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Azhagu Raja v/s The State represented by its, The Inspector of Police, Chennai

    Crl.R.C.No. 1114 of 2022

    Decided On, 16 September 2022

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE D. BHARATHA CHAKRAVARTHY

    For the Petitioner: G. Prabhakaran, Advocate. For the Respondent: S. Vinoth Kumar, Government Advocate (Crl. Side).



Judgment Text

(Prayer: Criminal Revision Case is filed under Section 397 r/w 401 of Cr.P.C., to call for the records in Crl.M.P.No.4666 of 2022 on the file of the learned XVII Metropolitan Magistrate, Saidapet at Chennai and examine the same and to set aside the order cancelling the bail granted to the revision petitioner in Crl.M.P.No.5470 of 2021 vide order, dated 25.06.2021.)

This Revision is filed aggrieved by the order of the learned XVII Metropolitan Magistrate, Saidapet, Chennai, dated 30.06.2022 in Crl.M.P.No.4666 of 2022 in Crl.M.P.No.5470 of 2021 in P.R.C.No.11 of 2022, in and by which, the petition, filed by the respondent prosecution for cancellation of bail, was allowed.2. By an order, dated 25.06.2021, the petitioner was enlarged on statutory bail by order in Crl.M.P.No.5470 of 2021 and while so releasing him on bail, a condition was imposed that he should report before the Investigating Officer twice a day at 10.00 A.M and 5.00 P.M. The petitioner/accused did not comply with the said order and ultimately, he was arrested in a connected Crime No.45 of 2022 on 29.03.2022. Thereafter, the present application was filed.

3. Heard Mr.G.Prabhakaran, the learned Counsel for the petitioner and Mr.S.Vinoth Kumar, the learned Government Advocate (Crl. Side) on behalf of the prosecution.

4. The learned Counsel for the petitioner submitted that factually, the condition could not be complied with by the petitioner because of the fact that there was life threat even for the petitioner and his mother. He would draw the attention of this Court to the order passed by this Court in Crl.O.P.No.9448 of 2021, whereunder, this Court, while extending the time for complying with the conditions by two weeks, directed the concerned Police officer to look into the matter and provide sufficient Police protection, if necessary. Therefore, it can be seen that upon being satisfied with the prima facie materials, this Court granted such a relief even to the mother of the petitioner.

5. The learned Counsel for the petitioner, taking this Court to the connected case in which the petitioner was arrested, would submit that the said case as well as many of the connected cases are as if the petitioner/accused is indulging in extortion from shop keepers etc., and such cases are foisted against the petitioner. He would rely upon the newspaper reports which reported as if the petitioner was arrested in Tiruppur, while actually, the arrest was shown by the respondent Police as if he was arrested in Chennai. This very fact by itself would prove that fearing attack on his life, the petitioner was living in exile and went underground to save himself. Therefore, only under these extraordinary circumstances, the petitioner could not comply with the condition. However, the non-compliance of the condition by the petitioner has not resulted in any stagnation or warrant being issued in any pending case. Even in the present case, the investigation is completed and the chargesheet is filed and the matter is pending in P.R.C.No.11 of 2022. The case was neither adjourned for any N.B.W nor any undue advantage was taken by the petitioner. Under these circumstances, the learned Counsel for the petitioner would rely upon the judgment of the ‘Supreme Court of India in Dolat Ram Vs. State of Haryana (1995) 1 SCC 349) and it is useful to quote the paragraph No.4 which reads as hereunder:-

“4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted.“

6. The learned Counsel would submit that in this case, the accused was actually released on default bail and in this regard, he would rely upon the judgment of the ‘ Supreme Court of India in M.Ravindran Vs. The Intelligence Officer, Directorate of Revenue Intelligence (Crl.A.No.699 of 2020) and it is useful to quote the paragraph No.16.3 which reads as hereunder:-

“16.3. .....................

At the cost of repetition, it must be emphasized that the paramount consideration of the legislature while enacting Section 167(2) and the Proviso thereto was that the investigation must be completed expeditiously, and that the accused should not be detained for an unreasonably long period as was the situation prevailing under the 1898 Code. This would be in consonance with the obligation cast upon the State under Article 21 to follow a fair, just and reasonable procedure prior to depriving any person of his personal liberty.“

7. Again it is relevant to quote paragraph No.18.2 of the same judgment which reads as follows:-

“18.2. The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the Court; or filing of the chargesheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court. 18.3 However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a chargesheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the CrPC.“

Therefore, he would submit that in this case, the accused being released by default bail, such liberty had to be protected.

8. The learned Counsel would rely upon the latest judgment of the ‘ Supreme Court of India in Satender Kumar Antil Vs. Central Bureau of Investigation and Another (2022 SCC OnLine SC 825) in which, the ‘ Supreme Court of India relied upon its judgment in M.Ravindran Vs. Directorate of Revenue Intelligence (stated supra). It is useful to quote the relevant paragraph, in which, it has been held that the right of the accused under Section 167(2) of the Code of Criminal Procedure is integrally linked to the constitutional commitment under Article 21 promising protection of life and personal liberty and the said part of the paragraph reads as follows:-

“17.7. Therefore, as mentioned supra, Section 167(2) is integrally linked to the constitutional commitment under Article 21 promising protection of life and personal liberty against unlawful and arbitrary detention, and must be interpreted in a manner which serves this purpose.

