This Is A Petition Filed by The Vs Central Bureau of Investigation) ...

This Is A Petition Filed By The vs Central Bureau Of Investigation) ...
Madras High Court

Crl.O.P. No. 16418 of 2013

B. RAJENDRAN, J
This is a petition filed by the petitioner

Section
under 439 of Cr.P.C. seeking bail in Crime N
2.
The case of the prosecution is that on the night of 22.05.2013, the petitioner
3. (i)
(ii)
(iii)
The learned Senior counsel appearing for the petitioner would contend that on 2
It is the further contention of the learned senior counsel for the petitioner t
In support of his contentions, the learned Senior counsel for the petitioner re
4. (i)
(ii)
(iii)
(iv)
(v)
(vi)
Per contra, the learned Public Prosecutor oppose the bail petition filed by the
According to the learned Public Prosecutor, the petitioner along with 3 others
Based on the information given by one Rajesh, an eye witness, the case in Crime
It is mainly contended by the learned Public Prosecutor that the car was driven
It is the specific contention of the learned Public Prosecutor that on the fate
The learned Public Prosecutor mainly apprehends that if the petitioner is let o
(vii) Lastly, the learned Public Prosecutor would contend that the case against the petitioner was not
fabricated, as alleged but the petitioner was arrested on the basis of legal evidence made available.
The petitioner and others are fully aware that their act would endanger the life of other innocent
public on the road either by causing death or injury which is likely to cause death. The learned
Public Prosecutor would further contend that the investigating in this case is not over and it is in
crucial stage. The chemical analysis report in this case is awaited. The injured minor girl is still in
hospital taking treatment. The petitioner refused to give blood and urine sample and did not
cooperate with the investigation at the time of medical examination. Therefore, releasing the
petitioner on bail would result in delay in conclusion of the trial. It is too early on the part of the
petitioner to have filed the present petition for bail.
(viii) The learned Public Prosecutor relied on the decisions of the Honourable Supreme Court
reported in (State Through PS Lodhi Colony, New Delhi vs. Sanjeev Nanda) 2012 8 SCC 450 and
(Alister Anthony Pareira vs. State of Maharashtra) 2012 2 SCC 648 to contend that the Court has to
take note of the severity of the offence and also the conduct of the petitioner in evading due process
of law.
5. I heard the counsel for both sides and perused the records. At the outset, the peculiar facts
involved in this case has to be looked in to. Here is a case where the petitioner alleged to have driven
the vehicle under the influence of alcohol and caused accident in which a minor boy died and caused
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injuries to others. First of all, the petitioner claims that he has not driven the vehicle. According to
the petitioner, the vehicle was driven by one Kumar. The petitioner denies having driven the vehicle.
This is the main case putforth by the petitioner. The petitioner also denies that he was subjected to
any medical examination to prove his intoxication at the time of accident.
6. When we see the complaint given by the defacto complainant Rajesh, who said to have witnessed
the occurrence, it is clearly stated about the inmates in the car especially the person who is sitting in
the driver seat. The complainant further states that the person seated next to the driver stated that
he would take up the responsibility for the accident as if he had driven the vehicle, though it is the
petitioner who had driven the vehicle in an inebriated condition. In the remand report also, it is
categorically indicated that it is the petitioner who had driven the vehicle. It is the case of the
prosecution that the petitioner is the owner of the car and after the accident, he was allowed to leave
the scene of occurrence, of course, after obtaining a written undertaking from him undertaking to
appear for enquiry the next day. The accident took place in the night of 22.05.2013 and early
morning of 23.05.2013. The victims in the accident are two young children, who are pavement
dwellers, as also others. Due to the accident, one minor boy aged 13 died and the victim girl is still in
hospital taking treatment.
7. According to the prosecution, in the statement recorded under Section 164 of Cr.P.C. from among
the co-occupants of the car, they have categorically stated that it is the petitioner who had driven the
car. At this stage, this Court is not inclined to go in to the merits or otherwise of the claim made by
the petitioner as they are left open to be decided at the time of trial. In the present petition for bail,
this Court is not concerned about the question of punishment that may be awarded to the accused in
this case. This Court has to only see whether the petitioner is entitled for bail in this case.
