BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Thursday, the Thirteenth day of October Two Thousand Eleven PRESENT The Hon`ble Mr.Justice S.NAGAMUTHU CRL OP(MD) No.10919 of 2011 MARUTHU @ NALLA MARUTHU ... PETITIONER/ACCUSED NO.2 Vs STATE REP.BY, THE INSPECTOR OF POLICE AVANIAPURAM POLICE STATION, MADURAI DISTRICT, CR.NO.130/2009 ... RESPONDENT For Petitioner : M/S. P.KUMARESAN Advocate For Respondent : MR.S.CHELLAPANDIAN, Addl.Advocate General PETITION FOR ANTICIPATORY BAIL Under Sec. 438 Cr.P.C. ORDER : The Court Made the following order :- The petitioner is the second accused in Crime No.130 of 2009, on the file of the respondent police for offences under Sections 147, 148, 120(b), 364, 302 and 201 of the Indian Penal Code. 2. Apprehending arrest at the hands of the respondent police, the petitioner is now before this Court seeking Anticipatory Bail. 3. The case of the prosecution is as follows:- The dead body of the deceased by name M.Pandiyarajan was found on 16.04.2009 at Eachanadai Ring Road. It appears that it was an accident, in which the deceased had been hit by some unknown vehicle. On noticing the dead body, the then Village Administrative Officer preferred a complaint to the police. Based on the said complaint, a case in Crime No.130 of 2009 for offence under Section 304(A) IPC was registered. The investigation was done by the then Inspector of Police by name Mr.Ramasubbu and the investigation was directed as though it was a pure and simple case of accident. Number of witnesses were examined to make it appear as a case of accident. 4. Subsequently on 30.07.2011, the fourth accused, in this case, by name Pandi appeared before the Local Village Administrative Officer and made extra judicial confession statement. In the said confession statement, he disclosed that due to some dispute, the deceased was taken to a lonely place by all these accused, where he was attacked in a brutal manner resulting in his death. Thereafter, in order to erase the evidence, they tried to dispose of the body and make it appear as though he died in the accident. The body was, thereafter, taken to the ring road, which is a very busy locality and https://hcservices.ecourts.gov.in/hcservices/ laid the body on the tar road, and thereafter, a Scorpio Car ran over the body. Because of the vehicle repeatedly ran over on the body, the body got smashed. Then all the accused left the place of occurrence along with the vehicle. 5. Based on the said extra judicial confession statement made to the Village Administrative Officer, the case was, thereafter, altered into one under Sections 147, 148, 120(b), 364, 302 and 201 IPC. For the first time, the family members of the deceased, i.e., mother, wife and others were examined. In their statement, they disclosed about the entire occurrence. They have stated that the deceased was taken from his house in a car to a lonely place, where he was attacked. When they went to the place and requested to leave him of, the accused declined. Thereafter, they continued to attack the deceased for some more time, and thereafter, took him in the car. The family members were under the impression that the deceased would be let off. Since the deceased did not return home, they went in search of him to the house of the first accused. They were told that the deceased would come soon to their house. But, the deceased did not turn up. However, a only message that the dead body was found on the ring road came. Thereafter, they rushed to the place of occurrence. It is their case that out of fear that all the accused were politically very powerful, they could not disclose about the occurrence to the police. 6. It is the further case of prosecution that the Inspector of Police Mr.Ramasubbu, who was investigating the case, did not investigate the case properly, since he was under the influence of the accused, who were politically powerful. Therefore, according to the prosecution, the investigation was taken in a wrong direction to make it appear as though the deceased died in the accident. 7. Now, the said Mr.Ramasubbu has been placed under suspension and in his place, some other police officer has taken the investigation. The present investigation revealed the involvement of 16 accused in the occurrence. The petitioner is the second accused. The first accused S.R.Gopi is the leader of the gang. So far as the present petitioner is concerned, he was earlier convicted in a murder case in S.C.No.506 of 1997, on the file of the learned Sessions Judge, Madurai and he was imposed with life sentence and appeal preferred by the accused to the High Court was also dismissed, thereby confirming the sentence of life. 8. The learned Additional Advocate General would submit that the petitioner did not undergo the life imprisonment and instead, he was released on remission by the then Government. Thus, according to the prosecution, the petitioner has got bad antecedents and he is not entitled for Anticipatory Bail. The learned Additional Advocate General would further submit that with a great difficulty, the investigation is now making progress and if Anticipatory Bail is granted to the petitioner, the same would hamper the investigation. 9. The learned Additional Advocate General would also submit that two other accused involved in this case filed Crl.O.P.