Full Judgment Text
REPORTABLE
2023 INSC 943
SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 3297 OF 2023
[ARISING OUT OF SPECIAL LEAVE PETITION (CRL) NO. 3312 OF 2021]
Munilakshmi .....Appellant
Versus
Narendra Babu & Anr. …..Respondents
J U D G M E N T
Surya Kant, J.
Leave granted.
1.
2. This criminal appeal arises out of an order dated
12.08.2020 passed by the High Court of Karnataka at Bengaluru,
whereby Respondent No.1 was granted regular bail in trial
proceedings numbered S.C. 1111/2021, pending before Ld. Addl.
City Civil and Sessions Judge, Bengaluru. The said trial has
emanated from Crime No. 151/2019 dated 21.12.2019 registered
at Police Station Vyalikaval, Bengaluru under Sections 109,
Signature Not Verified
Digitally signed by
satish kumar yadav
Date: 2023.10.20
16:27:21 IST
Reason:
120B, 201, 302, 450, 454 read with Section 34 of the Indian
Penal Code [ Hereafter ‘IPC’ ].
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A. FACTS :
A.1. FACTUAL MATRIX BEFORE THE GRANT OF BAIL
3. Marriage between Vinutha M. and Respondent No. 1 was
solemnised in the year 2006. A male child was born from the
wedlock in the year 2009. It is alleged that Respondent No. 1 was
having an extramarital affair. He and his family members
allegedly started harassing Vinutha M. soon after the birth of
their child and pressurised her to sign the divorce papers. She,
therefore, started living separately on the first floor of the
matrimonial home.
4. Vinutha M. filed multiple criminal complaints of harassment
including alleged attempts made on her life against Respondent
No. 1 and his family members, leading to registration of several
First Information Reports [ Hereafter ‘FIR’ ], the brief details of
which are as follows:
I.
FIR No. 231/2015 was lodged under Section 498A of IPC
at P.S. Vyalikaval, Bengaluru on 23.11.2015 alleging that
Respondent No. 1 along with his family members
assaulted and threatened the complainant to sign divorce
papers. On her refusal, the mother of Respondent No. 1
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tried to kill the Complainant by pouring kerosene oil on
her but she managed to escape.
II.
FIR No. 238/2015 was registered under Sections 354(A)
(2), 506, 504, 341, 448, 109 read with 34 of IPC at P.S.
Vyalikaval, Bengaluru alleging that the driver of the uncle
of Respondent No. 1 entered the Complainant’s room and
tried to commit rape upon her at the instigation of the
father of Respondent No. 1.
III. FIR No. 97/2016 was registered under Sections 143, 323,
448, 504, 506, and 149 of IPC at P.S. Vyalikaval,
Bengaluru alleging that Respondent No. 1 tried to kill the
Complainant with an axe but she managed to escape to
the toilet and saved herself. She called the police from
inside the toilet and on hearing the sound of the police
siren, Respondent No. 1 and his family members ran
away.
IV.
FIR No. 205/2017 was registered under Section 25(1)(B)
(B) of the Arms Act of 1959 and Sections 96 and 97 of the
Karnataka Police Act of 1963 [ Hereafter ‘KP Act’ ] at P.S.
Vyalikaval, Bengaluru, alleging that Respondent No. 1
sent some rowdies to kill the Complainant. The Police
later caught those goons along with axes and chilli
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powder, which they carried along to assault the
Complainant.
V.
FIR No. 50/2019 was registered under Sections 354(B),
341, 323, 427, 504, and 506 of IPC at P.S. Vyalikaval,
Bengaluru alleging that Respondent No. 1 along with his
childhood friends physically and sexually assaulted the
Complainant on 16.06.2019 and also damaged her two
wheeler.
5. It is pertinent to note here that due to alleged continuous
attacks and threats to her life, the Complainant wrote a letter to
the Police Commissioner requesting for police protection and
sought legal action against Respondent No. 1 and his family
members.
Having received no response from the police officials, she
6.
approached the High Court through W.P. No. 33221/2019,
seeking protection from Respondent No.1 and his family. The writ
petition was disposed of by the High Court vide order dated
08.08.2019 (after noticing the law laid down by this Court in
1
Lalita Kumari v. Government of U.P. and Ors. ), with a
direction to the competent authority to take necessary action on
1 (2014) 2 SCC 1.