Therefore, the courts cannot adopt a rigid or formalistic approach whilst considering any issue that touches upon the rights contained in Article 21.

17.8. We may also refer with benefit to the recent judgment of this Court in S. Kasi v. State [S. Kasi v. State, (2021) 12 SCC 1 : 2020 SCC OnLine SC 529], wherein it was observed that the indefeasible right to default bail under Section 167(2) is an integral part of the right to personal liberty under Article 21, and the said right to bail cannot be suspended even during a pandemic situation as is prevailing currently. It was emphasised that the right of the accused to be set at liberty takes precedence over the right of the State to carry on the investigation and submit a charge-sheet.“

Therefore, he would submit that in the instant case, the petitioner is now in prison pursuant to an order of preventive detention. The petitioner has challenged the order of preventive detention under the Act 14 of 1982. Therefore, only to make the things difficult for the petitioner, the instant application for cancellation of bail is filed by the respondent.

9. Per contra, the learned Government Advocate (Crl. Side) would submit that in this case, a bail condition was specifically imposed to report before the respondent Police twice a day. Admittedly, the accused did not comply with the condition. If the conditions are harsh or that if there are any life threats for the petitioner/accused, the petitioner/accused could have filed appropriate application before the Trial Court or this Court to modify the conditions or to seek extension of time to comply with the conditions. The accused did not do anything. On the other hand, he not only absconded, but, also indulged in other offenses and ultimately, he was arrested in connection with another offense. Therefore, the prosecution has rightly filed the application. The reason for filing of application of cancellation of bail is the conduct of the accused while he was in bail. Therefore, it is a valid reason. Further, the accused, having antecedents of 13 previous cases against him, the application for cancellation of bail has been rightly allowed. He would submit that in any event, presently, the accused is under preventive detention and unless and otherwise the same is quashed by the concerned Court, there is no scope for the accused being enlarged on bail and under the circumstances, prayed that this Court need not interfere with the order of cancellation of bail.

10. I have considered the rival submissions made on either side and perused the material records of the case. I have also gone through the First Information Reports of the other cases against the accused produced by the learned Government Advocate (Crl. side). Firstly, as contended by the learned Counsel for the petitioner, it can be seen from the cumulative reading of the above judgments that the right of the accused, to be enlarged on bail that too by way of default bail, is an indefeasible right. Even if the accused is enlarged on default bail, unless the conditions are held to be onerous by a Court of law or modified by the same Court, it cannot be said that no condition at all can be imposed while enlarging accused on default bail and the condition, to report before the Investigating Officer twice a day, cannot be said to be harsh. The petitioner/accused ought to have filed such an application for modification even if there is any life threat or if he feels that there is any other danger for him if he resides within the respondent Police limits and report before the respondent Police. In the absence thereof, no exception whatsoever can be taken for the respondent prosecution for filing the application for cancellation of bail.

11. Once the exercise of filing of the cancellation of bail is found to be in order, the next question is as to whether in all circumstances of violation of condition, bail should be cancelled or not?. The legal position is laid down by the judgment referred to above in Dolat Ram Vs. State of Haryana (cited supra). It is held that (i) where the accused had interfered or attempted to interfere with due course of administration of justice or (ii) evaded or attempted to evade the due course of justice or (iii) abused the concession granted to the accused in any manner, bail can be cancelled. In this regard, the accused has not evaded or interfered with the course of justice as the prosecution could not bring any fact on clear terms that the absence of accused hampered either the investigation in the present case or the progress of trial in any other case, though it can be said that the accused had involved in yet another offence, therefore, abused the concession granted by the Court enlarging him on bail.

12. However, at the same time, it has to be seen that in this case, the bail was not a concession granted, but, was the indefeasible right of the statutory bail. The investigation is also completed and it is not the case of the prosecution that the case could not be proceed or that any non-bailable warrant was issued in the present case. In that view of the matter, the mere default or non-compliance of the condition alone cannot be the factor for cancellation of bail, but, ther

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e should be supervening circumstances which should satisfy the Court on the basis of the material placed on record that there are circumstances justifying the cancellation of bail. However, in the present case, especially considering the fact that the petitioner is in prison, having been clamped by an order of preventive detention, I am of the view that there is no justification for cancellation of bail as per the dictum of the ‘ Supreme Court of India in Dolat Ram Vs. State of Haryana (cited supra), especially the original bail being one granted under Section 167(2) of the Code of Criminal Procedure. 13. In that view of the matter, the present Revision Case is allowed on the following terms:- (i) The order of the learned XVII Metropolitan Magistrate, Saidapet, Chennai, dated 30.06.2022 in Crl.M.P.No.4666 of 2022 in Crl.M.P.No.5470 of 2021 in P.R.C.No.11 of 2022 stands set aside; (ii) The petitioner, if released from prison after the preventive detention, shall, thereafter, without fail, appear before the Trial Court in this case as well as in the other cases and if there is any warrant issued or protraction of proceedings by the accused in the trial cases, it would be open for the prosecution to file fresh application for cancellation of bail and upon such application, the bail granted to the petitioner will be re-considered and would be canceled; (iii) Consequently, Crl.M.P.No.12457 of 2022 is closed.
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