(MD).Nos.10096 and 10204 of 2011 before this Court seeking similar relief of Anticipatory Bail. But, my predecessor, by order dated 30.08.2011, dismissed both the Criminal Original Petitions holding that the https://hcservices.ecourts.gov.in/hcservices/ petitioners therein are not at all entitled for Anticipatory Bail. The learned Single Judge has also made an observation that it is not a fit case for grant of Anticipatory Bail. The learned Additional Advocate General would submit that the petitioner herein also stands in the same footing, and therefore, so far as he is concerned, it is not a fit case for grant of Anticipatory Bail. 10. When this Criminal Original Petition came up for hearing on 12.10.2011, Mr.N.Natarajan, learned Senior Counsel argued the matter. According to him, the entire case of prosecution is based only on the extra judicial confession statement said to have been given by the fourth accused to the Village Administrative Officer. He would contend that such extra judicial confession statement, in the absence of any corroboration, cannot be treated as a substantive evidence against the petitioner. Therefore, based on the said extra judicial confession statement of the fourth accused alone, the prosecution case cannot be taken as a prima facie case against the petitioner. 11. The learned Senior Counsel would further submit that though it is stated that the fourth accused made the extra judicial confession statement on 30.07.2011, as early as on 29.07.2011 itself, the wife of the fourth accused gave a telegram to various authorities including the Hon'ble the Chief Justice complaining that the fourth accused was taken to custody by the Inspector of Police. Therefore, according to the learned Senior Counsel, the so-called appearance of the fourth accused before the Village Administrative Officer and the subsequent extra judicial confession statement said to have been given by him to the Village Administrative Officer cannot be true. 12. The learned Senior Counsel further contended that though it is stated that many of the accused attacked the deceased with blunt weapons, there is no contusion found on the body of the deceased, which would go to falsify the so-called extra judicial confession statement given by the fourth accused. The learned Senior Counsel further contended that there is no need for the custodial interrogation and the petitioner is prepared to co-operate with the further investigation and to face the trial. 13. Today, Mr.P.Kumaresan, learned counsel, continued his arguments for the petitioner. When it is brought to the notice of the learned counsel that apart from the so-called extra judicial confession statement said to have been given by the fourth accused, there are also statements of the family members of the deceased, who have given statements that they witnessed the occurrence, he would submit that they were not examined prior to 30.07.2011 and they were examined only on 30.07.2011, which itself would go to show that they come forward with false statement. The learned counsel would further submit that thought it is true that the Anticipatory Bail relief was not granted in favour of the other accused, who moved similar Criminal Original Petitions, now the situation is totally changed. According to him, all the other accused have been either arrested or they surrendered before the Court and they have also come out on bail. He would further submit that the petitioner herein is prepared to co-operate with the investigation and face the trial. Therefore, according to him, there is no need for custodial interrogation and he may be granted Anticipatory bail. https://hcservices.ecourts.gov.in/hcservices/ 14. The learned Additional Advocate General would vehemently oppose the said plea. According to him, going by the bad antecedents of the petitioner, i.e., he is a life convict in a murder case and his involvement in the present case will disentitle him to get the discretionary relief of Anticipatory Bail under Section 438 of the Code of Criminal Procedure. He would further submit that since the investigation is making a tortuous progress, at this stage, Anticipatory Bail cannot be granted to the petitioner. 15. Of course it is true that this case was registered originally under Section 304 I.P.C and the investigation was also taken by one Inspector of Police, by name Mr.Ramasubbu for about two years i.e., between 15.04.2009 and 30.07.2011 and the case was investigated as though it was only an accident case. As contended by the learned Additional Advocate General, the fact that the death was not accidental came to light only from the extra judicial confession statement said to have been given by the fourth accused to the Village Administrative Officer. It may be true that there is a telegram given by the wife of the fourth accused on 29.07.2011 stating that her husband had been taken into illegal custody. But, it is a matter to be proved at the time of trial as to the genuineness of such information. Therefore, based on the said telegram alone, it cannot be concluded, at this stage, that the fourth accused was taken into custody on 29.07.2011 itself by the police. 