IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 3.4.2008. CORAM THE HON'BLE MR.JUSTICE M.JEYAPAUL Crl.O.P.Nos.6184 and 6661 of 2008 and M.P.No.1 of 2008 T.S.Arun Kumar Petitioner in Crl.O.P. No.6184 of 2008 The Inspector of Police, Annamalai Nagar, Cuddalore District. (Crime No.36 of 2008) Petitioner in Crl.O.P. No.6661 of 2008 vs. 1. The S.H.O. Annamalai Nagar, Cuddalore District. R1 in Crl.O.P.6184/2008 2. Rajendran R2 in Crl.O.P.6184/2008 & Respondent in Crl.O.P. No.6661 of 2008 6184/08 Criminal Original Petition filed under section 439(2) Cr.P.C. seeking to cancel the anticipatory bail granted by the Principal Sessions Judge, Cuddalore on 7.2.2008 in Crl.M.P.No.679 of 2008. Crl.M.P.No.6661/08 filed under section 438(2) read with 482 of Crl.P.C. Seeking to conceder the Anticipatory Bail granted by the Principal Session Judge Cuddalore on 07.02.2008 in CMP 679/08. For Petitioner in Crl.O.P. No.6184 of 2008 : Mr.S.Krishnaswamy For petitioner in Crl.O.P. No.6661 of 2008 and 1st Respondent in Crl.OP.No.6184/08 : Mr.A.Saravanan, Govt. Advocate (Crl.Side) https://hcservices.ecourts.gov.in/hcservices/ For respondent : Mr.A.Natarajan, Senior Counsel for Mr.A.S.Velmurugan R2 in Crl.OP.No.6184/08 Sole Respondent in Crl.OP.6661/08 COMMON ORDER Criminal Original Petition No.6184 of 2008 is filed by the brother's son of the deceased who has been cited as one of the witnesses to the crime of murder and Criminal Original petition No.6661 of 2008 is filed by the Inspector of Police, Annamalainagar, Cuddalore District seeking to cancel the anticipatory bail granted by the learned Principal and District Sessions Judge, Cuddalore in Crl.M.P.No.679 of 2008. 2. As both the petitions are connected with each other and the grounds set up in both the petitions are common, both the petitions were taken up together for common disposal. 3. For the sake of convenience, the second respondent in Crl.O.P.No.6184 of 2008 who also figures as the sole respondent in Crl.O.P.No.6661 of 2008 is hereinafter referred as the respondent. 4. The core allegation found in the first information report registered in Crime No.36 of 2008 on the file of the Inspector of Police, Annamalainagar, Cuddalore District would read that on 30.1.2008, at about 9.40 am, when the deceased was proceeding in his motor cycle towards his office situated at Vice Chancellor Bungalow Road, some unidentified persons came in a motorcycle and one of them drew out a sharp edged weapon viz., "Veecharival" and struck a heavy blow on the neck of the deceased who succumbed to the injuries. The first information report was lodged by one Pandian and the case was registered originally for offence punishable under section 302 of the Indian Penal Code and later on, it was altered to one under sections 147, 148, 341, 302 read with 149, 302 read with 120B and 302 read with 109 of the Indian Penal Code. 5. The respondent filed an anticipatory bail application in Crl.M.P.No.679 on 6.2.2008. Learned Principal Sessions Judge, Cuddalore, having adverted to the facts and circumstances of the case, granted anticipatory bail to the respondent on the following grounds:- There was no mention of the name of the assailant in the first information report dated 30.1.2008. The case diary would reveal that there was no materials available to implicate the respondent herein. None of the witnesses was examined under section 161 of the Code of https://hcservices.ecourts.gov.in/hcservices/ Criminal Procedure. Absolutely there was no material to indicate the involvement of the accused in the case diary produced before him for perusal. The respondent has a social status and a permanent abode. Having cited the abovesaid reasons, the learned Principal Sessions Judge granted anticipatory bail to the respondent. 6. The petitioner in Crl.O.P.No.6184 of 2008 has contended that the application for anticipatory bail which was filed on 6.8.2008 was original posted to 8.2.2008, but, the same was advanced and taken up on 7.2.2008 itself and order was passed at 8.00 pm in the Chambers of the Judge. The Principal Sessions Judge, Cuddalore has chosen to modify and relax the conditions imposed in the order granting anticipatory bail in quick succession within a short span of time. The application filed by the wife of the deceased seeking cancellation of anticipatory bail has been posted time and again for hearing and the same is still pending disposal. Some unknown persons warned the petitioner in Crl.O.P.No.6184 of 2008 and his family members with dire consequences. The wife of the deceased and her brother were threatened on 14.2.2008 at Puthupatti in Pudhukottai District. A case has now been registered as against the respondent by the Inspector of Police K.Puthupatti in Crime No.28 of 2008 under sections 294 and 506(I) of the Indian Penal Code. The respondent/accused was granted a blanket order of pre-arrest bail without specifying the offences committed by him. He would tamper with the evidence collected. With the aforesaid material allegations, the petitioner in Crl.O.P.No.6184 of 2008 has sought for cancellation of anticipatory bail. 7. The Inspector of Police, Annamalainagar, Cuddalore District, who has filed Crl.O.P.No.6661 of 2008 has alleged in the application seeking cancellation of anticipatory bail in addition to the aforesaid grounds alleged for cancellation of anticipatory bail by the petitioner in Crl.O.P.No.6184 of 2008 that the investigation would reveal that the deceased was done to death only at the instance of the respondent. The respondent was uncomfortable