Dismissed

Duraipandi v. the Deputy Superintendent of

Madras HC6 Dec 2013CRL OP(MD)/13345/2013

Case brief

AI extract

What is this about?

The Madurai Bench of the Madras High Court dismissed three bail petitions filed by accused persons in a kidnapping and murder case. The court held that despite the protraction of the trial by another accused, bail could not be granted as the case involved grave offences and there existed a likelihood of witness tampering.

What did the court decide?

All three Criminal Original Petitions filed for grant of bail were dismissed.

Duraipandi Vs the Deputy Superintendent of — Bail and Remand | Madras HC (2013)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction )

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Friday, the Sixth day of December Two Thousand Thirteen

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PRESENT

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The Hon`ble Mr.Justice M.SATHYANARAYANAN

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CRL OP(MD) Nos.13345,20285 and 21145 of 2013

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DURAIPANDI ... PETITIONER/ACCUSED NO.8 IN CRL.OP(MD). No.13345/2013

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VIVEK ... PETITIONER/ACCUSED NO.9 IN CRL.OP(MD). No.20285/2013

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1 J.SHANKAR 2 S.MANJUBARKAVI ... PETITIONER/ACCUSED A4, A6 IN CRL.OP(MD). No.21145/2013

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THE STATE REP BY

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THE DEPUTY SUPERINTENDENT OF POLICE, C.B.C.I.D. MADURAI, CRIME NO.504 OF 2009. ON THE FILE OF THE DINDIGUL TOWN NORTH POLICE STATION. ... RESPONDENT/ COMPLAINANTIN CRL.OP(MD). No.13345/2013

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THE INSPECTOR OF POLICE, CRIME BRANCH CID, DINDIGUL, DINDIGUL DISTRICT ... RESPONDENT/ COMPLAINANTIN CRL.OP(MD). No.20285&21145/2013

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DR.B.GANESH ... PETITIONER/ INTERVENER IN ALL CASES

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For Petitioner : M/S.G.KARUPPASAMY PANDIAN Advocate IN CRL.OP(MD). NO.13345/2013

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M/S.C.ARUN @ ARUNACHALAM Advocate IN CRL.OP(MD). NO.20285/2013

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M/S.N.ANANTHAPADMANABAN Advocate IN CRL.OP(MD). NO.21145/2013

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For Respondent : MR.K.CHELLAPANDIAN Additional Advocate General assisted by Mr.K.V.RAJARAJAN Govt. Advocate ( Crl. Side)

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For Intervener :MR.V.KATHIRVELU Senior Counsel for M/S.D.SELVARAJ Advocate

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PETITION FOR BAIL Under Sec. 439 Cr.P.C.

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ORDER : The Court Made the following order :-

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The petitioner in Crl.O.P.(MD) No.13345 of 2013 is arrayed as A8, the petitioner in Crl.O.P.(MD) No.20285 of 2013 is arrayed as A9 and the petitioners in Crl.O.P.(MD) No.21145 of 2013 are arrayed as A4 and A6 in https://hcservices.ecourts.gov.in/hcservices/ Sessions Case in S.C.No.33 of 2010, pending on the file of Additional District and Sessions Judge, Fast Track Court No.1, Dindigul and they pray for bail during the pendency of the above said Sessions Case.

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The case of the prosecution is that on 30.04.2009 at 05.15 hours, Dr.Baskaran (deceased) was kidnapped while was walking near his house in a TATA Sumo Car by some unknown persons. Hence, his son Dr.Ganesh lodged a complaint on the file of Dindigul Town North Police Station and a case has been registered in Crime No.504 of 2009 for the commission of offence under Section 366 I.P.C. The dead body of Dr.Baskaran was found near Aliyar River, Pollachi Taluk, Coimbatore District on 08.05.2009. Another case was registered in Crime No.208 of 2009 for the commission of offence under Sections 302 and 201 I.P.C. by the jurisdictional police, namely, Anamalai Police Station.

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The defacto complainant, namely Dr.Ganesh has identified the body as that of his father on 09.05.2009 and the Sections in the case registered by Dindigul Town North Police Station in Crime No.504 of 2009 were altered into Sections 363, 302 and 201 I.P.C.

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It is the further case of the prosecution that accused viz., Umar Mukathar, Karthikeyan (A1) Mukilan, Sabeer Ahmen, Rajkumar, Duraipandi (petitioner in Crl.O.P.(MD) No.13345 of 2013) and Sankar (1st petitioner in Crl.O.P.(MD) No.21145 of 2013) entered into a criminal conspiracy and kidnapped the deceased for the purpose of ransom and after kidnapping, he was kept in illegal custody for two days and subsequently they have taken the person viz. Dr.Baskaran to the occurrence place and committed murder. According to the prosecution the motive for commission of murder is to get ransom from the relatives of the deceased viz., Dr.Baskaran. Insofar as the second petitioner in Crl.O.P.(MD) No.21145 of 2013 is concerned, the case of the prosecution is that she is the girl friend of 1st accused Karthikeyan and is a college student and watched the movement of Dr.Baskaran and informed the same to A1 and for that purpose she produced a bogus certificate stating that she is employed in Tata Indico Company and got accommodation at working women's hostel at Dindigul. The said accused also procured number of SIM cards for making phones to the relatives of the deceased demanding ransom thereafter threw/dispose of the SIM cards so that the location of the accused cannot be found.

