Sanjay Chandra Vs. CBI
Vinod Goenka versus Central
Bureau of Investigation
Gautam Doshi versus Central
Bureau of Investigation
Hari Nair versus Central
Bureau of Investigation
versus Central Bureau of Investigation
J U D G M E N T
H.L. DATTU, J.
granted in all the Special Leave Petitions.
appeals are directed against the common Judgment and Order of the learned Single
Judge of the High Court of Delhi, dated 23rd May 2011 in Bail Application No. 508/2011,
Bail Application No. 509/2011 & Crl. M.A. 653/2011, Bail Application No. 510/2011,
Bail Application No. 511/2011 and Bail Application No. 512/2011, by which the learned
Single Judge refused to grant bail to the accused-appellants. These cases were argued
together and submitted for decision as one case.
offence alleged against each of the accused, as noticed by the Ld. Special Judge,
CBI, New Delhi, who rejected bail applications of the appellants, vide his order
dated 20.4.2011, is extracted for easy reference : Sanjay Chandra (A7) in Crl. Appeal
No. 2178 of 2011 [arising out of SLP (Crl.)No.5650 of 2011]: 3"6. The allegations
against accused Sanjay Chandra are that he entered into criminal conspiracy with
A. Raja, R.K. Chandolia
and other accused persons during September 2009 to get UAS licence for providing
telecom services to otherwise an ineligible company to get UAS licences. He, as
Managing Director of M/s Unitech Wireless (Tamil Nadu) Limited, was looking after
the business of telecom through 8 group companies of Unitech Limited. The first-come-first-served
procedure of allocation of UAS Licences and spectrum was manipulated by the
accused persons in order to benefit M/s Unitech Group Companies.
The cutoff date of 25.09.2007
was decided by accused public servants of DoT primarily to allow consideration of
Unitech group applications for UAS licences. The Unitech Group Companies were in
business of realty and even the objects of companies were not changed to `telecom'
and registered as required before applying. The companies were ineligible to get
the licences till the grant of UAS licences.
The Unitech Group was
almost last within the applicants considered for allocation of UAS licences and
as per existing policy of first-come-first-served, no licence could be issued in
as many as 10 to 13 circles where sufficient spectrum was not available. The Unitech
companies got benefit of spectrum in as many as 10 circles over the other eligible
applicants. Accused Sanjay Chandra, in conspiracy with accused public servants,
was aware of the whole design of the allocation of LOIs and on behalf of the
Unitech group companies was ready with the drafts of Rs. 1658 crores as early as
10th October, 2007."Vinod Goenka (A5) in Crl. Appeal No. 2179 of 2011
[arising out of SLP(Crl)No.5902 of 2011] :
against accused Vinod Goenka are that he was one of the directors of M/s Swan Telecom
(P) Limited in addition to accused Shahid Usman Balwa w.e.f. 01.10.2007 and acquired
majority stake on 18.10.2007 in M/s Swan Telecom (P) Limited (STPL) through DB Infrastructure
(P) Limited. Accused Vinod Goenka carried forward the fraudulent applications of
STPL dated 02.03.2007 submitted by previous management despite knowing the fact
that STPL was ineligible company to get UAS licences by virtue of clause 8 of UASL
Accused Vinod Goenka
was an associate of accused Shahid Usman Balwa to create false documents including
Board Minutes of M/s Giraffe Consultancy (P) 5Limited fraudulently showing transfer
of its shares by the companies of Reliance ADA Group during February 2007 itself.
Accused/applicant in conspiracy with accused Shahid Usman Balwa concealed or furnished
false information to DoT regarding shareholding pattern of STPL as on the date of
application thereby making STPL an eligible company to get licence on the date of
application, that is, 02.03.2007.
an overall beneficiary with accused Shahid Usman Balwa for getting licence and spectrum
in 13 telecom circles.12. Investigation has also disclosed pursuant to TRAI recommendations
dated 28.08.2007 when M/s Reliance Communications Ltd. got the GSM spectrum under
the Dual Technology policy, accused Gautam Doshi, Hari Nair and Surendra Pipara
transferred the control of M/s Swan Telecom Pvt. Ltd., and said structure of holding
companies, to accused Shahid Balwa and Vinod Goenka.
In this manner they transferred
a company which was otherwise ineligible for grant of UAS license on the date of
application, to the said two accused persons belonging to Dynamix Balwa (DB) group
and thereby facilitated them to cheat the DoT by getting issued UAS Licences despite
the ineligibility 6 on the date of application and till 18.10.2007. 13. Investigation
has disclosed that accused Shahid Balwa and Vinod Goenka joined M/s Swan Telecom
Pvt. Ltd. and M/s Tiger Traders Pvt. Ltd. as directors on 01.10.2007 and DB group
acquired the majority stake in TTPL/ M/s Swan Telecom Pvt. Ltd. (STPL) on 18.10.2007.
On 18.10.2007 a fresh
equity of 49.90 lakh shares was allotted to M/s DB Infrastructure Pvt. Ltd.
Therefore on 01.10.2007, and thereafter, accused Shahid Balwa and Vinod Goenka were
in- charge of, and were responsible to, the company M/s Swan Telecom Pvt. Ltd. for
the conduct of business. As such on this date, majority shares of the company were
held by D.B. Group."Gautam Doshi (A9), Surendra Pipara (A10) and Hari Nair
(A 11) in Crl. Appeal Nos.2180,2182 & 2181 of 2011 [arising out of SLP (Crl)
Nos. 6190,6315 & 6288 of 2011] :
"7. It is further
alleged that in January-February, 2007 accused Gautam Doshi, Surendra Pipara and
Hari Nath in furtherance of their common intention to cheat the Department of Telecommunications,
structured/created net worth of M/s Swan Telecom Pvt. Ltd., out of funds arranged
from M/s Reliance Telecom Ltd. or its associates, 7for applying to DoT for UAS Licences
in 13 circles, where M/s Reliance Telecom Ltd. had no GSM spectrum, in a manner
that its associations with M/s Reliance Telecom Ltd. may not be detected, so that
DOT could not reject its application on the basis of clause 8 of the UASL Guidelines
In pursuance of the
said common intention of accused persons, they structured the stake-holding of M/s
Swan Telecom Pvt. Ltd. in a manner that only 9.9% equity was held by M/s Reliance
Telecom Ltd. (RTL) and rest 90.1% was shown as held by M/s Tiger Traders Pvt. Ltd.
