Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:
29. 10/2013 CORAM THE HON'BLE MR.JUSTICE G.M.AKBAR ALI Crl.O.P.No.24092 of 2013 P-1 B.WILLIAM P-2 P.M.BASIL P-3 P.PONSWAMY P-4 J.MARY PUSHPAM P-5 P.M.BORIS P-6 P.ANNAPAZHAM P-7 A.YESURAJAN VS R-1 THE INSPECTOR OF POLICE E4 ABIRAMAPURAM POLICE STATION, ABIRAMAPURAM, CHENNAI ORDER
The petitioners, who apprehend arrest for the offence punishable under Sec.307, subsequently altered into 302 IPC, on the file of the respondent police, seek anticipatory bail.
2. The petitioners are accused for offence under Sec.307, subsequently altered into 302 IPC. The case relates to murder of one Doctor S.B. Subbiah, a retired Neuro Surgeon from Government General Hospital, Chennai, who has subsequently joined as a consultant in a private hospital at Raja Annamalaipuram.
3. According to the prosecution, the deceased was owning 2 acres of land in a village at Kanyakumari District and there is a property dispute subsisting between the deceased and one Ponnusamy who is closely related to him. There are civil and criminal cases pending against the parties, which culminated into a criminal conspiracy to do away with the doctor by the family of the said Ponnusamy.
4. The family of Ponnusamy consists of (1)P. Annapazham, (A.1) aged 82 years, the mother, (2) ponnusamy (A.2), (3) Mary Pushpam, (A.3) wife, (4) P.M. Basil, an Advocate,(A.4), and (5) P.M. Boris,(A.5), both are sons. One Williams, arrayed as A.6, is an another advocate and is said to be the senior to A4 and A.7 is Yesurajan, who was helping the family.
5. The sum and substance of the case of the prosecution is that the family of Ponnusamy and Dr. S.B. Subbiah were in logger head in respect of the above mentioned property and civil and criminal proceedings are pending. Doctor was warned by A.6 and A.7 on behalf of A.1 to A.5 and was threatened that he will not live longer unless he gives up his rights in the property.
6. On 14.9.2003, around 5.00 pm, after attending the private hospital, the Doctor was about to reach his car, bearing registration No.TN07BE-2493 at Raja Annamalaipuram I Main road. He was confronted by three unknown persons of same age group and was assaulted brutally by deadly weapons. He was immediately taken to the same hospital, where he was working in a critical condition.
7. One A.A. Mohan, the brother-in-law of the Doctor gave a complaint, on which, a case was registered against the said family of Ponnusamy and others under Sec.307 IPC. Subsequently, the doctor succumbed to injuries and case was altered into Sec.302 IPC.
8. According to the prosecution, having suffered humiliation and made to face many civil and criminal cases, the family of Ponnusamy, instigated by A.1, the mother of Ponnuswamy, conspired with one Williams and Yesurajan to do away with the deceased Doctor and they engaged the mercenary killers and accordingly, the conspiracy was executed.
9. Initially the present petition was filed by all the 7 accused. However, the family of Ponnusamy viz., the petitioners 2 to 5 have surrendered before the learned Magistrate and taken to judicial custody and therefore, the present petition against A.2 to A5was not pressed by the learned counsel for the petitioners.
10. Mr.R.C. Paul Kanagaraj, who appeared for other petitioners would contend that A.1 is 82 years old woman and she has nothing to do with the offence and the only allegation against her is that she has instigated her son and grand sons to wreak vengeance on the deceased. The learned counsel pointed out that she is an aged bedridden woman and therefore, an anticipatory bail has to be considered in her favour.
11. As far as A.7 is concerned, the learned counsel pointed out that he is not a member of the family and his name was not found in the First Information Report and the only allegation is that he was aiding the family of the accused.
12. The main contention raised by the learned counsel is only in favour of the 1st petitioner, who has been arrayed as A.6. The learned counsel pointed out that the petitioner is a practising lawyer of Madurai and A.4 is a Junior Lawyer working under him. He also pointed out that merely because the junior advocate has been implicated in a murder case, his senior cannot be treated as a person who has instigated or taken part in a conspiracy or arranged for engaging any persons to do away with the deceased.
13. The learned counsel was vehemently arguing the case only on the basis that a member of legal fraternity should not be implicated in a casual manner and he has to be protected from the malafide intention of the prosecution and the dignity of the bar has to be safeguarded and protected.
14. Mr.S. Shanmugavelayutham, learned Public Prosecutor submitted that A.6 is the main person who has conspired with the other accused and there are prima-facie evidence available to show that he has even threatened the deceased with dire consequences and he is necessary for custodial interrogation as the persons, who were engaged to assassinate the doctor, were yet to be arrested. He also submits that the identity of those persons who were engaged to murder the doctor is yet to be established and the petitioner who is closely associated with the accused family is having all information which has to be derived only from the custodial interrogation. The learned Public Prosecutor relied on a case reported on a decision reported in 1987 Supp SCC549(Kiran Devi vs State of Rajasthan and another) and also Pokar Ram's case reported in 1985 2 SCC597(Pokar Ram vs State of Rajasthan and Others) and the case reported in 1997 (7) SCC190 State of Maharashtra vs Embee Corporation, Bombay).
