Madras High Court

Shanmugam @ Nattamai vs State Rep By Its on 3 February, 2022

                                                                                  Crl.A.No.519 of 2021

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 03.02.2022

                                                        CORAM

                         THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA

                                     Crl.A.Nos.519 of 2021, 54 of 2022, 566 of 2021,
                                             549 of 2021 and 664 of 2021


                     Shanmugam @ Nattamai                       ... Appellant in Crl.A.519 of 2021
                     Jagan @ Jagathish @ Komban                 ... Appellant in Crl.A.54 of 2022
                     Jesus                                      ... Appellant in Crl.A.566 of 2021
                     Gopinath                                   ... Appellant in Crl.A.549 of 2021
                     Jayasuriyan @ Surya                        ... Appellant in Crl.A.549 of 2021
                                                          Vs.
                     State Rep by its
                     Deputy Superintendent of Police,
                     Kitchipalayam Police Station,
                     Salem - 636 015
                     (Cr.No.1182 of 2020)
                     2.Mrs.Jansirani                         .. respondent in Crl.A.No.519/2021

1. The Assistant Commissioner of Police, South Region (Law and order) Salem City

2.State Rep by its Deputy Superintendent of Police, Kitchipalayam Police Station, Salem - 636 015 (Cr.No.1182 of 2020)

https://www.mhc.tn.gov.in/judis Crl.A.No.519 of 2021

3.Mrs.Jansirani ... respondents in Crl.A.No.54/2022 and Crl.A.566 of 2021

State Rep by Inspector of Police, Kitchipalayam Police Station, Salem District (Cr.No.1182 of 2020)

2.Mrs.Jansirani ... respondents in Crl.A.No.549/2021

Deputy Superintendent of Police, Salem District.

2. State Rep by Inspector of Police, Kitchipalayam Police Station, Salem District (Cr.No.1182 of 2020)

3.Mrs.Jansirani ... respondents in Crl.A.No.664 /2021

Criminal Appeal No.519 of 2021 is filed under Sections 14-A(2) of SC/ST (Prevention of Atrocities) Act, 1989 to set aside the order dated 13.09.2021 passed in Crl.MP.No.3107 of 2021 by the Principal District and Sessions Judge, Salem and enlarge the appellant on bail in Cr.No.1182 of 2020 on the file of the Ist respondent.

https://www.mhc.tn.gov.in/judis Crl.A.No.519 of 2021

Criminal Appeal No.54 of 2022 is filed under Sections 14-A(2) of SC/ST (Prevention of Atrocities) Act, 1989 to set aside the order dated 25.11.2021 made in Crl.MP.No.4329 of 2021 by the Principal District and Sessions Judge, Salem.

Criminal Appeal No.566 of 2021 is filed under Sections 14-A(2) of SC/ST (Prevention of Atrocities) Act, 1989 to set aside the order dated 30.07.2021 made in Crl.MP.No.2348 of 2021 by the Principal District and Sessions Judge, Salem on bail in Cr.No.1182 of 2020 on the file of the 2nd respondent.

Criminal Appeal No.549 of 2021 is filed under Sections 14-A(2) of SC/ST (Prevention of Atrocities) Act, 1989 to call for the records pertaining to the bail dismissal order passed by the learned Principal Sessions Judge, Salem in Crl.MP.3880 of 2021 dated 27.10.2021.

Criminal Appeal No.664 of 2021 is filed under Sections 14-A(2) of SC/ST (Prevention of Atrocities) Act, 1989 to set aside the order dated 01.12.2021 made in CMP.No.4750 of 2021 passed by the Principal Sessions Judge, (Special Judge for SC and ST Act cases), Salem.

For Appellants : Mr.Akhil Akbar Ali - Crl.A.519/2021 Mr.Anand for Mr.R.L.Dhilipan Pandian in Crl.A.54/2022 Mr.T.Muruganantham - Crl.A.566/2021 Mr.Thenrajan - Crl.A.549/2021 Mr.S.Sureshkumar - Crl.A.664/2021

https://www.mhc.tn.gov.in/judis Crl.A.No.519 of 2021

For respondent : Mr.S.Sugendran, GA (Crl.side) for official respondents Mr.R.Sankarasubbu for defacto complainant COMMON JUDGMENT

(The case has been heard through video conference)

These appeals are filed against the dismissal of the bail orders passed

by the Principal Sessions Judge, Salem in Spl.SC.No.6 of 2021.