(later known as M/s Tiger Trustees Pvt. Ltd. - TTPL), although the entire company
was held by the Reliance ADA Group of companies through the funds raised from M/s
Reliance Telecom Ltd. etc.
It was further
alleged that M/s Swan Telecom Pvt. Ltd. (STPL) was, at the time of application dated
02.03.2007, an associate of M/s Reliance ADA Group / M/s Reliance Communications
Limited / M/s Reliance Telecom Limited, having existing UAS Licences in all telecom
circles. Investigations have also disclosed that M/s Tiger Traders Pvt. Ltd., which
held majority stake (more than 90%) in M/s Swan Telecom Pvt. Ltd. (STPL), was also
an associate company of Reliance ADA Group.
Both the 8companies
has not business history and were activated solely for the purpose of applying for
UAS Licences in 13 telecom circles, where M/s Reliance Telecom Ltd. did not have
GSM spectrum and M/s Reliance Communications Ltd. had already applied for dual technology
spectrum for these circles. Investigation has disclosed that the day to day affairs
of M/s Swan Telecom Pvt. Ltd. and M/s Tiger Traders Pvt. Ltd. were managed by the
said three accused persons either themselves or through other officers/consultants
related to the Reliance ADA group.
of M/s Swan Telecom Pvt. Ltd. and M/s Tiger Traders Pvt. Ltd. were also taken by
these accused persons of Reliance ADA group. Material inter-company transactions
(bank transactions) of M/s Reliance Communications / M/s Reliance Telecommunications
Ltd. and M/s Swan Telecom Pvt. Ltd. (STPL) and M/s Tiger Traders Pvt. Ltd. were
carried out by same group of persons as per the instructions of said accused Gautam
Doshi and Hari Nair.
Investigations about the
holding structure of M/s Tiger Traders Pvt. Ltd. has revealed that the
aforesaid accused persons also structured two other companies i.e. M/s Zebra Consultancy
Private Limited & M/s Parrot Consultants Private 9Limited. Till April,
2007, by when M/s Swan Telecom Pvt. Ltd. applied for telecom licences, 50% shares
of M/s Zebra Consultancy Private Limited & M/s Parrot Consultants Private
Limited, were purchased by M/s Tiger Traders Pvt. Ltd.
Similarly, 50% of
equity shares of M/s Parrot Consultants Private Limited & M/s Tiger Traders
Private Limited were purchased by M/s Zebra Consultancy Private Limited. Also, 50%
of equity shares of M/s Zebra Consultancy Private Limited and M/s Tiger Traders
Private Limited were purchased by M/s Parrot Consultants Private Limited. These
3 companies were, therefore, cross holding each other in an inter-locking structure
w.e.f. March 2006 till 4th April, 2007.
It is further alleged
that accused Gautam Doshi, Surendra Pipara and Hari Nair instead of withdrawing
the fraudulent applications preferred in the name of M/s Swan Telecom (P) Limited,
which was not eligible at all, allowed the transfer of control of that company to
the Dynamix Balwa Group and thus, enabled perpetuating and (sic.) illegality. It
is alleged that TRAI in its recommendations dated 28.08.2007 recommended the use
of dual technology by UAS Licencees.
Due to this reason M/s
Reliance Communications Limited, holding company of M/s Reliance Telecom Limited,
became eligible to get GSM spectrum in telecom circles for which STPL had applied.
Consequently, having management control of STPL was of no use for the applicant/accused
M/s Reliance Telecom Limited.
Moreover, the transfer of management of STPL to DB Group and sale of equity held
by it to M/s Delphi Investments (P) Limited, Mauritius, M/s Reliance Telecom Limited
has earned a profit of around Rs. 10 crores which otherwise was not possible if
they had withdrawn the applications. M/s Reliance Communications Limited also entered
into agreement with M/s Swan Telecom (P) Limited for sharing its telecom infrastructure.
It is further alleged
that the three accused persons facilitated the new management of M/s Swan
Telecom (P) Limited to get UAS licences on the basis of applications filed by the
former management. It is further alleged that M/s Swan Telecom (P) Limited on
the date of application, that is, 02.03.2007 was an associate company of Reliance
ADA group, that is, M/s Reliance Communications Limited/ M/s Reliance Telecom Limited
and therefore, ineligible for UAS licences.
Investigation has also
disclosed pursuant to TRAI recommendations dated 28.08.2007 when M/s Reliance Communications
1 Ltd. got the GSM spectrum under the Dual Technology policy, accused Gautam Doshi,
Hari Nair and Surendra Pipara transferred the control of M/s Swan Telecom Pvt. Ltd.,
and said structure of holding companies, to accused Shahid Balwa and Vinod Goenka.
In this manner they transferred a company which was otherwise ineligible for grant
of UAS license on the date of application, to the said two accused persons belonging
to Dynamix Balwa (DB) group and thereby facilitated them to cheat the DoT by getting
issued UAS Licences despite the ineligibility on the date of application and till
Special Judge, CBI, New Delhi, rejected Bail Applications filed by the appellants
by his order dated 20.04.2011. The appellants moved the High Court by filing applications
under Section 439 of the Code of Criminal Procedure (in short, "Cr. P.C.").
The same came to be rejected by the learned Single Judge by his order dated
23.05.2011. Aggrieved by the same, the appellants are before us in these
Ram Jethmalani, Shri. Mukul Rohatgi, Shri Soli J. Sorabjee and Shri. Ashok H. Desai,
learned senior counsel appeared for the appellants and Shri. Harin P. Raval, learned
Additional Solicitor General, appears for the respondent-CBI.
Ram Jethmalani, learned senior counsel appearing for the appellant Sanjay Chandra,
would urge that the impugned Judgment has not appreciated the basic rule laid down
by this Court that grant of bail is the rule and its denial is the exception. Shri.
