Madras High Court
State Rep. By vs Raja Hussain on 27 April, 2021
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Crl. O.P. No.6774/2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.04.2021
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
CRL. O.P. NO. 6774 OF 2020
AND
CRL. M.P. NO. 3716 OF 2020
State rep. by
The Inspector of Police (Crime),
D-1, Triplicane Police Station,
Chennai 600 002. ... Petitioner
- Vs -
1.Raja Hussain,
S/o.Mohammed Ali.
2.Mohammed Saifullah,
S/o.Raja Hussain.
3.Rahmathullah,
S/o.Saleem Basha.
4.Ashif Khan,
S/o.Abdul Maliq.
5.Mohammed Thoufiq,
S/o.Syed Mohammed. ... Respondents
Criminal Original Petition is filed under Section 439(ii) of Cr.P.C., to cancel
the bail order passed in Crl.M.P.No.6299 of 2020 dated 18.03.2020 by the
1/19
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Crl. O.P. No.6774/2020
Principal Sessions Judge, Chennai.
For Petitioner : Ms. Kritika Kamal. P., GA (Crl. Side)
For Respondents : Mr.Mohamed Ansar
ORDER
This criminal original petition has been filed to cancel the bail granted to
the respondents herein by an order dated 18.03.2020 passed in Crl.M.P.No.6299
of 2020 by the learned Principal Sessions Judge, Chennai.
2. The respondents herein were arrested on 11.03.2020 for the offence
punishable under Sections 147, 148, 341, 294(b), 323, 427, 336, 363, 332, 307
and 506(ii) IPC and Section 3 of TNPPDL Act, in Crime No.138 of 2020. The
respondents filed a bail petition before the learned Principal Sessions Judge,
Chennai, in Crl. M.P. No.6299 of 2020. The Principal Sessions Judge, by an order
dated 18.03.2020, granted bail to the respondents on certain conditions.
Challenging the same, the petitioner herein has filed the present petition seeking
to cancel the bail granted to the respondents/accused.
3. Learned Government Advocate (Crl. Side) appearing for the petitioner
submits that many of the material facts, which were required for deciding
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whether the respondents herein could be enlarged on bail were not placed
brought to the notice of the court below when the matter of bail for the
respondents herein was considered. It is further submitted by the learned
Government Advocate that the antecedents of the respondents herein was not
taken into consideration by the trial court while granting bail. It is the further
submission of the learned Government Advocate that the trial court has granted
bail to the accused merely on account of the injuries alleged to have been
suffered by them, but has not taken into consideration the injuries sustained by
the police personnel and also the act of the accused in damaging the vehicle of
the police authorities. It is the further submission of the learned Government
Advocate that the 1st respondent/A-1 is a notorious criminal and involved in 18
cases including one bomb blast case and one TADA case and he was in prison for
more than 21 years. She further submitted that A2 is the son of A1 and A3 to A5
are henchmen and the offences are heinous in nature and if they are let out on
bail, there is every likelihood of causing danger to the life of the defacto
complainant in Crime No.138 of 2020. She further submitted that investigation is
still pending and the statements u/s 164 Cr.P.C. are yet to be recorded from the
defacto complainant and the victim.
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4. The learned counsel for the respondents submitted that A1 suffered
incarceration for more than 21 years in a case in which he stood acquitted and
that there are no pending cases against A-1. It is further submitted that there
are no pointed allegations against A-2 to A-5 and no materials have been placed
by the petitioner herein to show that they had hampered the investigation in any
manner.
5. This Court gave its anxious consideration to the submissions advanced
by the learned counsel appearing on either side and also perused the materials
available on record.
6. Before proceeding to find out whether the bail granted to the accused
is justified or not, it would be useful to have a bird's eye view of the proposition
of law on the aspect of interference by the appellate court with the bail already
granted to the accused.
7. The Hon'ble Supreme Court, in the case of State of Kerala – Vs –
Mahesh (2021 SCC OnLine SC 308), had occasion to consider the question
relating to the power of the appellate court to interfere with the order of bail
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granted by the lower court and dissecting on the various precedents on this
issue, held as under :-
“16. It is well settled that though the power to grant bail
under Section 439 of the Cr.P.C is discretionary, such
discretion has to be exercised judiciously, as held by this Court
in Ram Govind Upadhyay v. Sudarshan Singh reported in
(2002) 3 SCC 598. Speaking for the Court, Umesh Chandra
Banerjee, J. said:—
“3. Grant of bail though being a discretionary order
— but, however, calls for exercise of such a discretion in
a judicious manner and not as a matter of course. Order
for bail bereft of any cogent reason cannot be
sustained. Needless to record, however, that the grant
of bail is dependent upon the contextual facts of the
matter being dealt with by the court and facts, however,
do always vary from case to case. While placement of
the accused in the society, though may be considered
but that by itself cannot be a guiding factor in the
matter of grant of bail and the same should and ought
always to be coupled with other circumstances
warranting the grant of bail. The nature of the offence
is one of the basic considerations for the grant of bail —
more heinous is the crime, the greater is the chance of
rejection of the bail, though, however, dependent on the
factual matrix of the matter.
