1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:30.09.2011 CORAM THE HONOURABLE MS.JUSTICE R.MALA Crl.O.P.(MD).No.12003 of 2011 V.Nagarajan : Petitioners -Vs- 1.Manisekar 2.Regithra 3.The State: rep. by Inspector of Police, Karur Town Police Station, Karur, Karur District. 4.The Deputy Superintendent of Police, Karur Town, Karur Crime No.988 of 2011 : Respondents PRAYER: Petition is filed under Section 482 of the Code of Criminal Procedure praying to cancel the anticipatory bail granted on 26.08.2011 to the respondents 1 and 2/Accused 3 and 4 in Crl.M.P.No.1244 of 2011 on the file of the Sessions Judge, Karur and consequently, direct the respondents 3 and 4 herein to arrest the respondents 1 and 2/Accused 3 and 4 immediately. For Petitioner : Mr.Isaac Mohanlal for Mr.V.Sitharanjandas and Mr.K.Baalasundaram For Respondent : Mr.P.Mohan, Addl. P.P. for RR3 and 4 Mr.C.M.Arumugam for RR1 and 2 O R D E R The defacto complainant has come forward with the present application to cancel the order of anticipatory bail dated granted to the respondents 1 and 2/A3 and A4 in crime No.988 of 2011 on the file of the 3rd respondent police. 2.The learned counsel appearing for the petitioner would submit that the petitioner/defacto complainant is a practising Advocate in Madurai Bench of Madras High Court, Madurai and on 14.08.2011 at about 7.30 p.m., when he was in his house, he was brutally attacked by two https://hcservices.ecourts.gov.in/hcservices/ 2 hired henchmen of the respondents 1 and 2/Accused 3 and 4 herein with knife and iron crow bar and caused head injuries, knife injuries in his middle finger of right hand and left hand and knife marks all over the body from throat to abdomen and threatened to kill him, if he raised any alarm and looted gold jewels weighing about 60 sovereign, Silver articles weighing about ½ kilogram and case bundles, Sarees, LPG Gas pass book, Ration Card and two mobile phones and escaped after locking the house from outside. 3.The learned counsel appearing for the petitioner would further submit that since the respondents 3 and 4 have not made any investigation, he filed Crl.O.P.(MD) NO.11070 of 2011 for a direction, directing the Superintendent of Police, to monitor the investigation by nominating the jurisdictional Deputy Superintendent of Police and an order has been passed on 24.08.2011. While so, the respondents 1 and 2/Accused 3 and 4 moved for anticipatory bail in Crl.M.P.No.1244 of 2011 before the learned District and Sessions Judge, Karur and the learned Judge has also granted anticipatory bail to the respondents 1 and 2/Accused 3 and 4, even though the victim was not discharged from the government hospital. He would further submit that the charges levelled against the respondents 1 and 2 are under Sections 307, 380 and 448 I.P.C. and most of them are cognizable and non bailable and letting out them at the initial stage of investigation and hence, there will be a possibility of tampering of witnesses and erasing the evidence and the character and conduct of the respondents 1 and 2/Accused 3 and 4 were set out in the latter part of the F.I.R., which would show the character and conduct of the accused 3 and 4 as to how and for what purpose, they engaged the accused 1 and 2 to attack the defacto complainant and as to how the investigating agency can trace the accused 1 and 2 without interrogating them. 4.The learned counsel appearing for the petitioner would further submit that the accused 1 and 2 are unknown persons and they were engaged by the accused 3 and 4 to kill the defacto complainant and the nature of injuries are yet to be ascertained and hence, he prayed for the cancellation of anticipatory bail granted to the respondents 1 and 2/Accused 3 and 4. To substantiate his argument, he relied on the decision of the Apex Court in Brij Nandan Jaiswal V. Munna @ Munna Jaiswal and another reported in 2009(2) MWN (Cr.) 141 (SC) and submits that the complainant can question the order of granting bail, if order of bail is not validly passed and once bail granted by the Court, it can only be cancelled on account of its misuse. He would further submit that granting bail mechanically without any reason and without considering the pros and cons of the matter is liable to be set aside and hence, he prayed for the setting aside the order of the anticipatory bail. 5.Repudiating the same, the learned counsel appearing for R1/A3 and R2/A4 would submit that because of the property dispute, a false case has been foisted against the respondents 1 and 2, who are alleged accused 3 and 4. He would further submit that the property is originally belongs to one S.Krishnan, father-in-law of the petitioner and he entered into a sale agreement with one Kanagaraj on 13.05.2000 and he died intestate leaving behind his wife Sulochana and Son Manisekar and daughters Vasuki, Geetha and Deepa and hence, Kanagaraj filed a suit in O.S.No.56 of 2011 before the 3rd Additional District Judge, Madurai against the legal heirs https://hcservices.ecourts.gov.in/hcservices/ 3 of Krishnan for specific performance and the said suit was decreed and two months time has been granted, against which, the wife of the petitioner viz., Vasuki and one sisters-in-law viz., Deepa have filed an appeal and the same is pending, but, the wife of Krishnan and daughter Geetha and Son Manisekar have executed the sale deed in favour of Kanagaraj and hence, the dispute has been arisen and a false complaint has been foisted against the respondents 1 and 2 and they are nothing to do with the commission of offence. He would further submit that the averments in the F.I.R. itself would clearly prove that it was created in an artificial manner and the scene of occurrence is the house of the defacto complainant, which is alleged to be at Karur and the respondents 1 and 2 are residing at Madurai and hence, there is no chance for tampering the evidence. 