Full Judgment Text
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CASE NO.:
Appeal (crl.) 324 of 2004
PETITIONER:
Kalyan Chandra Sarkar
RESPONDENT:
Rajesh Ranjan alias Pappu Yadav & Anr.
DATE OF JUDGMENT: 12/03/2004
BENCH:
N. Santosh Hegde & B. P. Singh
JUDGMENT:
J U D G M E N T
(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
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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
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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
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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
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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
charge; (See Ram Govind Upadhyay Vs. Sudarshan Singh and
others (2002 (3) SCC 598) and Puran Vs. Rambilas and
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
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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
this Court in the case Puran Vs. Rambilas and Another (supra)
"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. \005\005 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
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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
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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.