SEKAR REPORTER

Court News from Madras High Court

Rajendra Balaji moves AB before SC.

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  • BECAUSE the Hon’ble Supreme Court has observed in Sanjay Chandra v. CBI, (2012) 1 SCC 40 : (2012) 1 SCC (Cri) 26 : (2012) 2 SCC (L&S) 397 at page 53

“27. This Court, time and again, has stated that bail is the rule and committal to jail 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.”

  • BECAUSE the Hon’ble Supreme Court in Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P., (1978) 1 SCC 240 observed:

“11. We must weight the contrary factors to answer the test of reasonableness, subject to the need for securing the presence of the bail applicant. It makes sense to assume that a man on bail has a better chance to prepare or present his case than one remanded in custody. And if public justice is to be promoted, mechanical detention should be demoted. In the United States, which has a constitutional perspective close to ours, the function of bail is limited, “community roots” of the applicant are stressed and, after the Vera Foundation’s Manhattan Bail Project, monetary suretyship is losing ground. The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible consideration. Equally important is the deplorable condition, verging on the inhuman, of our sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favoring release justly sensible.

  1. A few other weighty factors deserve reference. All deprivation of liberty is validated by social defence and individual correction along anti-criminal direction. Public justice is central to the whole scheme of bail law. Fleeing justice must be forbidden but punitive harshness should be minimised. Restorative devices to redeem the man, even through community service, meditative drill, study classes or other resources should be innovated, and playing foul with public peace by tampering with evidence, intimidating witnesses or committing offences while on judicially sanctioned “free enterprise”, should be provided against. No seeker of justice shall play confidence tricks on the Court or community. Thus, conditions may be hung around bail orders, not to cripple but to protect. Such is the holistic jurisdiction and humanistic orientation invoked by the judicial discretion correlated to the values of our Constitution.”
  • BECAUSE the Hon’ble Supreme Court Bhadresh Bipinbhai Sheth v. State of Gujarat, (2016) 1 SCC 152 observed:

“25.3. It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.

25.4. There is no justification for reading into Section 438 CrPC the limitations mentioned in Section 437 CrPC. The plenitude of Section 438 must be given its full play. There is no requirement that the accused must make out a “special case” for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 CrPC to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.”

  • BECAUSE the Hon’ble Court Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 iterated the factors to be considered while granting Anticipatory Bail:

“112. 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 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 the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 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.” 

  • BECAUSE the Hon’ble Supreme Court of India in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 observed:

“31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant’s presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and “the larger interests of the public or the State” are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in State v. Captain Jagjit Singh [AIR 1962 SC 253 : (1962) 3 SCR 622 : (1962) 1 Cri LJ 216] , which, though, was a case under the old Section 498 which corresponds to the present Section 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.”

  • BECAUSE a five judge bench of the Hon’ble Supreme Court on 29.01.2020 in Sushil Aggarwal and others v. State (NCT of Delhi) and Anr. (2020) 5 SCC 1, observed
  1. The reason for enactment of Section 438 in the Code was Parliamentary acceptance of the crucial underpinning of personal liberty in a free and democratic country. Parliament wished to foster respect for personal liberty and accord primacy to a fundamental tenet of criminal jurisprudence, that everyone is presumed to be innocent till he or she is found guilty. Life and liberty are the cherished attributes of every individual. The urge for freedom is natural to each human being. Section 438 is a procedural provision concerned with the personal liberty of each individual, who is entitled to the benefit of the presumption of innocence. As denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when not imposed by the legislature. In Sibbia, it was observed that:

“35……Anticipatory bail is a device to secure the individual’s liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely.”

  1. The interpretation of Section 438- that it does not encapsulate Article 21, is erroneous. This court is of the opinion that the issue is not whether Section 438 is an intrinsic element of Article 21: it is rather whether that provision is part of fair procedure. As to that, there can be no doubt that the provision for anticipatory bail is pro-liberty and enables one anticipating arrest, a facility of approaching the court for a direction that he or she not be arrested; it was specifically enacted as a measure of protection against arbitrary arrests and humiliation by the police, which Parliament itself recognized as a widespread malaise on the part of the police.”
  • BECAUSE the Hon’ble High Court has erred in considering irrelevant factors while considering the Petition of the Petitioner.
  • BECAUSE the Petitioner prays that the grounds which are not taken in the present Petition will be pleaded at the time of arguments.
  • BECAUSE the impugned order is otherwise bad in law and deserves to be set aside.

