Sridhar Vandayar & Anr. v. The State Rep. By In...

The petitioners herein are Accused Nos. 1 and 2. The petitioners herein along with certain other persons stand charged for the alleged commission of offence under Sections 147, 148, 302, 120B, 201 and 212 I.P.C

2. The case of the prosecution briefly stated is as under:

The petitioners herein are popularly, known as Vandayar Brothers' in Chidambaram Taluk. They belong to affluent family and wield great influence in and around Chidambaram. There was enmity between the deceased Palanivel and the petitioners herein, in that Palanivel competed with the petitioners in obtaining lease, of liquor shop and also obtaining licence, to collect fees for parking vehicles in public place like Bus Stand etc. Palanivel was the successful bidder. Because of Palanivel, the petitioners herein were put to huge monetary loss. The petitioners wanted to do away with Palanivel, and therefore, they hired persons from various southern districts. On the fateful day, the persons set up by the petitioners herein came in a Mahendra Van and attacked Palanivel with lethal weapons in broad-lay-light in a public place known as “Shajahan Complex”, as a result of which Palanivel died. The assailants escaped in the Mahendra Van and reached Madras and later, abandoned the Van at Chidambaram itself in Annamalai University Complex after removing the number plate. The eyewitness to the occurrence preferred a complaint to the police, on the basis of which First Information Report was registered. Though initially the names of the petitioners herein were not included in the F.I.R later investigation revealed about the complicity of the petitioners herein in the crime. The petitioners evaded arrest and finally after proclamation for attachment of their property, they surrendered before the Judicial Magistrate, Gobichettipalayam on 05.01.1999 Right from 05.01.1999, the petitioners are in prison. Their applications for bail have been rejected twice. The instant application is the third application.

3. In the bail petition, the petitioners herein have raised the following pleas:

(i) There is no evidence of presence of the accused at the time of the occurrence or after the occurrence near around the scene of occurrence;

(ii) The prolonged detention for more than one year causes mental agony to the petitioners. In fact the second petitioner is a heart-patient, who has undergone bye-pass surgery on 07.12.1995 in Apollo Hospital. Still he is undergoing treatment in Annai Gandhi Memorial Tiruchy Government Hospital. (The petitioners are confined in Tiruchy Jail) ; and

(iii) Prolonged detention is in violation of Article 21 of the Constitution of India.

4. The wife of the deceased has filed Crl.M.P No. 10716 of 1999 to implead her as intervener. This Crl.M.P is allowed.

5. The learned Government Advocate (Crl. side) vehemently opposed the petition for bail on the following grounds:

This is a broad-day-light cold blood murder committed in pursuance of conspiracy. The petitioners herein set up certain innocent persons as the perpetrators of the crime to misguide the investigating machinery. They have been scheming before and after the murder to obliterate the evidence and also to misdirect the investigating machinery. The petitioners did not appear or make themselves available for interrogation after the occurrence. They were hiding themselves for more than five months. In the language of the learned Government Advocate, the petitioners went underground. It is also pleaded that specific intimation has been made in the F.I.R to show that the accused petitioners took part in the crime. A prima facie case has been made out against the accused. The Court has to see the background of the accused and impact that would be made on the witnesses and the society in the event of grant of bail. The petitioners as influential persons who may tamper the witness ; and in fact they have threatened the witnesses.

6. Heard both the sides. I am conscious that the general rule is bail and jail is exception. But the question whether or not bail can be granted depends upon the facts and circumstances of each cases. If a heinous crime is committed that too in a rude manner, then the Court should be slow in granting bail. The Court has to consider whether the prosecution has made out a prima facie case and there are allegations of tampering of the evidence.