with the growth of the deceased which threatened the influence of the respondent in Annamalai University. The actual occurrence is the result of the conspiracy hatched by the respondent with the other accused. The anticipatory bail was disposed of on the very same day of filing. With the aforesaid grounds, the petitioner in Crl.O.P.No.6661 of 2008 also sought for cancellation of anticipatory bail. 8. In the counter filed by the respondent, it has been stated that the application seeking anticipatory bail filed by the respondent on 6.2.2008 was disposed of on 7.2.2008 after counter was filed by the Public Prosecutor and also after hearing elaborate arguments submitted before the Principal Sessions Judge. The respondent has been regularly and promptly complying with the conditions before the court. No proper ground has been alleged in the petitions seeking cancellation of anticipatory bail. There is https://hcservices.ecourts.gov.in/hcservices/ absolutely no material connecting the respondent with the crime. The petition filed for cancellation of anticipatory bail by the wife of the deceased is being adjourned by the learned Principal Sessions Judge as she did not make her appearance before the Sessions Court. No complaint was lodged with police alleging that the respondent sent some unknown persons to the residence of the petitioner in Crl.O.P.No.6184 of 2008 and threatened him and his family members with dire consequences. No date, time and place of the said occurrence was detailed in the petition filed in Crl.O.P.No.6184 of 2008. A detailed and elaborate interrogation was also conducted and the respondent also co-operated with the process of investigation on 14.2.2008 and 15.2.2008. The wife of the deceased, who is neither an eyewitness nor the de facto complainant, has come out with a false complaint as against the respondent before K.Puthupatti Police Station. In the application filed for cancellation of anticipatory bail before the Principal Sessions Judge, Cuddalore subsequent to such alleged occurrence, there is no reference to the said occurrence. As the respondent has not misused the concession of anticipatory bail granted to him and he has been ready and willing to co-operate with the process of investigation, the question of cancelling the anticipatory bail granted to the respondent does not arise. 9. Elaborate arguments made by the counsel appearing for the petitioner in Crl.O.P.No.6184 of 2008 and the learned Government Advocate (Criminal Side) appearing for the Inspector of Police, Annamalainagar, Cuddalore District, the petitioner in Crl.O.P.No.6661 of 2008 and the submissions made by the learned Senior Counsel appearing for the respondent were heard. 10. It has been held by the Supreme Court in GURUCHARAN SINGH v. STATE (DELHI ADMN.) (1978 CRI. L.J. 129) as follows:- "The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of S.437(1) and S.439(1), Cr.P.C of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his won life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out." In the above case, the Supreme Court has indicated the material https://hcservices.ecourts.gov.in/hcservices/ considerations that shall engage the attention of the court while granting bail both under section 437(1) and section 439(1) of the Code of Criminal Procedure. The aforesaid considerations are relevant not only for disposal of the application seeking regular bail but also for the determination of the application seeking anticipatory bail. 11. The Supreme Court in RAM GOVIND UPADHYAY v. SUDARSHAN SINGH & OTHERS (2002(2) SUPREME 457) has held as follows:- "Apart from the above, certain other (factors) which may be attributed to be relevant considerations may also be noticed at this juncture though however, the same are only illustrative and nor exhaustive neither there can be any. The considerations being: a) While granting bail the Court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations. b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail. c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the Court in support of the charge. d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail." It has also been observed therein that considerations applicable to grant of bail and considerations applicable to cancellation of such bail are independent and do not overlap each other. 12. In POKAR RAM v. STATE OF RAJASTHAN (1985 SCC (CRI.) 297), it has been held as follows:- https://hcservices.ecourts.gov.in/hcservices/ "Before we conclude this judgment, it must be made distinctly clear that some very compelling circumstances must be made out for granting bail to a person accused of committing murder and that too when the investigation is in progress. In fact, the Investigating Officer did not even attempt to arrest the appellant (sic accused) though the initial accusation was under Section 307 of the Indian Penal Code punishable with imprisonment for life. And as soon as the victim of the assault succumbed to his injuries and an offence under Section 302 was registered, promptly an application for anticipatory bail was made and granted. If such an order is allowed to stand, faith of public in administration of justice is likely to be considerably shaken. Therefore, we have no option but to cancel the order granting anticipatory bail." It has further been held therein that the status of the accused in life and his affluence or otherwise are hardly relevant considerations while examining the request for granting anticipatory bail. Therefore, the court, while granting bail or anticipatory bail, will have to consider the nature of charge, the severity of the punishment, the nature of evidence available on record, the apprehension that the witnesses would be tampered with and the possibility of abscondence will have to be necessarily considered while granting bail or anticipatory bail in a heinous crime. 