PALANIKUMAR Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE following are the facts which preceded the reference made by the Hon'ble Chief Justice to the Full Bench. Two persons by name sudhakaran and Palanikumar filed Cri. O. P. (MD) No. 2383/2007 under Section 438 of the Code of Criminal Procedure before the madurai Bench of the Madras High Court for Anticipatory Bail in the event of their arrest in Crime No. 170/2007 on the file of sivagangai Police Station. A learned Judge of this Court sitting in Madurai Bench granted an order of Anticipatory Bail for a limited period. However the Bar at Madurai appears to have addressed arguments at length before the learned Single Judge that the Court should grant the protection under Section 438 of the Code of Criminal Procedure, if it decides to grant, without limiting the period. Learned Judge, after hearing extensive arguments, came to the Conclusion-considering the case law cited by the Bar and the case law taken note of by the learned Judge himself, that there is an apparent conflict in the judgments of the Supreme Court on the coveted issue namely, whether the Court has the power to grant anticipatory Bail limiting it to a specified period or not ? Therefore by order dated 26. 3. 2007, learned Single Judge directed the registry to place the entire papers before the Hon'ble Chief Justice for deciding the issue by a Division Bench to be constituted by the Hon'ble Chief Justice. Thus, the matter came to be placed before a Division bench consisting of two Hon'ble Judges sitting in the Madurai Bench of the Madras high Court, who, by their order dated 25. 4. 2007 and after adverting to the case law cited at the Bar, both for and against, disposed of that Reference as hereunder:

(2.) LEARNED counsel normally practicing in the Madurai Bench of the Madras High court, who were here practicing as lawyers previously before the creation of the madurai Bench, appeared in this case, besides Mr. R. Shanmugasundaram, learned senior Counsel and other learned counsels in support of the argument that in granting anticipatory Bail, the Court should not limit its tenure. Since the issue referred to the bench has a larger impact on the day-today dispensation of justice by the higher courts namely, Court of Sessions and High court in this State, we requested Mr. B. Sriramulu learned Senior Counsel to assist this Court as Amicus Curiae and he gladly accepting it, assisted us. Mr. Raja Elango learned State Public Prosecutor assisted by mr. N. R. Elango learned Additional Public prosecutor for the State also participated in the proceedings. From their arguments,. we could find that ail of them are united without any difference of opinion-which is a rare happening in the legal profession, in their submission that Anticipatory Bail, if granted, should be granted for an unlimited period and it shall not be restricted to any particular tenure. All of them, to sustain that submission, heavily relied upon the judgment of the Constitution Bench of the supreme Court reported in Gurubaksh singh Sibbia v. State of Punjab. They also took us through five other judgments of the supreme Court reported in: namely,- (a) Salauddin Abdulasamad Shaikh v. State of Maharashtra; (b) Sunita Devi v. State of Bihar and another; (c) Adri Dharan Das v. State of West bengal; (d) D. K. Ganesh Babu v. P. T. Manoharan and Others and (e) Sohan Lal Juneja and Others v. State of Punjab. which were taken into account both by the learned Single Judge as well as by the Division Bench, to conclude that there is a conflict between the above referred to five judgments and the judgment of the Supreme court in Gurubaksh Singh Sibbia's case. Learned counsels brought to our notice the judgment of a learned Single Judge of this court in the case reported in Natturasu and three others v. State by S. I of Police, etc. wherein, according to them, the learned judge had considered Salauddin's case and k. L. Verma v. State and concluded that from those judgments it is not possible to conclude that anticipatdry bail cannot be granted for the entire period. It is their argument that for concluding so the learned judge in that case had relied upon Gurubaksh Singh Sibbia's case. It is also contended by the learned counsels appearing for the accused that Salauddin's case was decided by the Supreme Court in the context of the language of Section 438 of the Code of Criminal Procedure as applicable to the State of maharashtra and therefore that judgment cannot be taken as laying down the "law" on Section 438 of the Code of Criminal Procedure as it stood in the Statute book. It is then argued that the Amendment to Section 438 of the Code by the Amending Act of 2005 is yet to be notified in this State and therefore for considering the issue before this Court now, un-amended Section 438 of the Code alone should be taken into account. If the un-amended Section is taken into account, then, the Constitution bench judgment of the Supreme Court in Gurubaksh singh Sibbia's case alone would prevail over the latter judgments. Lengthy arguments have been advanced by the learned counsels on "law of Precedents".

(3.) IN the light of the arguments advanced by the learned Senior Counsels, other learned counsels and the learned State Public Prosecutor, we went through the entire proceedings. We extract hereunder the question that was referred by the learned single Judge, which was originally before the Division Bench and now before us: