IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06/10/2003 CORAM THE HONOURABLE MR. JUSTICE M.KARPAGAVINAYAGAM CRL.M.P.No.7061 of 2003 in Crl.O.P.No.4456 of 2002 $State by Inspector of Police, J.7, Velachery Police Station, Chennai-42. (Cr.No.1047 of 2001) ..Petitioner -Vs- $P. Rajagopal ..Respondent Petition to cancel the bail granted to the respondent by this Court on 1.4.2002 in Crl.O.P.4456 of 2002 and order his arrest and commit him to custody till the disposal of S.C.No.414 of 2002 on the file of the Additional Sessions Judge, Chennai at Poonamallee. !For Petitioner : Mr. I. Subramanian, Public Prosecutor. ^For Respondent: Mr. N.Natarajan, S.C. For Mr.G.Ravikumar. :O R D E R P. Rajagopal, the respondent herein is the first accused in S.C.No.4 14 of 2002 which relates to the offences of conspiracy, abduction and murder of one Santhakumar, the husband of Jeevajothi, the complainant. He was granted bail by this Court on 1.4.2002. The case was ripe for trial. At that stage, the respondent along with other accused went to Thethakudi village where the complainant, P.W.1 resides and attempted to tamper with her evidence by compelling her to receive a sum of Rs.6 lakhs. On her refusl, the respondent and his henchmen attempted to attack the inmates of the complainant's house. The complainant's brother sustained injuries. Then, all of them escaped from the scene and sped away. With reference to this incident, a case was registered. The respondent and others were arrested and produced before the Judicial Magistrate, Thiruthuraipoondi. On the strength of the said incident, the State has now filed this application to cancel the bail granted to the respondent by this Court on 1.4.2002 contending that the respondent misused his liberty of bail. 2. The brief facts leading to the filing of the application are as follows: "(a) The respondent Rajagopal is the owner of Saravana Bhavan Hotel at Chennai. The complainant Jeevajothi and her husband Santhakumar were working under the Hotel Management. The respondent wanted to marry Jeevajothi as his third wife. This was resisted by both Santhakumar and Jeevajothi. Therefore, Jeevajothi was abducted by the respondent and others with an intention to compel her to marry him. (b) With reference to this incident, on 9.11.2001, Jeevajothi gave a complaint to J7 Velacherry Police Station, Chennai. A case was registered against Rajagopal and others in Crime No.1030/2001 for the offences under Sections 147, 451, 352, 354, 365, 366, 342, 323, 327, 498 and 506(ii) read with 109 IPC. Pending investigation in this case, the respondent and others on 24.10.2001 abducted her husband Santhakumar from Chennai and took him to Kodaikanal and murdered him, since the respondent felt that he was a stumbling block for his ill-design to marry Jeevajothi. A separate case was registered for this murder in Crime No.1047/2001 for the offences under Sections 120(b), 147, 342, 364 and 302 I.P.C. by the very same Police of Chennai. (c) On 23.11.2001, Rajagopal (A1) surrendered before the Judicial Magistrate, Kanchipuram. In both the cases, namely Crime No.1030/2001 and Crime No.1047/2001, the learned IX Metropolitan Magistrate, Saidapet, on 27.2.2002, granted default bail to the respondent under Section 167(2) Cr.P.C. on the ground that charge sheets were not filed in time. (d) Challenging the said order, the State earlier preferred a petition before this Court in Crl.O.P.No.4456 of 2002 seeking to set aside the same. Ultimately, this Court by the order dated 1.4.2002 set aside the order of 'default bail' holding that the said order is illegal as the charge sheet had already been filed even before the filing of the application under Section 167(2) Cr.P.C. However, this Court in the very same order granted regular bail to the respondent accused with condition to reside at Cuddalore and report before the Chief Judicial Magistrate, Cuddalore every day till the examination of main witnesses before the trial Court is completed. While the order was passed by this Court, it was made clear that the accused should not attempt to tamper with the witnesses and if any complaint is received, the bail granted to them will be cancelled. (e) Subsequently, an application had been filed for modification of the condition in Crl.M.P.No.4123 of 2002 before this Court. By the order dated 30.4.2002, this Court modified the condition to the effect that the accused Rajagopal to remain at Kanchipuram and report before the Judicial Magistrate for a period of two months. (f) The case in Crime No.1030/2001 relating to the abduction of the complainant Jeevajothi in S.C.No.55 of 2003 is