8. In the present case, the petitioner said to have driven the car in an inebriated condition. Soon
after the accident, the petitioner undertook to appear before the respondent police and subject
himself to the interrogation, but he did not do so. It is needless to say that the petitioner ought not
to have been let off soon after the accident. The Police Inspector, who let the petitioner to go
scot-free was suspended and investigation is being conducted on this aspect.
9. After the death of one of the victims on the same day i.e., on the night of 23.05.2013 at 11.30
hours, the section of the case was altered. Immediately thereafter, the petitioner left the Country on
25.05.2013 from Bangalore to a foreign country. This conduct of the petitioner has to be taken note
of. Thereafter, the petitioner filed a petition seeking anticipatory bail before this Court and it was
dismissed on 29.05.2013. Notwithstanding the same, the petitioner filed another anticipatory bail
petition before the Kerala High Court by claiming that he is a resident of Kerala and therefore the
petition for anticipatory bail was filed there. The said Petition for anticipatory bail was dismissed by
the Kerala High Court for want of jurisdiction since the accident took place at Chennai. In the
meantime, the prosecution has obtained an order declaring the petitioner as a Proclaimed Offender
after following the procedures contemplated under Law. Only thereafter, when the petitioner landed
at Cochin Airport, he was apprehended and remanded to judicial custody. Therefore, it is clear that
the petitioner, evaded the due process of law for quite some time.
10. The conduct of the petitioner in this case has to be noted by this Court. Soon after the accident,
the petitioner was allowed to go scot-free by a Inspector of Police, against whom action was taken by
the Police authorities by suspending him. Secondly, the petitioner, soon after hearing the death of
one of the accident victims, left the Country on 25.05.2013 from Bangalore to evade arrest. Thirdly,
the petitioner filed an anticipatory bail petition before this Court and it was dismissed on
29.05.2013. Fourthly, the petitioner approached the Kerala High Court by filing an Anticipatory Bail
Petition and that was dismissed for want of jurisdiction. In the meantime, the petitioner was
declared as a Proclaimed Offender. Only thereafter, did the petitioner surfaced from his hide out
and eventually arrested by the respondent police on 13.06.2013. The further conduct of the
petitioner after his remand has also to be taken note of. According to the learned Public Prosecutor,
the petitioner, inside the prison, was in possession of Cigarettes which is a banned substance. This
shows that the petitioner is very much influential in violating the procedures while remaining in
prison. It is not made known as to whether any action has been taken against the erring officials who
have permitted the petitioner to possess cigarettes inside the prison. The fact remains that even
after arrest and remand, the petitioner has disregard for Rule of Law and he has flouted all the
norms while remaining in prison. This is evident that the petitioner is an influential person and this
conduct of the petitioner is significant in considering the present petition for bail.
11. With this background, this Court has to analyse whether the petitioner is entitled to the relief of
bail. The learned Senior counsel for the petitioner, relying on the decisions reported in (Sanjay
Chandra vs. Central Bureau of Investigation) (2012) 1 SCC 40 vehemently argued that Bail is a Rule
and Jail is an exception. According to the learned Senior counsel for the petitioner, liberty of a
citizen cannot be curtailed or confined even before his indictment in the case. In other words, unless
the petitioner is convicted for the offence, he is deemed to be innocent and he is entitled for granting
bail. In this context, reference was made by the learned senior counsel for the petitioner in para Nos.
21, 23, 25 and 27 of the decision of the Honourable Supreme Court which reads as follows:"21. In bail applications, generally, it has been laid down from the earliest times that the object of
bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The
object of bail is neither punitive nor preventive. Deprivation of liberty must be considered a
punishment, unless it is required to ensure that an accused person will stand his trial when called
upon. The courts owe more than verbal respect to the principle that punishment begins after
conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
22. ......
23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight
of the fact that any imprisonment before conviction has a substantial punitive content and it would
be improper for any court to refuse bail as a mark of disapproval of former conduct whether the
accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of
giving him a taste of imprisonment as a lesson.
24. ....
25. The provisions of Cr.PC confer discretionary jurisdiction on criminal courts 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. In our view, the reasoning adopted by the learned District
Judge, which is affirmed by the High Court, in our opinion, is a denial of the whole basis of our
system of law and normal rule of bail system. It transcends respect for the requirement that a man
shall be considered innocent until he is found guilty. If such power is recognised, then it may lead to
chaotic situation and would jeopardise the personal liberty of an individual.
26. .....
