Madras High Court
S.Sridhar vs State Rep. By on 24 April, 2023
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
(Criminal Jurisdiction)
Dated: 24/04/2023
PRESENT
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.OP(MD)Nos.6125 and 6127 of 2023
S.Sridhar : Petitioner/A1
(in both cases)
Vs.
1.State rep. by
Additional Superintendent of Police,
CBI, SC II, New Delhi.
(CBI Crime No.RC0502020 S0008) &
(CBI Crime No.RC0502020 S0009)
2.The Director General of Police,
Mylapore,
Chennai. : Respondents/Complainants
(In both cases)
For Petitioner
(in both cases) : Mr.G.Karuppasamy Pandiyan
For 1st Respondent : Mr.C.Muthusaravanan
(in both cases) Special Public Prosecutor
for CBI
For 2nd Respondent : Mr.B.Nambiselvan
(in both cases) Additional Public Prosecutor
For Intervenor : Mr.V.Rajiv Rufus
(in both cases)
https://www.mhc.tn.gov.in/judis
PETITIONS FOR BAIL UNDER SECTION 439 OF THE CODE OF
CRIMINAL PROCEDURE.
COMMON PRAYER:-
For Bail in Case No.RC 0502020 S0008 and Case No.RC
0502020 S0009 on the file of the respondent/CBI
respectively.
COMMON ORDER:- The Court made the following order :-
The petitioner is Accused No.1 in both Cases in RC
0502020 S0008 and RC 0502020 S0009, respectively, on the
file of the respondent/CBI, for the offences punishable
under Sections 342, 302, 201 r/w 109 of the Indian Penal
Code. The petitioner was arrested and remanded to
judicial custody on 02.07.2020, seeking bail, the present
petitions have been filed.
2.The aforesaid case in RC 0502020 S0008 relates to
the death of one Benniks, S/o.Late P.Jeyaraj, and RC
0502020 S0009 relates to the death of P.Jeyaraj, father
of the deceased Benniks, both died in judicial custody.
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3.The brief facts leading to the filing of the
present bail petitions are as follows:-
3.1.The deceased in these cases, namely Benniks and
Jeyaraj were arrested relating to Crime No.312 of 2020,
for the offences punishable under Sections 188, 269,
294(b), 353 and 506(2) of the Indian Penal Code on the
file of Sathankulam Police Station, and both of them were
remanded to judicial custody and lodged in Sub Jail,
Kovilpatti on 20.06.2020. Subsequently, on 22.06.2020, at
about 07.35 p.m., the deceased Benniks complained of
wheezing problem and he was immediately taken to the
Government Hospital, Kovilpatti, where he died at about
09.00 p.m. Based on the complaint given by the Jail
Superintendent, Sub Jail, Kovilpatti, an FIR was
registered in Crime No.649 of 2020 under Section 176(1A)
(i) of the Code of Criminal Procedure, at Kovilpatti East
Police Station.
3.2.Thereafter, on the very same day, at about 10.20
p.m., the deceased Jeyaraj also fell sick and he was also
taken to the Government Hospital, Kovilpatti and he died
at about 05.40 a.m., on 23.06.2020. Once again, based on
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the complaint filed by the Jail Superintendent, Sub Jail,
Kovilpatti, an FIR was registered in Crime No.650 of 2020
under Section 176(1A)(i) of the Code of Criminal
Procedure.
3.3.In both the cases, inquest was conducted by the
learned Judicial Magistrate No.1, Kovilpatti. Thereafter,
autopsy was conducted by a Board of three doctors of
Forensic Medicine and Toxicology Department of
Tirunelveli Medical College, Tirunelveli and they gave an
opinion that, both the deceased would appear to have died
of complications of blunt injury sustained.
3.4.In the meantime, the Madras High Court, Madurai
Bench, has taken suo motu Writ Petition in W.P.(MD)No.
7042 of 2020 and ordered investigation of the case by
CBCID. Based on the direction, CBCID took up the
investigation and registered two FIRs in Crime Nos.1 and
2 of 2020, and during investigation, the complicity of
the petitioner prima facie established and he was
arrested by CBCID on 02.07.2020. Subsequently,
investigation of both the cases was transferred to CBI,
by the Government of Tamil Nadu, vide Notification dated
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29.06.2020. Subsequently, the Government of India, also
issued a Notification for CBI enquiry on 06.07.2020.