6.He would further submit that while granting anticipatory bail,the learned Principal District and Sessions Judge, Karur has considered all the aspects and come to the correct conclusion and he also narrated the nature of the injuries and since the injuries sustained by the petitioner are simple in nature, he granted anticipatory bail to the petitioner. He would further submit that the Superintendent of Police, Karur was also directed to monitor the investigation and hence, there is no necessity to cancel the anticipatory bail. He would further submit that the 2nd respondent is concerned, she undergone surgery on her head and also undergone another surgery to remove a cyst in ovary and till today she is under medical management and the 1st respondent is concerned, he is a cardiac patient and he is suffering from hypertension and hence, he prayed for the dismissal of the application. To substantiate his argument, he relied upon the decisions of the Apex Court as well as this Court. 7.I have considered the rival submissions made on either side and perused the materials available on record. 8.It is true on the basis of the complaint given by the petitioner/defacto complainant, a case in crime No.448 of 2011 has been registered for the offence punishable under Sections 448, 307 and 380 I.P.C. The alleged occurrence has been taken place on 14.08.2011 at 7.30 p.m., and immediately, the case has been registered. The defacto complainant has sustained four injuries. Anticipatory bail has been granted on 26.08.2011 by the learned Principal and Sessions Judge, Karur, wherein, the learned Public Prosecutor made objection. Admittedly, at that time, the petitioner has not been discharged from the hospital. After perusing the case diary and A.R.copy, the learned Sessions Judge has granted anticipatory bail stating that the injuries sustained by the defacto complainant are simple in nature. The relevant portion of the order would run thus: “This Court perused the C.D. File and A.R.Entry. The perusal of A.R. Entry would show that the injured defacto complainant was admitted in Government Hospital, Karur on 14.08.2011 by 10.15 p.m. Further defacto complainant had informed to the doctor that on 14.08.2011 at about 7.30 p.m,. when the defacto complainant was available in his house, two unknown persons had attacked him with a crowbar and knife. Therefore, he sustained injuries. The nature of injuries sustained by the defacto complainant are – 1) A laceration https://hcservices.ecourts.gov.in/hcservices/ 4 measuring 3 x 0.5 x 0.5 c.m. On the left forehead. 2)A laceration measuring 1 x 0.25 x 0.25 c.m. On right middle finger. 3)linear scratch mark measuring 1 x 5 c.m. On the left fore arm and 4) A contusion measuring 3 x 2 c.m. On the lower lip. This Court also perused the complaint. The reading of the F.I.R. would show that two unknown persons entered into the house of the defacto complainant, tied him and attacked him. Further, the unknown persons came there to kill the defacto complainant. It has also been alleged in the complaint that the said persons had taken away the jewels and documents from him house. Further, the defacto complainant has alleged that two cell phones have also been taken away by them. The complaint reads, at a place that two persons wearing helmet had attacked by at latter part would refer the names of the petitioners. The injury sustained by the defacto complainant is simple. The occurrence had taken place on 14.08.2011. The injuries are simple in nature. Therefore, this Court is of the view that the petitioners are entitled to get anticipatory bail, hence this Court is inclined to grant anticipatory bail to the petitioners.” Now, this Court has to consider as to whether there is any reason for cancelling the anticipatory bail granted to the respondents 1 and 2/A3 and A4. 9.At thing juncture, it is appropriate to consider the decision relied on by the learned counsel appearing for the petitioenr in Brij Nandan Jaiswal V. Minna @ Munna Jaiswal and another reported in 2009(2) MWN (Cr.) 141 (S.C.), wherein, in paragraph No.7, the Apex Court has held as follows: “Para 7. It is now a settled law that complainant can always question the order granting bail if the said order is not validly passed. It is not as if once a bail is granted by any Court, the only way is to get it cancelled on account of its misuse. The bail order can be tested on merits also. In our opinion, therefore, the complainant could question the merits of the order granting bail. However, we find from the order that no reasons were given by the learned Judge while granting the bail and it seems to have been granted almost mechanically without considering the pros and cons of the matter. While granting bail, particularly in serious cases like murder some reasons justifying the grant are necessary.” There is no quarrel over the proposition laid down in the said decision. But, it is the duty of the Court to decide as to whether, the bail has been granted mechanically without considering the pros and cons of the matter. But, here, a case has been registered for the offence under Sections 448, 307 and 380 I.P.C., and the injuries sustained by the petitioner are only simple in nature and hence, the learned Sessions Judge considered all the aspects and granted anticipatory bail and hence, the above said decision is not applicable to the facts of the present case. 10.It is also appropriate to consider the relied on by the learned counsel appearing for the respondents 1 and 2 in Mahant Chand Nath Yogi https://hcservices.ecourts.gov.in/hcservices/ 5 and another Vs. State of Haryana reported in (2003) 1 Supreme Court Cases 326, wherein, the Apex Court has held as follows: “ ....... Normally, very cogent and overwhelming grounds or circumstances are required to cancel the bail already granted.” 