2. The case of the prosecution is that the deceased/Chellathurai is a

Rowdy element and gang leader and there was enmity between the said

Chellathurai group and one Suryamoorthy group, due to the previous

enmity on 22.12.2020 at about 7.30pm the said Chellathurai was

proceeding in his car with his relative Valarmathi on Appar street, the

defacto complainant also accompanied them, the accused who have come

their in cars and two wheelers waylaid the car, in which the said

Chellathurai was travelled and after dashing against the car and

surrounded the car and attacked with Veecharuval (swords) and inflicted

indiscriminate cut injuries over him and the said Chellathurai was taken

to the hospital were the Doctors declared him as brought dead.

https://www.mhc.tn.gov.in/judis Crl.A.No.519 of 2021

3. Based on the complaint given by the defacto complainant/Jansirani

wife of the deceased/Chellathurai a case in Cr.No.1182 of 2020 was

registered by the respondent/police for the offences under Section 147,

148, 341, 302, 427 of IPC and Section 3 of the TNPPDL Act 1992.

During the course of investigation finding that the deceased belonged to

the SC community, the respondent altered the case to one under Section

427, 419 r/w.34, 109, 120b, 147, 148, 149, 341, 302 IPc r/w.3(1) of

TNPPDL Act and u/s.3(2)(5) of SC/ST Prevention of Atrocities Act.

4. The respondent after completion of investigation has filed the final

report and the case is taken up in Spl.SC.No.6 of 2021 on the file

Principal Sessions Judge, Salem.

5. The brief details of the appellants are hereunder :-

                      Sl.         Accused Name         Date of    Rank Crl.MP.No. and Crl.A. in High
                      No.                               arrest           order dated      Court
                                                     /surrender
                      1     Shanmugam            @ Arrested on A30 Crl.MP.3107/21 Crl.A.519/2021
                            Nattamai               03.02.2021      13.09.2021
                      2     Jagan @ Jagadish @ Arrested on A31 Crl.MP.4329/21 Crl.A.54/2022
                            Komban             09.03.2021      25.11.2021



https://www.mhc.tn.gov.in/judis
                                                                                   Crl.A.No.519 of 2021


                      Sl.         Accused Name       Date of    Rank Crl.MP.No. and Crl.A. in High
                      No.                             arrest           order dated      Court
                                                   /surrender
                      3     Jesus                 Arrested on A9     Crl.MP.2348/21 Crl.A.566/2021
                                                  30.12.2020         30.07.2021
                      4     Gopinath              Surrendered A28 Crl.MP.3880/21 Crl.A.549/2021
                                                  before J.M.I,   27.10.2021
                                                  Namakkal
                      5     Jayasuriya @ Surya    Surrendered A16 Crl.MP.4750/21 Crl.A.549/2021
                                                  before          01.12.2021
                                                  J.M.Omalur

6. Mr.Akil Akbar Ali, learned counsel appearing for the appellant in

Crl.A.No.519 of 2021 would submit that the appellant is ranked as A30

in this chargesheet and this is the third appeal for bail. He would submit

that the earlier appeals in Crl.A.No.196 of 2020 was dismissed

29.06.2021 and Crl.A.No.323 of 2020 was dismissed on 05.07.2021. He

would further submit that the allegation against the appellant is that he

had rendered financial assistance to the other accused to murder the

deceased/Chellathurai. Even as per the prosecution, the appellant was

not present in the scene of occurrence and he has been implicated based

on the confession statement of one Swamidass, who is the appellant's son

in law who has been ranked as A14 in this case. He would submit this

Court, while dismissing the earlier appeal on 05.07,2021 had directed the

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trial Court to complete the trial within a period of six months,

Subsequently, this Court in Crl.O.P.No.9025 of 2021 dated 23.06.2021

has granted bail to one Surya @ Suriyamoorthy who is arrayed as A16 in

this case. The said Suriya @ Suriyamoorthy is stated to be the leader of

the rival gang of the deceased Chellathurai and he has got 21 previous

cases against him. Apart from that, the appellant's son-in-law Swamidoss

based on whose confession the appellant has been implicated in this case

has been granted bail by this Court in C.A.No.468 of 2021 dated

21.10.2021. The learned counsel would further submit that the appellant

also hails from Dalit community. Taking into consideration, the change

of circumstances after the earlier dismissal of the appeal/bail, the

appellant moved a fresh application for bail in Crl.MP.No.3107 of 2021

before the Principal Sessions Court, Salem and the Trial Court, without

taking into consideration, the change of circumstances, and also without

taking into consideration the fact that the co accused who have graver

overtacts and against whom several cases are pending have been granted

bail had dismissed the bail application of the appellant. He would further

submit that the appellant is in continuous detention from 03.02.2021. He

would further submit that the appellant is aged about 76 years and he is

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suffering from Coronary Artery disease for the past 12 years and he has

