Kalyan
Chandra Sarkar Vs. Rajesh Ranjan Alias Pappu Yadav & Anr [2004] Insc 161 (12 March 2004)
N. Santosh
Hegde & B. P. Singh
(Arising
out of S.L.P (Crl) No. 4774 of 2003) SANTOSH HEGDE, J.
Heard
learned counsel for the parties.
Leave
granted.
The appellant
herein is the complainant in CBI Case No.RC.12(S)/98/SIC.IV/New Delhi. According to the said complaint,
the first respondent herein conspired with the other accused named in the said
complaint to murder his brother Ajit Sarkar who was then a MLA from Purnea
constituency in the State of Bihar. The
incident leading to the murder of said Ajit Sarkar took place on 14.6.1998 when
said Ajit Sarkar was returning in his official car with 3 others after
attending a Panchayat. It is the prosecution case that some other accused named
in the complaint followed the car in which said Ajit Sarkar was travelling on
two motorbikes and attacked Ajit Sarkar, his friends Asfaq Alam, Hamender
Sharma and Ajit Sarkar's bodyguard Ramesh Oraon with sophisticated weapons consequent
to which said Ajit Sarkar, Asfaq Alam and Hamender Sharma died and Ramesh Oraon
was seriously injured. A complaint in this regard was registered with the
jurisdictional Police at the instance of the appellant and the original
investigation was initiated by the said Police. However, when it was noticed
that the said jurisdictional Police were not conducting proper investigation,
the same was transferred to the Central Bureau of Investigation (CBI) which
registered a fresh case. During the course of investigation the CBI found that
in view of political rivalry between the deceased and the first respondent
herein, the latter entered into a criminal conspiracy with the other co-accused
to eliminate said Ajit Sarkar and pursuant to the said conspiracy on 12.6.1998
the first respondent held a meeting with co-accused Harish Chaudhary and others
in Siliguri. It is also found that the first respondent instructed some of the
co-accused to falsify certain records to create an alibi for himself and Harish
Chaudhary for their absence from the place and the time of proposed attack and
he himself left for New
Delhi from Bagdogra.
The further case of the prosecution is that later on the first respondent from
Delhi instructed the other co-accused Rajan Tiwari over the phone to eliminate Ajit
Sarkar by all means and he also assured the said Rajan Tiwari that he would
provide the required fire-arms through co-accused Harish Chaudhary. Pursuant to
the said assurance, the prosecution alleges that on the date of the incident i.e.
on 14.6.1998 at about 4.30 p.m. said Rajan Tiwari armed with an AK-47 rifle, Harish
Chaudhary with a .455 revolver and another accused Amar Yadav armed with a .38
revolver waylaid the car in which Ajit Sarkar was travelling at a place near Ankur
Hotel in Subhash Nagar and in that attack, as stated above, 3 persons including
Ajit Sarkar died and his bodyguard Ramesh Oraon suffered serious injuries.
During the course of investigation, some of the accused persons including the
first respondent were arrested and a chargesheet was filed before the
Additional Sessions Judge, XI at Patna in Sessions Trial No.976 of 1999.
From
the records, it is seen that after his arrest the first respondent had made a
number of applications for grant of bail pending trial and most of such
attempts had failed and it is by the impugned order, the High Court allowed the
application of the first respondent and directed his release on bail on his
furnishing a bail-bond of Rs.50,000 with two sureties of the like sum to the
satisfaction of the trial court, subject to the conditions mentioned therein.
Being
aggrieved by the said order of the High Court enlarging the said respondent on
bail, the brother of the deceased Ajit Sarkar is before us in this appeal. The
second respondent the CBI has supported the appellant in this appeal.