Jethmalani submitted that if there is any apprehension of the accused of absconding
from trial or tampering with the witnesses, then it is justified for the Court to
deny bail. The learned senior counsel would submit that the accused has cooperated
with the investigation throughout and that his behavior has been exemplary.
He would further submit
that the appellant was not arrested during the investigation, as there was no threat
from him of tampering with the witnesses. He would submit that the personal liberty
is at a very high pedestal in our Constitutional system, and the same cannot be
meddled with in a causal manner. He would assail the impugned Judgment stating that
the Ld. Judge did not apply his mind, and give adequate reasons before
rejecting bail, as is required by the legal norms set down by this Court.
Shri. Jethmalani further
contends that it was only after the appellants appeared in the Court in pursuance
of summons issued, they were made to apply for bail, and, thereafter, denied bail
and sent to custody. The learned senior counsel states that the trial Judge
does not have the power to send a person, who he has summoned in pursuance of Section
87 Cr.P.C to judicial custody.
The only power that
the trial Judge had, he would contend, was to 1ask for a bond as provided for in
Section 88 Cr.P.C. to ensure his appearance. Shri. Jethmalani submits that when
a person appeared in pursuance of a bond, he was a free man, and such a free
man cannot be committed to prison by making him to apply for bail and thereafter,
denying him the same. Shri. Jethmalani further submits that if it was the intention
of the Legislature to make a person, who appears in pursuance of summons to
apply for bail, it would have been so legislated in Section 88 Cr.P.C.
The learned senior
counsel assailed the Judgment of the Delhi High Court in the `Court on its own motion
v. CBI', 2004 (I) JCC 308, by which the High Court gave directions to Criminal
Courts to call upon the accused who is summoned to appear to apply for bail,
and then decide on the merits of the bail application. He would state that the High
Court has ignored even the CBI Manual before issuing these directions, which provided
for bail to be granted to the accused, except in the event of there being commission
of heinous crime.
The learned senior counsel
would also argue that it was an error to have a "rolled up charge",
as recognized by the Griffiths' case (R vs. Griffiths and Ors., (1966) 1 Q.B. 589).
Shri.Jethmalani submitted that there is not even a prima facie case against the
accused and would make references to the charge sheet and the statement of several
witnesses. He would emphatically submit that none of the ingredients of the
offences charged with were stated in the charge sheet. He would further contend
that even if, there is a prima facie case, the rule is still bail, and not jail,
as per the dicta of this Court in several cases.
Mukul Rohatgi, learned senior counsel appearing for the appellant Vinod Goenka,
while adopting the arguments of Shri. Jethmalani, would further supplement by
arguing that the Ld. Trial Judge erred in making the persons, who appeared in
pursuance of the summons, apply for bail and then denying the same, and
ordering for remand in judicial custody.
Shri. Rohatgi would
further contend that the gravity of the offence charged with, is to be
determined by the maximum sentence prescribed by the Statute and not by any other
standard or measure. In other words, the learned senior counsel would submit
that the alleged amount involved in the so-called Scam is not the determining
factor of the gravity of the offence, but the maximum punishment prescribed for
He would state that the
only bar for bail pending trial in Section 437 is for those persons who are charged
with offences punishable with life or death, and there is no such bar for those
persons who were charged with offences with maximum punishment of seven years. Shri.
Rohatgi also cited some case laws.
Ashok H. Desai, learned senior counsel appearing for the appellants Hari Nair and
Surendra Pipara, adopted the principal arguments of Shri.Jethmalani. In addition,
Shri. Desai would submit that a citizen of this country, who is charged with a criminal
offence, has the right to be enlarged on bail. Unless there is a clear necessity
for deprivation of his liberty, a person should not be remanded to judicial custody.
Shri. Desai would
submit that the Court should bear in mind that such custody is not punitive in
nature, but preventive, and must be opted only when the charges are serious. Shri.
Desai would further submit that the power of the High Court and this Court is
not limited by the operation of Section 437. He would further contend that Surendra
Pipara deserves to be released on bail in view of his serious health conditions.
Soli J. Sorabjee, learned senior counsel appearing for Gautam Doshi, adopted the
principal arguments of Shri. Jethmalani. Shri. Sorabjee would assail the
finding of the Learned Judge of the High Court in the impugned Judgment that the
mere fact that the accused were not arrested during the investigation was proof
of their influence in the society, and hence, there was a reasonable apprehension
that they would tamper with the evidence if enlarged on bail. Shri. Sorabjee would
submit that if this reasoning is to be accepted, then bail is to be denied in each
and every criminal case that comes before the Court. The learned senior counsel
also highlighted that the accused had no criminal antecedents.
Haren P. Raval, the learned Additional Solicitor General, in his reply, would submit
that the offences that are being charged, are of the nature that the economic fabric
of the 1country is brought at stake. Further, the learned ASG would state that the
quantum of punishment could not be the only determinative factor for the
magnitude of an offence.
He would state that one
of the relevant considerations for the grant of bail is the interest of the
society at large as opposed to the personal liberty of the accused, and that
the Court must not lose sight of the former.
He would submit that
in the changing circumstances and scenario, it was in the interest of the society
for the Court to decline bail to the appellants. Shri. Raval would further urge
that consistency is the norm of this Court and that there was no reason or change
in circumstance as to why this Court should take a different view from the order
of 20th June 2011 in Sharad Kumar Etc. v. Central Bureau of Investigation [in
SLP (Crl) No. 4584-4585 of 2011] rejecting bail to some of the co-accused in the
Shri. Raval would further
state that the investigation in these cases is monitored by this Court and the trial
is proceeding on a day-to-day basis and that there is absolutely no delay on behalf
of the prosecuting agency in completing the trial. Further, he would submit that
the appellants, having cooperated with the investigation, is no ground for
grant of bail, as they were expected to cooperate with the investigation as provided
by the law.
He would further submit
that the test to enlarge an accused on bail is whether there is a reasonable apprehension
of tampering with the evidence, and that there is an apprehension of threat to
some of the witnesses. The learned ASG would further submit that there is more reason
now for the accused not to be enlarged on bail, as they now have the knowledge
of the identity of the witnesses, who are the employees of the accused, and there
is an apprehension that the witnesses may be tampered with.