also undergone Coronary Angioplasty stenting to LAD during December

2014, he has been presently under medication. Since, he is under

treatment, the appellant has been shifted to Central Prison, Vellore for

better treatment. However, due to his age related ailments and illness he

is suffering badly and his health is deteriorating day by day. He would

submit that the appellant is prepared to abide by any stringent condition

that may be imposed on him and he would pray for allowing the Appeal.

7. Mr.Anand, learned counsel appearing for the appellant in

C.A.No.54 of 2022 would submit that the appellant is arrayed as A31 in

the charge sheet and the allegation against the appellant is that he

conspired with the other accused to commit the murder of the deceased.

The appellant has been implicated based on the confession of one

Chinnavan who is arrayed as A6 in this case. Even as per the

prosecution, the appellant was not present at the scene of occurrence. The

incident is not an off shoot of communal rivalry. But even as per the

prosecution, it is on account of gang rivalry. He would further submit

that A6, on whose confession the appellant was implicated in this case,

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has been ordered to be released on statutory bail under Section 167(2)

Cr.P. He would submit that main accused in this case A12, who is stated

to be a gang leader Suriya @ Suriyamoorthy, against whom there are

specific overtacts and 21 previous cases pending against him has been

granted bail by this Court in Crl.O.P.No.9025 of 2021 on 23.06.2021.

He would further submit that the appellant has not suffered any previous

conviction in respect of the other pending cases and in some of the cases

he has been implicated based on the confession of co-accused. He would

submit that the petitioner is in custody from 25.11.2021.

8. Mr.T.Murugananthan, learned counsel appearing for the appellant

in Crl.A.No.566 of 2021 would submit that the appellant has been

arrayed as A9 in this case. He would submit that the allegation against

the appellant is that he was present at the scene of occurrence and he

along with the other accused inflicted injuries on the victim with

Veecharuval (swords). He would submit that at the time of arrest on

23.12.2020, the appellant had suffered several injuries and during his

confinement, the appellant was also affected by Covid and his lungs are

severely damaged. He would submit that though the Trial court had

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dismissed the bail application stating that the appellant has got 9

previous cases, similarly placed accused A12, against whom there are 21

previous cases has been granted bail by this Court. He would further

submit that the appellant also hails from the Scheduled Caste community.

Even as per the prosecution, the murder has not been committed on

account of any communal rivalry, it had happened only on account of

gang rivalry. He would submit that the appellant is in continuous

detention for more than a year and the appellant is not in any way

responsible for delaying the trial.

9. Mr.Thenrajan, learned counsel appearing for the appellant in

Crl.A.No.549 of 2021 would submit the appellant is arrayed as A28 in

this case and his name does not find place in the FIR and he was not

present in the scene of occurrence and he has been implicated in this case

based on the confession of one A14/Swamidass, that he supplied

weapons to Swamidoss to commit the murder of the deceased. He would

submit that the appellant is not at all involved in this case and the said

Swamidass has been granted bail. The learned counsel would further

submit that the he voluntarily surrendered before the Judicial Magistrate

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No.I, Namakkal on 28.12.2020 and he is in custody for more than a year

and he would submit that he has no bad antecedents.

10. Mr.C.Prabakaran, learned counsel appearing for the appellant in

C.A.No.664 of 2021 would submit that appellant has been arrayed as Al6

in this case and the averment against the appellant is that he had driven a

Swift car and intercepted the vehicle of the deceased and dashed against

his car and later got down from the car and assaulted the victim with

Veecharuval (Swords) along with the other accused. He would submit

that the appellant voluntarily surrendered before the Judicial Magistrate,

Omalur on 28.12.2020 and he is in custody for more than one year and he

would submit the appellant is not responsible for delaying the trial and he

has no bad antecedents.