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Accused Mukilan filed a bail application in Crl.O.P.(MD) No.10087 of 2009 before this Court and it was dismissed on 03.12.2009. The third accused Umar Mukthar filed a bail application in Crl.O.P.(MD) No.11235 of 2009 and it was dismissed as withdrawn on 09.12.2009. The second petitioner in Crl.O.P.(MD) No.21145 of 2013 Manju Bargavi and accused Mukilan had filed bail applications in Crl.O.P.(MD) Nos.11895 and 12176 of 2009 and those applications were also dismissed by this Court on 05.01.2010. Mukilan once again filed bail application in Crl.O.P.(MD) No.1399 of 2010 and it was dismissed on 18.02.2010 and while dismissing it, this Court has directed the trial Court to complete the trial as expeditiously as possible. The first petitioner in Crl.O.P.(MD) No.21145 of 2013 has once again filed bail application for taking medical treatment in Crl.O.P.(MD) No.653 of 2010 and the same was disposed of on 22.02.2010 by issuing a direction, directing the authorities to shift him to Prison Ward of Madurai Rajaji Government Hospital. The petitioner in Crl.O.P.(MD) No.20285 of 2013/A9 filed a bail application in Crl.O.P.(MD) No.4079 of 2013 and it was dismissed on 05.03.2013 and the trial Court was directed to complete the trial as expeditiously as possible, not later than end of April, 2013. Again accused No.9 Vivek filed a bail https://hcservices.ecourts.gov.in/hcservices/ application in Crl.O.P.(MD) No.7919 of 2013 and it was dismissed on 18.06.2013 and the trial Court was directed to dispose of the Sessions Case within one month from that day on day to day basis and to submit

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the status report on weekly basis. Accused No.9 Vivek once again filed Crl.O.P.(MD) No.12385 of 2013 for bail and it was dismissed by this Court on 13.08.2013, with a direction to the trial Court to dispose of the appeal within one month from the date of receipt of a copy of that order.

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Mr.N.Ananthapadmanaban, learned counsel appearing for the petitioners in Crl.O.P.(MD) No.21145 of 2013/A4 and A6 would vehemently contend that the prosecution had examined all the witnesses and from the evidence, nothing incriminating has been made out against these petitioners and though this Court while dismissing the bail applications filed by number accused, issued directions to the trial Court to complete the trial as expeditiously as possible within a stipulated time, it could not do so as the first accused in the Sessions Case has chosen to crossexamine number of witnesses and recalled number of witnesses and protracting the proceedings and since the petitioners are incarcerated for quite long time, their application could be sympathetically considered.

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Respective learned counsel appearing for the petitioners in Crl.O.P.(MD) Nos.13345 and 20285 of 2013 made similar submissions.

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Per contra, Mr.K.Chellapandian, learned Additional Advocate General appearing for the prosecution has invited the attention of this Court to the counter filed in these petitions and would submit that the first accused, for the reasons best known to him, is protracting the proceedings unnecessarily and going on filing petitions, recalling witnesses and consequently the trial Court is unable to comply with the directions issued by this Court for completion of trial.

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It is the further submission of the learned Additional Advocate General that the person kidnapped viz., Dr.Baskaran was murdered in a gruesome manner and considering the nature and cruelty of the offences committed by the accused, this Court on earlier occasions dismissed the bail applications repeatedly filed by the accused and unless there is a change of circumstance, these bail applications cannot be considered and hence these petitions are liable to be dismissed.

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Mr.V.Kathirvelu, learned Senior Counsel for the intervenor/defacto complainant/son of the deceased has vehemently contended that it is a case of kidnapping and murder for ransom and the murder has been committed in a most gruesome and heinous manner and the jurisdictional police was unable to make a headway and therefore the investigation was transferred to CBCID and a special team was formed and they were able to nab the accused and the trial of the case is almost over and the first accused alone is protracting by repeatedly filing applications for recalling all witnesses and if the petitioners being enlarged on bail, they are likely to abscond and the first accused also filed application for recalling some of the witnesses and if the petitioners are released on bail there is likelihood of tampering of those witnesses and hence prayed for dismissal of these applications.

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In reply to the said submissions, the learned counsel appearing for the petitioners placed reliance on the decision of the Hon'ble Supreme Court of India in (2012) 1 Supreme Court Cases 40, Sanjai Chandra v. Central Bureau of Investigation and would submit that while https://hcservices.ecourts.gov.in/hcservices/ considering the applications, the concept of personal liberty is utmost important and unless the trial Court found the accused guilty, they are presumed to be innocent and taking into account of the fact that no

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incriminating evidence is made against the respective petitioners/accused their application for bail may be considered.