4. Apart from the above, certain other which may be
attributed to be relevant considerations may also be
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noticed at this juncture, though however, the same are
only illustrative and not 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 expected 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.”
17. In Prasanta Kumar Sarkar v. Ashis Chatterjee reported
in (2010) 14 SCC 496, D.K. Jain, J., speaking for a two-Judge
Bench of this Court laid down the principles for examining the
correctness of orders granting bail to an accused. This Court
held:—
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“9. …It is trite that this Court does not, normally,
interfere with an order [Ashish Chatterjee v. State of
W.B., CRM No. 272 of 2010, order dated 11-1-2010
(Cal)] passed by the High Court granting or rejecting bail
to the accused. However, it is equally incumbent upon
the High Court to exercise its discretion judiciously,
cautiously and strictly in compliance with the basic
principles laid down in a plethora of decisions of this
Court on the point. It is well settled that, among other
circumstances, the factors to be borne in mind while
considering an application for bail are:
(i) whether there is any prima facie or reasonable
ground to believe that the accused had committed the
offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of
conviction;
(iv) danger of the accused absconding or fleeing, if
released on bail;
(v) character, behaviour, means, position and
standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being
influenced; and
(viii) danger, of course, of justice being thwarted by
grant of bail.
***
10. It is manifest that if the High Court does not
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advert to these relevant considerations and
mechanically grants bail, the said order would suffer
from the vice of non-application of mind, rendering it to
be illegal.”
18. In Mahipal v. Rajesh Kumar reported in (2020) 2 SCC
118, this Court held:—
“14. The provision for an accused to be released on
bail touches upon the liberty of an individual. It is for
this reason that this Court does not ordinarily interfere
with an order of the High Court granting bail. However,
where the discretion of the High Court to grant bail has
been exercised without the due application of mind or in
contravention of the directions of this Court, such an
order granting bail is liable to be set aside. The Court is
required to factor, amongst other things, a prima facie
view that the accused had committed the offence, the
nature and gravity of the offence and the likelihood of
the accused obstructing the proceedings of the trial in
any manner or evading the course of justice. The
provision for being released on bail draws an
appropriate balance between public interest in the
administration of justice and the protection of individual
liberty pending adjudication of the case. However, the
grant of bail is to be secured within the bounds of the
law and in compliance with the conditions laid down by
this Court. It is for this reason that a court must balance
numerous factors that guide the exercise of the
discretionary power to grant bail on a case-by-case
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basis. Inherent in this determination is whether, on an
analysis of the record, it appears that there is a prima
facie or reasonable cause to believe that the accused
had committed the crime. It is not relevant at this stage
for the court to examine in detail the evidence on record
to come to a conclusive finding.”
19. The Respondent Accused relied on the judgments of
this Court in Sanjay Chandra v. Central Bureau of Investigation
reported in (2012) 1 SCC 40 and Siddharam Satlingappa
Mhetra v. State of Maharashtra reported in (2011) 1 SCC 694,
where this Court observed that seriousness of the charge is
not test or factor while considering the application for bail.
20. In Sanjay Chandra (supra), the accused were charged
with economic offences of huge magnitude which could
jeopardize the economy of the country. This Court held:—
“21. In bail applications, generally, it has been laid
down from the earliest times that the object of bail is to
secure the appearance of the accused person at his trial
by reasonable amount of bail. The object of bail is
neither punitive nor preventative. Deprivation of liberty
must be considered a punishment, unless it is required
to ensure that an accused person will stand his trial
when called upon. The courts owe more than verbal
respect to the principle that punishment begins after
conviction, and that every man is deemed to be innocent
until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that
detention in custody pending completion of trial could
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be a cause of great hardship. From time to time,
necessity demands that some unconvicted persons
should be held in custody pending trial to secure their
attendance at the trial but in such cases, “necessity” is
the operative test. In this country, it would be quite
contrary to the concept of personal liberty enshrined in
the Constitution that any person should be punished in
respect of any matter, upon which, he has not been
convicted or that in any circumstances, he should be
deprived of his liberty upon only the belief that he will
tamper with the witnesses if left at liberty, save in the
most extraordinary circumstances.
