V. JANAGARAJ Vs. V. RAJAVELU

JUDGEMENT

(1.) THE marriage between first Respondent Rajavelu and Malarselvi daughter of Petitioner Janagaraj took place on 26.8.1990. A son was born to them on 8.8.1991. On 11.1.1994 at 12 Noon Janagaraj lodged a complaint in H.3, Tondiarpet Police Station in Crime No. 78/94 under Section 306 and 498 -A I.P.C. against first Respondent Rajavelu, second Respondent Ramalingam and one Saradha alleging that his daughter was found dead with burn injuries at 12:20 mid -night on 10.1.1994. A.2 and A.3 are the parents of Rajavelu. A.1 and A.2 are stated to have been arrested at 4. P.M. on 13.1.1994. it appears that on the same day they were remanded to custody for 15 days by XV Metropolitan Magistrate, George Town, Madras. In the meanwhile, on 12.1.1994 A.3 preferred an application for anticipatory bail. And on 13.1.94 learned Principal Sessions Judge, Madras has granted anticipatory bail to A.3 mother in Cr.M.P. No. 267 of 1994 on condition that she must report before H.3, Police Station daily at 10 A.M. until further orders. It is stated that this order granting anticipatory bail was passed by learned Sessions Judge in the morning at about 10:30 A.M. on obtaining permission to move a lunch motion on the same day. The bail application filed by accused 1 and 2 in Cr.M.P. No. 279 of 1994 came up for hearing before learned Sessions Judge in the afternoon. After hearing both sides, the Court passed an order granting bail on condition that they report before H.3 Police Station daily at 10:00 A.M. The bail order makes mention of the representation that one of the co -accused has already been granted bail and on the same condition A.l and A.2 also could be released on bail. On 28.1.1994 in Cr.M.P. No. 498 of 1994 the condition was modified and A.1 and A.2 were directed to report before the Respondent at 10 A.M. every Monday. On the same day in Cr.M.P. No. 490 of 1994 the condition enjoined on A.3 mother was also modified similarly. On 3.3.1994 in Cr.M.P. No. 1284 of 1994 and Cr.M.P. No. 1285 of 1994 accused 1 to 3 were directed to report on the 1st and 16th of every month thereafter. On 11.4.1994 in Cr.M.P. No. 2214 and 2215 of 1994 condition was completely relaxed for all the three. Records also disclose that on 13.5.1994 in Cr.M.P. No. 2952 of 1994 accused 1 and 2 were granted conditional anticipatory bail by Principal Sessions Judge, Madras, in the event of arrest under Section 498 -A I.P.C. by C.5, Kothavalchavadi Police Station.

(2.) NOW Janagaraj, the father of the deceased and the complainant in Crime No. 78/94 has come forward with the present Cr.O.P. No. 916 of 1994 for cancellation of the bail granted to the accused 1 and 2 impleading Inspector of Police, H.3 Police Station as third Respondent stating that learned Public Prosecutor has made wrong representations before the Principal Sessions Court on 13.1.1994 during the hearing of the bail application false instructions given to him with the intention of helping the accused to get them released on bail. Besides, the third Respondent Police did not take any interest in investigation. Even after obtaining the post -mortem certificate, they did not choose to alter the offence under Sections 306 and 498 -A I.P.C. to Section 304 -B, I.P.C. Accused resisted this application contending that the complainant wants to have a pre trial detention on false accusations.

(3.) THE considerations for cancellation of the bail are different from the considerations taken into account for grant of bail. As pointed out by the Apex Court in Bhagirathsingh Judeja v. State of Gujarat : (A.I.R. 1984 S.C. 372), very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. It is now well settled by a catena of decisions of the Supreme Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. If there is no prima facie case there is no question of considering other circumstances. But even where a prima facie case is established, the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence. Aslam Babalal Desai v. State of Maharashtra, (A.I.R. 1993 S.C.I) has laid down that a bail granted under Section 437(1) or (2) or 439(1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation (iii) attempts to tamper with evidence of witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to. And the circumstances of the present case do not come under any of the instances enumerated above. So, I find no difficulty in rejecting this application.