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This Court paid its anxious consideration and best attention to the submissions of the learned counsel appearing for the petitioners and the learned Additional Advocate General for the State and the learned Senior Counsel appearing for the intervenor.

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The Hon'ble Supreme Court in the decisions reported in (1962) 3 SCR 622, State v. Capt. Jagjit Singh and (1978) 1 SCC 118, Gurcharan Singh v. State (Delhi Admn.) has held that the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case are to be considered while entertaining applications for bail.

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In (2001) 4 SCC 280, Prahlad Singh Bhati v. NCT, Delhi and Another the Hon'ble Supreme Court of India held that while granting or refusing bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words reasonable grounds for believing instead of the evidence which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.

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In Ash Mohammad v. Shiv Raj Singh @ Lalla Babu & Anr. reported in JT 2012 (9) SC 155 , the Hon'ble Supreme Court of India while dealing with individual liberty and cry of the society for justice has opined as follows:

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"It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilized milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an organized society the concept of liberty basically requires https://hcservices.ecourts.gov.in/hcservices/ citizens to be responsible and not to disturb the tranquility and safety which every well-meaning

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person desires."

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The judgment relied on by the learned counsel for the petitioners reported in (2012) 1 Supreme Court Cases 40, Sanjai Chandra v. Central Bureau of Investigation the Hon'ble Supreme Court has not laid down any different proposition and infact in paragraph 24 of the said judgment, it has been observed that 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. It is further observed that the provisions of Cr.P.C. confer discretionary jurisdiction on criminal court 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.

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This Court while dismissing the applications for bail filed by the accused had considered the very same points in detail and by taking into consideration, the nature and gravity and the cruel manner of murder and the difficulty expressed by the prosecution in arresting the accused, had declined to grant them the relief of bail and directed the trial Court to complete the trial as expeditiously as possible. However, the trial Court is not in a position to complete the trial for the reason that accused No.1 Karthikeyan is repeatedly filing applications for recalling of prosecution witnesses and therefore, it is not in a position to complete the trial within the stipulated time framed by this Court.

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The primordial submission of the learned counsel for the petitioners that the examination of the prosecution witnesses is over and the materials available in the form of evidence do not point out incriminating evidence against the petitioners and the said fact can be taken into consideration for the purpose of granting bail. The said submission lacks merit and substance for the reason that the trial is at large before the Trial Court and therefore, this Court cannot venture into the merits of the case by looking into the evidence of the prosecution witnesses adduced before the trial Court. It is also pertinent to point out that the application filed by the accused No.1 to recall all witnesses is also pending and if petition is ordered, some witnesses are likely to be recalled and in the event of petitioners being enlarged on bail, there is likelihood of tampering of the said witnesses also.

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In the light of the reasons stated above, this Court is not inclined to grant bail to the petitioners/respective accused.

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In the result all the Criminal Original Petitions are dismissed.

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/ TRUE COPY /

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https://hcservices.ecourts.gov.in/hcservices/ Sub-Assistant Registrar (C.S.) Madurai Bench of Madras High Court, Madurai - 625 023.

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1	THE ADDITIONAL DISTRICT & SESSIONS JUDGE (FAST TRACK COURT) DINDIGUL
2	THE JUDICIAL MAGISTRATE, NO.II, DINDIGUL
3	do thro' THE CHIEF JUDICIAL MAGISTRATE DINDIGUL
4	THE SUPERINTENDENT CENTRAL PRISON, MADURAI
5	THE SUPERINTENDENT, CENTRAL PRISON FOR WOMEN, TRICHY
6	THE OFFICER INCHARGE DISTRICT JAIL , DINDIGUL
7	THE DEPUTY SUPERINTENDENT OF POLICE, C.B.C.I.D. MADURAI
8	THE INSPECTOR OF POLICE CRIME BRANCH CID, DINDIGUL, DINDIGUL DISTRICT
9	THE ADDL.PUBLIC PROSECUTOR MADURAI BENCH OF MADRAS HIGH COURT, MADURAI.
+1. +2c +1c	CC to M/S.N.ANANTHAPADMANABAN Advocate SR.No.60683 c to Mr.D.Selvaraj Advocate, Sr.No. 61112,61113 c to Mr.C.Arun @ Arunachalam Advocate, Sr.No.60947
AA/	10.12.2013/ 6p- 14c/
	ORDER IN CRL OP(MD) No.13345, 20285,21145 of 2013 Date :06/12/2013

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https://hcservices.ecourts.gov.in/hcservices/

Duraipandi v. the Deputy Superintendent of

Case brief

What is this about?

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Duraipandi v. the Deputy Superintendent of

Case brief

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