pending before the Mahila Court, Chennai. The case in Crime No.1047/2001 relating to the murder of her husband Santhakumar in S.C.No.414 of 2002 is pending before the Additional Sessions Judge, Chennai at Poonamallee. (g) S.C.No.55 of 2003, pending trial before the Mahila Court, Chenai, was ripe for trial and the same was posted for examination of P. Ws. on 21.7.2003. In the other case relating to murder in S.C.No.414 of 2002 was also posted for appearance of the accused before the Additional Sessions Judge, Chennai at Poonamallee on 18-7-2003. (h) The prime witness, the de-facto complainant Jeevajothi is residing at Thethakudi village at Nagapattinam District along with her parents. (i) At this stage, according to the State, on 15.7.2003 at 9.00 p.m., Rajagopal, the accused, his Legal Adviser Rajendran and his men went to Thethakudi village with a cash of Rs.6 lakhs and odd and went to the house of the complainant and asked her not to give evidence in the murder case as well as in the abduction case and compelled her to receive the cash more than six lakhs. Rajendran, the lawyer who was with him also asked her to give evidence in the murder case in favour of the defence. When she refused for the same and shouted at these people, her brother Ramkumar and other relatives came to the main hall and intervened. Then, Rajagopal asked his henchmen to attack the complainant and her brother. One of the accused took a knife and attacked Ramkumar, the brother of the complainant and caused injury on right hand. In the meantime, the villagers gathered there on hearing the hue and cry of the inmates of the house. On noticing this, the accused persons swiftly got into two Toyota Qualis cars and escaped from the spot. Unfortunately, Advocate G.Rajendran was not able to get into the car and as such, he was caught red-handed by the villagers. (j) Jeevajothi gave a complaint to the Vedaranyam Police Station on the same day at about 11.00 p.m. and the case was registered in Crime No.701/2003 under Sections 147, 148, 452, 506(ii), 324 and 307 I.P.C. against Rajagopal, Rajendran and others. The Vedaranyam police came to the spot and arrested A2 Advocate Rajendran who was caught by the villagers, at about 5.00 a.m. On 16.7.2003. (k) In the complaint, Jeevajothi gave the registration numbers of the two Toyota Qualis cars by which the other accused escaped. On the basis of those particulars, a wireless message was given to all the police stations in the district about the escape of two Toyota Qualis cars. On receipt of this information, Rajesekaran, Sub Inspector of Police, Tanjore Town Police Station stopped those cars and arrested A1 Rajagopal, who was found in the car, and others and recovered the cash of Rs.6,11,950/- kept in the car. He then handed over a special report on 16.7.2003 and produced the arrested accused in Vedaranyam Police Station. Then, all the accused including Rajendran, the Advocate were sent to the Judicial Magistrate, Thiruthuraipoondi for remand along with remand report. Accordingly, they were remanded. (l) On the same day, i.e. on 16.7.2003, the respondent and Rajendran and other accused filed bail application before the Judicial Magistrate Court, Thiruthuraipoondi. Rajendran, Advocate alone was released on bail subject to some conditions purely on medical ground. The bail application by the others was dismissed. (m) On 18.7.2003, the State filed the present application in Crl.M.P.No.7061 of 2003 to cancel the bail granted to Rajagopal in Crl.O.P.No.4456 of 2002 mainly on the ground that Rajagopal along with others came to Thethakudi village and attempted to tamper the main witness Jeevajothi in the murder case. (n) In the meantime, the accused Rajagopal and others filed an application for bail before the Principal Sessions Court, Nagapattinam in Cr.M.P.No.3283 of 2003 and the same was dismissed on 24.7.2003. However, again he filed another application in Cr.M.P.No.3345 of 2003 and on 31.7.2003, the same was ordered by the Principal Sessions Judge granting bail. As such, he has come out on bail in the case in respect of the incident of tampering and threatening the witness in the murder case even before this application for cancellation of bail was entertained by this Court." 3. The present application for cancellation of bail came up for admission before this Court on 1.8.2003 and notice was ordered. On receipt of notice, the learned senior counsel for the respondent appeared and filed the counter-affidavit. 4. The matter was argued at great length by both Mr.I.Subramanian, the learned Public Prosecutor for the State and Mr.N.Natarajan, the learned senior counsel representing the counsel on record on behalf of the accused/respondent. 