State Through Delhi Administration Vs.
Sanjay Gandhi [1978] INSC 110 (5 May 1978)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V.
((CJ) FAZALALI, SYED MURTAZA SHINGAL, P.N.
CITATION: 1978 AIR 961 1978 SCR (3) 950 1978
SCC (1) 411
CITATOR INFO :
D 1985 SC 969 (12)
ACT:
Constitution of India, 1950, Art. 136-Appeal
by special leave against an order rejecting an application for cancellation of
bail-Court cannot permit use of new material against accused.
Constitution of India, 1950, Art. 136-Appeal
by special leave against an order rejecting an application for cancellation of
the bail-Interference with the findings of the High Court as to whether the
accused tampered with prosecution witnesses, when justified.
Bail, cancellation of--Power to cancel bail,
must be exercised with care and circumspection and in appropriate
cases-Crl.P.C. (Act 11 of 1974), 1973, s. 439(2).
Bail cancellation of-Grounds must bear casual
connection with same act or conduct of accused--CrI.P.C. (Act 2 of 1974). 1973,
Ss. 439(2) r/w 437(5).
Burden of proof, extent of-In an application
for cancellation of bail, the proof of the plea that witnesses turned hostile
because they were won over by the accused need not be beyond a reasonable
doubt-Evidence Act, 1872- Ss.3, 101-104 r/w Crl.P.C. S. 439(2).
HEADNOTE:
The respondent who was arraigned as accused
No. 2 in a prosecution for offences u/Ss. 120B r/w Ss. 409, 435 and 201 I.P.C.
instituted by the Central Bureau of Investigation in the Court of the Chief
Metropolitan Magistrate, Delhi was granted anticipatory bail, by the High Court
of Delhi. When the Committal Proceedings commenced in the Court of the Chief
Metropolitan Magistrate, Delhi on February 20, 1978 as per the time schedule
fixed by this Court, the two approvers in the case turned hostile, resiled from
their statements made to the police u/s 161 of Crl.P.C., and retracted the
confessions made to the Chief Metropolitan Magistrate. An application filed for
cancellation of the respondents bail was dismissed by a learned single Judge of
the Delhi High Court on 11-4-1978.
Allowing the appeal in part, the Court
HELD : 1. In an appeal by special leave
against an order rejecting an application for cancellation of bail, no new
material which was not available to the High Court will normally be allowed to
be relied upon by the State, it would be unfair to the respondent to make use
of that material without giving him an adequate opportunity to meet it on the
ground that the additional data came into existence after the High Court gave
its judgment. Though, in appropriate cases, the Court has the power to take
additional evidence that power has to be exercised sparingly, particularly in
appeals brought under Article 136 of the Constitution. [956 D-E]
2. In an appeal by special leave against an
order rejecting an application for cancellation of the bail, the High Court's
findings are normally treated by this Court as binding on issues like : whether
the prosecution has succeeded in proving its case that the respondent has
tampered with its witnesses and that 951 there is a reasonable apprehension
that he will continue to indulge in that course of Conduct, if he is allowed to
remain at large. If two views of the evidence are reasonably possible and the
High Court has taken one view, this Court will be disinclined to interfere
therewith in an appeal under Art. 136 of the Constitution. (958 E-F) In the
instant case :-(a) the High Court has rejected incontrovertible -evidence on
hypertechnical considerationsthough it points in one direction only, leaving no
manner of doubt that therespondent has misused the facility afforded to him by
that Court by granting anticipatory bail to him(b) Even excluding the last
incident in regard to Charan Singh which is really first in point of time and
though it is corroborated by an entry in the General Diary, the other evidence
viz., (i) Yadav's complaint of the 14th February, (ii) Khedkar's complaint of
even date, (iii) Yadav's admission in his evidence that he did make the written
complaint in spite of the fact that he had turned hostile, (iv) the affidavits
of Sat Pal Singh, Ganpat Singh and Digambar Das in regard to the incident of
the 17th and (v) the affidavit of Sarup Singh regarding the incident of
February 28. furnish satisfactory proof that the respondent has abused his
liberty by attempting to suborn the prosecution witness. He has therefore
forfeited his right to remain free. [960 G-H 961 A) 3.Section 439(2) of the
Code of Criminal Procedure confers jurisdiction on the High Court or Court of
Sessions to direct that any person who has between released on bail under
Chapter XXXIII be arrested and committed to custody.
The power to take back in custody an accused
who has been enlarged on bail has to be exercised with care and circumspection.
But the power, though of an extra-ordinary nature, is meant to be exercised in
appropriate cases when, by a preponderance of probabilities, it is clear that
the accused is interfering with the course of justice by tampering with
witnesses. Refusal to exercise that wholesome power in such cases, few though
they may be, will reduce it to a dead letter and will suffer the courts to be
silent spectators to the subversion of the judicial process. [961 A-C] Madhukar
Purshottam Mondakal v. Talab Haji Hussain 60, Bombay Law Reporter 465 and
Gurcharan Singh & Ors. v. State (Delhi Administration), 1978 Criminal Law
journal, 129, 137;
Principles in, applied.
4.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. The fact
that prosecution witnesses have turned hostile cannot by itself justify the
inference that the accused has won them over.
The objective fact that witnesses have turned
hostile must be shown to bear a causal connection with the subjective
involvement therein of the respondent. Without such proof, a bail once granted
cannot be cancelled on the off chance or on the supposition that witnesses have
been won over by the accused. Inconsistent testimony can no more be ascribed by
itself to the influence of the accused than consistent testimony, by itself,
can be ascribed to the pressure of the prosecution. It is therefore necessary
for the prosecution to show some act or conduct on the part of the respondent
from which a reasonable inference may arise that the witnesses have gone back
on their statements as a result of an intervention by or on behalf of the
respondent. [957 AF] 5.It is not necessary for the prosecution to prove by a
mathematical certainty or even beyond a reasonable doubt that the witnesses
have turned hostile because they are won over by the accused. The issue of
cancellation of bail can only arise in criminal cases, but that does not mean
that every incidental matter in a criminal case must be proved beyond a
reasonable doubt like the guilt of the accused.
Indeed, proof of facts by preponderance 952
of probabilities as in a civil case is not foreign to criminal jurisprudence
because, in cases where the statute raises a presumption of guilt as, for,
example, the Prevention of Corruption Act, the accused is entitled to rebut
that presumption by proving his defence by a balance of probabilities. He does
not have to establish his case beyond a reasonable doubt. The same standard of
proof as in a civil case applies to proof of incidental issues involved in a
criminal trial like the cancellation of bail of an accused. The prosecution,
therefore, can establish its case in an application for cancellation of bail by
showing on a preponderance of probabilities that the accused has attempted to
tamper or has tampered with its witnesses.
Proving by the test of balance of
probabilities that the accused has abused his liberty or that there is a
reasonable apprehension that he will interfere with the course of justice is
all that is necessary for the prosecution to do in order to succeed in an
application for cancellation of bail. [957 G-H, 958 A-D]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 188 of 1978.
Appeal by Special Leave from the Judgment and
Order dated the 11th April, 1978 of the Delhi High Court in Criminal Misc.
Application No. 130 of 1978.
Ram Jethmalani, and R. N. Sachthey for the
Appellant.
A.N. Mulla, D. Mathur, B. R. Handa and D.
Goburdhan for Respondent.
The Judgment of the Court was delivered by
CHANDRACHUD, C.J.-The respondent is arraigned as accused No. 2 in a prosecution
instituted by the Central Bureau of Investigation in the Court of the learned
Chief Metropolitan Magistrate Delhi. Omitting details which are not necessary
for the present purpose the case of the prosecution is as follows :
One Shri Amrit Nahata had produced a film
called 'Kissa Kursi Ka', which portrayed the story of the political doings of
the respondent and his mother, Smt. Indira Gandhi, the former Prime Minister of
India. The Board of Censors declined to grant a certificate for exhibition of
the film whereupon, Shri Nahata filed a writ petition in this Court for a Writ
of Mandamus. On October 29, 1975, a direction was given by the Court that the
film be screened on November 17 to enable the Judges to see whether the
censorship certificate was refused rightly. In order to prevent this Court from
exercising its constitutional jurisdiction and with a view to preventing the
film from being publicly exhibited, the respondent and his co-accused Shri
Vidya Charan Shukla, who was then the Minister for Information and
Broadcasting, entered into a conspiracy to take possession of the film and to
destroy it. In pursuance of that conspiracy, 13 steel trunks containing 150
spools of the film were brought under special escort from Bombay to Delhi at
the behest of Shri. Shukla. The consignment reached the New Delhi Railway
Station on November 10, 1975. The spools were then loaded in two tempo vehicles
belonging to the res- pondent or to his company, M/s. Maruti Ltd., Gurgaon, of
which respondent was the Managing Director. The vehicles, which were driven by
Ram Chander and Charan Singh were taken to Gurgaon at 953 the premises of
Maruti Limited where, under instructions given by the respondent, the spools
were destroyed by setting fire to them some time prior to November 24, 1975.
A positive print of the film was lying in the
Auditorium of the Ministry at Mahadev Road, New Delhi, which was taken charge
of by one Ghose, a Deputy Secretary in the Ministry of Information and
Broadcasting. The loaded it in Shri Shukla's staff car whereupon Shri Shukla
himself delivered the print at No. 1, Safdarjang Road, where the respondent and
his mother used to live at the relevant time. The Supreme Court was informed
that it was not possible to screen the film for evaluation by the Judges. And
the writ petition filed by Shri Nahata came to an abrupt end upon an affidavit
being filed on March 22, 1976, by Chose that the spools of the film had got
mixed up with some other films received by the Government in connection with
the International Film Festival.
After the emergency was lifted and the
present Janata Government came into power, a certain information was received
in consequence of which a raid was effected on the Gurgaon premises of the
Maruti Limited. The raid yielded incriminating material to show that the 13
boxes which had been received from Bombay at the New Delhi Railway Station
contained the spools of the film 'Kissa Kursi Ka' which were burnt and
destroyed in the factory premises. R. B. Khedkar.
a Security Officer of the Maruti Limited and
his assistant, Kanwar Singh Yadav, who was the Security Supervisor of the company,
were arrested on the very day of the raid. Yadav made a statement on the
following day stating how the film was burnt in the premises of the factory.
Yadav's confessional statement was recorded by the Chief Metropolitan
Magistrate on June 3 and Khedkar's on June 4.
They were granted pardon under section 306 of
the Code of Criminal Procedure on July 14, 1977. During the course of
investigation, various statements were recorded by the- police including those
of the two drivers of the tempo vehicles, Ram Chander and Charan Singh, a
watchman called Om Prakash and several employees of the Store Department of the
company.
After completion of the investigation, a
chargesheet was filed by the C.B.I. in the Court of the Chief Metropolitan
Magistrate citing 138 witnesses for proving charges under section 120B read
with sections 409, 435 and 201 of the Penal Code as also for substantive
offences under the last mentioned three sections of the Penal Code.
In certain proceedings for contempt and
perjury which were filed in this Court against Shri Shukla, it was directed by
the Court on January 2, 1978, that the Chief Metropolitan 'Magistfate shall
commence the hearingof the case on February 15 and that the Sessions Court will
co the trial on March 20, 1978, and shall proceed with the hearingfrom day to
day. By an order dated February/March 14, the Court extended the time limit by
four days in each case.
The committal proceedings commenced in the
Court of the learned Chief Metropolitan Magistrate, Delhi on February 20, 1978.
Khedkar who was examined on that day supported the procecution fully except 10
329 SCI/178 954 that he admitted in his cross-examination that he had written
two inland letters, which may tend to throw a cloud on his evidence. On
February 21, the second approver Yadav was examined by the prosecution. He
resiled both from the statement which he made to the policeunder section 161 of
the Code of Criminal Procedure as well as fromhis judicial confession. The
recording of Yadav's evidence was over on the 22nd.
On February 27, 1978, an application was
filed by the Delhi Administration, in the High Court of Delhi for cancellation
of the respondent's bail. That application having been dismissed by a learned
single Judge on April 11, 1978, the Administration has filed this appeal by
special leave.
Before the High Court, the following
submissions were made on behalf of the appellant (1)That the respondent was
charged with offences amongst which is the offence under section 409 of the
Penal Code which is punishable imprisonment for life. The respondent, having
been accused of a non-bailable offence, it was wrong in the first instance to
enlarge him on bail.
(2)initially, the investigation was started
in respect of the conspiracy and theft of the Mm from the custody of the
Government. The respondent had obtained an order of anticipatory bail from the
Delhi High, Court in respect of those offences. It transpired during the course
of investigation that a far more serious offence under section 120B read with
section 409 of the Penal Code was committed by the respondent and the
co-accused. Even though prior to July 14, 1977, on which date the charge sheet
was filed, the State was in possession of information showing that the
respondent was trying to tamper with the witnesses, the State did not apply for
cancellation of the anticipatory bail nor did it ask the Magistrate to issue a
non-bailable warrant because the very witnesses who were attempted to be
tampered with had complained to the police that the respondent was trying to
win them over. In the larger interest of justice, the State did not adopt a
vindictive attitude towards the respondent by asking that he should be taken
into custody;
(3)It was the duty of the High Court to
enforce the pro- visions of section 437 of the Code of Criminal Procedure when
it was brought to its notice that the respondent, being charged with an offence
under section 409 which is punishable with life imprisonment was illegally oil
bail, particularly when he had misused his liberty. The obligation of the Court
to enforce the provisions of section 437 of the Code of Criminal Procedure does
not depend upon whether the State has acted with vigilance and promptitude.
(4) The burden which rests on the State in
'an application for cancellation of bail is of a limited nature. All that is
necessary for the State to show, in support I of its plea that bail be
cancelled, is that there is a reasonable apprehension that by tampering with
witnesses, 95 5 the accused is interfering with the course of justice.
It'is neither necessary to prove the fact of
tampering with mathematical certainty nor indeed beyond a reasonable doubt.
The test to be adopted in such matters is one
of 'reasonable apprehension'.
(5)On February 13 and 14, 1978, approver
Yadav, first through Khedkar and then by an application written and signed by
himself, complained to the C.B.I. Officers that the respondent was trying to
tamper with his evidence through Ram Chander, the driver of the tempo. Within a
week thereafter, that is on February 21, 1978, Yadav turned hostile by going
back upon the statement which he had made before the police under section 161
of the Code of Criminal Procedure and on his confessional statement recorded by
the Magistrate on the basis of which he had secured pardon a few days earlier.
This incident by itself was sufficient to justify the State's plea that there
was a reasonable apprehension in the mind of the prosecution that the
respondent was tampering with their witnesses. , (6)The fact that the respondent
had contacted Yadav on February 17 and was seen in Yadav's company on that date
was supported by the evidence of Ganpat Singh, a Postal Peon, Digamber Das, an
employee of the Maruti Limited and Satpal Singh, a constable of the Haryana
Armed Police. There was no justification for disbelieving the affidavits of
these three persons.
(7)As far back as July 1977, the respondent
had attempted to tamper with two witnesses, Charan Singh and A. K. Dangwal.
Both of these witnesses had given written
applications to the police complaining of attempts made by the respondent to
win them over. The entries made by the police in the General Diary corroborated
the complaints made by these witnesses. The two complaints, though not acted
upon promptly by the police by asking for the cancellation of respondent's
bail, render it highly probable that during the later stages of the trial
several witnesses turned hostile on account of the pressure and influence which
the respondent exercised on them.
(8)It was through Ram Chander that approver
Yadav was approached and tampered with. On February 21, 1978, Ram Chander was
sitting in the Court though his presence, was not necessary and indeed, he
entered the court-room along with a group of respondent's partisans for whom
the respondent had obtained the Magistrates permission by seeing him in his
chamber.
(9)These very contentions have been repeated
before us by Shri Ram Jethamalani who also relied upon some additional data in
support of the application for cancellation of the respondent's bail. The new
material on which counsel relies has come into existence after the High Court
delivered its judgment on April 1.1 and in the very nature of things, the High
Court has had no opportunity to consider its weight and relevance on the question
in issue.