15. On the other hand, on the side of the petitioner 2011 (1) SCC694(Siddharam Satlingappa Mhetre vs State of Maharashtra and others) was relied on, wherein the Apex court has considered all the factors to grant anticipatory bail including murder case.
16. Heard and perused the materials available on record.
17. While considering pre-arrest bail in a murder case, the approach of the Court cannot the same as that in dealing with pre-arrest bail in other offences. The court's approach should be cautious as the nature of the offence is very serious and grave. The Hon'ble Supreme Court in 1985 2 SCC597(Pokar Ram vs State of Rajasthan and Others) considered an application for anticipatory bail moved by a person, accused of committing murder. The Apex Court held as follows: 13. Before we conclude this judgment, it must be made distinctly clear that some very compelling circumstances must be made out for granting bail to a person accused of committing murder and that too when the investigation is in progress. In fact, the Investigating Officer did not even attempt to arrest the appellant (sic accused) though the initial accusation was under Section 307 IPC punishable with imprisonment for life. And as soon as the victim of the assault succumbed to his injuries and an offence under Section 302 was registered, promptly an application for anticipatory bail was made and granted. If such an order is allowed to stand, faith of public in administration of justice is likely to be considerably shaken. Therefore, we have no option but to cancel the order granting anticipatory bail. 18. In 1987 Supp SCC549(Kiran Devi vs State of Rajasthan and another) the Supreme Court again reiterated that anticipatory bail should not be granted in a murder case when the investigation was still incomplete.
19. In 1997 (7) SCC187(State rep by CBI vs Anil Sharma) the Apex court held as follows: 8. The above observations are more germane while considering an application for post-arrest bail. The consideration which should weigh with the Court while dealing with a request for anticipatory bail need not be the same as for an application to release on bail after arrest. At any rate the learned Single Judge ought not to have side-stepped the apprehension expressed by the CBI (that the respondent would influence the witnesses) as one which can be made against all accused persons in all cases. The apprehension was quite reasonable when considering the high position which the respondent held and in the nature of accusation relating to a period during which he held such office. 20. A learned Single Judge of Karnataka High Court, in Crl.Petn.No.1710 of 1988 dated 9.2.1989 (V.S. Nortio and Ors vs State of Karnataka) which was reported in ILR1989KAR943, also discussed Kiran Devi's case reported in 1987 Supp SCC549(Kiran Devi vs State of Rajasthan and another) cited supra and held as follows: 29. For all the aforesaid reasons, I hold that the principle laid down in Kiran Devi's case is a ratio laid down by the Supreme Court intended as laying down a rule of universal application applicable to cases in which the offence alleged is murder and in which the investigation is incomplete. and declined anticipatory bail.
21. At the same time the Apex court while considering pre-arrest bail, had laid down general guidelines for granting such bail including murder case, which is reported in 2011 (1) SCC694(Siddharam Satlingappa Mhetre vs State of Maharashtra and others). The Hon'ble Supreme Court referred to the case of Gurubaksh Singh Sibbia vs State of Punjab reported in 1980 (2) SCC565 The Apex court laid down various factors and parameters to be taken into consideration while dealing with anticipatory bail. In para 122, the apex court held as follows: 122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail i)The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; iii) The possibility of the applicant to flee from justice; iv)The possibility of the accused's likelihood to repeat similar or the other offences v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her vi)Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 22. Therefore, anticipatory bail in murder case cannot be granted when the investigation is incomplete. The status of the accused person is immaterial as all are equal before law. The only contention of the learned counsel for the petitioner is that a practising advocate should not be implicated at the whims and fancies of the prosecution with ulterior motive and the dignity of the bar has to be protected.
23. It is also necessary to state that it is equally the duty of the members of the Bar to uphold the dignity of the Bar. This court without being blinded by the status or the profession of the person accused, is bound by the legal principles and guidelines issued by the Apex Court brought out in the above mentioned judgments.
24. This court has carefully gone through records. Though initially the name of the 1st petitioner is not mentioned in the First Information Report, in the subsequent statements, complainant has implicated him to the effect that he is deeply involved in the cause of the family of the accused. The accused persons were taken on police custody and they have also implicated the 1st petitioner.
25. Though such statement is the confession statement of the co-accused which cannot be given much credence, the fact remains that some persons were engaged to assassinate the deceased doctor and the strong motive and suspicion is on the family of the accused.
26. The identity of the engaged persons are yet to be established. The entire case of the prosecution is that the 1st petitioner is the main person to have engaged such hired killers along with the 4th accused Basil. This court is satisfied that it is not a case of mere relationship of senior and junior between the first petitioner and A4 but, his association and support is beyond that. There is no case made out for falsely implicating the 1st petitioner with an intention to humiliate or degrade. The investigation is incomplete and the actual assailants are still at large.
27. Therefore, weighing the facts and circumstances and after applying the factors as laid down in the above said various judgments of the Apex court , this court is of the view that pre-arrest bail cannot be casually granted in a murder case where the involvement of the accused persons are evident on the face of the record. More so, when the engaged persons are still at large and whose identity has to be established and the custodial interrogation is a must, this court is not inclined to grant anticipatory bail to the petitioners.
28. In the result, (i) the petition stands dismissed as against the petitioners A.1, A.6 and A.7. (ii) the petition stands dismissed as against the petitioners A.2 to A.5, since they have surrendered. 29-10-2013 sr