5. The submissions made by the Public Prosecutor in brief are as follows: "Jeevajothi, the de-facto complainant in both the cases in S.C.No.55 of 2003 relating to abduction pending in Mahila Court, Chennai and S.C.No.414 of 2002 relating to the murder of her husband pending before the Additional Sessions Judge, Poonamallee is the prime witness. The case in S.C.No.55 of 2003 was posted for trial on 21.7.2003. The case in S.C.No.414 of 2002 had been posted before the Additional Sessions Judge, Poonamallee on 18-7-2003 for the appearance of the accused Rajagopal. Though the occurrence had taken place in Chennai and the trial is pending before the Courts at Chennai, the de-facto complainant and other witnesses left Chennai and started residing in Thethakudi village, Nagapattinam District along with her parents and relatives. Just before the commencement of trial, i.e. on 15.7.2003, the accused Rajagopal along with his legal adviser Rajendran, a practising advocate at Chennai and with his other henchmen came to Thethakudi village, Nagapattinam District in two Toyota Qualis cars to strike a deal with Jeevajothi by asking her to resile from her earlier version and to support his defence. They offered money more than six lakhs. She was not amenable. She raised a hue and cry. Her brother and others came and intervened. At the instigation of Rajagopal, one of the accused attacked her brother and he sustained knife injury on his right hand. Then, all the accused tried to escape by getting into the cars. Ultimately, they succeeded in fleeing away from the scene. Unfortunately,Rajendran, the legal adviser was left in the lurch in the village itself, thereby the villagers were able to catch hold of Rajendran alone. Immediately, the complaint was lodged with police at 1 1.00 p.m. itself and the case was registered. On receipt of message, the Sub Inspector of Police, Tanjore intercepted the cars near Tanjore and arrested the accused and recovered the cash. While the bail was granted by this Court on 1-4-2002 to the accused Rajagopal, this Court specially imposed the condition directing the accused not to tamper with the witnesses and if there is any complaint of tampering, the bail granted wouldl stand cancelled. Now, the incident of tampering with the witnesses has taken place on the eve of trial. Through the sufficient materials in the form of statement of the witnesses, wound certificate, recovery of cash, the recovery of the chappals belonged to the accused from the spot, etc., the State has established the act of the accused in having made an attempt to tamper with the witness, by all the probabilities. As such, the respondent misused his liberty of bail and consequently, the same has to be cancelled." 6. In reply to the above submissions, Mr.N.Natarajan, the learned senior counsel appearing for the respondent accused has made the following contentions: "The respondent has never gone to Thethakudi village to tamper with the witness. The case is falsely foisted against him. The affidavit seeking for cancellation of bail has been filed only by the investigating officer in S.C.NO.414 of 2002 and the officer who is the investigating the case over the incident which took place at Thethakudi has not chosen to file any affidavit. The witnesses for the incident have never filed the supporting affidavits. The application has already been filed on 7.7.2003 by the prosecution for transfer of the case from Mahila Court to Poonamallee Sessions Court to try both the cases. Even then, subpoena was obtained on 14-7-2003 from Mahila Court to be served on the witnesses at Thethakudi. Those summons were never served on the witnesses. On 15-7-2003, Rajagopal, the accused was travelling with other people to Vellore, carrying with him the cash of Rs.6 lakhs to meet the expenses for the function for a new branch hotel at Vellore to be opened on 1-9-2003. On the way to Vellore, he went to Thirunallar Saneeswarar temple, Tanjore District and after darshan, he proceeded to Vellore-via Tanjore. At that time, the Police intercepted and took them to the Vedaranyam Police Station. One Ramachandran, Assistant Commissioner of Police, Guindy Range,Chennai was present at the Vedaranyam Police Station on 16-7-2003 at about 8.00 a.m. Even though he is not the investigating officer in S.C.No.55 of 2003 and S.C.No.414 of 2002, from the beginning he has shown undue interest in these cases . The presence of the said officer attached to Chennai Range in Vedaranyam Police Station on 16.7.2003 itself would show that a drama was enacted only at