 

SYNOPSIS

This Special Leave Petition is directed against the final judgment and order dated 17.12.2021 passed by the Hon’ble High Court of Madurai Bench of the Madras High Court in Crl.OP(MD)No.18236 of 2021, whereby, the Hon’ble High Court was pleased to deny the benefit of anticipatory bail to the petitioner, without due consideration to the fact that two FIRs (Crime No 19 and Crime 20 of 2021) were filed for the same incident in contravention to the dictum of this court.

The petitioner was not implicated in the earlier complaint dated 28.08.2021 preferred by the defacto complainant and a subsequent complaint with improvements dated 15.11.2021 implicated the petitioner and it culminated in FIR (Crime No 19 of 2020).

Complaint Dated 28.08.2021 Complaint Dated 15.11.2021
When we reached there, Nalla Thambi, Advocate was talking to the Minister AIADMK Party.  When we entered inside, Advocate Vijaya Nalla Thambi pointed against me to the Minister and told that we are going to give the post of Aavin Manager to his nephew only. After that, he came to me and told that he has spoken everything to the Minister and have settled. Mr. Ganesh Das, Inspector of Police, informed that Mr. K. Vijaya Nalla Thambi has given a complaint against Minister Mr. K.T. Rajendhra Balaji,complaining that Mr. K.T. Rajendhra Balaji has not returned the money  of  Rs.3,00,00,000/- (Rupees Three Crores) he received from me, which was received by me from various persons claiming  that I will get a Government job for them. He is therefore forcing us to be patient until Minister K.T.Rajendra Balaji returns the money.

 

 

The Hon’ble Court also failed to take note that the Accused No 1 is involved in many similar offences over the years and has falsely implicated prominent political figures (Had previously accused of Kanimozhi Karunanidhi of similar offence) to divert attention.

It is the case of the defacto complainant that Accused No 1 (Mr K.Vijayanallathambi) had obtained a sum of Rs 30,00,00 (Thirty Lakhs) on the pretext that he would procure the employment  to his Son in law in Aavin on account of his proximity to the petitioner (Former Tamilnadu Government Minister for Dairy Development). However, the Accused No 1 neither secured the employment as promised nor returned the money.  Aggrieved by the same the defacto complainant preferred a complaint before the Superintendent of Police, Virudhunagar 28.08.2021 (In this complaint the petitioner was implicated by the defacto complainant). In pursuance to the said the complaint, the Accused No 1 was summoned and was asked to appear on 29.09.2021. The Accused No 1 appeared on 29.09.2021 as mandated and undertook to repay the said amount by 01.10.2021. However, the defacto complainant on 01.10.2021 learnt that the Accused No 1 had not repaid the said amount and has implicated the petitioner. The defacto complainant after a period of one month on 11.11.2021 preferred a complaint implicating the petitioner herein and the said complaint culminated in Crime No 19 of 2020. Aggrieved by the same the petitioner preferred a Criminal Original Petition in Crl.OP(MD)No.18236 of 2021 before the Madurai Bench of Madras High Court seeking the benefit of anticipatory bail and same was dismissed by the Hon’ble Court. Hence, aggrieved by the impugned judgment and final order dated 17.12.2021 passed by the Hon’ble High Court of Madurai Bench of the Madras High Court in Crl.OP(MD)No.18236 of 2021, the Petitioner is compelled to prefer the present Special Leave Petition.