13. It is found that the learned Principal Sessions Judge had an opportunity to go through the case diary on the date when the application seeking anticipatory bail was taken up for consideration on 7.2.2008. He has categorically stated in the order that except the alleged confession of one co-accused by name Natarajan, nothing was available on record to indicate the involvement of the petitioner in the crime of murder. No statement under section 161 of the Code of Criminal Procedure was recorded from any of the witnesses touching upon the version found in the confession statement of the co-accused Natarajan. Such an observation was not assailed by either of the parties in the application seeking cancellation of the anticipatory bail. Therefore, the court will have to hold that as on the date of considering the application seeking anticipatory bail moved by the respondent, there was virtually no material to indicate the involvement of the respondent except the stray reference by one of the co-accused Natarajan. 14. It is submitted by the learned counsel appearing for the petitioner that the anticipatory bail application was taken up on 7.2.2008 and the same was disposed of on the very same day. On a perusal of the entire records, it is found that the application https://hcservices.ecourts.gov.in/hcservices/ seeking anticipatory bail filed by the respondent was taken on file by the learned Principal Sessions Judge on 6.2.2008 and the matter was posted on 7.2.2008. He, having given an opportunity to file counter, disposed of the same on the very same day. There is nothing on record to suggest that the application which was taken on file on 6.2.2008 was posted straight to 8.2.2008 and the learned Principal Sessions Judge advanced the hearing to 7.2.2008 and disposed of the matter hurriedly. On record, it is found that the Inspector of Police, Annamalainagar, Cuddalore District has filed counter to the petition filed by the respondent seeking anticipatory bail. The petitioner has not alleged that they were not heard fully by the learned Principal Sessions Judge, Cuddalore. It is found that the petitioner has come out with a false allegation that the application was taken up on the day of filing and the same was disposed of by advancing the hearing. 15. It is also submitted by the learned counsel appearing for the petitioner that a blanket order of anticipatory bail was passed by the learned Principal Sessions Judge. To fortify their submission, the authority reported in GURBAKSH SINGH v. STATE OF PUNJAB (AIR 1980 SC 1632) was cited before this court. It has been observed therein as follows:- "We agree that a 'blanket order' of anticipatory bail should not generally be passed. This flows from the very language of the section which as discussed above, requires the applicant to show that he has "reason to believe" that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. That is why, normally, a direction should not issue under S.438(1) to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever". That is what is meant by a 'blanket order' of anticipatory bail, an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which no concrete information can possibly be had." That was a case where a blanket order to release the petitioner on bail "whenever arrested for whichever offence whatsoever" was granted by the court which dealt with the application seeking anticipatory bail. But, in this case, it is found that the crime number and the offence alleged to have been committed are scrupulously referred to in the order under challenge by the learned Principal Sessions Judge, Cuddalore. https://hcservices.ecourts.gov.in/hcservices/ 16. Of course, the learned Principal Sessions Judge, in the operative portion of the order, should have mentioned the crime number in which the order of bail was granted. The court will have to go through the entire text of the order passed by the court below. The operative portion of the order cannot be truncated from the earlier portion of the order which discloses the crime in which and the offence under which the respondent was implicated. At any rate, it is found that the order passed by the learned Principal Sessions Judge, Cuddalore imposing certain conditions on the first respondent and also directing him to co-operative with the process of investigation as and when required by the investigation agency cannot be classified as a blanket order of anticipatory bail. 17. It is submitted by the learned counsel appearing for the petitioner that the modification and relaxation of the conditions imposed in the order of anticipatory bail had been passed by the learned Principal Sessions Judge within a short span of time. Of course, this court also is not happy with the manner in which the applications seeking modification and relaxation of the conditions were entertained by the learned Principal Sessions Judge within a short span of time. But, such modification, in the aftermath of the order of anticipatory bail, granted by the learned Principal Sessions Judge cannot be a substantial ground for cancelling the anticipatory bail already granted. But, it is found that the respondent has scrupulously complied with whatever