the instance of the Assistant Commissioner of Police, Chennai, in order to create a ground for cancellation of bail. The incident is so artificial. The place of the arrest of the accused is near Tanjore, which is situated 83 kms. away from Thethakudi village. The injury found on the right hand of the witness was so simple and minor injury. Therefore, it cannot be said that there was an attempt to murder the brother of the complainant. Considering the situs and nature of the injury, the Sessions Court concluded that it cannot be a case of Section 307 I.P.C. and granted bail. Since there are no sufficient materials produced by the prosecution to prove the alleged incident took place on 15.7.2003 and in view of the materials available on record to show that the defence case is more probable, the bail may not be cancelled." 7. In view of the specific allegations made against Ramachandran, Assistant Commissioner of Plice, Guindy Range, in the counteraffidavit of the accused, the learned Public Prosecutor filed the reply affidavit sworn to by the said Ramachandran denying those allegations. According to the Assistant Commissioner of Police, he is Guindy Assistant Commissioner of Police, having jurisdiction over Velachery Police Station in which both the crime numbers relating to S.C.No.55 of 200 3 and S.C.No.414 of 2002 were registered. As Assistant Commissioner of Police having jurisdiction over the Velachery Police Station, he was supervising in the investigation in these cases. He received information from the Inspector of Police, Vedaranyam about the incident of threatening and tampering with the witness which took place on the nigh of 15.7.2003 at Thethakudi village. Since he was interested in the safety and welfare of the prime witness-Jeevajothi, he rushed to Vedaranyam Police Stationon 16.7.2003 and ascertained the facts and also ensured the adequate protection to the witness and returned to the city on the very next day. Immediately after the arrest of Advocate Rajendran, an intimation was sent to the relatives of Rajendran at Chennai as well as to the President of the Advocates' Association and the Hon'ble Chief Justice of High Court regarding his arrest as per the procedure. He has never shown any undue interest in these cases. Neither Rajendran nor Rajagopal had made any complaint against the Assistant Commissioner of Police and other police regarding this to the Judicial Magistrate, Thiruthuraipoondi who remanded them. The summons were not served on the witnesses in the cases, since on the application filed by the State for transfer of the cases to have joint trial in one Court, the cases were stayed by this Court. As such, the allegations against the officer are false. 8. Both the counsel would cite a number of authorities of this Court as well as the Supreme Court. 9. The Public Prosecutor would cite the following decisions: (i) AIR 1951 MADRAS 1042 (Public Prosecutor v. George Williams) ( ii) AIR 1958 S.C. 376 (T.H.Hussain v. M.P.Mondkar) (iii) AIR 1978 S.C. 179 (Gurcharan Singh v. State (Delhi Admn.) (iv) AIR 1978 S.C. 961 (Delhi Admn. v. Sanjay Gandhi) (v) 1979 CRL.L.J. 455 (MAD. H. C.) (State v. Veerapandy) (vi) 1987 CRL.L.J. 1872 (SC) (Shahzad v. Ishtiaq) (vii)1994 CRL.L.J. 841 (Delhi H. C.)(State v. Mahinder Singh) (viii) 1994 Supp (2) S.C.C. 205: (Sant Ram v. State of Haryana) ( ix) 1996 (I) C.T.C. 249 (Mad) (State v. Adi Rajaram) 10. The learned senior counsel appearing for the Respondent Accused would cite the following authorities: (i) 1989 (3) S.C.C. 532 (Rajnikant Jivanlal v. Intelligence Officer) (ii) 1992 (3) Crimes 597 (Aslam Babalal Desai v. State of Maharashtra) (iii) 1995 S.C.C. (Cri) 237 (Dolat Ram v. State of Haryana) (iv) 2000 S.C.C.(Cri) 1508 (Subhendu Mishra v. Subrat Kumar Mishra) (v) 2001 S.C.C. (Cri) 1124 (Puran v. Rambilas) 11. I have carefully considered the submissions made by the learned Public Prosecutor and Mr.N.Natarajan, the learned senior counsel appearing for the respondent and perused the records. I have given my anxious consideration to the contentions urged on either side. 12. Before dealing with the merits of the respective contentions, it would be appropriate to refer to the guidelines given by the various Courts in the decisions cited supra, while considering the application for cancellation of bail. The guidelines are these: A) As a fair trial is the main objective of the criminal procedure, any threat to the continuance of a fair trial must be immediately arrested and the smooth progress of a fair trial must be ensured. B) A fair trial has naturally two objects in view; it must be fair to the accused and must also