The learned ASG would
state that Section 437 of the Cr.P.C. uses the word "appears", and,
therefore, that the argument of the learned senior counsel for the appellants
that the power of the trial Judge with regard to a person summoned under Section
87 is controlled by Section 88 is incorrect. Shri. Raval also made references to
the United Nations Convention on Corruption and the Report on the Reforms in
the Criminal Justice System by Justice Malimath, which, we do not think, is
necessary to go into.
The learned ASG also relied
on a few decisions of this Court, and the same will be dealt with in the course
of the judgment. On a query from the Bench, the learned ASG would submit that
in his opinion, bail should be denied in all cases of corruption which pose a threat
to the economic fabric of the country, and that the balance should tilt in favour
of the public interest.
his reply, Shri. Jethmalani would submit that as the presumption of innocence is
the privilege of every accused, there is also a presumption that the appellants
would not tamper with the witnesses if they are enlarged on bail, especially in
the facts of the case, where the appellants have cooperated with the investigation.
In recapitulating his submissions, the learned senior counsel contended that
there are two principles for the grant of bail –
firstly, if there is no
prima facie case, and secondly, even if there is a prima facie case, if there is
no reasonable apprehension of tampering with the witnesses or evidence or absconding
from the trial, the accused are entitled to grant of bail pending trial. He would
submit that since both the conditions are satisfied in this case, the appellants
should be granted bail.
us first deal with a minor issue canvassed by Mr. Raval, learned ASG. It is
submitted that this Court has refused to entertain the Special Leave Petition filed
by one of the co-accused [Sharad Kumar Vs. CBI (supra)] and, therefore, there
is no reason or change in the circumstance to take a different view in the case
of the appellants who are also charge- sheeted for the same offence.
We are not impressed by
this argument. In the aforesaid petition, the petitioner was before this Court before
framing of charges by the Trial Court. Now the charges are framed and the trial
has commenced. We cannot compare the earlier and the present proceedings and conclude
that there are no changed circumstances and reject these petitions.
appellants are facing trial in respect of the offences under Sections 420-B,
468, 471 and 109 of Indian Penal Code and Section 13(2) read with 13(i)(d) of Prevention
of Corruption Act, 1988. Bail has been refused first by the Special Judge, CBI,
New Delhi and subsequently, by the High Court. Both the courts have listed the factors,
on which they think, are relevant for refusing the Bail applications filed by
the applicants as seriousness of the charge; the nature of the evidence in
support of the charge; the likely sentence to be imposed upon conviction; the
possibility of interference with witnesses; the objection of the prosecuting authorities;
possibility of absconding from justice.
bail applications, generally, it has been laid down from the earliest times that
the object of bail is to secure the appearance of the accused person at his trial
by reasonable amount of bail. The object of bail is neither punitive nor preventative.
Deprivation of liberty must be considered a punishment, unless it can be required
to ensure that an accused person will stand his trial when called upon.
The courts owe more than
verbal respect to the principle that punishment begins after conviction, and that
every man is deemed to be innocent until duly tried and duly found guilty. From
the earliest times, it was appreciated that detention in custody pending
completion of trial could be a cause of great hardship. From time to time, necessity
demands that some un-convicted persons should be held in custody pending trial
to secure their attendance at the trial but in such cases, `necessity' is the operative
In this country, it would
be quite contrary to the concept of personal liberty enshrined in the
Constitution that any person should be punished in respect of any matter, upon
which, he has not been convicted or that in any circumstances, he should be
deprived of his liberty upon only the belief that he will tamper with the
witnesses if left at liberty, save in the most extraordinary circumstances.
Apart from the question
of prevention being the object of a refusal of bail, one must not lose sight of
the fact that any imprisonment before conviction has a substantial punitive content
and it would be improper for any Court to refuse bail as a mark of disapproval of
former conduct whether the accused has been convicted for it or not or to refuse
bail to an un-convicted person for the purpose of giving him a taste of
imprisonment as a lesson.
the instant case, as we have already noticed that the "pointing finger of
accusation" against the appellants is `the seriousness of the charge'. The
offences alleged are economic offences which has resulted in loss to the State exchequer.
Though, they contend that there is possibility of the appellants tampering witnesses,
they have not placed any material in support of the allegation. In our view,
seriousness of the charge is, no doubt, one of the relevant considerations while
considering bail applications but that is not the only test or the factor :
The other factor that
also requires to be taken note of is the punishment that could be imposed after
trial and conviction, both under the Indian Penal Code and Prevention of
Corruption Act. Otherwise, if the former is the only test, we would not be
balancing the Constitutional Rights but rather "recalibration of the scales
The provisions of Cr.P.C.
confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending
trial or in appeal against convictions, since the jurisdiction is
discretionary, it has to be exercised with great care and caution by balancing
valuable right of liberty of an individual and the interest of the society in
general. In our view, the reasoning adopted by the learned District Judge,
which is affirmed by the High Court, in our opinion, a denial of the whole basis
of our system of law and normal rule of bail system.
It transcends respect
for the requirement that a man shall be considered innocent until he is found guilty.
If such power is recognized, then it may lead to chaotic situation and would jeopardize
the personal liberty of an individual. This Court, in Kalyan Chandra Sarkar Vs.
Rajesh Ranjan- (2005) 2 SCC 42, observed that "under the criminal laws of
this country, a person accused of offences which are non-bailable, is liable to
be detained in custody during the pendency of trial unless he is enlarged on bail
in accordance with law.