conditions which have been imposed on him. 18. It is urged before this court by the learned counsel appearing for the petitioner in Crl.O.P.No.6184 of 2008 that the application filed by the wife of the deceased seeking cancellation of bail is pending disposal even today. On a careful perusal of the records produced before this court, it is found that the learned Principal Sessions Judge has insisted upon the presence of the wife of the deceased who is not an ocular witness or a person who lodged the first information report to verify the authenticity of the petition filed seeking cancellation of bail. The records would reflect that the wife of the deceased as expected by the learned Principal Sessions Judge, had not appeared to vouchsafe the petition seeking cancellation of bail. Even otherwise, the pendency of such an application for cancellation of bail at the portals of the learned Principal Sessions Judge cannot be a ground to cancel the bail more especially when the conditions imposed by the learned Principal Sessions Judge has been scrupulously complied with by the respondent. 19. It has been very vaguely alleged in the petition in Crl.O.P.No.6184 of 2008 that the petitioner therein and his family members were threatened at Cuddalore by some unidentified persons. Firstly, as right contended by the learned Senior Counsel for the respondent, no complaint had been lodged alleging that there was a https://hcservices.ecourts.gov.in/hcservices/ threat wielded to him and his family members. Secondly, the date and time of such occurrence have not been given in the said petition viz., Crl.O.P.No.6184 of 2008. Therefore, the court finds that the said story has been reeled out with a view to influence the mind of the court to cancel the bail. 20. There is also an allegation that the wife and brother of the deceased were threatened at Cuddalore on 14.2.2008. But, it is found that in the application seeking cancellation of anticipatory bail filed by the wife of the deceased on 16.2.2008, she has not whispered anything about such a threat wielded over phone by the respondent. If at all, a threat had been wielded to a witness or a close relative of the deceased, that is a substantial ground for cancellation of the anticipatory bail. The wife of the deceased would have definitely referred to such a threat in the application filed seeking cancellation of anticipatory bail on 16.2.2008, if at all there had been such a potential threat emanated from the respondent. There is no explanation from the said petitioner as to why such an important aspect had not been referred to in the application filed seeking to cancel the anticipatory bail on 16.2.2008. It is pertinent to note that on 15.2.2008 itself, the wife of the deceased had signed an affidavit filed in support of the application seeking cancellation of anticipatory bail. There is something fishy in the projection of such a threat alleged to have been emanated from the respondent on 14.2.2008 over phone. There is no bona fides in such wild allegations levelled against the respondent. 21. The learned counsel appearing for the petitioner would seriously contend that the learned Principal Sessions Judge has fallen in error in basing the social status of the respondent for granting anticipatory bail. Of course, it is found that the social status of the respondent had weighed in the mind of the Principal Sessions Judge, Cuddalore, but, that is not the sole ground on which the order of anticipatory bail was based. 22. The Supreme Court in STATE OF U.P. AND OTHERS v. JEET s. BISHT AND ANOTHER (2007(4) SUPREME 359) has held as follows:- "When it is said "be you howsoever so high, the law is above you" this dictum applies even to the Supreme Court, since the law is above the Supreme Court and the Supreme Court is not above the law. The Judges of the Supreme Court and High Court should have the modesty and humility to realize this." 23. No doubt, no one is above law. But, it is to be noted that the aforesaid authority has been laid down by the Supreme Court in a case where a direction was issued by the High Court of the State of Uttar Pradesh to constitute atleast five State Consumer Fora at State level as per section 16 of the Consumer Protection Act by making https://hcservices.ecourts.gov.in/hcservices/ necessary amendment. The aforesaid observation has been made in the appeal preferred as against such a direction. Therefore, the above observation will not apply to the criminal case where the status of an accused will have to be gone into to find whether such an accused has social roots or whether he has permanent abode or whether he has got unblemished track record in social life to avoid damage to the course of trial on account of his abscondence. 24. Therefore, nothing wrong in referring to the status of an accused in the order of bail or anticipatory bail. But, if the status of a person is so much to influence the course of justice, then, such a status of the person will come under adverse notice of the court. It cannot be stated that the status of a person is totally irrelevant for considering the application seeking bail or anticipatory bail. 25. It has been observed in STATE V. ANIL SHARMA ((1997) 7 SCC 187) as follows:- "We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders." 26. The Supreme Court in STATE OF A.P. v. BIMAL KRISHNA KUNDU ((1997) 8 SCC 104) has observed as follows:- https://hcservices.ecourts.gov.in/hcservices/ "We have absolutely no doubt that if the respondents are equipped with such an order before they are