27. This Court, time and again, has stated that bail is the rule and committal to jail is an exception. It
has also observed that refusal of bail is a restriction on the personal liberty of the individual
guaranteed under Article 21 of The Constitution."
12. By referring to the passage quoted above, the learned senior counsel for the petitioner would
contend that there is no compelling necessity to continue the incarceration of the petitioner any
longer.
13. On the other hand, the learned Public Prosecutor quoted certain passages from the very same
decision relied on by the learned Senior counsel for the petitioner and contended that in the
decision of the Honourable Supreme Court, referred to above, the Honourable Supreme Court
considered the fact that charge sheet was filed, trial of the case commenced, since it will take a long
time for conclusion of the trial, the Honourable Supreme Court granted bail. The Honourable
Supreme Court also considered the objections raised on behalf of the prosecution and eventually
held that since charge sheet was filed, there is no compelling necessity to continue the incarceration
of the appellants therein. In the present case, the investigation is at a crucial stage and therefore, the
learned Public Prosecutor distinguished the facts of the case involved in the case before the
Honourable Supreme Court and the present case.
14. On perusal of the decision of the Honourable Supreme Court in the decision reported in (Sanjay
Chandra vs. Central Bureau of Investigation) (2012) 1 SCC 40 this Court deems it necessary to quote
certain paragraphs which are relevant for consideration of this case. In that case, the Honurable
Supreme Court referred to the decision reported in State of Rajasthan vs. Balchand, 1977 SCC (Crl.)
594 wherein the Honourable Supreme Court held that for considering a petition for bail, the Court
has to take in to consideration whether there are circumstances suggestive of fleeing from justice or
thwarting the course of justice or creating other troubles in the shape of repeating offences or
intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the Court.
In para No.37 and 38 of the decision of the Honourable Supreme Court reported in (Sanjay Chandra
vs. Central Bureau of Investigation) (2012) 1 SCC 40, reference was made to the earlier decisions
and it was held as follows:"37. The principles, which the Court must consider while granting or declining bail, have been culled
out by this Court in Prahlad Singh Bhati vs. NCT Delhi, (2001) 4 SCC 280 = 2001 SCC (Crl) 674
thus: (SCC pp.284-85, para-8) "8. The jurisdiction to grant bail has to be exercised on the basis of
well-settled principles having regard to the circumstances of each case and not in an arbitrary
manner. While granting bail, the Court has to keep in mind the nature of accusations, the nature of
(the) 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 (sic itself) 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."
"38. In State of U.P. vs. Amarmani Tripathi (2005) 8 SCC 21 = 2005 SCC (Crl) 1960 (2) this Court
held as under: (SCC pp.31 & 32, paras 18 & 22) "18. It is well settled that the matters to be
considered in an application for bail are (i) whether there is any prima facie or reasonable ground to
believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii)
severity of the punishment in the event of conviction; (iv) danger of the accused absconding or
fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offences being repeated; (vii) reasonable apprehension of the witnesses being
tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail (see Prahlad
Singh Bhati vs. NCT Delhi) and Gurucharan Singh vs. State (Delhi Admin). While a vague allegation
that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if
the accused is of such character that his mere presence at large would intimidate the witnesses or if
there is material to show that he will use his liberty to subvert justice or tamper with the evidence,
then bail will be refused. We may also refer to the following principles relating to grant or refusal of
bail stated in Kalyan Chandra Sarkar vs. Rajesh Ranjan (2004) 7 SCC 528 = 2004 SCC (Crl) 1977
(SCC pp.535-36, para 11)."
"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should
exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of
granting bail a detailed examination of evidence and elaborate documentation of the merit of the
case need not be undertaken, there is a need to indicate in such orders reasons for prima facie
concluding why bail was being granted, particularly, where the accused is charged of having
committed a serious offence. Any order devoid of such reasons would suffer from non-application of
mind. It is also necessary for the Court granting bail to consider among other circumstances the
following factors also before granting bail; they are
(a) The nature of accusation and the severity of the punishment in case of conviction and the nature
of supporting evidence
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the
complainant
(c) Prima facie satisfaction of the court in support of the charge (See Ram Govind Upadhyay vs.