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the complaint, if not taken already, within a period of three
weeks.
7. Thereafter, the Complainant brought the order of the High
Court to the notice of the jurisdictional Police Station on
19.08.2019 and requested to provide adequate police protection
to her.
8. Apparently, no heed was paid to her request for police
protection, hence the Complainant made another complaint to
the police station, Bengaluru on 21.10.2019, alleging specifically
that Respondent No. 1 had paid a sum of Rs.15 lakhs to one
Chinnaswamy and his associates for her ContractKilling. It
appears that the abovenamed Chinnaswamy and his associates
were caught redhanded on 29.11.2017 by the local police in
connection with FIR 205/2017. They were subsequently released
on bail, which posed an imminent threat to the Complainant’s life
at the hands of Respondent No. 1, and his associates like
Chinnaswamy who had criminal antecedents.
9. The Complainant left no stone unturned and made yet
another elaborate complaint reiterating the abovementioned
allegations to the Chief Minister of Karnataka on 30.10.2019.
Additionally, a women’s organisation also came forward and
made a complaint alleging collusion of the police officials of
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Vyalikaval Police Station with Respondent No. 1 stating expressly
that the local police was ‘inactive’ for extraneous considerations.
10. It is also discernible from the contents of all the complaints
that the son born from wedlock continued in the sole custody of
the Complainant while Respondent No. 1 unabatedly kept on
harassing the Complainant and pressurising her to agree to a
mutual divorce.
11. On the illfated day, i.e., 21.12.2019, the Complainant
[Hereafter ‘Deceased’] was found dead in her apartment. She
was found lying in a pool of blood and in a supine position. The
Appellant – Smt. Munilakshmi, the Deceased’s mother, lodged
the subject FIR, which was initially registered only under
Sections 306 and 498A of IPC. The FIR stated that Respondent
No. 1 was coercing the Deceased to consent to divorce as he
wanted to marry someone else. It further alleged that Respondent
No.1, his family members, and his associates had also previously
attempted to kill the Appellant’s daughter.
12. Being aggrieved by the noninclusion of offence under
Section 302 of IPC in the subject FIR, the Appellant thereafter
made another complaint on 25.12.2019, alleging that suspects
wearing helmets, etc., used to regularly visit the matrimonial
home of the Deceased on the pretext of meeting the resident of
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the second floor but in actuality they would threaten the
Deceased, who was staying on the first floor of that very house,
with dire consequences. Respondent No. 1 along with one
Prashanth (accused No. 2), and one Jaganatha (accused No. 3)
was accused of killing the Appellant’s daughter. The investigation
in Crime No. 151/2019 was eventually completed, and a final
report was submitted on 01.03.2020 against four persons,
including Respondent No. 1, for the offences punishable under
Sections 109, 120B, 201, 302, 450, 454 read with Section 34 of
the IPC. In the final report, Respondent No. 1 was accused of
hatching a criminal conspiracy to kill his wife by giving a ‘supari’
to accused Nos. 2 and 3, who assaulted the Deceased fatally. All
the accused were arrested.
13. Soon after his arrest, Respondent No. 1 applied for bail. The
High Court in the impugned order dated 12.08.2020 observed
that though several other cases were pending against Respondent
No. 1; however, the allegations against him in Crime
No.151/2019 are punishable under Sections 109 and 120B, IPC
only. The High Court observed that whether the material like cell
phone, and CCTV footage, was sufficient to prove the allegation of
hatching of a criminal conspiracy is a subject matter of trial, and
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there was no other material as of then to show that Respondent
No. 1 was in communication or contact with other accused
persons. Consequently, Respondent No. 1 was directed to be
released on bail.
A.2 EVENTS SUBSEQUENT TO THE GRANT OF BAIL AND
FILING OF PRESENT SLP:
14. The aggrieved Appellant is in appeal before us. During the
pendency of these proceedings, some disturbing events have
taken place which are briefly noticed hereinafter:
(a) Notice was issued in the Special Leave Petition on
16.04.2021, but the matter could be taken up for effective
hearing on 27.03.2023 only when it was informed that
some complaints had been received against Respondent No.