16. The learned Additional Advocate General would submit that no weightage can be given to the said telegram. In my considered opinion too, I do not also want to express any opinion on the genuineness of the said telegram, since any opinion, which I may have to express in this regard, would certainly tend the influence the mind of the Trial Court. Therefore, I only hold that based on the said telegram, for the purpose of grant of Anticipatory Bail, I am not prepared to hold that the fourth accused was taken into illegal custody on 29.07.2011 itself. 17. The learned counsel for the petitioner would further submit that on receipt of such telegram on 30.07.2011, the learned Judicial Magistrate visited the Police Station and found that the fourth accused was in the custody of the police. From this, the learned counsel would try to point out that the accused viz., fourth accused would have been taken into custody on 29.07.2011. It is not the denial of the prosecution also that the fourth accused was kept in the police station on 30.07.2011. It is their positive case that the Village Administrative Officer produced the fourth accused to the Police Station on 30.07.2011 and kept him in the Police Station, and thereafter, he was taken to the learned Judicial Magistrate for remand. It was only at that time, the learned Judicial Magistrate visited the jail and he remanded him to the judicial custody. 18. Coming to the next contention of the learned Senior Counsel that the entire case is based upon the extra judicial confession statement said to have been given by the fourth accused and it is not a substantive evidence against these accused, I do not want to make a detailed documentation of the legal position, as it may again go to tend the influence the mind of the Trial Court. Therefore, I only hold that apart from the so-called extra judicial confession statement said to have been given by the fourth accused, there are https://hcservices.ecourts.gov.in/hcservices/ also statements of witnesses, viz., family members of the deceased, who have spoken to about the entire occurrence including the occurrence, in which the deceased was attacked by the accused. Therefore, as of now, apart from the extra judicial confession statement, there are other materials by way of statements of witnesses recorded under Section 161 of the Code of Criminal Procedure to speak about the occurrence. 19. Coming to the next contention of the learned Senior Counsel that there was no contusion found on the body of the deceased as seen in the Post-mortem Certificate, though it is alleged that when the accused attacked the deceased with blunt weapons repeatedly on his body, I can only say, at this stage, that such a meticulous examination of a contusion of the Post-mortem Certificate cannot be gone into. Anyhow, the Post-mortem Certificate further reveals that the entire skull was found contusive. It is an answer to the argument advanced by the learned Senior Counsel for the petitioner. This is a case where after the deceased was killed, the dead body was carried in a car to the main road, where the body was run over by the car repeatedly. The Post – mortem Certificate reveals that the body was completely smashed. It is very difficult to find out as to whether there was any contusion elsewhere or not. The learned counsel for the petitioner would further contend that there were tyre marks found on the body of the deceased, which would go to show that it is a case of accident, for which the learned Additional Advocate General submitted that it is a case of the prosecution itself that the body was run over by the car. 20. Now, coming to the last objection raised by the learned Additional Advocate General, when similar arguments were advanced before my predecessor, [Hon'ble Ms.Justice R.MALA], the learned Judge, after having considered all the pros and cons of the case, has concluded in the order dated 30.08.2011 that it is not a fit case for grant of Anticipatory Bail. With these observations, the learned Judge has dismissed the said Criminal Original Petitions for Anticipatory Bail. The same yardstick is to be applied to the petitioner herein also. When the petitioner herein also stands in the same footing like other two petitioners, for whom Anticipatory Bail was denied by order dated 30.08.2011 in Crl.O.P.(MD).Nos.10096 and 10204 of 2011, I am of the considered view that the petitioner herein also deserves only for dismissal of Anticipatory Bail. 21. In view of all the above, I am of the considered view that since there is a very strong case against the petitioner and since an attempt has been made to misdirect the investigation at the early stage, and accordingly, investigation was taken in a wrong direction for about a period of two years and lastly the investigation is making a very tortuous progress, it is not a fit case at all for grant of Anticipatory Bail. Hence, this Criminal Original Petition is dismissed. Sd/- 13/10/2011 / 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 INSPECTOR OF POLICE AVANIAPURAM POLICE STATION, MADURAI DISTRICT 2 THE ADDL PUBLIC PROSECUTOR MADURAI BENCH OF MADRAS HIGH COURT, MADURAI +1. CC to M/S. P.KUMARESAN Advocate SR.No.35913 ssk/20.10.2011 /4c -6p/- ORDER IN CRL OP(MD) No.10919 of 2011 Date :13/10/2011 https://hcservices.ecourts.gov.in/hcservices/