 

LIST OF DATES

  The Accused No 1 is involved in a number of criminal cases, whereby he has collected money from the gullible general public that he shall secure them jobs.  A true, typed copy of the list of cases dated nil pending against the Accused No 1 is hereby annexed and marked as Annexure P-1 (Pages___to___).
21.02.2019 The Accused No 1 (Who was then working as a Government Advocate at Madurai Bench of Madras High Court) after taking Rs 600,000 (Six Lakhs) fraudulently issued fake appointment order to the post of System Analyst to be employed at Madurai Bench of Madras High Court. The Hon’ble High citing lack of progress in the investigation transferred the case to CBCID, Virudhunagar. A true copy of the order passed by the Madurai Bench of Madras High Court in Crl.O.P(MD)No.21290  of 2015 dated 04.12.2019 is hereby annexed and marked as Annexure P-2 (Pages___to___).
28.08.2021 The defacto Complainant preferred a complaint before the Superintendent of Police alleging that the Accused No 1 received a sum of Rs 30,00,000 (Thirty Lakhs) on the pretext that the Accused No 1 shall secure an employment for the defacto Complainant son in law. The Accused No 1 made the above said promise on the pretext of his closeness of his closeness to petitioner (Former Tamilnadu Government Minister for Dairy Development). However the Accused No 1 neither secured the employment as promised nor refunded the said amount. It is to be noted that the defacto Complainant had not implicated the petitioner in the said complaint. A true, translated and typed copy of the complaint preferred by the defacto complainant to the Superintendent of Police, Viruthunagar District dated 28.08.2021 is hereby annexed and marked as Annexure P-3 (Pages___to___).
28.08.2021 The Accused No 1 was summoned to appear on 29.09.2021.
29.09.2021 The Accused No 1 appeared before the investigating officer as mandated and undertook the repay the entire amount by 01.10.2021.
01.10.2021 The Defacto Complainant was intimated by the police officials that the Accused No 1 has not refunded the money as undertook by him on 29.09.2021. The Accused No 1 preferred another complaint and has implicated the petitioner herein.
11.11.2021 The Defacto Complainant after a period of one month preferred a second complaint implicating the petitioner. A true, translated and typed copy of the complaint preferred by the Defacto Complainant dated 15.11.2021 is hereby annexed and marked as Annexure P-4 (Pages___to___).
15.11.2021 On the strength of the complaint preferred by the Defacto Complainant a FIR in Crime No 19 of 2021 on the file of the Virudhunagar  Police station was registered. A true, translated and typed copy of the FIR in Crime No 19 of 2021 on the file of the Virudhunagar  Police station dated 15.11.2021 is hereby annexed and marked as Nagar is annexed herewith and marked as Annexure P-5 (Pages___to___).
15.11.2021 The petitioner preferred a Criminal Original Petition in Crl.OP(MD)No.18236 of 2021 before the Madurai Bench of Madras High Court seeking the benefit of anticipatory bail. A true, and typed copy of the Criminal Original Petition in Crl.OP(MD)No.18236 of 2021 before the Madurai Bench of Madras High Court dated 15.11.2021 is hereby annexed and marked as Annexure P-6 (Pages___to___).
Nil.11.2021 The Respondent filed a counter in Crl.OP(MD)No.18236 of 2021 opposing the plea of the petitioner seeking the benefit of Anticipatory bail. A true copy of the Counter Affidavit filed by the Respondent No1 in Criminal Original Petition in Crl.OP(MD)No.18236 of 2021 before the Madurai Bench of Madras High Court dated Nil.11.2021 is hereby annexed and marked as Annexure P-7 (Pages___to___).
23.11.2021 The Respondent No 2 (Defacto Complainant) preferred a intervening petition in  Criminal Original Petition in Crl.OP(MD)No.18236 of 2021 before the Madurai Bench of Madras High Court. A true copy of the intervening petition filed by the Respondent No2 in Criminal Original Petition in Crl.OP(MD)No.18236 of 2021 before the Madurai Bench of Madras High Court dated 23.11.2021 is hereby annexed and marked as Annexure P-8 (Pages___to___).
17.12.2021 The Hon’ble High Court was pleased to dismiss the Criminal Original Petition in Crl.OP(MD)No.18236 of 2021 preferred by the petitioner. Hence the Special Leave Petition.

 

 

 

 

 

 

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