Such detention cannot
be questioned as being violative of Article 21 of the Constitution, since the same
is authorized by law. But even persons accused of non-bailable offences are entitled
to bail if the 2 Court concerned comes to the conclusion that the prosecution has
failed to establish a prima facie case against him and/or if the Court is satisfied
by reasons to be recorded that in spite of the existence of prima facie case, there
is need to release such accused on bail, where fact situations require it to do
Court, time and again, has stated that bail is the rule and committal to jail
an exception. It is also observed that refusal of bail is a restriction on the personal
liberty of the individual guaranteed under Article 21 of the Constitution. In
the case of State of Rajasthan v. Balchand, (1977) 4 SCC 308, this Court opined:
"2. The basic rule
may perhaps be tersely put as bail, not jail, except where there are circumstances
suggestive of fleeing from justice or thwarting the course of justice or creating
other troubles in the shape of repeating offences or intimidating witnesses and
the like, by the petitioner who seeks enlargement 3on bail from the Court. We
do not intend to be exhaustive but only illustrative.
3. It is true that
the gravity of the offence involved is likely to induce the petitioner to avoid
the course of justice and must weigh with us when considering the question of jail.
So also the heinousness of the crime.
Even so, the record of
the petitioner in this case is that, while he has been on bail throughout in the
trial court and he was released after the judgment of the High Court, there is
nothing to suggest that he has abused the trust placed in him by the court; his
social circumstances also are not so unfavourable in the sense of his being a
desperate character or unsocial element who is likely to betray the confidence that
the court may place in him to turn up to take justice at the hands of the court.
He is stated to be a young man of 27 years with a family to maintain.
The circumstances and
the social milieu do not militate against the petitioner being granted bail at this
stage. At the same time any possibility of the absconsion or evasion or other abuse
can be taken care of by a direction that the petitioner will report himself before
the police station at Baren once every fortnight."
the case of Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240, V.R.
Krishna Iyer, J., sitting as Chamber Judge, enunciated the principles of bail
thus: "3. What, then, is "judicial discretion" in this bail context?
In the elegant words of Benjamin Cardozo: "The Judge, even when he is free,
is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant
roaming at will in pursuit of his own ideal of beauty or of goodness.
He is to draw his inspiration
from consecrated principles. He is not to yield to spasmodic sentiment, to vague
and unregulated benevolence. He is to exercise a discretion informed by tradition,
methodized by analogy, disciplined by system, and subordinated to "the primordial
necessity of order in the social life". Wide enough in all conscience is the
field of discretion that remains."
Even so it is useful
to notice the tart terms of Lord Camden that "the discretion of a Judge is
the law of tyrants: it is always unknown, it is different in different men; it is
casual, and depends upon constitution, temper and passion. In the best, it is oftentimes
caprice; in the worst, 3it is every vice, folly and passion to which human nature
"Perhaps, this is
an overly simplistic statement and we must remember the constitutional focus in
Articles 21 and 19 before following diffuse observations and practices in the English
system. Even in England there is a growing awareness that the working of the bail
system requires a second look from the point of view of correct legal criteria and
sound principles, as has been pointed out by Dr Bottomley.6. Let us have a
glance at the pros and cons and the true principle around which other relevant
factors must revolve.
When the case is finally
disposed of and a person is sentenced to incarceration, things stand on a different
footing. We are concerned with the penultimate stage and the principal rule to guide
release on bail should be to secure the presence of the applicant who seeks to be
liberated, to take judgment and serve sentence in the event of the Court punishing
him with imprisonment. In this perspective, relevance of considerations is regulated
by their nexus with the likely absence of the applicant for fear of a severe
sentence, if such be plausible in the case.
As Erle. J. indicated,
when the crime charged (of which a conviction has been sustained) is of the highest
3magnitude and the punishment of it assigned by law is of extreme severity, the
Court may reasonably presume, some evidence warranting, that no amount of bail
would secure the presence of the convict at the stage of judgment, should he be
enlarged. Lord Campbell, C.J. concurred in this approach in that case and
Coleridge J. set down the order of priorities as follows:
"I do not think that
an accused party is detained in custody because of his guilt, but because there
are sufficient probable grounds for the charge against him as to make it proper
that he should be tried, and because the detention is necessary to ensure his appearance
at trial .... It is a very important element in considering whether the party, if
admitted to bail, would appear to take his trial; and I think that in coming to
a determination on that point three elements will generally be found the most important:
the charge, the nature of the evidence by which it is supported, and the punishment
to which the party would be liable if convicted.
In the present case,
the charge is that of wilful murder; the evidence contains an admission by the prisoners
of the truth of the charge, and the punishment of the offence is, by law,
death."7. It is thus obvious that the nature of the charge is the vital 3factor
and the nature of the evidence also is pertinent. The punishment to which the party
may be liable, if convicted or conviction is confirmed, also bears upon the
issue.8. Another relevant factor is as to whether the course of justice would be
thwarted by him who seeks the benignant jurisdiction of the Court to be freed
for the time being.
9. Thus the legal principles
and practice validate the Court considering the likelihood of the applicant interfering
with witnesses for the prosecution or otherwise polluting the process of justice.
It is not only traditional but rational, in this context, to enquire into the antecedents
of a man who is applying for bail to find whether he has a bad record - particularly
a record which suggests that he is likely to commit serious offences while on bail.
In regard to habituals, it is part of criminological history that a thoughtless
bail order has enabled the bailee to exploit the opportunity to inflict further
crimes on the members of society.
Bail discretion, on the
basis of evidence about the criminal record of a defendant is therefore not an exercise
in irrelevance.13. Viewed from this perspective, we gain a better insight into the
rules of the game. When a person, charged with a grave offence, has 3been
acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when
the appeal before this Court pends?
Yes, it has. The panic
which might prompt the accused to jump the gauntlet of justice is less, having
enjoyed the confidence of the Court's verdict once. Concurrent holdings of guilt
have the opposite effect. Again, the ground for denial of provisional release becomes
weaker when the fact stares us in the face that a fair finding - if that be so -
of innocence has been recorded by one Court.
It may not be conclusive,
for the judgment of acquittal may be ex facie wrong, the likelihood of desperate
reprisal, if enlarged, may be a deterrent and his own safety may be more in
prison than in the vengeful village where feuds have provoked the violent offence.
It depends. Antecedents
of the man and socio-geographical circumstances have a bearing only from this angle.
Police exaggerations of prospective misconduct of the accused, if enlarged, must
be soberly sized up lest danger of excesses and injustice creep subtly into the
discretionary curial technique. Bad record and police prediction of criminal prospects
to invalidate the bail plea are admissible in principle but shall not stampede the
Court into a complacent refusal."
Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118, this Court took the
view: "22. In other non-bailable cases the Court will exercise its judicial
discretion in favour of granting bail subject to sub- section (3) of Section 437
CrPC if it deems necessary to act under it. Unless exceptional circumstances are
brought to the notice of the Court which may defeat proper investigation and a fair
trial, the Court will not decline to grant bail to a person who is not accused of
an offence punishable with death or imprisonment for life.
It is also clear that
when an accused is brought before the Court of a Magistrate with the allegation
against him of an offence punishable with death or imprisonment for life, he has
ordinarily no option in the matter but to refuse bail subject, however, to the first
proviso to Section 437(1) CrPC and in a case where the Magistrate entertains a reasonable
belief on the materials that the accused has not been guilty of such an offence.
This will, however,
be an extraordinary occasion since there will be some materials at the stage of
initial arrest, for the accusation or for strong suspicion of commission by the
person of such an offence. 324. Section 439(1) CrPC of the new Code, on the other
hand, confers special powers on the High Court or the Court of Session in respect
of bail. Unlike under Section 437(1) there is no ban imposed under Section
439(1), CrPC against granting of bail by the High Court or the Court of Session
to persons accused of an offence punishable with death or imprisonment for life.
It is, however, legitimate
to suppose that the High Court or the Court of Session will be approached by an
accused only after he has failed before the Magistrate and after the investigation
has progressed throwing light on the evidence and circumstances implicating the
accused. Even so, the High Court or the Court of Session will have to exercise its
judicial discretion in considering the question of granting of bail under Section
439(1) CrPC of the new Code.
The overriding considerations
in granting bail to which we adverted to earlier and which are common both in the
case of Section 437(1) and Section 439(1) CrPC of the new Code are the nature and
gravity of the circumstances in which the offence is committed; the position
and the status of the accused with reference to the victim and the witnesses; the
likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising
his own life being faced with a grim prospect of possible conviction in the case;
of tampering with witnesses; the history of the case as well as of its investigation
and other relevant grounds which, in view of so many valuable factors, cannot be
exhaustively set out."
Babu Singh v. State of U.P., (1978) 1 SCC 579, this Court opined: "8. The Code
is cryptic on this topic and the Court prefers to be tacit, be the order custodial
or not. And yet, the issue is one of liberty, justice, public safety and burden
on the public treasury, all of which insist that a developed jurisprudence of
bail is integral to a socially sensitized judicial process. As Chamber Judge in
this summit Court I had to deal with this uncanalised case-flow, ad hoc response
to the docket being the flickering candle light.
So it is desirable that
the subject is disposed of on basic principle, not improvised brevity draped as
discretion. Personal liberty, deprived when bail is refused, is too precious a value
of our constitutional system recognised under Article 21 that the curial power
to negate it is a great trust exercisable, not casually but judicially, with lively
concern for the cost to the individual and the community.
To glamorise impressionistic
orders as discretionary may, on occasions, make a litigative gamble decisive of
a fundamental right. After all, personal liberty of an accused or convict is fundamental,
suffering lawful eclipse only in terms of "procedure established by law".
The last four words of Article 21 are the life of that human right....16. Thus the
legal principle and practice validate the Court considering the likelihood of the
applicant interfering with witnesses for the prosecution or otherwise polluting
the process of justice.
It is not only traditional
but rational, in this context, to enquire into the antecedents of a man who is applying
for bail to find whether he has a bad record--particularly a record which suggests
that he is likely to commit serious offences while on bail. In regard to habituals,
it is part of criminological history that a thoughtless bail order has enabled the
bailee to exploit the opportunity to inflict further crimes on the members of society.
Bail discretion, on the basis of evidence about the criminal record of a defendant,
is therefore not an exercise in irrelevance.
17. The significance and
sweep of Article 21 make the deprivation of liberty a matter of grave concern and
permissible only when the law authorising it is reasonable, even-handed and geared
to the goals of community good and State necessity spelt out in Article 19. Indeed,
the considerations I have set out as criteria are germane to the constitutional
proposition I have deduced. Reasonableness postulates intelligent care and predicates
that deprivation of freedom by refusal of bail is not for punitive purpose but for
the bi-focal interests of justice--to the individual involved and society
18. We must weigh 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
The considerable public
expense in keeping in custody where no danger of 4disappearance 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
favouring release justly sensible.20. Viewed from this perspective, we gain a better
insight into the rules of the game.
When a person, charged
with a grave offence, has been acquitted at a stage, has the intermediate acquittal
pertinence to a bail plea when the appeal before this Court pends? Yes, it has.
The panic which might prompt the accused to jump the gauntlet of justice is
less, having enjoyed the confidence of the Court's verdict once. Concurrent holdings
of guilt have the opposite effect. Again, the ground for denial of provisional release
becomes weaker when the fact stares us in the face that a fair finding - if
that be so - of innocence has been recorded by one Court.
It may be conclusive,
for the judgment of acquittal may be ex facie wrong, the likelihood of desperate
reprisal, it enlarged, may be a deterrent and his own safety may be more in prison
than in the vengeful village where feuds have provoked the violent offence. It depends.
Antecedents of the man 4 and socio-geographical circumstances have a bearing only
from this angle. Police exaggerations of prospective misconduct of the accused,
if enlarged, must be soberly sized up lest danger of excesses and injustice creep
subtly into the discretionary curial technique. Bad record and police prediction
of criminal prospects to invalidate the bail plea are admissible in principle but
shall not stampede the Court into a complacent refusal."
Moti Ram v. State of M.P., (1978) 4 SCC 47, this Court, while discussing pre-trial
detention, held: "14. The consequences of pre-trial detention are grave. Defendants
presumed innocent arc subjected to the psychological and physical deprivations
of jail life, usually under more onerous conditions than are imposed on convicted
defendants. The jailed defendant loses his job if he has one and is prevented
from contributing to the preparation of his defence. Equally important, the burden
of his detention frequently falls heavily on the innocent members of his
concept and philosophy of bail was discussed by this Court in Vaman Narain Ghiya
v. State of Rajasthan, (2009) 2 SCC 281, thus: "6. "Bail" remains
an undefined term in CrPC. Nowhere else has the term been statutorily defined.
