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2008(3) Crimes 252 (Mad.)
MADRAS HIGH COURT
K. Mohan Ram, J.
R. Kamaraj and Others—Petitioners
versus
State Rep. by Inspector of Police—Respondent
Criminal Original Petition Nos. 34899 and 33423 of 2007 and M.P. No. 1 of 2007
Decided on 11.12.2007
Counsel for the Parties:
For the Petitioners in both the Crl. O.Ps:Mr. P.J. Manoj Pandian, Advocate.
For the Respondent in both the Crl. O.Ps.:Mr. Hasan Mohamed Jinnah, Government Advocate (Crl. Side).
IMPORTANT POINT
Only when a person to whom bail has been granted either tries to interfere with the course of justice or attempts to tamper with evidence or witnesses or threatens witnesses or indulges in similar activities which would hamper smooth investigation or trial, bail granted can be cancelled.
Headnote:Criminal Procedure Code, 1973—Section 439(2)—Order recalling bail—Petitioners were admitted to bail by Chief Judicial Magistrate in a case under Sections 147, 148, 323, 294(b), 324, 336, 506 (ii) and 307 IPC—Sessions Court cancelled bail on application of respondent—Revision—In an application for cancellation of bail, conduct subsequent to release on bail and supervising circumstances alone were relevant—Sessions Court erred in entertaining the application—State could have approached High Court alone under Section 439(2) Cr.P.C.—No case of prosecution that new facts and circumstances had cropped up warranting cancellation of bail—Impugned order was liable to be set aside. (Paras 9, 14, 16, 19 to 21 & 23)
Result: Petition allowed.
ORDER
K. Mohan Ram, J.—The petitioners are the first, second, fourth, fifth, sixth and ninth accused in Crime No. 686 of 2007 on the file of the respondent herein. The said crime has been registered against the petitioners herein and others for the alleged offences under Sections 147, 148, 323, 294 (b), 324, 336, 506 (ii) and 307 of the Indian Penal Code.
2. The prosecution case is that on 1.10.2007 in front of the Periyar Statue at Mannargudi a fast was organised by D.M.K. Party; at about 12.30 p.m. the petitioners herein who are the office bearers of the A.I.A.D.M.K. Party and 200 other armed with aruval, knife and stones came running to the fasting place firing crackers and shouting “beat and kill the persons belonging to the D.M.K. Party” and on seeking that the informant Karikalan and others tried to save their party-men and at that time the first petitioner cut Karikalan on his head with aruval and the other accused attacked others causing grievous injuries; Karikalan got himself admitted in the hospital and on the complaint given by him the above case was registered. The petitioners were arrested on 2.10.2007 and they filed a bail application in Cri. M.P. No.7096 of 2007 on the file of the learned Sessions Judge, Nagatpattinam. The said application was heard in the presence of the counsel for the petitioners herein and the Public Prosecutor and by an order dated 5.10.2007, the learned Chief Judicial Magistrate who was in-charge of the disposal of the bail applications on that date granted bail to the petitioners. In the order, the learned Chief Judicial Magistrate has observed as follows:
“The learned public prosecutor has represented that he was not properly instructed by the concerned Investigating Officer and he has no objection to release them on bail. But he has conceded that bail can be ordered as there is no law and order problem.
Considering the facts and circumstances of the case and as it is a case and counter case and as the learned public prosecutor says that tension is not prevailing, I am inclined to grant bail subject to severe conditions to avoid further complications between the parties. Accordingly the petitioners are ordered to be enlarged on bail on each of the petitioner executing a bond for a sum of Rs. 5000 with two sureties each for a like sum to the satisfaction of the Judicial Magistrate No.1, Mannargudi with condition that they shall report before the Judicial Magistrate No.1, Cuddalore daily at 10 a. m. and 5 p. m. until further orders”.
Subsequently, as is evident from the order dated 6.10.2007 passed by the learned Session Judge, Nagapattinam, in Cri. M.P. No.7131 of 2007 in Cri. M.P. No.7096 of 2007 the respondent had filed an application under Section 439(2) of the Criminal Procedure Code at 5.25 p.m. on 5.10.2007 itself seeking cancellation of the bail granted to the petitioners in Cri. M.P. No.7096 of 2007. It is also evident from the said order that the copy of the order granting bail to the petitioners was not furnished to the petitioners inspite of being applied for by the petitioners which necessitated the petitioners to file Cri. M.P. No.7131 of 2007 and the same was allowed and the copy of the bail order was directed to be furnished to the petitioners by the learned Judge on 6.10.2007. It is also seen from the typed-set of papers filed in this case that the petitioners were arrested on 6.10.2007 in connection with Crime No. 690 of 2007 in which the petitioners and others have been alleged to have committed offence punishable under Sections 147, 148, 323, 294(b), 324, 336, 506 (ii) and 307 of the Indian Penal Code and Section 3 the TNPID Act.
3. In the affidavit filed by one Thirru. S. Palanivel, Deputy Superintendent of Police, District Crime Branch, in-charge of: Mannargudi Police Sub-Division, in Cri. M.P. No.7111 of 2007 seeking cancellation of bail granted to the petitioners it is stated that one of the accused namely S. Kamaraj, involved in the case had filed Cri. O.P. No