1 after his enlargement on regular bail. Consequently, the
Appellant was granted time to file an additional affidavit.
(b)
On 24.04.2023, this Court was apprised that though the
charges had been framed, the trial was yet to commence.
The State counsel informed that there were 109 prosecution
witnesses to be examined. We, thus, directed the Trial
Court to commence the examination of prosecution
witnesses. Respondent No.1 was directed to cooperate with
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the trial and remain present in the Court on the date of
hearing.
(c)
On 31.07.2023, an order dated 24.04.2023 passed by the
Trial Court was brought to our notice, which revealed that
CW1 to CW3 (Appellant and her family members) did not
appear for their depositions and they were again served
with nonbailable warrants. A fresh status report from the
Trial Court was accordingly sought with a further direction
that necessary steps, including coercive action be taken to
ensure the presence of the witnesses.
15. What has transpired thereafter is quite disheartening, and it
pricks the conscience of this Court. Our attention has been
drawn to the fact that there was a gap of around 20 days between
the examinationinchief and the crossexamination of the key
witnesses, who are none else than the Appellant (PW1), her
daughterVidhya (sister of the Deceased, PW4), and Muniraju
(father of the Deceased, PW5). They all have turned hostile and
retracted from their earlier statements.
B. CONTENTIONS:
Learned Counsel for the Appellant, regardless of her
16.
contradiction in the crossexamination, vehemently contended
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that the High Court committed a grave error in overlooking the
wellestablished principles which guide the Courts to exercise
their discretion in the matter of granting or refusing a bail. He
urged that there is sufficient material gathered by the
prima facie
prosecution to indicate the involvement of Respondent No. 1 in a
criminal conspiracy hatched for killing his wife. He also made a
pointed reference to the complaints alleging gross misuse of
concession of bail by Respondent No.1.
17. Learned State Counsel has supported the Appellant
reiterating that Respondent No. 1 had been harassing the
Deceased and was compelling her to concede for divorce, with the
intention to marry someone else. His family members and
relatives also continued to humiliate the Deceased by demanding
dowry and even attempted to kill her by pouring kerosene over
her. He further submitted that Respondent No. 1 has other
criminal antecedents also. He is involved in Crime No. 122/2017
under Section 3(1) of the Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Act, 1989, and Sections 345(A)&(B),
341, 355, 323, 504 read with 34 of the IPC and Crime No.
205/2017 under Sections 96, and 97 of the KP Act and Section
25B of the Arms Act. He further submitted that the Government
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Pleader for the State of Karnataka had displayed the seized CCTV
footage and cell phone taken from the possession of Respondent
No. 1 to link him to the gruesome murder. He also made a
submission to the effect that Respondent No. 1 hardly spent a
few months in custody and was enlarged on bail soon after,
overlooking the heinous nature of the offence committed and the
fact that Respondent No. 1 could influence the vulnerable
witnesses with his money and muscle power.
On the other hand, learned Senior Counsel Mr. Narender
18.
Hooda, appearing on behalf of Respondent No. 1 very
passionately urged that barring the offences under Sections 302,
450, and 454 IPC, all other offences are bailable in nature.
Relying upon Sanjay Chandra v. Central Bureau of
2
and
Investigation Siddharam Satlingappa Mhetre v. State of
3
Maharashtra and Ors. , he submitted that the seriousness of
the charge is not a test or factor while considering a bail
application. He maintained that Respondent No. 1 has never
misused the concession of bail and there is no cogent evidence
produced so far by the prosecution linking Respondent No. 1 with
the unnatural death of his wife. He emphasised that once the
2 (2012) 1 SCC 40.
3 (2011) 1 SCC 694.
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High Court has exercised its discretion in granting bail to
Respondent No.1, this Court should not interfere with it.
C. ANALYSIS:
19. We have given our thoughtful consideration to the rival
submissions and perused the material on record. It appears that
the sudden change of stance shown by the most vital witnesses,
namely, the family members of the Deceased within 20 days of
their examinationinchief cannot be a mere coincidence. The
Appellant has been vigorously pursuing this appeal seeking
cancellation of bail given to Respondent No. 1. In her
examinationinchief, she has specifically named Respondent No.
1 as the main conspirator in the murder of her daughter. Her
sudden somersault, therefore, cannot be easily detached from the
chain of allegations made against Respondent No. 1 in the past,
of influencing the police, hiring goons, repeatedly assaulting the
Deceased, and various attempts to take away her life. All these
accusations, for the limited purpose of these proceedings, do
suggest that Respondent No. 1 has the potential to influence the
investigation or the witnesses who were slated to depose against
him. The seriousness of allegations levelled against Respondent
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No. 1 by the Deceased during her lifetime or by the Appellant
before the Police or in this appeal ought to be evaluated against
this backdrop.
20. This Court undoubtedly has a narrow scope of interference
in an order granting bail while exercising its power of judicial
review and will be invariably reluctant to interfere in such order
even if it has a different opinion. The Courts often grapple with
balancing the most precious right to liberty embodied in Article
21 of the Constitution on one hand and the right of the orderly
society, which is committed to the rule of law, on the other. The
delicate balance in the case of long incarceration is drawn by
releasing a suspect on bail on such terms and conditions that
will ensure that a fair and free trial is not hampered. However, if
it is found that an undertrial has attempted to misuse the
concession of bail either by influencing the witnesses or
tampering with the evidence or trying to flee from justice, such
person can be committed to custody by withdrawing the
concession of bail.
21. The Courts are under an onerous duty to ensure that the
criminal justice system is vibrant and effective; perpetrators of
the crime do not go unpunished; the witnesses are not under any
threat or influence to prevent them from deposing truthfully and
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the victims of the crime get their voices heard at every stage of
the proceedings.
C.1 THE REMEDIES IN LAW:
C.1.1 CANCELLATION OF BAIL
22. Where, on consideration of the facts and circumstances of a
case, the Court is satisfied that there are cogent and
overwhelming circumstances indicating misuse of concession of
bail, it becomes imperative upon the Court in the interest of
justice to withdraw such concession forthwith.
23. The expression “cogent and overwhelming circumstances for
cancellation of bail” has been wellillustrated by this Court in a
catena of decisions including Dolat Ram and Ors. v. State of
4
Haryana , which are:
Evasion or attempt to evade the due course of justice or
(i)
abusing or attempt to abuse the concession of bail
granted;
(ii) Possibility of the accused to abscond;
Development of supervening circumstances impeding
(iii)
upon the principles of fair trial;
The link between the gravity of the offence, the conduct of
(iv)
the accused, and the societal impact on the Court’s
interference.
4 (1995) 1 SCC 349.
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5
24. In Vipan Kumar Dhir v. State of Punjab and Anr. , this
Court explained the impact of supervening circumstances
developing post the grant of bail, such as interference in the
administration of justice, abuse of concession of bail, etc., which
are aversive to a fair trial and would warrant cancellation of bail.
Applying these parameters to the facts and circumstances of
25.
the case in hand, we are satisfied that there is a prima facie
proximity between the grant of bail to Respondent No.1 and an
emboldening opportunity for him to win over the witnesses.
Respondent No.1, therefore, does not deserve to enjoy the
concession of bail at least until all the crucial witnesses are
examined. The privilege of liberty extended to him, thus, deserves
to be withdrawn for an effective, fair, just and unbiased
conclusion of trial.
C.1.2 ENSURING A FAIR TRIAL : RECALLING OF WITNESSES
26. A major challenge before this Court is to ensure a fair trial
amidst the hostility of witnesses. Undoubtedly, witnesses play a
very vital role in bringing justice home, especially in the
adversarial system of court trials where the onus lies on the
prosecution to prove the guilt of the accused by bringing persons
acquainted with the facts before the courts of justice. Their
5 (2021) 15 SCC 518.
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testimony determines the fate of a trial before the court of law,
without which the court would be like a sailor in an ocean sans
6
the radar and the compass. If a witness turns hostile for
extenuating reasons and is reluctant to depose the unvarnished
truth, it will cause irreversible damage to the administration of
justice and the faith of the society at large in the efficacy and
credibility of the criminal justice system will stand eroded and
shattered.
7
This Court in has
27. Ramesh and Ors. v. State of Haryana
illustratively explained the reasons behind the witnesses
retracting their statements before the Court and turning hostile.
