IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 23.11.2009 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM Crl.O.P.Nos.12993/2009, 10225/2009, 21295/2008, 610/2009 and M.P.Nos.1 & 2 of 2009 in Crl.O.P.No.21295/2008 & 610/2009 The Inspector of Police, Meensuritty Police Station, Ariyalur District, (Cr.No.130/2008) .. Petitioner (in Crl.O.P.No.12993/2009 & Crl.O.P.No.10225/2009) Ramalingam .. Petitioner (in Crl.O.P.No.21295/2008) Palanisamy .. Petitioner (in Crl.O.P.No.610/2009) Vs. 1.Ravi @ Ravichandran 2.Ramesh .. Respondents (in Crl.O.P.No.12993/2009) 3.Palanisamy 4.Rajadurai 5.Ramesh 6.Sasikala 7.Kanagavalli .. Respondents (in Crl.O.P.No.10225/2009) 8.State by Inspector of Police, Meensurutti Police Station, Perambalur District (Crime No.250 of 2007) .. Respondent (in Crl.O.P.No.21295/2008) 9. State by Inspector of Police, Meensuriti Police Station, Ariyalur District. (Crime No.130/08) .. Respondent ( in Crl.O.P.No.610 of 2009) https://hcservices.ecourts.gov.in/hcservices/ Prayer in Crl.O.P.No.12993 of 2009: Criminal Original Petition filed under section 482 of Criminal Procedure Code praying to cancel the bail granted to the respondents/accused A1 and A11 passed by the learned Principal District and Sessions Judge, Perambalur in Crl.M.P.No.817/2009 dated 22.6.2009 Prayer in Crl.O.P.No.10225 of 2009: Criminal Original Petition filed under section 482 of Criminal Procedure Code praying to cancel the bail granted to the respondents/accused passed by the learned Judicial Magistrate, Jayankondam in Crl.M.P.No.3897/2008 dated 25.8.2008 Prayer in Crl.O.P.No.21295 of 2008: Criminal Original Petition filed under section 482 of Criminal Procedure Code praying to withdraw and transfer the above case in P.R.C.No.9/2006 from the file of the learned Judicial Magistrate, Jeyamkondam, Perambalur District to the file of any other Sessions Court in Chennai or nearby districts of Chennai. Prayer in Crl.O.P.No.610 of 2009: Criminal Original Petition filed under section 482 of Criminal Procedure Code praying to withdraw and transfer the above case in P.R.C.No.17/2008 from the file of the learned Judicial Magistrate, Jeyamkondam, Perambalur District to the file of any other Sessions Court at Chennai or around Chennai. For Petitioner In Crl.O.P.12993/2009 & 10225 / 2009 : Mr.Kumaresan, Public Prosecutor In Crl.O.P.No.21295/2008 : M/s. K.Balu In Crl.O.P.No.610/2009 : Mr.Ananthanarayanan For Respondents In Crl.O.P.No.12993/2009 & 10225 : S.Saravanakumar ORDER Crl.O.P.No.12993/2009, is a petition moved by the State to cancel the bail granted to the respondents/accused passed by the learned Principal District and Sessions Judge, Perambalur in Crl.M.P.No.817/2009 dated 22.6.2009. A similar prayer is made in Crl.O.P.No.10225/2009, again moved by the State. The petitioner in Crl.O.P.No.21295/2008 is the 1st accused in Crime No.250/2007 pending https://hcservices.ecourts.gov.in/hcservices/ in P.R.C.No.9 of 2006 before the learned Judicial Magistrate, Jeyamkondam, Perambalur District. The petitioner in Crl.O.P.No.610/2009 is the 3rd accused in Crime No.130/2008 pending in P.R.C.No.17/2008 before the same Court. The petitioner in Crl.O.P.No.21295/2008, seeks transfer of the case in P.R.C.No.9/2006 from the file of the learned Judicial Magistrate, Perambalur District to the file of any other Sessions Court at Chennai or around Chennai. A similar prayer is made in Crl.O.P.No.610/2009 in respect of the 3rd accused in Crime No.130/2008 pending in P.R.C.No.17/2008 before the learned Judicial Magistrate, Jeyamkondam, Ariyalur District. 2. The background is as follows: There were differences between two groups of villagers belonging to Scheduled Caste community in Vangudi village, Udaiyarpalayam Taluk, Ariyalur District. Between the year 2001 to 2006, more than a 100 cases have been registered for prohibition offences in Vangudi Village. The sudden accumulation of wealth and purchase of vast extents of lands led to ego clashes among the people and the differences between the two groups were magnified in the matter of according temple honours between them. This led to the murder of one Desingu Balan on 22.10.2007. A case in Crime No.220/2007 was registered by the Inspector of Police, Meensuritti Police Station, Ariyalur District and nine persons were arrested in connected therewith. Subsequently, in a retaliatory attack, four of the accused in Crime No.220/2007 as also one another were put to death in the gruesome incident which involved beheading of two persons on 16.5.2008. A case has been registered in Crime No.130/2008, Meensuritti Police Station, in which 18 persons were arrayed as accused therein. 