11. In reply, Mr.S.Sugendran, learned Government Advocate

(Crl.Side) would submit that this it is a case where the victim who

belongs to the scheduled caste community was done to death in a brutal

manner in the presence of his wife and one relative. The accused

intercepted the car belonging to the deceased while he was just moving

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his car with his relative and the defacto complainant was walking along

the car in a Street. At that time, the named accused have intercepted the

car and surrounded the victim and have indiscriminately cut the deceased

with Veecharuval (swords) causing multiple injuries on the body of the

deceased. He would submit that the motive for the occurrence is that the

deceased and the accused belongs to two rival gangs in Kichipalayam

area and that to exhibit their supremacy, the accused have committed the

murder. He would submit that some of the accused have been detained

under Act 14, and the detention orders have also been quashed by this

court. He would further submit that the investigation has been completed

and the final report had been filed and the case has been taken up in

Spl.S.C.No.6 of 2021. He would submit that one Palanisamy/A8 who has

been granted bail has subsequently, involved in murder case and the bail

granted to him has been cancelled. In respect of yet another accused

Illayaraja/A20, who has been granted bail he has threatened one of the

witnesses and he is presently absconding. He would submit that the other

accused who have been released on bail are not regularly appearing

before the Court and thereby, the respondent is unable to proceed further

in this case. He would vehemently oppose for grant of bail to the

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appellants.

12. Mr.Sankarasubbu, learned counsel appearing for the defacto

complainant would submit that it is a case where the defacto

complainant's husband Chellathurai was done to death in front of her

eyes. The deceased/Chellathurai belongs to Dalit community and the

accused who have enmity against the deceased/Chellathurai have waylaid

him while he was traveling in his car and have brutally attacked him

inflicting multiple injuries with Veecharuval (swords) and he was taken

to the hospital where he was declared brought dead. He would submit

that the accused belongs to rival gang and they are notorious persons and

if bail is grant to them, there is every chance of the accused threatening

the witnesses and interfering with the administration of justice. Further,

one Palanisamy/A8 who has been granted bail, subsequently committed

murder of one Vinoth Kumar and the case in Crime No. 450 of 2021 has

been registered against him by the respondent/police. He would submit

that Vinoth Kumar is the relative of the deceased/Chellathurai.

13. At this juncture, the learned Counsel Mr.Anand appearing for the

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appellants would submit that the appellants are in custody for more than

a year and they cannot be faulted for any wrong committed by any other

person. He would submit that the appellants are in no way responsible for

the delay in trial. He would submit that the appellants are prepared to

abide by any stringent condition and they undertake to cooperate with the

progress of trail.

14. The Assistant Commissioner/I.O., Salem is present before this

Court and he has filed separate counters in all the appeals. Heard the

learned counsel appearing for the parties and perused the materials

available on on record. This Court had earlier directed the Prison

authorities to give a report about the medical/health condition of the

appellants viz., Shanmugam @ Nattamai and Jesus. The Superintendent,

Central Prison, Vellore, The Superintendent, Central Prison, Coimbatore

and The Superintendent, Central Prison, Salem and the Doctor, Vellore

Prison have appeared before this Court through video conference. This

Court enquired them.

15. Insofar as the appellant in Crl.A.519 of 2021 is concerned, this

https://www.mhc.tn.gov.in/judis Crl.A.No.519 of 2021

Court while dismissing the appellant's appeal in Crl.A.No.323 of 2021

had directed the trial Court to complete the trial, however, subsequent to

the dismissal of the earlier appeal, this Court had granted bail to

A16/Surya @ Suryamoorthy in this case, against whom 21 previous

cases are pending. The allegation against the Suryamoorthy is that he was

present in the scene of occurrence and he is stated to have inflicted

injuries on the deceased. The appellant had been implicated based on the

confession of his son-in-law who has been arrayed as A14 in this case.

The said A14 has been granted bail in Crl.A.468 of 2021 on 21.10.2021.

The appellant is in prison for the past one year and it is also stated that he

is suffering from Coronary Artery Disease and he has also undergone

Coronary Angioplasty - Stenting to LAD. The appellant cannot be held

responsible for delaying trial. This Court is of the opinion that the

appellant has made out the case for grant of bail.

16. Insofar as the appellant in Crl.A.No.54 of 2022, the allegation

against him is that he conspired with the other accused who committed

the murder of the deceased. Even as per the prosecution he was not

present at the scene of occurrence and he has been implicated in this case

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based on the confession of one Chinnavan who is arrayed A6 in this case.

The said Chinnavan has been released on bail, though, the prosecution

has submitted that the appellant has got 9 previous cases, A12 in this

case who is the rival gang leader and against whom there are 21 previous

cases, has been granted bail by this Court in Crl.O.P.No.9025 of 2021 on

23.06.2021. The appellant is in custody from 09.03.2021. This Court is

of the opinion that the appellant has made out the case for grant of bail.