Based on the same, the CBI took over the investigation
and registered the fresh First Information Reports in RC
0502020 S0008 and RC 0502020 S0009. During investigation,
it was found that after the arrest of both the deceased,
they were kept in Sathankulam Police Station, and at the
instigation of the petitioner herein, the other accused,
namely, Sub-Inspector of Police and Constables brutally
tortured the deceased and caused as many as 18 injuries
on both the deceased, subsequently, they were died due to
complications of blunt injuries sustained by them. Now,
seeking bail, the petitioner is before this Court with
the present bail petitions.
4.Heard both sides.
5.The ground on which these petitions came to be
filed is that for the past 2-1/2 years he is in custody.
Since from the date of arrest, repeated bail applications
filed by the petitioner came to be dismissed by this
court on the earlier occasions. Later, liberty was
granted to the petitioner to move the trial court for
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bail, since final report was stated to be filed. On the
ground, he moved the bail application before the trial
court and that came to be dismissed, by order, dated
28/02/2022 in Crl.OP(MD)No.400 and 401 of 2022. After
that, these two applications have been filed.
6.The facts of the case need not be elaborated and
only subsequent events can be taken into account for
considering the bail applications.
7.The point on which, the learned counsel appearing
for the petitioner would press upon this court is that 47
witnesses have been examined so far and it consumed
almost three years and the remaining witnesses
examination may take another five years; The large
incarceration is sufficient enough to enlarge the
petitioner on bail; By relying upon the judgment of the
Hon'ble Supreme Court in the case of Union of India Vs.
K.A.Najeeb (2021)3 SCC 713; (2)Raghu Ganesh Vs. State
rep. by the Additional Superintendent, CBI, SCU-V, SC II,
New Delhi (Crl.OP(MD)No.4980 of 2022, dated 18/05/2022);
(3)Yedala Subba Rao & another Vs. Union of India
(Criminal Appeal No.1153 of 2023, dated 17/04/2023);
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(4)Mohd Muslim @ Hussain Vs. State (NCT of Delhi) (2023
LiveLaw (SC) 260).
8.Per contra, the learned Additional Public
Prosecutor would submit that considering the judgment of
the Hon'ble Supreme Court in several cases on this point,
the coordinate bench of this court dismissed the
application of the co-accused namely Raghu Ganesh in
Crl.OP(MD)No.4980 of 2022, dated 18/05/2022 that mere
period of incarceration cannot be considered for granting
bail. According to him, the seriousness as well as as
severity of the offence are the guiding factors.
9.The De-facto complainant has also represented by
Advocate and would point out that even during the
pendency of the trial process, the petitioner involved in
some sort of illegal activity, which itself is sufficient
for rejecting the bail application. There is every
likelihood of tempering the witnesses and hampering of
trial process. So according to him, the severity of the
offence must be taken into account.
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10.The learned Additional Public Prosecutor required
to come with a schedule for completion of the above said
trial process and he promised to come with the schedule
and scheme, as the case may be and filed a counter. Apart
from that, he has also submitted that since because a
lengthy cross examination running to several days for a
single witness is undertaken by the accused, the trial
is not in a position to be completed within a stipulated
time. He would further submit that only six more
witnesses are going to be examined and within three
months, the trial process will be completed. For that,
purpose, he was requested this court a direction to the
trial court to conduct the trial even during Summer
Vacation by exercising the power under Section 482 of
Cr.P.C and Article 227 of the Constitution of India.
11.I am afraid that such an order can be passed by
this court directing the trial court to conduct the trial
process during the vacation. Only the Hon'ble Chief
Justice is a competent authority to order such a
direction and this Bench is not competent to give any
such direction against the notification to be issued by
the Government in consultation with the High Court. So
the option is not now available.
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12.I need not elaborate much on the point of long
incarceration, since the coordinate bench of this court
in Crl.OP(MD)No.4980 of 2022, dated 18/05/2022 has made
an exhaustive discussion in the above said issue.
13.Now let us concentrate on the above said judgment
of the Hon'ble Supreme Court in the case of Union of
India Vs. K.A.Najeeb (2021)3 SCC 713. In that case, the
Hon'ble Supreme Court has stated that when the matter was
taken up, considering period of incarceration, the High
Court granted bail. Over which, the Union of India filed
appeal. It has been pointed out as under:-
"18.Adverting to the case at hand, we
are conscious of the fact that the charges
levelled against the respondent are grave
and a serious threat to societal harmony.
