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On April 19, 2022 the Madurai Bench of Madras High Court presided by Justice K. Murali Shankar in the Criminal case of Ganapathy & Ors. v/s. State of Tamil Nadu, granted bail to three people charged under section 294(b), 427, 448, 324, 307, 506(ii) of the Indian Penal Code and section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 2002. They were being held in judicial custody and their path to justice had been derailed after the Karaikudi Bar Association passed a resolution to not represent them.
The Court condemned the resolution and it to be illegal, and said, “Restraining its members not to appear for the petitioners is illegal and null and void and the same has no force of law. No doubt, any attack on the advocates can’t be viewed lightly and the same is to be condemned sternly and that the attackers are to be dealt with iron hands.”
Brief background of the case
The bail petition is filed by three accused pertaining to a First Information Report (FIR) registered in Karaikudi South Police Station as Cr. No. 47 of 2022 in Sivagangai District. The Complainant of this case along with his wife, are practicing advocates in the Courts at Karaikudi. The first Petitioner’s brother Kazi resides in a house opposite to that of the complainant. Kazi holds the Complainant and his wife responsible for the matrimonial dispute and separation from his wife.
On March 21, 2022 around 08:30 P.M, accused no. 1 to 3 allegedly trespassed into the complainant’s house, abused the complainant with filthy language, had attacked the complainant and his wife with knife, sword and wooden logs and also threatened them with dire consequences. The Complainant and his wife had suffered with serious injuries.
During the Complainant’s treatment, the police recorded the complainant’s statement and registered a FIR as Cr. No. 47 of 2022 under sections 294(b), 427, 448, 324, 307, 506 (ii) of the Indian Penal Code and section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 2002. The accused 1 and 2 have surrendered on March 21, 2022 and accused 3 have surrendered on March 26, 2022 before the Karaikudi Police Station and they have been remanded to judicial custody.
On March 22, 2022 Karaikudi Bar Association passed a resolution stating that no one should file bail applications in Cr. No. 47 of 2022 before the Court of Judicial Magistrate, Karaikudi. The Petitioners argued that the members of Bar Association have prevented the Petitioner’s Counsel from appearing before the concerned Court, and hence on April 04, 2022, the bail application of the Petitioners was dismissed on the ground of non-prosecution.
The members of the Bar Association had also prevented the Petitioners Counsel to file a copy application for getting dismissal order and thereby prevented them from filing any bail petition before the District Court, Sivagangai. Hence the Petitioners were left with no other option but to approach the High Court directly for bail. The Petitioner had hence filed a bail application along with a Petition seeking permission to move the bail petition before this Court without moving to the concerned Sessions Court.
Court’s observation and Order
On the Complainant’s objection about the filing of the bail application directly to this Court before approaching the Sessions Court, the Court held, “It is pertinent to mention that Section 439 / 438 Cr.P.C., confers jurisdiction on the High Court and the Sessions Court, an application should be ordinarily filed before the Sessions Court at the first instance and not directly before the High Court. But at the same time that for filing an application directly before the High Court, the applicant has to demonstrate and satisfy the High Court that there exists exceptional, rare or unusual reasons for him to approach the High Court directly.”
The Court, to elaborate on the ‘rare and special circumstances’, relied upon the Allahabad High Court Judgments in the case Vinod Kumar v/s. State of UP and Anr. (2019), where the Court had held that a bail application can be directly filed in the High Court provided there are strong, cogent, compelling and special circumstances.
The Court further observed that the learned Principal District Judge, Sivagangai had already stated that the Bar Association had passed the resolution and also the Bar Association had itself admitted that they had passed such resolution. Considering this fact the Court held, “Considering the above facts and circumstances, this Court is satisfied that there existed unusual and exceptional reason for moving this Court directly and accordingly, permission sought for, is granted.”
The Court for the resolution aspect relied upon the A.S Mohammed Rafeeq v/s. State of Tamil Nadu, where the Court held that:
“Sometimes the Bar Association passes a resolution that they will not defend a person who is alleged to be a terrorist or a person accused of a brutal or heinous crime or involved in a rape case. In our opinion, such resolutions are wholly illegal, against all traditions of the bar, and against professional ethics. Every person, however, wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him.”
The Court while speaking about the resolution passed by the Bar Association said, “This Court has no hesitation to hold that the resolution passed by the Karaikudi Bar Association dated 22.03.2022 restraining its members not to appear for the petitioners is illegal and null and void and the same has no force of law. No doubt, any attack on the advocates can’t be viewed lightly and the same is to be condemned sternly and that the attackers are to be dealt with iron hands. But at the same time, the Bar Association is not expected to pass such a resolution, violating the Constitution and the Law of the land declared by the Hon’ble Supreme Court.”
The Court while granting bail to the Petitioners held, “Considering the facts that there existed previous enmity between the de facto complainant’s family and the family of the first petitioner’s brother Kasi, that the injured have been discharged from the hospital, that the petitioners 1 and 2 are not having any bad antecedents, that the third accused is not a hooligan as stated by the learned Additional Public Prosecutor and also taking note of the fact that the petitioners 1 and 2 are in custody from 21.03.2022 and the third accused from 26.03.2022, this Court is inclined to grant bail to the petitioners.”
The Petitioners were granted bail on following conditions:
The Petitioners shall deposit a sum of Rs.30,000/- (Rupees Thirty Thousand only) to the credit of Government of Tamil Nadu, CMPRF (Chief Minister Public Relief Fund) without prejudice to their rights and contentions before the trial Court and produce the receipt/acknowledgment before the learned Judicial Magistrate, Karaikudi.
On production of such receipt/acknowledgment, the petitioners are ordered to be released on bail on their executing a bond for a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) each with two sureties each for a like sum to the satisfaction of the learned Judicial Magistrate, Karaikudi.
The sureties shall affix their photographs and left thumb impression in the surety bond and the Magistrate/concerned court may obtain a copy of their Aadhar card or Bank Pass Book to ensure their identity.
The Petitioners shall stay at Chengalpattu and report before the Chengalpattu Town Police Station daily at 10.30a.m., for a period of 15 days and thereafter before the respondent police daily at 10.30a.m., until further orders.
The petitioners shall not tamper with evidence or witness.
The petitioners shall not abscond during trial.
On breach of any of the aforesaid conditions, the learned Magistrate/Trial Court is entitled to take appropriate action against the petitioners in accordance with law as if the conditions have been imposed.
If the accused / petitioners thereafter abscond, a fresh FIR can be registered under Section 229A IPC.
The Court also directed the Registry to call for an explanation from the Karaikudi Bar Association as to why necessary directions should not be issued to the Bar Council of Tamil Nadu and Puducherry for taking action to de-recognise the Bar Association and as to why contempt proceedings should not be initiated against the office bearers of the Karaikudi Bar Association and directed to submit the explanation on or before 27.04.2022.
The Order may be read here:
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