17. Insofar as appellant in Crl.A.No.566 of 2021 is concerned, the

allegation against him is that he was present at the scene of occurrence

and he had inflicted injuries on the deceased. It is stated that the

appellant has got 9 previous cases. It is stated that the main gang leader

who is arrayed as A12 in this case against whom there are 21 previous

cases has been granted bail by this Court. It is also stated that at the time

of arrest, the appellant had sustained injuries and he is also affected by

Covid and suffering from serious lung infection. This Court is of the

opinion that the appellant has made out the case for grant of bail.

18. Insofar as the appellant in Crl.A.No.549 of 2021 is concerned, he

https://www.mhc.tn.gov.in/judis Crl.A.No.519 of 2021

has been implicated in this case based on the confession A14/Swamidoss,

that he supplied weapons to the accused. It is stated by the appellant that

the said Swamidoss/A14 on whose confession the appellant has been

implicated has been granted bail by this Court in C.A.No.468 of 2021

dated 21.10.2021. It is further stated that the appellant voluntarily

surrendered on 28.12.2020 before the Judicial Magistrate No.I,

Namakkal and there is no previous case against the appellant. This Court

is of the opinion that the appellant has made out the case for grant of bail.

19. Insofar as the appellant in Crl.A.No.664 of 2021 is concerned, the

allegation is that he had driven Swift car and dashed against the car of

the victim and thereafter, along with the other accused got down from the

car and assaulted the victim with Veecharuval (Sword). It is stated that

the appellant has no previous case and he voluntarily surrendered before

the Judicial Magistrate, Omalur on 28.12.2020 and he is in custody for

more than a year. It is stated that the appellant is not responsible for

delaying the trial. In this case as stated above, the persons against whom

there are several previous cases have been granted bail. This Court is of

the opinion that the appellant has made out the case for grant of bail.

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20. The counsel for the appellants in unison submitted that the

appellants are in continuous detention for almost a year and they are not

responsible for the delay in trial and they also submitted that the

appellants are ready to abide by any stringent conditions that may be

imposed on them.

21. In view of the above, this Court is inclined to grant bail to the

petitioner subject to the following conditions :-

(a) Accordingly, all the appeals stands allowed and the appellants are ordered to be released on bail on condition to execute their own bond for a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) each before the Superintendent of the concerned prison/Jailor concerned, in which the appellants have been confined and thereafter, on their release, the Appellants shall furnish two sureties, each for a like sum to the satisfaction of the learned Principal Sessions Judge, Salem within 15 days from the date of commencement of the Court's normal functioning, failing which the bail granted by this Court shall stand dismissed automatically and on further conditions that:

(b) the sureties shall affix their photographs and Left Thumb Impression in the surety bond and the learned Judge may obtain a copy of their Aadhar Card or Bank Pass Book to ensure their identity;

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(c) the appellants shall stay at Coimbatore and report before the Inspector of Police, Race Course Police Station, daily at 10.30a.m. and 5.30p.m. until further orders.

(d) the appellants shall not enter into the jurisdictional limits of respondent Police.

(e)The appellants shall appear before the trial Court on the next date of hearing i.e., on 11.02.2022 (Friday).

(f) the appellants shall not commit any offences of similar nature;

(g) the appellants shall not abscond either during trial;

(h) the appellants shall not tamper with evidence or witness during trial;

(i) on breach of any of the aforesaid conditions, the learned Sessions Judge/Trial Court is entitled to take appropriate action against the petitioner in accordance with law as if the conditions have been imposed and the petitioner released on bail by the learned Sessions Judge/Trial Court himself as laid down by the Hon'ble Supreme Court in P.K.Shaji vs. State of Kerala [(2005)AIR SCW 5560];

(j) if the accused thereafter absconds, a fresh FIR can be registered under Section 229A IPC.

With the above directions, this Criminal Original Petition stands

ordered.

03.02.2022

Note : Issue copy on 04.02.2022.

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A.D.JAGADISH CHANDIRA, J., tsh To

1. The Principal Sessions Judge, Salem.

2. The Superintendent, Central Prison, Salem.

3. The Superintendent, Central Prison, Vellore.

4. The Superintendent, Central Prison, Coimbatore.

5. The Superintendent, Central Prison, Cuddalore.