3. Under order dated 25.8.2008 in C.M.P.No.3897/2008, the learned Judicial Magistrate, Jayankondam was pleased to grant bail to A3, A4, A6, A9 & A10 in Crime No.130/2008 on the file of the Inspector of Police, Meensuritty Police Station, Ariyalur District. This order was passed on the understanding that the petitioners were entitled to be released on bail by virtue of operation of Section 167 (2) Cr.P.C. It is this order that is under challenge in Crl.O.P.No.10225/2009 and it is the bail granted therein, that is sought to be cancelled. By order dated 22.6.2009 in Crl.M.P.No.817/2009, accused A1 & A11 in Crime No.130/2008, Meensuritti Police Station were granted bail by the learned Principal District and Sessions Judge, Perambalur. It is this order, which is under challenge in Crl.O.P.No.21295/2009 and it is the bail granted therein, that is sought to be cancelled. 4. Heard Mr.Kumaresan, learned Public Prosecutor for the petitioner in Crl.O.P.No.12993/2009 & 10225/2009, Mr.K.Balu, the learned counsel for the petitioner in Crl.O.P.No.21295/2008, https://hcservices.ecourts.gov.in/hcservices/ Mr.S.Ananthanarayanan, the learned counsel for the petitioner in Crl.O.P.No.610/2009 and Mr.Saravankumar, the learned Counsel for the respondents in Crl.O.P.No.12993/2009 & 10225/2009. 5. The contention of the learned Public Prosecutor in seeking cancellation of bail passed by the learned Judicial Magistrate, Jayankondam in Crl.M.P.No.3897/2008 dated 25.8.2008 is that, such Magistrate has granted bail on the reasoning that Section 167(2) Cr.P.C applied and the same was erroneous. The application for bail has been filed by the accused on 18.8.2008, charge sheet in the case was laid on 22.8.2008 and the order of bail was passed on 25.8.2008. It is contended by the learned Public Prosecutor that once charge sheet had been filed in the case, it was not open to the Judicial Magistrate to exercise powers under proviso to 167(2) Cr.P.C subsequent thereto. This is contested by the learned counsel for the respondents by submitting that, as on the date of filing of the application, the accused had been in custody for a period beyond 90 days and hence was automatically entitled to bail. The intervening factor of filing of charge sheet prior to the date of order of bail would not work to the detriment of the accused, whose right to bail stands acquired as on the date of the bail application. Though some decisions were relied upon by the learned counsel for the respondents, it is not necessary to consider the same since the law on the subject has been settled by a Constitutional Bench of the Apex Court in Sanjay Dutt Vs. State through CBI Bombay (1994) 5 SCC 410, wherein the Hon'ble Apex Court held in paragraph 48 as follows: "48. We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4)(bb) is based on a correct reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable only prior to the file of the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had acrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 Cr.P.C ceases to apply. The Division Bench also indicated that if there by such an application of the accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso to Section 20(4)(bb), https://hcservices.ecourts.gov.in/hcservices/ both of them should be considered together. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. It is settled by Constitutional Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. (See Naranjan Singh Nathawan v. State of Punjab, Ram Narayan Singh v. State of Delhi and A.K.Gopalan v. Government of India.)" Thus, it is apparent that the order of grant of bail passed by the learned Judicial Magistrate, Jayankondam without taking into consideration the fact of the charge sheet being before him as on the date of the order, renders the order of the learned Judicial Magistrate, Jayankondam bad in law. 6. The submissions of the learned Public Prosecutor on the grant of bail by the learned Principal District and Sessions Judge, Perambalur in Crl.M.P.No.817/2009 dated 22.6.2009 is that such Court has, without entering upon a detailed consideration of the merits of the case simply been guided by the fact that the learned Judicial Magistrate, Jayankondam has passed an order of bail in respect of the other accused. Though the learned counsel for the accused/respondents in Crl.O.P.No.12993/2009 would submit that order under challenge is a reasoned one, this Court on perusal of the order is unable to agree. A reading of the order does not reflect that the lower Court is conscious of the fact that the case is one which involved, the murder of five persons. Even otherwise, the order discloses that satisfaction has been arrived at as follows: “Perused the records furnished. Rival submissions considered. Case is taken on file as PRC No.17/2008 and is pending for committal proceedings. Co-accused are released on bail. These petitioners released from Goondas Act. Petitioners are arrayed as A1 and A11. Satisfied by this Court.” 