1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT (Criminal Jurisdiction) Wednesday, the Twenty First day of September Two Thousand Eleven PRESENT The Hon`ble Ms.Justice R.MALA CRL OP(MD) No.12323 of 2011 KUTTY @ RAJARATHINAM :PETITIONER / ACCUSED NO.6 -Vs- THE STATE REP. BY THE SUB-INSPECTOR OF POLICE, AVANIAPURAM POLICE STATION, MADURAI. CR.NO.130/09 :RESPONDENT / COMPLAINANT For Petitioner : M/S. PREMRAJAMBROSE Advocate For Respondent : MR.A.RAMAR, ADDITIONAL PUBLIC PROSECUTOR. PETITION FOR BAIL Under Sec.439 Cr.P.C. ORDER:The Court Made the following order:- The petitioner is arrayed as A6 and he was surrendered and remanded to judicial custody on 01.08.2011 for the alleged offence punishable under Sections 304 (A) I.P.C. @ 147, 148, 120 (B), 364, 302 and 201 I.P.C., in Crime No.130 of 2009 on the file of the respondent police and seeks bail. 2.The learned counsel for the petitioner would submit that the petitioner is arrayed as A6 in crime No.130 of 2009. He would further submit that on the basis of the complaint given by the then Village Administrative Officer, Avaniyapuram, on 16.04.2009, a case has been registered for the offence under Section 304(A) I.P.C. The cause of death has been mentioned and in the postmortem certificate, that the deceased has consumed alcohol and the death was due to run over by the vehicle. He would further submit that it was alleged that suddenly, on 30.07.2011, A4 has surrendered before the present Village Administrative Officer, Avaniyapuram and gave an extra judicial confession and on that basis only, the case has been altered into one under Sections 147,148,120(B), 364, 302 and 201 I.P.C. 3.The learned counsel would further submit that the extra judicial confession alleged to be given by A4 is not an admissible evidence, because a telegram has been sent on 29.07.2011 by the wife of A4, wherein, she has stated that her husband was taken by the Police Inspector on 29.07.2011 at 1.30 a.m. and after A4 was forcibly taken and extra judicial confession has been concocted by the investigation agency, because of the present change of scenario. He would further submit that one Vinoth, Advocate has filed an application under Section 97 Cr.P.C., before the learned Chief Judicial Magistrate, Madurai and on that basis, the learned Chief Judicial Magistrate, Madurai has deputed the learned Judicial Magistrate No.3, Madurai, to inspect the Oomatchikulam police station, where, he found A4 in the police station under custody and thereafter only, A4 was produced before the Court on 30.07.2011 at 8.40 p.m. along with the extra judicial https://hcservices.ecourts.gov.in/hcservices/ 2 confession.On the basis of the alleged extra judicial confession only, the provisions of law has been altered and it is vitiated under Section 25 of the Indian Evidence Act. He would further submit that that time when A4 has produced before the learned Judicial Magistrate, he has informed that he was already taken by the police two days before and hence, he is questioning the validity of the extra judicial confession alleged to be given by A4. 4.The learned counsel appearing for the petitioner would rely upon the portion of the extra judicial confession and submit that the extra judicial confession itself speaks volume as it has been concocted. He would further submit that in the extra judicial confession itself, it has been stated that the deceased Pandiyarajan, his wife, mother and daughter were also present, when the deceased Pandiyarajan was forcibly taken from the house, but till 30.07.2011, they have not taken any steps to take action against A6/this petitioner herein and other accused, who were implicated in the case. He would further submit that the petitioner was surrendered and remanded to judicial custody on 01.08.2011 and he is in inside for more than 50 days and the investigation is considerably over and he is an advocate and hence he prayed for enlarging him on bail. 5.Repudiating the same, the learned Additional Public Prosecutor would submit that the case has been registered on the basis of the complaint given by the then Village Administrative Officer, Avaniyapuram on 16.04.2009 for the offence under Section 304(A) I.P.C., but after A4 has surrendered before the present Village Administrative Officer, Avaniyapuram and gave an extra judicial confession only, the penal provisions have been altered and the alteration report has also been filed. As per the extra judicial confession of A-4, A6 accompanying with other accused taken the deceased Pandiyarajan to A1's grove and they beat and murder him and then they took the body of Pandiyarajan from A1's grove to Echanodai ring road in the vehicle belonging to A1. 