7. The test for determining whether a prima facie case exists or not at a time prior to the stage of the trial is not that if the prosecution witnesses are shattered in cross examination or the witnesses named in the F.I.R do not support the story when the trial proceeds, the case will end in acquittal, but that if at the trial the witnesses deposed and has averred in the First Information Report, if the guilt of the accused shall stand proved beyond all reasonable doubt. Applying the test to the instant case, it is evident that there had been a broad-day-light murder. There is an eyewitness to the murder who has given the First Information Report. There is certain complicity of the accused in the incident before and after in that seven innocent persons have been set up to surrender before the Cuddalore Police Station as if they have committed the murder. But, on thorough investigation, it has been found that the 13th accused who happens to be an advocate was instrumental in surrendering these innocent persons, later they have given 162 statement to the effect that at the instance of the 13th accused, they have surrendered before the police, stating that they are the perpetrators of the crime. Consideration of the statements recorded by the investigating machinery would go to show that there is a prima facie case against the petitioners. In the earlier bail petitions, my learned brother M. Karpagavinayagam, J. has pointed out that the petitioners stand charged of a grave crime. The heinous nature of the crime could be evident from the manner in which it is carried out in a day light in a public place where there is lot of public movement. I am satisfied that the allegations are of grave nature and there is prima facie case.

8. One of the statutory principle for grant of bail is that the Court should be satisfied that the accused being enlarged on bail will not be in a position to tamper with the evidence. Tampering of evidence may occur before the trial or at the time when the trial goes on. In the instant case, prima facie it is made out that certain innocent persons have been set up to plead as if they have committed the crime. Even now, it is evident that the intervener who is the wife of the deceased was threatened by few of the accused and a case in Crime No. 13/2000 has been registered in this regard. Above all Mr. Anbalagan, Counsel for the intervener, has preferred a complaint to the police alleging that he was threatened by the accused, regarding which a case in Crime No. 1/2000 has been registered on 03.01.2000

9. The learned Counsel for the petitioners submitted that the names of the accused do not find a place in the F.I.R But, careful reading of the F.I.R would refer to implicating the accused. It should also be taken note of that even after specific inclusion of the names of the petitioners herein as accused, they were not available for arrest. May be due to patronage, they enjoy with some of the blacksheep in the Police Department. At last, they surrendered before the Judicial Magistrate, Gopichettipalayam after proclamation was made for attachment of their properties in the event of failure of their surrender.

10. It is submitted that the petitioners are persons wielding great influence in the locality. The learned Government Advocate submits that their influence over the witness would outweigh the vigil of the State over the witness. The indepth of misguidance of the prosecution machinery is made visible by producing false accused before the police. I am satisfied that the petitioners and the other accused have been adopting dilatory tactics in receiving the copies of documents in the committal court and at last they were served with copies and they have been committed to the Sessions Court for trial.

11. The petitioners pleaded illness. According to them, the second petitioner is a heart-patient, who has undergone bye-pass surgery. On a true construction of proviso to sub-section (1) of Section 437 of Cr.P.C, it appears, it is not that every sickness will entitle the accused persons to grant bail. The sickness contemplated by the proviso is a sickness which involves a risk or danger to the life of the accused person. The second petitioner is said to have undergone bye-pass surgery about four years back. But, absolutely, no medical evidence or certificate is produced to show that as to what sort of heart-ailment he is presently suffering with and whether his illness was so grave in nature and he requires treatment by a higher institution. Heart ailments have become common. Now-a-days necessary medical treatment and reasonable amenities are available in the jail hospital and in the Government Head-quarter Hospital where the petitioner has kept in. It is not as if the illness of the second petitioner could not be taken care of at the hospitals maintained by the State Government.

12. This is the third bait application by the petitioners. Once bail application was rejected, there is no question of granting similar prayer in the absence of change of circumstances. That would amount to virtually overruling the earlier decision without being a change in the factual situation. I do not find any change in the factual situation, which would give different hue to the instant bail application. This Crl.O.P is therefore dismissed, with a direction to the Sessions Court to follow the earlier direction issued to the Sessions Court to follow the earlier direction issued by P.D Dhinakaran, J., and dispose of the Session Case within ninety days from committal.