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Judgment
K. Govindarajan, J.—Apprehending arrest at the hands of police for an alleged offence under S.420 of I.P.C. the petitioner filed Crl. O.P. No. 8456 of 1996, to enlarge him on anticipatory bail. In the said Crl. M.P., the prosecution filed a detailed counter opposing the grant of anticipatory bail. C. Shivappa, J., in the order dated 6.11.1996, after considering the petition, counter and the rejoinder granted anticipatory bail, on the petitioner executing a bond for a sum of Rs.3,000/- with two sureties for a like sum to the satisfaction of the Judicial Magistrate, Tambaram, subject to the following conditions:-
(1) Petitioner shall report before the respondent every day at 10.30 A.M.,
(2) Petitioner shall make himself available for interrogation as and when required;
(3) Petitioner shall not leave the jurisdictional limits without prior permission;
(4) Petitioner shall not tamper with the witnesses or in any manner interfere with or put obstacle to the investigation.
Thereafter in Crl. M.P. No. 459 of 1997 A. Raman, J., by the order dated 14.2.1997 relaxed the conditions to the effect that the petitioner shall report before the respondent police twice a week, i.e., on every Monday and Friday at 10 a.m. That order was passed on the basis of the representation made by the learned Government Advocate that the investigation was almost over. Again, the petitioner filed another petition in Crl. M.P. No. 741 of 1997. V. Rengasamy, J., by the order dated 5.3.1997 modified the condition to the effect that the petitioner shall report before the respondent once a week, i.e., on every Monday at 5 p.m. Thereafter the petitioner filed Crl. M.P. No. 1344 of 1997 and in that petition, N. Arumugham, J., by the order dated 25.4.1997 relaxed the entire condition. At this stage, the complainant has filed Crl. M.P. No. 2259 of 1997 to cancel the bail granted to the accused/second respondent in Crl. O.P. No. 8456 of 1996. The said petition was filed on 29.4.1997. It was adjourned from time to time. Meanwhile, the prosecution has filed another Crl. M.P. No. 3890 of 1997 with the same prayer to cancel the anticipatory bail granted in Crl. O.P. No. 8456 of 1996. That petition was filed on 20.8.1997. The reason stated by the complainant in the affidavit filed in support of his petition for cancellation of the bail is that upon a requisition given to the Additional D.G.P., C.B., C.I.D., the investigation was changed from the Crime Branch (G.S.) Commissioner office to D.S.P., C.B., C.I.D. headquarters, the first respondent. In paragraph 13 of the petition, it is stated that the complainant has sent a letter to the Assistant Commissioner of Police (Crimes) on 26.3.1997 intimating about the repetition of the offence done by the second respondent by registering the land in dispute to various persons and requesting them to move the High Court for cancellation of bail given to the accused. In paragraph 14 of the petition, it is staled that the accused/second respondent has willfully violated the conditions imposed by this Court by threatening the witnesses and with malafide intention to cheat, registered the land in dispute to various persons. In Crl. M.P. No. 3890 or 1997, filed by the prosecution, it is stated that at the time of granting anticipatory bail his picture of organized activity of this group was not available and therefore these materials could not be placed before this Court by the earlier investigating officer. So, on the bisis of the materials gathered during the course of the investigation, the respondent does not deserve to be enlarged. It is further stated that the respondent has also abused the bail by threatening Mr. V.C. Rao and Mr. Jesu who have been examined in the course of investigation and thus forfeited his rights to be at large. It is also stated that the respondent/accused will follow the track of investigation and interfere with the further course of investigation. According to the prosecution the custodial interrogation is thus investigatory necessity. The prosecution has filed additional affidavit on 15.9.1997. In the said additional affidavit it is stated that in spite of notices sent on 29.5.1997, 3.6.1997 and 5.6.1997, the accused was not available for interrogation. On the above basis, the complainant and the prosecution sought for cancellation of the anticipatory bail granted to the accused.