Conceptually, it continues
to be understood as a right for assertion of freedom against the State imposing
restraints. Since the UN Declaration of Human Rights of 1948, to which India is
a signatory, the concept of bail has found a place within the scope of human rights.
The dictionary meaning of the expression "bail" denotes a security for
appearance of a prisoner for his release. Etymologically, the word is derived from
an old French verb "bailer" which means to "give" or "to
deliver", although another view is that its derivation is from the Latin term
"baiulare", meaning "to bear a burden".
Bail is a conditional
liberty. Stroud's Judicial Dictionary (4th Edn., 1971) spells out certain other
details. It states: "... when a man is taken or arrested for felony, suspicion
of felony, indicted of felony, or any such case, so that he is restrained of his
liberty. And, being by law bailable, offereth surety to those which have authority
to bail him, which sureties are bound for him to the King's use in a certain sums
of money, or body for body, that he shall appear before the justices of goal delivery
at the next sessions, etc.
Then upon the bonds of
these sureties, as is aforesaid, he is bailed--that is to say, set at liberty until
the day appointed for his appearance."Bail may thus be regarded as a mechanism
whereby the State devolutes upon the community the function of securing the presence
of the prisoners, and at the same time involves participation of the community in
administration of justice.7. Personal liberty is fundamental and can be circumscribed
only by some process sanctioned by law. Liberty of a citizen is undoubtedly important
but this is to balance with the security of the community.
A balance is required
to be maintained between the personal liberty of the accused and the investigational
right of the police. It must result in minimum interference with the personal liberty
of the accused and the right of the police to investigate the case. It has to dovetail
two conflicting demands, namely, on the one hand the requirements of the society
for being shielded from the hazards of being exposed to the misadventures of a person
alleged 4 to have committed a crime; and on the other, the fundamental canon of
criminal jurisprudence viz. the presumption of innocence of an accused till he is
Liberty exists in proportion
to wholesome restraint, the more restraint on others to keep off from us, the
more liberty we have. (See A.K. Gopalan v. State of Madras) 8. The law of bail,
like any other branch of law, has its own philosophy, and occupies an important
place in the administration of justice and the concept of bail emerges from the
conflict between the police power to restrict liberty of a man who is alleged to
have committed a crime, and presumption of innocence in favour of the alleged criminal.
An accused is not detained in custody with the object of punishing him on the assumption
of his guilt."
recently, in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011)
1 SCC 694, this Court observed that "(j)ust as liberty is precious to an
individual, so is the society's interest in maintenance of 4 peace, law and order.
Both are equally important." This Court further observed : "116.
Personal liberty is a
very precious fundamental right and it should be curtailed only when it becomes
imperative according to the peculiar facts and circumstances of the case."
This Court has taken the view that when there is a delay in the trial, bail
should be granted to the accused [See Babba v. State of Maharashtra, (2005) 11
SCC 569, Vivek Kumar v. State of U.P., (2000) 9 SCC 443, Mahesh Kumar Bhawsinghka
v. State of Delhi, (2000) 9 SCC 383].
principles, which the Court must consider while granting or declining bail, have
been culled out by this Court in the case of Prahlad Singh Bhati v. NCT, Delhi,
(2001) 4 SCC 280, thus: "The jurisdiction to grant bail has to be exercised
on the basis of well-settled principles having regard to the circumstances of each
case and not in an arbitrary manner.
While granting the bail,
the court has to keep in mind the nature of accusations, the nature of the evidence
in support thereof, the severity of the punishment which conviction will entail,
the character, behaviour, means and standing of the accused, circumstances which
are peculiar to the accused, reasonable possibility of securing the presence of
the accused at the trial, reasonable apprehension of the witnesses being
tampered with, the larger interests of the public or State and similar other considerations.
It has also to be kept
in mind that for the purposes of granting the bail the legislature has used the
words "reasonable grounds for believing" instead of "the evidence"
which means the court dealing with the grant of bail can only satisfy it (sic itself)
as to whether there is a genuine case against the accused and that the prosecution
will be able to produce prima facie evidence in support of the charge. It is not
expected, at this stage, to have the evidence establishing the guilt of the accused
beyond reasonable doubt."
State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21, this Court held as under: "18.
It is well settled that the matters to be considered in an application for bail
(i) whether there is
any prima facie or reasonable ground to believe that the accused had committed the
(ii) nature and
gravity of the charge;
(iii) severity of the
punishment in the event of conviction;
(iv) danger of the accused
absconding or fleeing, if released on bail;
(v) character, behaviour,
means, position and standing of the accused;
(vi) likelihood of the
offence being repeated; (vii) reasonable apprehension of the witnesses being tampered
viii) danger, of course,
of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi
and Gurcharan Singh v. State (Delhi Admn.)].
While a vague allegation
that the accused may tamper with the evidence or witnesses may not be a ground
to refuse bail, if the accused is of such character that his mere presence at large
would intimidate the witnesses or if there is material to show that he will use
his liberty to subvert justice or tamper with the evidence, then bail will be refused.
We may also refer to the following principles relating to grant or refusal of
bail stated in 4Kalyan Chandra Sarkar v. Rajesh Ranjan: (SCC pp. 535-36, para
11. The law in regard
to grant or refusal of bail is very well settled. The court granting bail should
exercise its discretion in a judicious manner and not as a matter of course. Though
at the stage of granting bail a detailed examination of evidence and elaborate documentation
of the merit of the case need not be undertaken, there is a need to indicate in
such orders reasons for prima facie concluding why bail was being granted particularly
where the accused is charged of having committed a serious offence. Any order devoid
of such reasons would suffer from non-application of mind.
It is also necessary
for the court granting bail to consider among other circumstances, the following
factors also before granting bail; they are:(a) The nature of accusation and the
severity of punishment in case of conviction and the nature of supporting
evidence.(b) Reasonable apprehension of tampering with the witness or apprehension
of threat to the complainant.(c) Prima facie satisfaction of the court in support
of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh and Puran v. Rambilas.)"