Shri A. N. Mulla who appears on behalf of the
respondent controverted each and every allegation made by the appellant. He
contends that the prosecution has been, launched out of political vendetta,
that ,ordinary offences triable by a Magistrate have been magnified beyond 956
all proportion, that pardon was tendered to the so-called approvers though no
charge could have been levelled against them, for the sole purpose of
attracting the application of section 306(5) of the Criminal Procedure Code so
as to drag the accused to the Sessions Court, that the police with their
unlimited resources have left no stone unturned in order somehow to implicate
the accused and that evidence in regard to tampering of witnesses is
manufactured with a view to explaning away the tell-tale circumstance that the
key witnesses, including one of the approvers, have refused to support the
prosecution. The prosecution, according to counsel, ventured into
sensation-mongening by building the super-structure of a Sessions trial on a
slip foundation and having been disillusioned by the performance of its star
witnesses, it has resorted to the expedient of asking for cancellation of the
respondent's bail in order to give prop to a failing can based on trumped-up
charges. Strong objection was taken by the learned counsel to the attempt made
by the appellant to cite new and additional material before us. This, according
to him is impermissible in an appeal filed by leave under article 136 of the
Constitution, since the only question that is open to us to consider is
whether, on the, material before it, the High Court is right in coming to the
conclusion to which it did- We are not disposed to allow the State to rely on
any new material which was not available to the High Court. true, that the
additional data came into existence after the High Court gave its judgment but
it would be unfair to the respondent to make use of that material without
giving him an adequate opportunity to meet it. That will entail a fairly long
adjournment which may frustrate the very object of the proceedings initiated by
the State. Besides, though in appropriate cases the court has the power to take
additional evidence, that power has to be exercised sparingly, particularly in
appeals brought under article 136 of the Constitution. The High Court, while
dismissing the State's application for cancellation of bail, has reserved to it
the liberty to approach it "if, at any time in future, the respondent
abuse& his liberty". The new developments could, if the prosecution is
so advised be brought to the High Court's attention for obtaining suitable
relief.
We cannot spend our time in scanning
affidavits and sifting material for the first time for ourselves, for
determining whether the new material can justify cancellation of bail.
We propose, therefore, to limit ourselves to
the facts and incidents which were before the High Court and on which it has
pronounced.
We ought not to forget, while dealing with
the rival contentions, that the trial is still pending in the Sessions Court
and any observation made by us in this incidental proceeding may unwittingly
influence the course of trial.
We will take care to see that nothing is said
on the merits of the matter, no comment made on the veracity of witnesses and no
subtle guidance offered to unravel why the witnesses have turned hostile. These
matters, at this moment, are within the exclusive domain of the Sessions Court
and we cannot, by employing an artifice, withdraw the decision of these
questions to ourselves. It is the privilege of the Sessions Court, not of- the
Supreme Court, to try the 957 accused. We must therefore make it clear that
nothing said by us in our judgment shall influence the decision of the case and
the Sessions Judge is free to assess and evaluate the evidence, unhampered by
any observations we may have happened to make.
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. The fact
that prosecution witnesses have turned hostile cannot by itself justify the
inference that the accused has won them over brother a sister or a parent who
has seen the commission of crime, may resile in the Court from a statement
recorded during the course of investigation. That happens instinctively, out of
natural love and affection, not out of persuasion by the accused. The witness
has a stake in the innocence of the accused and tries therefore to save him
from the guilt. Likewise, an employee may, out of a sense of gratitude-, oblige
the employer by uttering an untruth without pressure or persuasion. In other
words, the objective fact that witnesses have turned hostile must be shown to
bear a causal connection with the subjective involvement therein of the
respondent. Without such proof, a bail once granted cannot be cancelled on the
off chance or on the supposition that witnesses have been won over by the
accused. Inconsistent testimony can no more be ascribed by itself to the
influence of the accused than consistent testimony, by itself, can be ascribed
to the pressure of the prosecution. Therefore, Mr. Mulla is right that one has
to countenance a reasonable possibility that the employees of Maruti like the
approver Yadav might have, of their own volition, attempted to protect the
respondent from involvement in criminal charges. Their willingness now to
oblige the respondent would depend upon low much the respondent has obliged
them in the past. It is therefore necessary for the prosecution to show some
act or conduct on the part of the respondent from which a reasonable inference
may arise that the witnesses have gone back on their statements as a result of
an intervention by or on behalf of the respondent.
