCHANDRAN, ADVOCATE SR.NO.33976. +1 CC TO M/S.S.RAVI, ADVOCATE SR.NO.34088. ORDER IN CRL OP(MD) NoS.12955 & 13072 of 2011 Date :29/09/2011 4P/10C RPB : 29.09.2011 https://hcservices.ecourts.gov.in/hcservices/