23. Apart from the question of prevention being the
object of refusal of bail, one must not lose sight of the
fact that any imprisonment before conviction has a
substantial punitive content and it would be improper
for any court to refuse bail as a mark of disapproval of
former conduct whether the accused has been convicted
for it or not or to refuse bail to an unconvicted person
for the purpose of giving him a taste of imprisonment as
a lesson.
24. In the instant case, we have already noticed that
the “pointing finger of accusation” against the
appellants is “the seriousness of the charge”. The
offences alleged are economic offences which have
resulted in loss to the State exchequer. Though, they
contend that there is a possibility of the appellants
tampering with the witnesses, they have not placed any
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material in support of the allegation. In our view,
seriousness of the charge is, no doubt, one of the
relevant considerations while considering bail
applications but that is not the only test or the factor :
the other factor that also requires to be taken note of is
the punishment that could be imposed after trial and
conviction, both under the Penal Code and the
Prevention of Corruption Act. Otherwise, if the former is
the only test, we would not be balancing the
constitutional rights but rather “recalibrating the scales
of justice”.
25. The provisions of CrPC confer discretionary
jurisdiction on criminal courts to grant bail to the
accused pending trial or in appeal against convictions;
since the jurisdiction is discretionary, it has to be
exercised with great care and caution by balancing the
valuable right of liberty of an individual and the interest
of the society in general. …….”
21. In Siddharam Satlingappa Mhetra (supra) rendered in
the context of the discretion to grant anticipatory bail under
Section 438, this Court advocated the need to balance
individual personal liberty with societal interest. This Court
held:—
“84. Just as liberty is precious to an individual, so is
the society's interest in maintenance of peace, law and
order. Both are equally important.”
22. There is no straight jacket formula for grant or refusal
of bail. Seriousness of the charge is undoubtedly one of the
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relevant considerations while considering bail applications as
held in Sanjay Chandra (supra) cited on behalf of the
Respondent Accused. All the relevant factors have to be
weighed by the Court considering an application for bail,
including the gravity of the offence, the evidence and material
which prima facie show the involvement of applicant for bail
in the offence alleged, the extent of involvement of the
applicant for bail, in the offence alleged, possibility of the
applicant accused absconding or otherwise defeating or
delaying the course of justice, reasonable apprehension of
witnesses being threatened or influenced or of evidence being
tempered with, and danger to the safety of the victim (if
alive), the complainant, their relatives, friends or other
witnesses.
* * * * * *
29. In this Appeal the correctness of the impugned order of
the High Court, in granting bail to the Respondent Accused is
in question. The exercise of appellate jurisdiction to adjudge
correctness of a bail order are not restricted by the principles
for cancellation of bail. As held by this Court, speaking
through Dr. D.Y. Chandrachud J. in Mahipal v. Rajesh Kumar
(supra):—
“16. The considerations that guide the power of an
appellate court in assessing the correctness of an order
granting bail stand on a different footing from an assessment
of an application for the cancellation of bail. The correctness
of an order granting bail is tested on the anvil of whether
there was an improper or arbitrary exercise of the discretion
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in the grant of bail. The test is whether the order granting bail
is perverse, illegal or unjustified. On the other hand, an
application for cancellation of bail is generally examined on
the anvil of the existence of supervening circumstances or
violations of the conditions of bail by a person to whom bail
has been granted. In Neeru Yadav v. State of U.P. [Neeru
Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri)
527], the accused was granted bail by the High Court [Mitthan
Yadav v. State of U.P., 2014 SCC OnLine All 16031]. In an
appeal against the order [Mitthan Yadav v. State of U.P.,
2014 SCC OnLine All 16031] of the High Court, a two-Judge
Bench of this Court surveyed the precedent on the principles
that guide the grant of bail. Dipak Misra, J. (as the learned
Chief Justice then was) held: (Neeru Yadav case [Neeru Yadav
v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527],
SCC p. 513, para 12)
“12. … It is well settled in law that cancellation of
bail after it is granted because the accused has
misconducted himself or of some supervening
circumstances warranting such cancellation have
occurred is in a different compartment altogether than
an order granting bail which is unjustified, illegal and
perverse. If in a case, the relevant factors which should
have been taken into consideration while dealing with
the application for bail have not been taken note of, or
bail is founded on irrelevant considerations, indisputably
the superior court can set aside the order of such a
grant of bail. Such a case belongs to a different category
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and is in a separate realm. While dealing with a case of
second nature, the Court does not dwell upon the
violation of conditions by the accused or the
supervening circumstances that have happened
subsequently. It, on the contrary, delves into the
justifiability and the soundness of the order passed by
the Court.”