7. In Kalyan Chandra Sarkar Vs. Rajesh Ranjan Alias Pappu Yadav and another (2004) 7 SCC 528, the Hon'ble Apex Court has held as follows: https://hcservices.ecourts.gov.in/hcservices/ “11.The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c ) Prima facie satisfaction of the Court in support of the charge (See Ram Govind Upadhya V. Sudarshan Singh and Puran v. Rambilas) 18.We agree that a conclusive finding in regard to the points urged by both the sides is not expected of the court considering a bail application. Still one should not forget, as observed by this Court in the case Puran V. Rambilas (SCC P.344, para 8) “Giving reasons is different from discussing merits or demerits. At the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken.... That did not mean that whilst granting bail some reasons for prima facie concluding why bail was being granted did not have to be indicated. 8. The next question that would arise for consideration is even if the orders granting bail are found to be bad, as in the instant case, would it be appropriate for this Court to cancel the same merely for the asking. The learned counsel for the accused / respondent submitted that once bail had been granted then except for very special reasons such as non-compliance with the conditions of the grant of bail, intimidation of the witnesses or interference with the course of investigation, this Court would go slow in canceling the same. Reliance in this regard is placed on the decisions in Aslam Babalal Desai v. State of Maharashtra, AIR 1993 Supreme Court 1 (1), Manjit Prakash & Others Vs. Shobha Devi and another 2008(3) Crimes 107 (SC) and also decision of this Court in Krishna Reddy V. State and another 2007 CRI.L.J. 1253. https://hcservices.ecourts.gov.in/hcservices/ 9. In Aslam Babapal Deasi v. State of Maharashtra AIR 1993 Supreme Court 1(1), the Hon'ble Apex Court has held as under: “Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in sixty days after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed” 10. Proviso to sub-section(2) of Section 167 specifically states that when an accused person is released on bail for failure to complete the investigation within the time prescribed, every person so released on bail shall be deemed to be released under the provisions of Chapter XXXIII for the purpose of this Chapter. Chapter XXXIII of the Code comprises Sections 436 to 450; of these Sections 437 and 439 and more particularly Subsection (5) of Section 437 and Subsection(2) of Section 439 have relevance so far as the question at issue is concerned. 11. Section 437(5) states that “Any Court which has released a person on bail under sub-section(1), or sub-section(2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.” Section 439(2) provides that “A High Court or Court of Sessions may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.” All the decisions cited by the respondent/accused informs that bail once granted is not to be cancelled easily as a matter of course. In none of the decisions cited is it explicitly stated not is it implied that it is not open to exercise powers under section 437(5) or 439(2) Cr.P.C in a fit case. The decisions relied on would go only to this extent and no more. The bail once granted shall not be cancelled merely because it is found that the accused has committed a non-cognizable offence and that something more than such finding is necessary. 