Sudarshan Singh (2002 3 SCC 598 = 2002 SCC (crl) 688 and Puran vs. Rambilas) (2001 6 SCC 338
= 2001 SCC (Crl) 1124
15. From the reading of the passages quoted from the decisions of the Honourable Supreme Court, it
is very clear that while deciding an application for bail, the Court has to look into the circumstances
that exist in the case and such circumstance should not only relate to the severity of the crime or the
punishment the accused may suffer, but the Court has to independently consider the character and
conduct of the applicant and whether the grant of bail would affect the criminal trial at his instance.
16. In this context, it is also worthwhile to refer to the decision relied on by the learned Public
Prosecutor in (State Through PS Lodhi Colony, New Delhi vs. Sanjeev Nanda) 2012 8 SCC 450 and
(Alister Anthony Pareira vs. State of Maharashtra) 2012 2 SCC 648. According to the learned Senior
counsel for the petitioner, the above said decisions arise out of an appeal preferred by the State
against the conviction imposed on the accused therein and sought to enhance the sentence,
therefore, these decisions are not applicable to the facts and circumstance of the case. It is true that
the decisions in these cases arise out of appeal filed by the State and by the accused respectively. It is
made clear that this Court is not considering these decisions for the purpose of granting or declining
bail to the petitioner but certain guidelines given in these decisions are taken note of while deciding
the present petition.
17. It is to be observed that in India, lot of motor accidents are taking place in which valuable human
lives are lost or suffer from disability. People who cause such accidents have no fear for the life of
others because the punishment is not severe. In this context, paragraph Nos. 86 and 87 in the
decision reported in (State Through PS Lodhi Colony, New Delhi vs. Sanjeev Nanda) 2012 8 SCC
450 can usefully be quoted as under:"86. Drunken driving has become a menace to our society. Every day drunken driving results in
accidents and several human lives are lost, pedestrians in many of our cities are not safe. Late night
parties among urban elite have now become a way of life followed by drunken driving. Alcohol
consumption impairs consciousness and vision and it becomes impossible to judge accurately how
far away the objects are . When depth perception deteriorates, eye muscles lose their precision
causing inability to focus on the objects. Further, in more unfavourable conditions like fog, mist,
rain etc., whether it is night or day, it can reduce the visibility of an object to the point of being
below the limit of discernibility. In short, alcohol leads to loss of coordination, poor judgment,
slowing down of reflexes and distortion of vision. (Emphasis supplied)
87. Punishment meted out to a drunken driver is at least a deterrent for other such persons getting
away with minor punishment and fine. Such incidents are bound to increase with no safety for
pedestrians on the roads. The contention raised by the learned Senior Counsel that the accused was
not under the influence of liquor or beyond the limit prescribed under the Motor Vehicles Act and
he was in his senses and the victims were at fault being on the middle of the road, is without any
substance and only to be rejected.
18. Similarly, in the decision reported in (Alister Anthony Pareira vs. State of Maharashtra) 2012 2
SCC 648 the Honourable Supreme Court referred to the report of the World Health Organisation
and the relevant portion thereof can usefully be extracted hereunder:"96. The World Health Organisation in the Global Status report on Road Safety has pointed out that
speeding and drunk driving are the major contributing factors in road accidents. According to the
National Crime Records Bureau (NCRB), the total number of deaths due to road accidents in India
every year is now over 1,35,000. NCRB report also states that drunken driving as a major factor for
road accidents. Our country has a dubious distinction of registering maximum number of deaths in
road accidents. It is high time that lawmakers revisit the sentencing policy reflected in Section
304-A IPC."
19. In the very same judgment in (Alister Anthony Pareira vs. State of Maharashtra) 2012 2 SCC
648, in para Nos. 41 and 42, it was also held as follows:"41. Rash and negligent driving on a public road with the knowledge of the dangerous character and
the likely effect of the act and resulting in death may fall in the category of culpable homicide not
amounting to murder. A person, doing an act of rash or negligent driving, if aware of a risk that a
particular consequence is likely to result and that result occurs, may be held guilty not only of the act
but also of the result. As a matter of law in view of the provisions of IPC the cases which fall
within the last clause of Section 299 but not within clause "Fourthly" of Section 300 may cover the
cases of rash and negligent act done with the knowledge of the likelihood of dangerous
consequences and may entail punishment under Section 304 Part II IPC. Section 304-A IPC takes
out its ambit the cases of death of any person by doing any rash or negligent act amounting to
culpable homicide of either description."