17. Where a court considering an application for bail fails
to consider relevant factors, an appellate court may justifiably
set aside the order granting bail. An appellate court is thus
required to consider whether the order granting bail suffers
from a non-application of mind or is not borne out from a
prima facie view of the evidence on record. It is thus necessary
for this Court to assess whether, on the basis of the
evidentiary record, there existed a prima facie or reasonable
ground to believe that the accused had committed the crime,
also taking into account the seriousness of the crime and the
severity of the punishment.”
8. From the above, it is amply evident that the various aspects that
required to be gone into by the Courts before granting bail has been adumbrated
by the Hon'ble Supreme Court in the aforesaid decision. Keeping the principles
laid down above, this Court would now proceed to analyse the case on hand.
9. It is the case of the petitioner herein that monetary transaction
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between the defacto complainant and his friend with the accused had led to
wordy altercation and in the aftermath of the aforesaid altercation, the accused
kidnapped the friend of the defacto complainant resulting in the lodging of the
case leading to the police authorities rescuing the friend of the defacto
complainant. It is the case of the prosecution that at the time of rescue
operation, the accused attacked the police party and there was retaliation by the
police personnel in which the accused sustained injuries and the police
authorities, including the Inspector of Police sustained injuries. Further, the
vehicle of the police party was also damaged by the accused.
10. Even the case of the respondents/accused reveal that there was an
altercation between the accused party and the defacto complainant and his
friend in which the police intervened and beat the accused.
11. In the backdrop of the aforesaid scenario, a perusal of the order
passed by the court below reveals that the court below, merely taking into
consideration the remand report, which points to the injuries on the body of the
accused, without any further discussion and also taking into consideration the
fact that the accused have been in custody for eight days, has enlarged the
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respondents/accused on bail.
12. This Court is at a loss to understand the manner in which the court
below has granted bail to the accused. It has been time and again reiterated that
the plurality of the offences and the offences alleged have to be taken into
cumulative consideration with all associated material before granting bail. In
the case on hand, the order of the court below granting bail to the accused
deserves much to be said, but this Court is not inclined to dwell deep into the
same as judicial propriety warrants this Court not to go beyond its purview to
speak about the manner in which bail has been granted. When it is the case of
the prosecution that A-1 is a notorious criminal and involved in very many grave
cases and allegations made in the present case also being grave in nature, it was
incumbent on the part of the court below to record reasons in support of its
decision to grant bail. However, the order of the court below granting bail,
though runs to four pages, except for certain facts, no reasons have been given,
except for the marking the injuries from the remand report, while granting bail
to the accused. Though it is said that bail is the norm and jail is exception,
however, the gravity of the offence as also the antecedents of the accused
should weigh in the mind of the court while granting bail. Further, it is the
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pointed case of the petitioners herein that investigation is yet to be completed
and that being the case, the allegations being grave in nature, more especially
against A-1, and that the accused having been in custody only for a period of
eight days, there was no warranting circumstance or any prima facie material,
which necessitated the court below to grant bail to A-1.
13. For the reasons aforesaid, this Court is of the considered view that the
scales of justice necessarily tilts in favour of the petitioner to cancel the bail
granted to A-1/1 st respondent herein, Viz.Raja Hussain. Accordingly, this petition
insofar as the 1st respondent/A-1,-Raja Hussain is allowed. The petitioner
herein/Inspector of Police, D-1, Triplicane Police Station, Chennai, is directed to
take steps to secure the 1st respondent/A-1 in accordance with law.
14. Insofar as respondents 2 to 5 are concerned, though the petitioner
herein submits that A-2 is the son of A-1 and A-3 to A-5 are henchmen, who
jointly attacked the defacto complainant and his son, however, except for the
allegations and the charges against respondents 2 to 5, there are no concrete
materials at the present point of time, which necessitates this Court to interfere
with the order of bail passed by the learned Principal Sessions Judge, Chennai,
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dated 18.03.2020 in Crl.M.P.No.6299 of 2020. Accordingly, the present petition
to cancel the bail with respect to respondents 2 to 5 herein is dismissed.
15. In the result, the criminal original petition is allowed in part as above.
Consequently, connected miscellaneous petition is closed.
27.04.2021
Index : Yes / No
Internet : Yes
rm/GLN
To
1. The Principal Sessions Judge,
Chennai.
2.The Inspector of Police (Crime),
D-1, Triplicane Police Station,
Chennai 600 002.
3.The Public Prosecutor,
High Court, Madras.
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M.DHANDAPANI, J.
rm/GLN
CRL. O.P. NO.6774 OF 2020
27.04.2021
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