Mr. R
F Nariman, learned senior counsel appearing for the appellant contended that
the crime committed by the appellant is so heinous and gruesome that that by
itself should have been sufficient to reject the bail application of the first
respondent. He pointed out from the record that the first respondent had filed
an application for bail before the High Court which came to be rejected by the
High Court as per its order dated 16.9.1999. A SLP filed against the said order
of rejection of bail came to be dismissed by this Court on 7.10.1999. A second
application for bail filed by him was also rejected by the High Court on
22.11.1999. A SLP filed against the said order was rejected by this Court on
4.2.2000. A third application filed by the first respondent for grant of bail
before the High Court was rejected by the said court on 3.5.2000 which order
became final because no SLP was filed before this Court. A fourth application
for grant of bail was made on 26.7.2000 which also came to be rejected against
which no SLP was filed before this Court. The fifth application filed by the
first respondent for grant of bail before the High Court came to be allowed
vide order dated 6.9.2000 and an appeal filed against the grant of said bail,
this Court was pleased to allow the said appeal and cancel the bail granted to
the respondent as per its order dated 25.7.2001. Thereafter, the respondent
filed a sixth application for grant of bail which was rejected by the High
Court on 5.11.2001. Against the said rejection order, the respondent preferred
a SLP to this Court which came to be rejected on 7.12.2001. The seventh
application was filed by the respondent before the High Court for grant of bail
came to be dismissed on 13.3.2002 and a SLP filed against the said order came
to be dismissed on 10.5.2002. The learned counsel submitted in this background
the eighth attempt by the respondent became successful and the High Court by
its order dated 23.5.2003 granted bail to the first respondent which is the
subject-matter of this appeal. The learned counsel then submitted that though
this Court in the earlier order of cancellation of bail had specifically negatived
the ground on which bail was granted by the High Court still in this round, the
High Court by the impugned order again granted bail on the very same grounds
which the learned counsel submits amounts to ignoring the findings of this
Court. He also pointed out from the judgment of this Court that while cancelling
the bail this Court had decided certain questions of law which were binding on
the High Court. Still the High Court regardless of the said findings of this
Court proceeded to make the impugned order without even referring to the same.
For example, he pointed out that this Court in the said order had held that
there was non- application of mind by the High Court to the provision of
section 437(1)(1) of the Cr.P.C. which this Court had held is a sine qua non
for granting bail. He also pointed out that this Court had also held in the
said judgment that there is a prohibition in section 437(1)(1) that the class
of persons mentioned therein shall not be released on bail if there appears to
be a reasonable ground for believing that such person is guilty of an offence
punishable with death or imprisonment for life. He submitted that this Court
had held that said condition is also applicable to the courts entertaining a
bail application under Section 439 of the Code. He argued assuming that the
said enunciation of law is erroneous, still because it is a finding given in
the case of the first respondent himself, so far as his case is concerned, it
is a binding precedent unless reversed by the apex Court itself in a manner
known to law. He submitted that the High Court has not followed the said
mandate in the impugned order, therefore, on that ground also the impugned
order is liable to be set aside. Shri Nariman further submitted that this Court
in the said order dated 25.7.2001 has held that the fact that an accused was in
custody for a certain period of time by itself is not a ground to grant bail in
matters where the accused is involved in heinous crimes. Learned counsel also
pointed out that the first respondent has misused his liberty by interfering
with the administration of justice.
Mr.
K.K. Sud, learned Additional Solicitor General appearing for the CBI supporting
the appellant, contended that the High Court has seriously erred in granting
bail to the first respondent in spite of the fact that this Court by an earlier
order had set aside the bail granted to him by the High Court on 6.9.2000. He
contended that in the said order of this Court dated 25.7.2001, this Court had
specifically held the grounds on which the High Court had granted bail viz.,
(a) that
the respondent was in custody for more than a year; and
(b) that
in an earlier order, the High Court while rejecting the bail application had
reserved liberty to renew the bail application after framing of charge in the
case, are by themselves insufficient for grant of bail.