42. A person, responsible for a reckless or rash or negligent act that cause death which he had
knowledge as a reasonable man that such act was dangerous enough to lead to some untoward thing
and the death was likely to be caused, may be attributed with the knowledge of the consequences
and may be fastened with culpability of homicide not amounting to murder and punishable under
Section 304 Part II IPC. There is no incongruity, if simultaneously with the offence under Section
304 Part II, a person who has done an act so rashly or negligently endangering human life or the
personal safety of the others and causes grievous hurt to any person is tried for the offence under
Section 338 of IPC.
20. It is evident from the above decision of the Honourable Supreme Court that a person has
knowledge that his act is likely to cause death even there is no intention on his part either to cause
such death or to cause injury which is likely to cause death, he is liable for punishment under
Section 304 Part II IPC.
21. In the above decision in (Alister Anthony Pareira vs. State of Maharashtra) 2012 2 SCC 648 the
Honourable Supreme Court, referring to the decision reported in (Empress of India vs. Idu Beg) 14
ILR (1881) 3 All 776 held as follows:-
"........Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and
that it may cause injury, but without intention to cause injury, or knowledge that it will probably be
caused. The criminality lies in running the risk of doing such an act with recklessness or indifference
as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise
that reasonable and proper care and precaution to guard against injury either to the public generally
or to an individual in particular, which, having regard to all the circumstances out of which the
charge has arisen, it was the imperative duty of the accused person to have adopted."
22. A cumulative reading of the decisions would indicate that nowdays it has become a trend to
drive motor vehicles after consuming alcohol and because of such a trend, lots of death occur and
the injured become disabled. In the present case, without going in to the merits or otherwise of the
case, suffice it to state that a person drove the vehicle in an inebriated condition and caused the
death of a young boy aged 13 years besides causing injury to many. One of the injured minor girl is
in hospital taking treatment for the fracture sustained by her. It is also to be noted that the minor
boy who succumbed to the injuries and the minor girl who is taking treatment in the hospital were
sleeping in the pavement at the time of the accident. The accident took place at about 1.00 am on
23.05.2013 and there may not be and could not be much traffic flow in the road at that odd hour.
Taking into consideration the aforesaid fact and the fact that the investigation in this case is not
completed and it is in the crucial stage, this Court is of the view that it is too early for the petitioner
to have filed the petition for bail. This Court also has to take note of the fact that the petitioner left
the Country soon after hearing the death of one of the victims in this case on 25.05.2013 from
Bangalore thereby escaped from the clutches of law and attempted to subvert the criminal process
for a period of about one month till he was arrested on 13.06.2013. This Court can also infer that the
petitioner has surfaced from his hideout only after the prosecution obtained orders declaring him as
a Proclaimed Offender. Before the petitioner could be arrested, he has filed an anticipatory bail
before this Court and it was dismissed on 29.05.2013. The petitioner also approached the Kerala
High Court praying for anticipatory bail by stating that he is a resident of Kerala and that was also
dismissed. Thus, after his unsuccessful attempts to secure anticipatory bail, the petitioner surfaced
from his hide out. This Court is also taking note of the conduct of the petitioner inside the jail by
possessing cigarettes. This court also taken note of the apprehension raised by the prosecution that
if the petitioner is let off on bail, there is every possibility for him to leave the Country and in such
event, it will be very difficult for the prosecution to subject him to the criminal trial.
23. Lastly, the learned Senior counsel for the petitioner would contend that the co-accused in this
case have been released on bail by this Court in Crl.OP No. 14566 of 2013 on 21.06.2013 and
therefore, the petitioner also can be extended the same benefit. Such an argument of the learned
Senior counsel for the petitioner cannot be countenanced. This Court granted bail to the co-accused
viz, Syed Anwar and Anil Rao on 21.06.2013 only on the ground that at the time of accident, they
travelled as co-occupants in the car and therefore, the same yardstick cannot be applied in the case
of the petitioner for granting bail.
24. For all these reasons, this Court is not inclined to grant the relief of bail to the petitioner.
Accordingly, the Criminal Original Petition is dismissed.
08-07-2013 rsh Index : Yes / No Internet : Yes / No B. RAJENDRAN, J Crl. OP No. 16418 of 2013
08-07-2013 Order in Crl.O.P. No. 16418 of 2013 To The Honourable Mr. Justice B. Rajendran From
R. Sathish P.A. to Hon'ble Judges

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Madras High Court

Crl.O.P. No. 16418 of 2013

This is a petition filed by the petitioner