11.In Hazari Lal Das Vs. State of West Bengal and another reported in (2010) 1 Supreme Court Cases (Cri) 381, wherein, the Apex Court has held as follows: “Para 7.There is nothing on record that there has been interference or attempt to interfere with the due course of administration of justice by the appellant. It also does not appear from the record that the concession granted to him has been abused in any manner. No supervening circumstances have surfaced nor shown justifying cancellation of anticipatory bail. The judicial discretion exercised by the Sessions Judge in granting the anticipatory bail has been interfered with by the High Court in the absence of cogent and convincing circumstances. We are, thus, satisfied that the impugned order cannot be sustained.” 12.In Savitri Agarwal and others Vs. State of Maharashtra and another reported in 2010(1) MWN (Cr.) 28 (SC), wherein, the Apex Court has held as follows: “The cancellation of bail had to be considered or dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted, which in our opinion, were missing in the instant case. Nothing was brought to our notice from which it could be inferred that the appellants have not co-operated in the investigation or have, in any manner, abused the concession of bail granted to them. As a matter of fact, Mr.Naphade, learned Senior Counsel representing the State, stated that after grant of anticipatory bail to the appellants, no investigation in the case has been conducted.” 13.Considering the above said citations, there is no cogent or overwhelming circumstances for cancelling the anticipatory bail. Admittedly, the learned Additional Public Prosecutor has not filed any application for cancelling the anticipatory bail. The defacto complainant has only filed the application for cancellation of the anticipatory bail. 14.In the decision of this Court S.Siva Vs. Genguraj and 4 others reported in 2008(5) CTC 633, it has been specifically mentioned that the cancellation of anticipatory bail is a harsh one and instead of that, adequate police protection to the life of the petitioner/party-in-person. The relevant portion of the judgment would run thus: “Para 7. The main grievance of the petitioner/party-in- person is that he is having apprehension of threat to his life to give evidence before the learned Trial Magistrate and certain other accused who were involved in this case, have not been implicated by the Investigating Officer while filing the final report. Except such grievance, there is absolutely no other compelling reason made out for cancelling the Anticipatory bail already granted to the respondents/accused 1 to 4 by order dated https://hcservices.ecourts.gov.in/hcservices/ 6 23.06.2006. It is well settled that grant of the relief of bail is entirely different from canceling the bail order, which is a harsh one. for such relief, there should be some compelling reason made out. But in this case, as already pointed out, there is absolutely no ground made out for canceling the Anticipatory Bail already granted. However, it is open to the petitioner/party-in-person to give his evidence before the Trial Court and in the event of his evidence disclosing the involvement of some other accused persons apart from the accused who have been implicated already in this case, the prosecution as well as the learned Magistrate should implicate those accused persons as per the provisions under Section 319 Cr.P.C. It is also made clear that in the event of the petition/party-in-person expressing any reasonable apprehension of threat to his life on his information to the concerned police, the concerned police shall give adequate police protection to the life of the petitioner/party-in-person.” 15.In this case, the petitioner/defacto complainant is an Advocate and the respondents 1 and 2 are none other than his brother-in-law and his wife. Admittedly, there is a civil dispute between both the parties. While perusing the F.I.R., in the latter part of the F.I.R. revealed the artificial narration of facts. The petitioner himself is an Advocate and the occurrence has been taken place in the house of the petitioner and the witnesses are the neighbours of the petitioner. Whereas, the respondents 1 and 2 are residing at Madurai and they are away from 150 kms from the petitioner's house. Hence, there is no chance for tampering the evidence and witnesses and abscond from the jurisdiction of this Court. Furthermore, the petitioner herein has stated that he is under life threat. Considering the submission made by the petitioner, this Court is of the view that as per the decision of the Apex Court in S.Siva Vs. Genguraj and 4 others reported in 2008(5) CTC 633, cancellation of bail is a harsh relief and it can be granted only when compellingreasons are made out, but adequate police protection ordered to be given to petitioner's life. Hence, I am of the view that there is no ground for cancelling the anticipatory bail already granted to the respondents 1 and 2/Accused 3 and 4 and this application deserves to be dismissed. 15.Accordingly, this criminal original petition is dismissed. arul Sd/- Assistant Registrar[Crl side] /True copy/ To Sub Assistant Registrar 1. 1. The Sessions Judge, Karur. 2. The SInspector of Police, Karur Town Police Station, Karur District. 3. The Deputy Superintendent of Police, Karur Town, Karur. 4. The Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1 cc to Mr.V.Sitharanjandas, Advocate SR.No.34561. Order made in 6P/6C Crl.O.P.(MD) No.12003 of 2011 RPB 18.10.2011 DATED:30.09.2011 https://hcservices.ecourts.gov.in/hcservices/