These include: ( i ) threat/intimidation; ( ii ) inducement by various
means; ( iii ) use of muscle and money power by the accused; ( iv )
use of stock witnesses; ( v ) protracted trials; ( vi ) hassles faced by
the witnesses during investigation and trial; and ( vii ) non
existence of a robust legislative mechanism to check hostility of
witnesses. Amongst these reasons, the ‘threat’ and ‘intimidation’
of the witnesses have always been a matter of serious concern
amongst all the stakeholders.
6 Mohd. Ashraf, ‘Peculiarities of Indian Criminal Justice System Towards Witnesses : An
Analysis’ (2018) 26 ALJ 64.
7 (2017) 1 SCC 529.
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28. It seems to us that the unusual and surprising events that
have happened post the grant of bail to Respondent No.1, do
make out a case for recalling the witnesses for an effective, fair,
and free adjudication of the trial. This Court is vested with vast
and ample powers to have such recourse not only under Article
142 of the Constitution but also under Section 311 of the Code of
Criminal Procedure, 1973 , be it on the request
(Hereafter ‘CrPC’)
of the prosecution or suo moto . Such Constitutional or statutory
power is not limited by any barriers like the stage of inquiry, trial,
or other proceeding. A person can be called and examined though
not summoned as a witness, or can be recalled, or reexamined
so as to throw light upon the imputations. Section 311 CrPC, of
course, does not intend to fill the lacunae in the prosecution’s
case and cause any serious prejudice to the rights of an accused.
The exercise of power under this provision is intended to meet
the ends of justice and to gather overwhelming evidence to scoop
out the truth.
29. In the case at hand, the family members of the Deceased are
the most crucial witnesses to test the veracity of the allegations
levelled by the prosecution. Their stand in the examinationin
chief is diametrically opposite to the one in the cross
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examination. The fact that the parents and sister of the
Deceased have resiled from their earlier standpoint where they
had been found to be agitating vigorously before different forums
since the year 2019, implores us to invoke our Constitutional
powers under Article 142 read with Section 311 CrPC and direct
their recalling for a fresh crossexamination after ensuring a
congenial environment, free from any kind of threat,
psychological fear, or any inducement.
We, thus, find it a case fit for recalling the witnesses (PW1,
30.
PW4 and PW5) for their further crossexamination to reach an
effective decision in the subject trial.
31. We, however, hasten to add that power to recall witnesses
under Section 311 CrPC ought to be exercised sparingly and
mere hostility by a witness, per se, would not be a sufficient
ground to infer misuse of concession of bail. Still further, the
observations made hereinabove shall have no bearing on the
merits of the pending trial.
D. CONCLUSION:
32. In view of the above discussion and without expressing
anything on merits, we allow this Appeal with the following
directions:
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(i) the impugned order dated 12.08.2020 is set aside and
the bail granted to Respondent No. 1 is hereby cancelled;
(ii)
Respondent No. 1 is directed to surrender not later than
one week. He shall remain in custody till the conclusion
of trial or till this Court releases him on bail in changed
circumstances;
(iii)
the Trial Court is directed to recall PW1, PW4, and PW
5 for their further crossexamination;
(iv) the Commissioner of Police, Bengaluru is directed to
provide security to the Appellant and her family,
including her daughter (PW4), round the clock at least
till their fresh depositions;
(v) the Commissioner of Police, Bengaluru is further
directed to investigate as to whether the Appellant and
her family members were threatened, induced, or
subjected to any extraneous pressure for retracting their
statements. Such a report be presented before the Trial
Court within 2 weeks subject to the right of objection to
Respondent No. 1 and his coaccused, if there is any
finding against them in such report; and;
(vi) the Trial Court will closely observe the demeanour of
Respondent No.1 or his counsel during further cross
examination of the Appellant, PW4, PW5 and other
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important prosecution witnesses. No minacious gesture
or appeasing expressions be allowed so that the
voluntary, free and unpolluted version of all the material
witnesses is brought on record.
33. The present appeal is disposed of in the above terms.
………..………………… J.
(SURYA KANT)
……………………………J.
(DIPANKAR DATTA)
NEW DELHI;
OCTOBER 20, 2023.
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