Learned
A.S.G. contended in spite of the same the High Court again proceeded to grant
bail practically on the very same ground without there being any change in the
circumstances. Learned ASG also contended that liberty reserved in the order of
this Court dated 25.7.2001 that in the event of there being any fresh
application for bail by the first respondent, the High Court is free to
consider such application without being in any manner influenced by the
observations made in the said order of this Court would not amount to giving a
carte blanche to the High Court to grant bail to the first respondent merely
for the asking of it, or by ignoring the findings given in the said order. He
urged that there has been no change in circumstances nor has the High Court
given any other or additional ground for grant of bail than what was given by
the High Court in its order when it granted bail on 6.9.2000. Learned counsel
also contended that after the High Court granted bail to the first respondent
by the impugned order on 23.5.2003, the first respondent has been indulging in
threatening witnesses. He pointed out from the records that after the
respondent was granted bail on 23.5.2003 by the High Court a number of
witnesses who were examined had turned hostile obviously because of the
influence used and threats given to these witnesses. From the material on
record, learned counsel pointed out PWs.21 to 24, 26 and 27 are some such
witnesses who had turned hostile. He also submitted that there is material on
record to show that the surviving eye-witness Ramesh Oraon was also under such
threat thus, the first respondent has misused the privilege of freedom granted
to him by the High Court. He also contended that the first respondent is a very
influential personality and with the political power and monetary clout which
he wields freely to give threat to witnesses, the witnesses are not likely to
come forward to give further evidence. Learned counsel also pointed out from
the evidence that there is material on record to show the involvement of the
first respondent in the conspiracy to kill the deceased.
Mr.
K.T.S. Tulsi, learned senior counsel appearing for the first respondent
contended that the observations of this Court in its judgment dated 25.7.2001
that while granting bail under section 439 of the Code the High Court is also
bound by the conditions mentioned in section 437(1)(1) of the Code is per incuriam
being contrary to the wordings of the Section itself.
He
submitted that the observations of this Court in the said judgment that the
conditions found in section 437(1)(1) are sine qua non for granting bail under
section 439 is arrived at by this Court on a wrong reading of that Section. He
further submitted that the power of the Sessions Court and the High Court to
grant bail under section 439 is independent of the power of the Magistrate
under section 437 of the Code. Learned counsel also pointed out that section
437 imposes a jurisdictional embargo on grant of bail by courts other than the
courts mentioned in Section 439 of the Code in non-bailable offences, and such
a restriction is deliberately omitted in section 439 of the Code when it comes
to the power of the High Court or the Court of Sessions to grant bail even in
non-bailable offences. In this regard, he placed reliance on a judgment of the
High Court of Madhya Pradesh delivered by Faizanuddin, J., as His Lordship then
was, in Badri Prasad Puran Badhai v. Bala Prasad Mool Chand Sahu & Ors. [1985
MP Law Journal 258].
Mr. Tulsi
also contended that the present appeal not being one for cancellation of bail
on the grounds contemplated in section 439(2) of the Code ought not to be
entertained by us being one in the nature of an appeal against an interim order
this Court should not interfere unless it is shown that the respondent has
violated the terms under which the bail was granted to him. He also submitted
there is absolutely no legal evidence to implicate the first respondent in the
charge of conspiracy. He submitted that though the prosecution has examined
about 30 witnesses, it has not been able to establish any evidence against the
respondent. According to learned counsel, the trump card of the prosecution
seems to be an alleged confession made by one of co-accused Rajan Tiwari.
This
confession, according to learned counsel, is per se inadmissible in evidence,
hence, same cannot be of any assistance to the prosecution. He countered the
argument addressed on behalf of the appellant that the witnesses have turned
hostile only after the first respondent was released on bail. He submitted that
many other witnesses who were examined even when the appellant was still in
custody, had also turned hostile. He pointed out that the respondent has been
in custody for more than 3 = years and there is no possibility of the trial concluding
in the near future which would mean that if bail is cancelled, the respondent
will have to suffer the imprisonment inspite of the fact that there is no
acceptable material to support the prosecution case.
Before
we discuss the various arguments and the material relied upon by the parties
for and against grant of bail, it is necessary to know the law in regard to
grant of bail in non- bailable offences.
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 of the witness or apprehension of threat to the
complainant;
(c)
Prima facie satisfaction of the Court in support of the another (2001 (6) SCC
338).
In
regard to cases where earlier bail applications have been rejected there is a
further onus on the court to consider the subsequent application for grant of
bail by noticing the grounds on which earlier bail applications have been
rejected and after such consideration if the court is of the opinion that bail
has to be granted then the said court will have to give specific reasons why in
spite of such earlier rejection the subsequent application for bail should be
granted. (See Ram Govind Upadhyay, supra).
Bearing
in mind the above principles which on facts are applicable to the present case
also, we will now consider the merits of the above appeal.
We
have already noticed from the arguments of learned counsel for the appellant
that the present accused had earlier made seven applications for grant of bail
which were rejected by the High Court and some such rejections have been
affirmed by this Court also. It is seen from the records when the seventh
application for grant of bail was allowed by the High Court, the same was
challenged before this Court and this Court accepted the said challenge by
allowing the appeal filed by the Union of India and another and cancelled the
bail granted by the High Court as per the order of this Court made in Criminal
Appeal No.745/2001 dated 25th July, 2001. While cancelling the said bail this
Court specifically held that the fact that the present accused was in custody
for more than one year (at that time) and the further fact that while rejecting
an earlier application, the High Court had given liberty to renew the bail
application in future, were not grounds envisaged under Section 437(1)(1) of
the Code. This Court also in specific terms held that condition laid down under
Section 437 (1)(1) is sine qua non for granting bail even under Section 439 of
the Code. In the impugned order it is noticed that the High Court has given the
period of incarceration already undergone by the accused and the unlikelihood
of trial concluding in the near future as grounds sufficient to enlarge the
accused on bail, in spite of the fact that the accused stands charged of
offences punishable with life imprisonment or even death penalty. In such
cases, in our opinion, the mere fact that the accused has undergone certain
period of incarceration (three years in this case) by itself would not entitle
the accused to being enlarged on bail, nor the fact that the trial is not
likely to be concluded in the near future either by itself or coupled with the
period of incarceration would be sufficient for enlarging the appellant on bail
when the gravity of the offence alleged is severe and there are allegations of
tampering with the witnesses by the accused during the period he was on bail.
Learned
counsel for the appellant as also learned Additional Solicitor General have
pointed out to us that there are allegations of threatening of the witnesses
and that the prosecution has filed an application for the recall of witnesses
already examined which has been allowed, but the same is pending in revision
before the High Court. In such circumstances the High Court could not have merely
taken the period of incarceration and the delay in concluding the trial as
grounds sufficient to enlarge the respondent on bail.
We
notice from the impugned order that the High Court has not adverted to the
complaint of the investigating agency as to the threat administered by the
respondent to the witnesses as also to the fact of a number of witnesses having
turned hostile after the respondent was enlarged on bail which are very
relevant circumstances to be borne in mind while granting bail.
Of
course, the learned counsel for the respondent has pointed out that even when
the respondent was in custody, some other witnesses had turned hostile. But the
question for our consideration is whether the High Court was justified in not
taking into consideration these facts while deciding to grant bail in a case
where this Court has earlier come to the conclusion that grant of bail on the
ground of period of incarceration by itself was not proper.
Learned
counsel for the respondent however, contended that all these points were argued
before the High Court and the High Court though did not give a finding in
regard to this aspect of the case, did bear in mind these factors and rejected
these contentions since these allegations were frivolous.
Learned
counsel in this regard submitted that the High Court was justified in not
giving any conclusive finding in regard to some of the arguments addressed on
behalf of the parties because any such finding given by the High Court might
have prejudiced the pending trial.
We agree
that a conclusive finding in regard to the points urged by both the sides is
not expected of the court considering a bail application. Still one should not
forget as observed by "Giving reasons is different from discussing merits
or demerits.