6.He would further submit that initially, three witnesses alone have been examined and since the extra judicial confession has been given only on 30.07.2011, after alteration of F.I.R., 11 witnesses were examined and the investigation is in initial stage and A1 has already detained under Act 14 and hence, he prayed for the dismissal of the applications. 7.I have considered the rival submissions made on either side and perused the materials available on record. 8.On the death of one Pandiyarajan, who was belonging to the Communist Political Party, on the basis of the complaint given by one Periyasami, the then Village Administrative Officer, Avaniyapuram, a case has been registered for the offence under Section 304(A) I.P.C. since the vehicle belonging to the deceased Pandiyarajan has been placed near the body and tyre marks are also there. But, till 30.07.2011, no changes in the investigation. Thereafter, on the basis of the extra judicial confession alleged to be given by A4 before the Village Administrative Officer, Avaniyapuram, the case has been altered to one under Sections 147, 148, 120(B), 364, 302 and 201 I.P.C. https://hcservices.ecourts.gov.in/hcservices/ 3 9.The learned counsel would mainly focus upon the extra judicial confession alleged to be given by A4 and submit that the same has not been given voluntarily by A4. As per his version, A4 has been taken by the police people on 28.07.2011 midnight and immediately, the wife of A4 gave a telegram about the same. Furthermore, one Advocate viz., Vinoth has filed an application under Section 97 Cr.P.C., before the learned Chief Judicial Magistrate, in pursuant of which, the Judicial Magistrate No.3, Madurai has visited the police station and found A4 in the police station and then only, he was produced before the learned Judicial Magistrate concerned for judicial custody at 8.40 p.m. on 30.07.2011 and at that time also, he has stated that he has taken by the police two days prior to produce him before the Court and hence, the learned counsel would submit that the extra judicial confession is not an admissible evidence and hence, the basis for altering the provision of criminal offence and the entire prosecution is non exist in the eye of law. But, the above argument is premature during the bail applications. 10.In such circumstances, only on 30.07.2011, the penal provisions of law has been changed.This petitioner/A6 has surrendered and he was remanded to judicial custody on 01.08.2011. Since, the matter is long pending for two years and as per the version of the learned counsel appearing for the petitioner, the petitioner is implicated on the basis of the extra judicial confession given by A4 and considering the fact that the petitioner is an Advocate and he was surrendered and remanded to judicial custody on 01.08.2011 and he is in judicial custody for more than 50 days and the interrogation is over, I am inclined to grant bail to the petitioner. 11.Accordingly, the petitioner/A6 is ordered to be released on bail on executing a bond for a sum of Rs.10,000/- (Rupees Ten Thousand only) with two sureties each for a like sum to the satisfaction of the learned Judicial Magistrate No.VI, Madurai and on further condition that the petitioner shall stay at Thanjavur and report before the learned Judicial Magistrate No.1, Thanjavur concerned daily twice at 10.30 a.m. and 5.30 p.m. until further orders. sd/- 21/09/2011 / TRUE COPY / Sub-Assistant Registrar (C.S.) TO:1.The Judicial Magistrate No:VI, Madurai. 2.-Do- Thro' The Chief Judicial Magistrate, Madurai. 3.The Judicial Magistrate No:I, Thanjavur. 4.-Do-Thro'The Chief Judicial Magistrate,Thanjavur@Kumbakonam 5.The Superintendent, Central Prison, Madurai. 6.The Sub Inspector of Police,Avaniapuram Police Station,Madurai. 7.The Public Prosecutor,Madurai Bench of Madras High Court,Madurai +1CC to M/S. PREMRAJAMBROSE Advocate SR.No.32355. RP/21.09.2011/3P/9C. ORDER IN CRL OP(MD) No.12323 of 2011 Date :21/09/2011. https://hcservices.ecourts.gov.in/hcservices/