12. In W.P.No.16253/2009 filed before this Court, the relief sought was to direct the respondents therein (respondents predominantly being the State) to take all measures in rehabilitating the affected villagers of Vangudi Village,Udaiyarpalayam Taluk, Ariyalur District by providing all assistance for their livelihood. It cannot be disputed that this petition came to be filed in relation to suffering caused to the local residents of Vangudi Village and out the occurrence in Crime Nos.220/07 and Crime No.130/08 and matters relating thereto. In W.P.No.16253/2009, this Court under orders dated https://hcservices.ecourts.gov.in/hcservices/ 15.10.2009, appointed a fact finding authority consisting of (I) Mr.V.Vijayan, Registrar (Management), High Court, Madras (ii) Dr.R.Palaniyandi, Joint Secretary, Government of Tamil Nadu, Secretariat, Madras (iii) Dr.V.Krishna Ananth, Advocate nominated by the High Court and they have submitted a report before this Hon'ble Court. A copy thereof has been placed before this Court by counsel for the petitioner in Crl.O.P.No.610/2009, Sri.S.Ananthanarayanan. 13. The next question that would arise for consideration is whether this Court in considering petitions seeking cancellation of bail could consider such a report as the one presently before this Court, I think it could, particularly when such report awakens this court to social sensitivities. The report, among other miseries suffered by the local residents, informs as under: "Considering the facts and circumstances of the case, we are of the opinion that the surviving accused in the first murder case (Crime No.220/07) are creating a violent situation, whereby normal life cannot be continued by relatives of the deceased Mr.Desingu Balan at Vangudi and this requires to be looked into and set right without any further loss of valuable time. The petitioner's affidavit depicts the real situation prevailing in Vangudi village". AND "The cases in both Crime Nos.220/07 and No.130/08 have to be sent up for trial without any further delay and the trial must be completed within a definite time to be fixed by this Hon'ble Court. For this, the interim stay granted by this Hon'ble Court in Crl.O.P.Nos.14581 and 14582 of 2009 dated 25.8.2009 may have to be vacated. In the meanwhile, this Hon'ble Court may pass necessary orders to ensure that the accused in both cases are not allowed to remain in the village, during the pendency of the trial, even while the other villagers are brought back". Both cases are now ripe for trial. It is not difficult to visualize that the commencement and conduct of trial will give rise to a surcharged atmosphere. In the circumstances aforesaid, this Court feels it appropriate to cancel the bail granted by the learned Judicial Magistrate, Jayankondam in Crl.M.P.No.3897/2008 and by the learned Principal District and Sessions Judge in Crl.M.P.No.817/2009. 14. It is next to be decided if both the cases are be transferred and tried by Courts which are distant from the place of occurrence. This Court, on consideration of submissions made before it, as also the material available is of the view that such would be a step in the right direction. Accordingly, this Court directs transfer of cases pending in PRC.Nos. 9/2006 & 17/2008 from the file of the learned Judicial Magistrate, Jeyamkondam to the Court of District and Sessions Judge, Salem. https://hcservices.ecourts.gov.in/hcservices/ 15. Considering the fact that this Court has cancelled the bail earlier granted, it is appropriate that the trial court be directed to take up the cases for trial and dispose of the same within a period stipulated by this Court. The learned Public Prosecutor submits that the exercise can be completed within a period of two months. Accordingly, the District Sessions Judge Salem is directed to take up both the cases for trial and dispose of the same within a period of two months of taking the cases on its file. Towards facilitating the same, the learned Judicial Magistrate, Jayankondam is directed to commit the cases for trial before the District Sessions Judge, Salem on the very next hearing date, immediately upon completion of due process as per Section 207 Cr.P.C. 16.The respondents in Crl.O.P.Nos.12993 of 2009 & 10225/2009 are directed to surrender before the learned Judicial Magistrate, Jeyamkondam forthwith. Connected miscellaneous petitions shall stand closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar jvm To 1. The Districit Sessions Judge, Salem 2. The Judicial Magistrate, Jeyamkondam 3. Do Through The Chief Judicial Magistrate, Jeyamkondam 4. Inspector of Police, Meensurutti Police Station, Perambalur District(Crime No.250 of 2007) & (Cr.No.130/2008) 5. The Public Prosecutor, High Court, Chennai. 6. The Inspector of Police, Meensurutti Police Station, Ariyalur District. Crl.O.P.Nos.12993/2009, 10225/2009, 21295/2008, 610/2009 and M.P.Nos.1 & 2 of 2009 in Crl.O.P.No.21295/2008 & 610/2009 BV (CO) RH (1.12.09) https://hcservices.ecourts.gov.in/hcservices/