At the
stage of granting bail a detailed examination of evidence and elaborate
documentation of the merits of the case has not to be undertaken. That did not
mean that whilst granting bail some reasons for prima facie concluding why bail
was being granted did not have to be indicated." We respectfully agree
with the above dictum of this Court. We also feel that such expression of prima
facie reasons for granting bail is a requirement of law in cases where such
orders on bail application are appealable, more so because of the fact that the
appellate court has every right to know the basis for granting the bail.
Therefore, we are not in agreement with argument addressed by the learned
counsel for the accused that the High Court was not expected even to indicate a
prima facie finding on all points urged before it while granting bail, more so
in the background of the facts of this case where on facts it is established
that a large number of witnesses who were examined after the respondent was
enlarged on bail had turned hostile and there are complaints made to the court
as to the threats administered by the respondent or his supporters to witnesses
in the case. In such circumstances, the Court was duty bound to apply its mind
to the allegations put forth by the investigating agency and ought to have
given at least a prima facie finding in regard to these allegations because
they go to the very root of the right of the accused to seek bail. The non
consideration of these vital facts as to the allegations of threat or inducement
made to the witnesses by the respondent during the period he was on bail has
vitiated the conclusions arrived at by the High Court while granting bail to
the respondent. The other ground apart from the ground of incarceration which
appealed to the High Court to grant bail was the fact that a large number of
witnesses are yet to be examined and there is no likelihood of the trial coming
to an end in the near future. As stated herein above, this ground on the facts
of this case is also not sufficient either individually or coupled with the
period of incarceration to release the respondent on bail because of the
serious allegations of tampering of the witnesses made against the respondent.
The
next argument of learned counsel for the respondent is that prima facie the
prosecution has failed to produce any material to implicate the respondent in
the crime of conspiracy.
In
this regard he submitted that most of the witnesses have already turned
hostile. The only other evidence available to the prosecution to connect the
respondent with the crime is an alleged confession of the co-accused which
according to the learned counsel was inadmissible in evidence. Therefore, he
contends that the High Court was justified in granting bail since the
prosecution has failed to establish even a prima facie case against the
respondent. From the High Court order we do not find this as a ground for
granting bail. Be that as it may, we think that this argument is too premature
for us to accept. The admissibility or otherwise of the confessional statement
and the effect of the evidence already adduced by the prosecution and the merit
of the evidence that may be adduced herein after including that of the
witnesses sought to be recalled are all matters to be considered at the stage
of the trial.
Before
concluding, we must note though an accused has a right to make successive
applications for grant of bail the court entertaining such subsequent bail
applications has a duty to consider the reasons and grounds on which the earlier
bail applications were rejected. In such cases, the court also has a duty to
record what are the fresh grounds which persuade it to take a view different
from the one taken in the earlier applications. In the impugned order we do not
see any such fresh ground recorded by the High Court while granting bail. It
also failed to take into consideration that at least on four occasions order
refusing bail has been affirmed by this Court and subsequently when the High
Court did grant bail, this Court by its order dated 26th July, 2000 cancelled the said bail by a reasoned order. From the
impugned order, we do not notice any indication of the fact that the High Court
took note of the grounds which persuaded this Court to cancel the bail. Such
approach of the High Court, in our opinion, is violative of the principle of
binding nature of judgments of superior court rendered in a lis between the
same parties, and in effect tends to ignore and thereby render ineffective the
principles enunciated therein which have a binding character.
For
the reasons stated above, we are of the considered opinion that the High Court
was not justified in granting bail to the first respondent on the ground that
he has been in custody for a period of 3 = years or that there is no likelihood
of the trial being concluded in the near future, without taking into
consideration the other factors referred to hereinabove in this judgment of
ours.
This
appeal, therefore, succeeds. The impugned order of the High Court is set aside.
The bail-bonds of the first respondent are cancelled and the second respondent
is directed to take the first respondent into custody forthwith.
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