While a detailed
examination of the evidence is to be avoided while considering the question of bail,
to ensure that there is no prejudging and no prejudice, a brief examination to be
satisfied about the existence or otherwise of a prima facie case is
back to the facts of the present case, both the Courts have refused the request
for grant of bail on two grounds :- The primary ground is that offence alleged against
the accused persons is very serious involving deep rooted planning in which,
huge financial loss is caused to the State exchequer ; the secondary ground is that
the possibility of the accused persons tempering with the witnesses.
In the present case,
the charge is that of cheating and dishonestly inducing delivery of property, forgery
for the purpose of cheating using as genuine a forged document. The punishment
of the offence is punishment for a term which may extend to seven years. It is,
no doubt, true that the nature of the charge may be relevant, but at the same
time, the punishment to which the party may be liable, if convicted, also bears
upon the issue. Therefore, in determining whether to grant bail, both the seriousness
of the charge and the severity of the punishment should be taken into consideration.
The grant or refusal
to grant bail lies within the discretion of the Court. The grant or denial is regulated,
to a large extent, by the facts and circumstances of each particular case. But at
the same time, right to bail is not to be denied merely because of the sentiments
of the community against the accused. The primary purposes of bail in a
criminal case are to relieve the accused of imprisonment, to relieve the State
of the burden of keeping him, pending the trial, and at the same time, to keep
the accused constructively in the custody of the Court, whether before or after
conviction, to assure that he will submit to the jurisdiction of the Court and be
in attendance thereon whenever his presence is required.
This Court in Gurcharan
Singh and Ors. Vs. State AIR 1978 SC 179 observed that two paramount considerations,
while considering petition for grant of bail in non-bailable offence, apart
from the seriousness of the offence, are the likelihood of the accused fleeing from
justice and his tampering with the prosecution witnesses. Both of them relate
to ensure of the fair trial of the case. Though, this aspect is dealt by the High
Court in its impugned order, in our view, the same is not convincing.
the undertrial prisoners are detained in jail custody to an indefinite period,
Article 21 of the Constitution is violated. Every person, detained or arrested,
is entitled to speedy trial, the question is: whether the same is possible in the
present case. There are seventeen accused persons. Statement of the witnesses runs
to several hundred pages and the documents on which reliance is placed by the
prosecution, is voluminous.
The trial may take
considerable time and it looks to us that the appellants, who are in jail, have
to remain in jail longer than the period of detention, had they been convicted.
It is not in the interest of justice that accused should be in jail for an
No doubt, the offence
alleged against the appellants is a serious one in terms of alleged huge loss to
the State exchequer, that, by itself, should not deter us from enlarging the
appellants on bail when there is no serious contention of the respondent that the
accused, if released on bail, would interfere with the trial or tamper with evidence.
We do not see any good reason to detain the accused in custody, that too, after
the completion of the investigation and filing of the charge-sheet.
This Court, in the case
of State of Kerala Vs. Raneef (2011) 1 SCC 784, has stated :- 5 "15. In
deciding bail applications an important factor which should certainly be taken into
consideration by the court is the delay in concluding the trial. Often this takes
several years, and if the accused is denied bail but is ultimately acquitted, who
will restore so many years of his life spent in custody? Is Article 21 of the Constitution,
which is the most basic of all the fundamental rights in our Constitution, not
violated in such a case?
Of course this is not
the only factor, but it is certainly one of the important factors in deciding
whether to grant bail. In the present case the respondent has already spent 66 days
in custody (as stated in Para 2 of his counter-affidavit), and we see no reason
why he should be denied bail. A doctor incarcerated for a long period may end up
like Dr. Manette in Charles Dicken's novel A Tale of Two Cities, who forgot his
profession and even his name in the Bastille."
`Bihar Fodder Scam', this Court, taking into consideration the seriousness of the
charges alleged and the maximum sentence of imprisonment that could be imposed
including the fact that the appellants were in jail for a period more than six months
as on the date of passing of the order, was of the view that the further
detention of the appellants as pre-trial prisoners would not serve any purpose.
are conscious of the fact that the accused are charged with economic offences of
huge magnitude. We are also conscious of the fact that the offences alleged, if
proved, may jeopardize the economy of the country. At the same time, we cannot
lose sight of the fact that the investigating agency has already completed investigation
and the charge sheet is already filed before the Special Judge, CBI, New Delhi.
Therefore, their presence in the custody may not be necessary for further investigation.
We are of the view that the appellants are entitled to the grant of bail pending
trial on stringent conditions in order to ally the apprehension expressed by
the view we have taken, it may not be necessary to refer and discuss other issues
canvassed by the learned counsel for the parties and the case laws relied on in
support of their respective contentions. We clarify that we have not expressed any
opinion regarding the other legal issues canvassed by learned counsel for the parties.
the result, we order that the appellants be released on bail on their executing
a bond with two solvent sureties, each in a sum of ` lakhs to the satisfaction of
the Special Judge, CBI, New Delhi on the following conditions :-
a. The appellants shall not
directly or indirectly make any inducement, threat or promise to any person acquainted
with the facts or the case so as to dissuade him to disclose such facts to the
Court or to any other authority.
b. They shall remain present
before the Court on the dates fixed for hearing of the case. If they want to
remain absent, then they shall take prior permission of the court and in case of
unavoidable circumstances for remaining absent, they shall immediately give intimation
to the appropriate court and also to the Superintendent, CBI and request that they
may be permitted to be present through the counsel.
c. They will not dispute
their identity as the accused in the case.
d. They shall surrender their
passport, if any (if not already surrendered), and in case, they are not a holder
of the same, they shall swear to an affidavit. If they have already surrendered
before the Ld. Special Judge, CBI, that fact should also be supported by an
e. We reserve liberty to
the CBI to make an appropriate application for modification/recalling the order
passed by us, if for any reason, the appellants violate any of the conditions imposed
by this Court.
appeals are disposed of accordingly.
[ G. S. SINGHVI ]
[ H. L. DATTU ]