Before we go to the facts of the case, it is
necessary to consider what precisely is the nature of the burden which rests on
the prosecution in an application for cancellation of bail. Is it necessary for
the prosecution to prove by a mathematical certainty or even beyond a
reasonable doubt that the witnesses have turned hostile because the, are won
over by the accused ? We think not. The issue of cancellation of bail can only
arise in criminal cases, but that does not mean that every incidental matter in
a criminal case must be proved beyond a reasonable doubt like the guilt of the
accused. Whether an accused is absconding and therefore his property can be
attached under section 83 of the Criminal Procedure Code, whether a search of
person of premises was taken as required by the provisions of section 100 of
the Code, whether a confession is recorded in strict accordance with 958 the
requirements of section 164 of the Code and whether a fact was discovered in
consequence of information received from an accused as required by section 27
of the Evidence Act are all matters which fall peculiarly within the ordinary
sweep of criminal trials. But though the guilt of the accused in cases which
involve the assessment of these facts has to be established beyond a reasonable
doubt, these various facts are not required to be proved by the same rigorous
standard. Indeed, proof of facts by preponderance of probabilities as: in a
civil case is not foreign to criminal jurisprudence because, in cases where the
statute raises a presumption of guilt as, for example, the Prevention of
Corruption Act, the accused is entitled to rebut that presumption by proving
his defence by a balance of probabilities. He does not have to establish his
case beyond a reasonable doubt. The same standard of proof as in a civil case
applies to proof of incidental issues involved in a criminal trial like the
cancellation of bail of an accused. The prosecution, therefore, can establish
its case in an application for cancellation of bail by showing on a
preponderance of probabilities that the accused has attempted to tamper or has
tampered with its witnesses.
Proving by the test of balance of
probabilities that the accused has abused his liberty or that there is a
reasonable apprehension that he will interfere with the course of justice is
all that is necessary for the prosecution to do in order to succeed in an
application for cancellation of bail.
Our task therefore is to determine whether,
by the application of the test of probabilities, the prosecution has succeeded
in proving its case that the respondent has tampered with its witnesses and
that there is a reasonable apprehension that he will continue to indulge irk
that course of conduct if he is allowed to remain at large.
Normally, the High Court's findings are
treated by this Court as binding on such issues, but, regretfully, we have to
depart from that rule since the High Court has rejected incontrovertible
evidence on hyper technical considerations.
if two views of the evidence were reasonably
possible and the High Court had taken one view, we would have been disinclined
to interfere therewith in this appeal under article 1.36 of the Constitution.
But the evidence points in one direction only, leaving no manner of doubt that
the respondent has misused the facility afforded to him by the High Court by
granting anticipatory bail to him.
The sequence of events is too striking to
fail to catch the watchful eye. But, we will not enter too minutely into the
several incidents on which the appellant relies to prove its case. We will
confine ourselves to some of the outstanding instances and show how the
prosecution is justified in its apprehension.
Kanwar Singh Yadav was working at the
relevant time as a Security Supervisor under R. B. Khedkar who was the Security
officer of Maruti Ltd. Both of them were arrested an the very day of the raid,
that is, on May 25, 1977. On the 26th, the police recorded Yadav's statement
and on the 28th, he made a petition to the Chief Metropolitan Magistrate,
expressing his willingness to confess.
959 The confessional statement was recorded
on June 3 and Yadav was granted pardon on July 14, under section 306 of the
Code of Criminal Procedure. Khedkar made a confession on June 4 and was granted
pardon on July 14, 1977. The C.B.I. filed the chargesheet on 14th July itself.
The committal proceedings were fixed by this
Court by an order dated January 2, 1978 to begin peremptorily on February 15,
1978. The respondent obtained a modification of that order, by virtue of which
the proceedings began on February 20.
One day before the proceedings were
originally scheduled to begin, that is on 14th February, the two approvers.