In reply to this, the learned counsel appearing for the accused has submitted that the accused has complied with the conditions for 123 days. It is not the case of the petitioners that the accused had not complied with any of the conditions. The only ground on which, according to the learned counsel, the bail is sought to be cancelled is that the petitioner/accused has threatened Mr. V.C. Rao and Mr. Jesu who have been examined by the prosecution in the course of investigation. The learned counsel has further submitted that except the statement in the petition no affidavit from the concerned person was filed. It is not the case of the prosecution that in view of the alleged pressure, the witnesses have retracted. According to the learned counsel, the complaint is based on the complainant''s evidence and the documents, namely, the agreement dated 20.11.1991. On the basis of the above submission, the learned counsel has submitted that the question of canceling the bail will not arise and the accused/petitioner has not made out any case to cancel the anticipatory bail.
It is not in dispute that the accused was granted bail by this Court after appreciating the nature of the case and the necessity to grant bail. Thereafter the conditions imposed were also relaxed. But the prosecution has not even opposed the relaxation. When the order was passed on 4.2.1997 the prosecution had represented before the Court that the investigation was over. Now, the complainant has come forward with the petition in Crl. O.P.2259/97, to cancel the bail, which has been filed on 29.4.1997. Subsequently, on 20.8.1997, the prosecution has filed Crl. M.P. No. 3890 of 1997, for the same relief. The petitioners, on the basis of two grounds, seek to cancel the bail. (1) The accused abused the bail by threatening one Mr. V.C. Rao and Mr. Jesu. (2) New materials have been gathered about the accused and on that basis the investigation has to be proceeded.
While considering the cancellation of bail, the Apex Court, in the decision reported in AIR 1993 S.C. 11 (Aslam Babalal Desai v. State of Maharashtra) has held that the grounds for cancellation under S.437(5) and 439(2) of Cr. P.C. are identical, namely, bail granted under S.437(l) 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 or 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; (vi) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive.
So, the prosecution in order to cancel the bail must prove that the activities of the accused would come under either one or more of the conditions stated above. The 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. The power to take back in custody an accused who had been enlarged on bail has to be exercised with care and circumspection. The prosecution therefore can establish its case with application for cancellation of bail by showing of preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses.
With respect to the first submission, except the averments in the affidavit, no other material is placed before the Court, in support of the same. Only on the basis of the averments, this Court cannot accept the same, especially in the absence of the specific averment that the witnesses have retracted pursuant to such threat. In this case except saying that the petitioner threatened some of the witnesses, no other material is available. So, in view of the above, the first ground for cancellation of bail cannot be sustained.
With respect to the second submission, it is stated in the petition, filed by the prosecution that in this well-decided scheme of conspiracy, the participation of Mr. Dennis M. Johnson, the Chairman of Church of Christ Charitable Trust later changed into Educational and Charitable Society, the respondent herein, Mr. Ravi and Mr. Sampath, came to light which requires investigation and the extent of involvement of these persons and others. Even according to the petitioner, that came to light only on 26.3.1997. Thereafter only in Crl. M.P. No. 1344/97 the conditions were relaxed. But it was not brought to the notice of the Court.
In support of the above submission, the learned counsel appearing for the complainant has relied on State (Delhi Administration) Vs. Sanjay Gandhi, , wherein it is held as follows:-
Rejection of bail when bail is applied for is one thing, cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the-review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the" accused to retain his freedom during the trial.
On the basis of the facts and the materials available before the Court, the Apex Court has cancelled the bail. In this case, the compliant was given on 24.9.1996 on the basis of the agreement seems to have been executed by the accused in favour of the complainant on 20.11.1991. Out of the amount of Rs. 17,40,000/- received by the accused, the accused seems to have paid to the complainant a sum of Rs. 14,00,000/-. The nature of the complaint given against the accused does not warrant the custodial interrogation at this stage. The bail was granted after appreciating all the facts, and the conditions were relaxed thereafter.
In view of the above, I do not find any valid ground to cancel the bail.
Taking into consideration of the facts as mentioned in the additional affidavit that the accused was not available for interrogation in spite of the registered posts sent to him, I impose the following conditions on the accused:-
(i) The accused shall make himself available for interrogation as and when required;
(ii) The accused shall not leave away from his permanent residential address for two consecutive days without getting prior permission either from the Inspector of Police, Crime Branch, C.I.D., Head quarters, Chennai-2 or from the Judicial Magistrate, Tambaram. This condition the accused should comply with for 30 days from today.
(iii) The accused shall not tamper with the witnesses in any manner, interfere or put obstacles to the investigation.
Subject to the above conditions these Crl. M.Ps. are dismissed.