be fair to the prosecution. The test of fairness in a criminal trial must be judged from this dual point of view. It is therefore of the utmost importance that, in a criminal trial, witnesses should be able to give evidence without any inducement or threat either from the prosecution or the defence. A criminal trial must never be so conducted by the prosecution as would lead to the conviction of an innocent person; similarly the progress of a criminal trial must not be obstructed by the accused so as to lead to the acquittal of a really guilty offender. C) If an accused person, by his conduct, puts the fair trial into jeopardy, it would be the primary and paramount duty of criminal Courts to ensure that the risk to the fair trial is removed and criminal Courts are allowed to proceed with the trial smoothly and without any interruption or obstruction. D) The question of cancellation of bail under Section 439(2) Cr.P.C. of the Code is certainly different from admission to bail under Section 439(1) Cr.P.C. Rejection of bail when bail is applied for is one thing, cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. E) It is not necessary for the prosecution to prove the threatening incident by a mathematical certainty or even beyond a reasonable doubt. In a matter of cancellation of bail, every incidental matter in a criminal case need not be proved beyond a reasonable doubt like the guilt of the accused. Though the guilt of the accused in cases which involve the assessment of facts has to be established beyond a reasonable doubt, these various facts are not required to be proved by the rigorous standard for cancellation of bail. The prosecution, therefore, can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses. Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he would interfere with the course of justice, is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail. F) The power to cancel the bail and to take back the accused in custody who has been enlarged on bail has to be exercised with care and circumspection. This power, though of an extra-ordinary nature, is meant to be exercised in appropriate cases when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. Refusal to exercise that wholesome power in such cases, few though they may be, will reduce it to a dead letter and will suffer the Courts to be silent spectators to the subversion of the judicial process. G) The relevant factor, while exercising the power, which should be taken by the court into consideration for cancellation of bail is to see whether from the affidavit filed by the prosecution has the prosecution by a preponderance of probability, made clear whether the accused are interfering with the course of justice by tampering with the witnesses or have contravened the conditions imposed on them and thereby abused the liberty granted by the court. H) Once an accused has been enlarged on bail, his liberation from custody cannot be lightly interfered with, but this does not mean that even in a proper case where ends of justice would be defeated unless the accused is committed to custody, power of the High Court to cancel the bail cannot be exercised. I) Rejection of bail stands on one footing, but cancellation of bail is a harsh order because it interferes with the liberty of the individual. Hence, it must not be lightly resorted to. J) Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order of cancellation of the bail already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or abuse of the concession granted to the accused in any manner. 13. Keeping in view of the above guidelines, let me now enter into the question as to whether there is a situation warranting for cancellation of bail, taking into consideration the rival contentions and the facts and circumstances presented in the present case. 14. Rajagopal, the first accused, called as 'Saravana Bhavan Rajagopal' is the proprietor of a chain of hotels carrying on business under the name and style of "Hotel Saravana Bhavan" at various places in the city of Chennai, Delhi and in foreign countries. Few years back, one Ramasamy of Thethakudi village, Nagapattinam District, was working as Assistant Manager in the Saravana Bhavan Hotel at Chennai. He left for Malaysia leaving his wife and daughter Jeevajothi and son Ramkumar. Jeevajothi fell in love with one Santhakumar, a tuition teacher and married him in the year 1999. 15. Rajagopal married one Valliammal and through her, he had two sons. In 1994, he married one Krithika, aged about 27 years, as his second wife. Earlier, the said Krithika got married to one Ganesan, who was an employee