Yadav and Khedkar appeared at the C.B.I. office and filed written complaints dated
the 13th that the respondent was making repeated attempts to call Yadav to meet
him by sending the car with Ram Chander, the driver of the respondent. One of
these complaints is signed by Yadav and the other by Khedkar. Yadav turned
hostile when he was examined on the 21st February before the Committing
Magistrate. He went back on his police statement, resiled from his confession
and risked his pardon. But he admitted in his cross- examination to the Public
Prosecutor that he had given the complaint to the C.B.I. He explained it away
by offering a series of excuses but we will only characterise that attempt as
lame and unconvincing. A deeper probe into the matter and its critical analysis
is likely to exceed the legitimate bounds of this proceeding and therefore we
will stop with the observation that there is more than satisfactory proof of
the respondent having attempted to suborn Yadav. Whether Yadav succumbed to the
persuasion is not for us to say. The Sessions Judge shall have to decide that
question uninfluenced by anything appearing herein. We are concerned with the
respondent's conduct, not with Yadav's reaction or his motives. Khedkar stuck
to the complaint.
That is in regard to the event of the 14th
February. On the 17th ' Yadav and the respondent were seen together, the former
leaving,, the Maruti factory with the respondent in his car. This is supported
by the affidavits of Sat Pal Singh, a constable of the Haryana Armed
Constabulary who was on duty at the Factory, Ganpat Singh, a Postal Peon and
Digambar Das, an Assistant Despatch Clerk in Maruti. It is undisputed that the
respondent had gone for official work to the factory on the 17th. The High
Court objects the incident firstly because it is not mentioned in the petition
for cancellation of the respondent's bail. The affidavit of Ved Prakash,
Inspector of Police, C.B.I., shows that information of the incident was
received on the 24th whereas the petition was drafted on the 22nd February.
That apart, we cannot understand the High Court to say that the affidavits of
the three witnesses could not be accepted because the verification clause of
the affidavits was "most defective" as it could not be said
"what part of the affidavit is true to the knowledge of the deponent and
what part thereof is true to the belief of the deponent". This reason has
been cited by the learned Judge for rejecting many an incident but then it was
open to him to ask for better particulars of 960 verification. The witnesses
claim to have seen with their own eyes that Yadav drove away with the
respondent.
The incident consisted of one single event
and there was no possibility of the witnesses' knowledge being mixed up with
their belief. We find it impossible. to endorse this part of the High Court's
reasoning and are inclined to the view that the respondent ultimately succeeded
in establishing contact with Yadav. Whether the respondent succeeded in
achieving his 'ultimate object is beyond us to, say except that Yadav turned
hostile in the Committing Magistrate's court on February 21.
The High Court has also rejected the
affidavit of Sarup Singh that on February 28, 1978, while he was doing duty as
an armed. constable at the factory, he saw the respondent coming to the factory
and heard him assuring Yadav that he need not worry. The verification clause of
the affidavit was again thought to be 'defective". We are unable to agree
with this part of the learned Judge's judgment for reasons already indicated.
We are also unable to agree with the High
Court that the complaint filed by Charan Singh on July 12 in regard to the
incident of July 5, 1977 and the complaint filed by A. K. Dangwal on July 9 in
regard to the incident of July 7, 1977 are "irrelevant" since the
prosecution did not even oppose the grant of bail to the respondent after the
chargesheet was filed on July 14, 1977. It is true that it is not possible to
accept Shri Jethmalani's explanation of the inactivity on the part of the
prosecution even after receiving the two complaints showing that the respondent
was trying to tamper with the witnesses. Concessions of benevolence cannot
readily be made in favour of the prosecution. But it cannot be overlooked that
Charan Singh did turn hostile, though that happened after the, High Court gave
its judgment on April 1 1. The respondent knows that the witness turned hostile
and significantly, though the witness refused to support the prosecution he
made an important admission that he bad submitted a written application or
complaint to Inspector Ved Prakash on July 12, 1977 and that "whatever is
mentioned in that application is correct". That application which is
really a complaint, contains the most flagrant allegation of attempted
tampering with the witness by the respondent, through his driver Chattar Singh.
