Madhu Lynching Case| Kerala Court Cancels Bail Of 12 Accused For Influencing Witnesses

The Special Court for SC/ST (Prevention of Atrocities) Act, Mannarkkad, on Saturday, cancelled the bail granted to 12 of the 16 accused in the lynching case  the tribal youth, Madhu in Attappady in Kerala in February 2018. 

The Special Court Judge K.M. Retheesh Kumar, while cancelling the bail, importantly observed that granting of bail is not an unfettered freedom granted to the accused, and if it is found that there is likelihood of accused fleeing from justice, then bail granted to the accused can be cancelled and his personal liberty can be curtailed invoking authority under section 437(5) and 439(2) Cr.PC.

"Criminal trial is a trial for truth. No one, whether it is accused or witnesses or even victim, can be permitted to obstruct the endeavour of the Court to unearth the truth. It is true that the accused is presumed to be innocent until the contrary is proved. But the accused can never be permitted to come across the endeavour of courts to find the truth. The presumption of innocence is to be balanced with the rights of the victim", it was observed.

To the caution given by the counsel for the accused persons 3,6,8 to 10, 12, and 16 of the possible consequences that would ensue if the bail order issued by the High Court is cancelled, such as publication of bad news in media and answering of charge memo that may be issued, the Court staunchly remarked that the High Court of Kerala would never unnecessarily harass sub ordinate officers if the order has been supported by valid reasons. The Court further added while dismissing the anxiety expressed by the counsel,

"Apart from all these every judicial officer is expected to discharge his duties without fear or favour".

The Special Public Prosecutor, Advocate Rajesh M. Menon, had filed the application for cancellation of bail granted to some of the accused on behalf of the Investigating Officer, on the allegation that those persons had influenced witnesses, and thereby violated the conditions in the bail order. He alleged that the witnesses in the case were showing a hostile attitude towards the prosecution during the course of the trial. He further averred that some of them, whom were eye witnesses to the case and who had given statement under Section 164 Cr.P.C. to the Magistrate, are in constant contact with the accused persons. It was submitted on monitoring the call details of the witnesses that some of the accused had contacted the former. The Witness Protection Committee headed by the District Judge had issued an order earlier to give protection to the witnesses concerned and to monitor the e-mails and telephone calls of the witnesses. The Special Public Prosecutor also averred that a particular SIM was used for the purposes of contacting the witnesses, which, although had been registered in another name, was in possession of one Aanjan who was a politician in the locality, and in turn was being used Accused number 15, Biju, by receiving it from the former. The SPP added that the said Aanjan had taken a room in BeeYem lodge along with two other witnesses, Chandran and Suresh, and had been contacting witnesses from there, as evidenced by the CCTV footages and recordings. An FIR had also been registered in Agali Police Station U/S 452, 506 (i), and195 A  read with Section 34 of the IPC, and Section 3 (2)(v)(a) of SC/ST (Prevention of Atrocities) Act for threatening the mother of the victim in the instant case. 

It was the averment of the SPP that all of the accused in the case were politically influential persons who were attempting to derail the judicial system with the help of their money and muscle power. 

On the other hand, the counsels for the respondent accused contended that the prosecution was simply attempting to protract the trial. Even the call records would indicate that most of the conversations were only for a few seconds, which would not be sufficient time to influence witnesses, it was submitted. It was submitted that some of the accused were drivers by profession, while some others were doing business in the locality where the witnesses resided, and it was in connection with their profession or business transactions that some of the conversations had been made. It was further contended that the witnesses had been compelled by the Police to give 164 statement before the Magistrate, and they deposed the real truth before the Court once they were examined. It was also contended that merely because there were a few innocent violations of some of the bail conditions, it could not lead to cancellation of the bail, and in any case, it was argued by the counsels that the Special Court had not been granted the authority to cancel the bail by the High Court. As the High Court had issued the bail order, cancellation of the same would involve review of the same by the said High Court and the Special Court thus, has no jurisdiction to entertain the instant petition, as per the counsels for the accused. 

At the very outset, the Special Court framed two questions for consideration - firstly, whether there existed any prima - facie material to show that the accused persons had influenced the witnesses, and secondly, whether the Special Court had authority to cancel the said bail order. 

It was found by the Court that the call-details that had been obtained would prima-facie reveal that the respondent accused had contacted the witnesses on many occasions. 

The Court also noted that all the witnesses who had given 164 statement before Magistrate blindly turned hostile to the prosecution case. The Court expressed its disbelief that some of the witnesses even attempted to portray that they had never seen the accused in their life.

"It is sarcastic to note that, those witnesses who have given testimony before court that the have no idea about the accused persons are found to have contacted these accused persons in their mobile phones in several occasions". 

A slip of tongue from one of the accused that "they had not taken anything" during the cross-examinations further convinced the Court that the witnesses were giving false evidence. The Court could not accept the submissions made by the counsels for the accused that merely because the conversations lasted for a few seconds, it would not be sufficient to influence the witnesses. Likewise, the Court found that the certified copies of Re verification EKYC forms issued by the service providers submitted by the SPP revealed that the mobile numbers stated in the call list were subscribed by the accused. The Court observed that the very fact of witnesses turning hostile, and their demeanour convinced the court that the accused were behind the same. The crime registered on complaint of the mother of the victim that she had been threatened further strengthened the the above conclusion in the eyes of the Court and in convincing it to affirm the first question before it.

As regards the second question, the Court perused the Bail Order issued by the High Court of Kerala, wherein it had been stipulated in Paragraph 5 that, 

"if the court finds any possibility of the witnesses being influenced or threatened or won over, or any of the accused absconding from legal process, and the trial process being thus obstructed bail can be denied by the court and the accused can be detained in custody till the whole trial process is over. That investigation is over is not the sole ground to claim bail as of right. So the question here is whether there is any such possibility of the trial being in any manner obstructed by the accused".

The Special Court while pronouncing the order took note of the same, and also paid attention to the operative part of the order in clause (b) which had authorized the Special Court to permit the accused persons to leave the State before conclusion of the trial. The Court relied upon a conjoint reading of the two provisions to arrive at the conclusion that it was indeed vested with the authority to cancel the bail. 

In the words of the Court, 

"In my view, every trial court has got authority to cancel bail in the above circumstances by invoking authority under section 437(5) and 439(2) of Cr.P.C as the case may be". 

The Court expressed its displeasure towards the witnesses attempting to make a mockery of the entire judicial system, and expressed that any attempt to "thwart away or undermine the justice administration system is to be nipped in the bud".

The Court also took note of the tendency of witnesses to turn hostile, and observed that it was high time to eradicate such tendency of en bloc turning of witnesses at the influence or threat of accused.

It was on these grounds that the Court found that the accused had influenced the witnesses and was attempting to challenge or rather, dictate the entire criminal administrative system in the country, and the bail was thus cancelled and the accused were ordered to be committed to jail. It was further noted that any delay in the same would leave room for influencing of the remaining witnesses in this case and which in turn may result in complete damaging of the prosecution case.

Advocates M.N. Sakkeer Hussain, Babu Karthikeyan, Anil.K. Muhammed, K. Krishnamoorthi, N. Madhusoodanan, and K. Deepa appeared for the various accused.

Case Title: State v. Hussain & Ors. 

Click Here To Read/Download The Order