Had it been a case at the threshold, we
would have outrightly turned down the
respondent's prayer. However, keeping in
mind in the length of the period spent by
him in custody and the unlikelihood of the
trial being completed anytime soon, the
High Court appears to have been left with
no other option except go grant bail. An
attempt has been made to strike a balance
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between the appellant's right to lead
evidence of its choice and establish the
charges beyond any doubt and
simultaneously the respondent's right
guaranteed under Part III of our
Constitution have been well protected.
So reading of the above said observation shows that the
length of the period of detention exceeded the
substantial part of sentence prescribed under the
relevant penal provision and unlikelihood of trial would
have completed within a particular period was considered
to be the ground. So bail was granted by the High Court.
The Supreme Court approved the above said and also
dismissed the appeal.
14.Now the question, which arises for consideration
is whether the petitioner can draw any advantage or
support from the above said judgment. Here the period
incarceration is not the substantial part of the sentence
prescribed. As undertaken by the learned Additional
Public Prosecutor, the trial process will be completed
within a period of three months. So the above said
parameter upon the point, bail was granted by the High
Court as confirmed by the Hon'ble Supreme are the factors
not available in the present case.
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15.He would further rely upon the judgment of the
Hon'ble Supreme Court reported in Mohd. Muslim @ Hussain
Vs. State (NCT OF DELHI) and submit that considering the
incarceration period only the above said two persons have
been enlarged on bail. By drawing the analogy of the
above said judgment to the present accusation against the
petitioner, the learned Counsel would submit that the
allegation against the petitioner is that he instigated
the other accused to assault the deceased; two of the
star witnesses have been examined in full and remaining
witnesses are not material. So there is no necessity for
tempering the above said witnesses. So according to him,
his further incarceration is not going to serve any
purpose.
16.No doubt the petitioner is in custody for more
than 2-1/2 years. Now point which arises for the
consideration is whether at the fag-end of the trial
process, he is entitled to be released on bail.
17.But in the light of the above said undertaking
given by the learned Additional Public Prosecutor that
the trial will be completed within three months, at the
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fag end of the trial process, it may not be proper for
this court to enlarge the petitioner on bail, considering
the gravity as well as the seriousness of the offence.
18.In the light of the above said factual aspects
and the status of the petitioner, if released on bail, he
may tamper the further witnesses who are going to be
examined and hampering the trial process also. This
petitioner alleged to have been a prime person in the
above said entire occurrence. Since substantial evidence
has also been available in record, any discussion made by
this court with regard to the merit, may affect the
outcome of the trial process. so I need not discuss
anything about the merits of the case and the evidence
let in by the prosecution and the facts extracted during
the course of cross examination. Without expressing any
opinion on the merit of the allegation and the charge as
pointed out earlier, the only point is whether at the
fag-end of the trial process, the remedy can be extended
to the petitioner. But as pointed by the learned
Additional Public Prosecutor, as mentioned above, some
sort of activity has also been brought to the notice of
this court by the de-facto complainant.
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19.Considering the factual circumstances as well as
the severity of the offence, I am of the considered view
that if the petitioner is released on bail, there is
every likelihood of tempering the remaining witnesses and
hampering of the trial process. So I am of the considered
view that even though the petitioner is in custody for
more than 2-1/2 years, that itself is not sufficient to
grant bail. The parameter for granting the bail if
applied to the case of the petitioner and fair justice, I
am of the considered view that he is not entitled for
release, since the trial process, as undertaken by the
learned Additional Public Prosecutor, will be completed
within a period of three months. I find no reason to
enlarge the petitioner on bail.
20.In the result, both the bail applications are
dismissed.
24/04/2023
Index:Yes/No
Internet:Yes/No
er
https://www.mhc.tn.gov.in/judis
To,
1.The Additional Superintendent of Police,
CBI, SC II, New Delhi.
2.The Director General of Police,
Mylapore,
Chennai.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN.J
er
Crl.OP(MD)Nos.6125 and 6127 of 2023
24/04/2023
https://www.mhc.tn.gov.in/judis