Reference to this incident is not in the nature of Additional evidence properly
so called because the witness was examined in the Sessions Court in the
presence of the respondent and his advocates. They know what the witness stated
in his open evidence and what explanation he gave for making. the complaint on
July 12, 1977. The Sessions Court will no doubt assess its value but for our
limited purpose, the episode is difficult to dismiss as irrelevant.
Even excluding the last incident in regard to
Charan Singh which is really first in point of time and though it is
corroborated by an entry in the General Diary, we are of the opinion that (i)
Yadav's complaint of the, 14th February, (ii) Khedkar's complaint of even date,
(iii) Yadav's admission in his evidence that he did make the written complaint
inspite of the fact that he had turned hostile (iv) the affidavits of Sat Pal
Singh, Ganpat Singh and Digambar Das in regard to the incident of the 17th and
(v) the affidavit of Sarup Singh 961 regarding the incident of February 28,
furnish satisfactory proof that the respondent has abused his liberty by
attempting to, suborn the prosecution witnesses. He has therefore forfeited his
right to remain free.
Section 439(2) of the Code of Criminal
Procedure confers jurisdiction on the High Court or Court of Sessions to direct
that any person who has been released on bail under Chapter XXXIII be arrested
and committed to custody.
The power to take back in custody an accused
who has been enlarged on bail has to be exercised with care and circumspection.
But the power, though of an extra-ordinary nature, is meant to be exercised in
appropriate cases when, by a preponderance of probabilities, it is clear that
the accused is interfering with the course of justice by tampering with
witnesses. Refusal to exercise that wholesome power in such cases, few though
they may be, will reduce it to a dead letter and will suffer the Courts to be
silent spectators to the subversion of the judicial process.
We might as well wind up the Courts and bolt
their doors against all than. permit a few to ensure that justice shall not be
done.
The power to cancel bail was exercised by the
Bombay High Court in Madhukar Purshottam Jondkar v. Talab Haji Hussain(1) where
the accused was charged with a bailable offence. The test adopted by that Court
was whether the material placed before the Court was "such as to lead to
the conclusion that there is a strong prima facie case that if the accused were
to be allowed to be at large he would tamper with the prosecution witnesses and
impede the course of justice". An appeal preferred by the accused against
the judgment of the Bombay High Court was dismissed by this Court. In Gurcharan
Singh and others v. State (Delhi Administration,(2) while confirming the order
of the High Court cancelling the bail of the accused, this Court observed that
the only question which the Court had to consider at that stage was whether
"there was prima facie case made out, as alleged, on the statements of the
witnesses and on other materials", that "there was a likelihood of
the appellants tampering with the prosecution witnesses". It is by the
application of this test that we have come to the conclusion that the
respondent's bail ought to be cancelled.
But avoidance of undue hardship or harassment
is the quintessence of judicial process. Justice, at all time and in all
situations, has to be tempered by mercy, even as against persons who attempt to
tamper with its processes. The apprehension of the prosecution is that 'Maruti
witnesses' are likely to be won over. The instances discussed by us are also
confined to the attempted tampering of Maruti witnesses like Yadav and Charan
Singh, though we have excluded Charan Singh's complaint from our consideration.
Since the appellant's counsel has assured us
that the prosecution will examine the Maruti witnesses immediately and that
their evidence will occupy no (1) 60 Bombay Law Reporter 465.
(2) 1978 Criminal Law Journal 129. 137.
962 more than a month, it will be enough to
limit the cancellation of respondent's bail to that period. We hope and trust
that no unfair advantage will be taken of our order by stalling the proceedings
or, by asking for a stay on some pretext or the other. If that is done, the
arms of law shall be long enough. Out of abundant caution, we reserve liberty
to the State to apply to the High Court, if necessary, but only if strictly
necessary. We are hopeful that the State too will take our order in its true
spirit.
In the result, we allow the appeal partly,
set aside the judgment of the High Court dated April 1 1, cancel the
respondents bail for a period of one month from to-day and direct that he be.
taken into custody. Respondent will, in the normal course, be entitled to be
released on fresh bail on the expiry of the aforesaid period. The learned
Sessions Judge will be at liberty to fix the amount and conditions of bail. The
order of anticipatory bail will stand modified to the extent indicated herein.
S. R. Appeal allowed in part.
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