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.21582 of 2013 K.PARTHASARATHY . VS THE INSEPCTOR OF POLICE, KANNANKURUCHI POLICE STATION SALEM DISTRICT. ( CR.NO.132/2013 ) ORDER
The petitioner, who apprehends arrest for the offence punishable under Secs.294(b), 342, 324 IPC @ 294(b), 342, 324 and 302 IPC in Cr.No.132 of 2013 on the file of the respondent police, seeks anticipatory bail.
2. The case of the prosecution is as follows: The deceased Sirajudeen borrowed a sum of Rs.25,000/- from one Balu (A.1) and he did not repay the loan. On 29.4.2013, the deceased was taken to a remote place by A.1 and by one Elumalai (A.2). They demanded the repayment of the loan. In the process, the deceased was tide up to a mango tree and was beaten up by A.1 and A.2 and was illegally detained and such assault continued till 6.5.2013. The deceased was left unconscious and on regaining consciousness, he himself went to the Government Hospital at Salem and got admitted on 7.5.2013. On receiving information, the respondent obtained a statement from the injured and registered a case in Cr.No.132 of 2013 for an alleged offence under Secs.294(b)342 and 324 IPC.
3. On the same day, the deceased was discharged against medical advice and was taken to a private hospital at Salem. Thereafter, the injured was taken to Rajiv Gandhi Government Hospital at Chennai in a private car and was admitted on 10.5.2013. However, on the same day, he died. Postmortem was conducted and the doctors opined that the death was due to multiple injuries.
4. The case was altered into one under Sec.302 IPC and six accused including the present petitioner, who has been arrayed as A.5, were implicated. All the other accused were arrested and released on bail. The present petitioner/A.5 is a practising advocate at Salem Bar and he has come up with the present application for anticipatory bail.
5. Mr.V. Gopinath, learned Senior Counsel who appeared for the petitioner would submit the following arguments: (a) The petitioner has nothing to do with the offence and his name was not found neither in the First Information Report nor in the subsequent statements. (b) The Investigating Officer had a motive to falsely implicate the petitioner, who is a practising advocate, as he had given a complaint against the Investigating Officer in another case which was also published in the paper. (c) The learned counsel further submitted that the only allegation against the petitioner is that he arranged to discharge the injured from the Government Hospital at Salem and made arrangements to admit him in a private hospital for better treatment and on the request he helped the injured to be shifted to Rajiv Gandhi Government Hospital, Chennai for better treatment.
6. The learned Senior Counsel pointed out that the above allegations will not attract any offence and the petitioner, being a practising advocate, is not required for any custodial interrogation and in the face of falsity of the allegations, the petitioner is entitled for pre-arrest bail.
7. On the contrary, Mr.Mohamed Riyaz, learned Government Advocate (Crl.Side) submitted that the petitioner is closely associated with A.1 and A.2 in their financial business and he was instrumental to shift the deceased from the Government Hospital, Salem, posing himself as the brother-in-law of the deceased, to a private hospital and thereafter, accompanied all the accused along with the deceased to Chennai to admit the deceased in the Rajiv Gandhi Government Hospital, Chennai without disclosing the fact that it is a Medico Legal Case(MLC). He further pointed out that anticipatory bail cannot be granted when the involvement of the petitioner is established and the investigation is in the crucial stage.
8. Heard and perused the materials available on record.
9. On the statement given by the deceased himself, initially case was registered against A.1 and A.2 for alleged offence under Sec.294(b), 342 and 324 IPC. The case took a twist on 7.5.2013 when he was discharged from the Government Hospital, Salem against the medical advice.
10. According to the prosecution, with the help of the present petitioner, who is an advocate, the deceased was discharged and was taken to a private hospital at Salem and from there, he was taken to Rajiv Gandhi Government Hospital, Chennai on 10.5.2013 and was admitted without disclosing the fact that it was Medico Legal Case and subsequently he died.
11. According to the learned Senior Counsel, the petitioner was falsely implicated only on the confession statement of A.1 and A.2 ,as if he was instrumental for shifting the deceased from one hospital to another. He also pointed out that even according to the prosecution, only on the request of the deceased, he was shifted to Chennai, as his son was studying at Chennai, who will take care of the deceased. The learned Senior Counsel also pointed out that the investigating officer had a motive to implicate the petitioner as he was instrumental in filing a case against the Investigating Officer in another incident which was published in the paper.
12. While considering pre-arrest bail in a murder case, the approach of the Court is not 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. 13. 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 is still incomplete.
14. 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. 15. 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.
16. However, the Apex court considered pre-arrest bail and 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. 17. According to the petitioner, there is a frivolity in prosecution and the petitioner is falsely implicated with ulterior motive. However, this court has carefully gone through the entire case diary.
18. Though the petitioner has been implicated on the confession of the co-accused viz, A.1 and A2, the discharge summary of the Government General Hospital, Salem reveals another dimension. The deceased was discharged against the medical advice on 7.5.2013 and surprisingly, the petitioner has signed as a relative of the deceased. He has given a letter to the Sub Inspector of Police, Government Hospital Police Station, Salem stating that the deceased was his brother-in-law and the deceased is being discharged on his own request and the petitioner has given an undertaking that he will take responsibility to inform the nearest police station if anything happens.
19. According to the prosecution, the petitioner is closely associated to A.1 and A.2 in financial business and he was instrumental to shift the deceased from one hospital to another.
20. It is very pertinent to point out that the deceased was admitted at Rajiv Gandhi Government General Hospital, Chennai without disclosing the fact that it was a medico legal case.
21. Therefore, weighing the facts and circumstances and after applying the factors as laid down in the above said various judgements 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 person is evident on the face of the record.
22. In the result, the petition is dismissed. sr