Full Judgment Text
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CASE NO.:
Appeal (crl.) 1172 of 2006
PETITIONER:
Rajesh Ranjan Yadav @ Pappu Yadav
RESPONDENT:
CBI through its Director
DATE OF JUDGMENT: 16/11/2006
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
(Arising out of Special Leave Petition (Criminal) No. 2327 of 2006)
MARKANDEY KATJU, J.
Leave granted.
This appeal under Article 136 of the Constitution of India has been
filed against the impugned judgment and order dated 27.4.2006 of the Patna
High Court by which the appellant’s application for bail has been dismissed,
but with the following observations:
"Since the petitioner has actually remained in custody in
connection with the present case for about 5 years and 7 months
as per submission on behalf of petitioner, hence, considering
the spirit of the last order of the Apex Court dated 3.10.05, the
trial court is directed to hold trial at least for about three days in
a week on an average so that the examination of prosecution
witnesses may be concluded without any delay preferably
within three months. Thereafter, the court shall ask the defence
to submit the list of its wi5tnesses and make efforts to conclude
the trial expeditiously, preferably within six months. If the trial
cannot conclude within the aforesaid period of six months from
today, the petitioner would be at liberty to renew his pray for
bail.
With this observation, this application for bail is
dismissed at this stage."
The appellant is an accused in a case under Sections 302/34/120B IPC
read with Section 27 of the Arms Act. The appellant’s bail application had
been rejected earlier on several occasions by the High Court as well as by
this Court. The last order of this Court dated 3.10.2005 states as under:
"Having heard the learned senior counsel appearing for the
petitioner, we are of the opinion that the application for bail
may not be entertained at this stage. The special leave petition
is dismissed. However, we would request the learned Sessions
Judge to expedite the trial. If the trial is not completed within a
period of six months from today, it would be open to the
petitioner to renew the bail application. Learned Sessions
Judge may consider the desirability of directing the CBI to
examine the important witnesses at an early date and preferably
within a period of four months."
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We have been informed that now all the prosecution witnesses have
been examined and cross-examined, and only the defence witnesses have to
be examined.
Shri R.K. Jain, learned senior counsel appearing for the appellant
stated that 60/70 defence witnesses are proposed to be examined and some
more defence witnesses on behalf of other accused are to be examined.
Hence, he submitted that it would take a long time to examine these
witnesses. He submitted that the appellant has been in jail for more than six
years and hence he should be released on bail. Learned counsel also
submitted that if ultimately the appellant is found innocent by the trial court,
he would have undergone a long period of incarceration in jail which would
be violative of Article 21 of the Constitution.
The appellant is a 4th term Member of Parliament (Lok Sabha) and
learned counsel for the appellant has submitted that as per the material on
record there appears to be no prima facie evidence that the appellant is guilty
of the charges of offence.
Learned counsel for the appellant relied on the decision of this Court
in Babu Singh & Ors vs. State of Uttar Pradesh AIR 1978 SC 527. In
paragraph 8 of the said judgment it was observed as under:
"Personal liberty, deprived when bail is refused, is too
precious a value of our constitutional system recognized under
Art. 21 that the crucial power to negate it is a great trust
exercisable, not casually but judicially, with lively concern for
the cost to the individual and community. To glamorize
impressionistic orders as discretionary may, on occasions, make
a litigative gamble decisive of a fundamental right. After all,
personal liberty of an accused or convict is fundamental,
suffering lawful eclipse only in terms of procedure established
by ’law’. The last four words of Art. 21 are the life of that
human right."
Learned counsel for the appellant then relied on the decision of this
Court in Kashmira Singh vs. State of Punjab 1977(4) SCC 291. In
paragraph 2 of the said decision it was observed as under:
"It would indeed be a travesty of justice to keep a person in jail
for a period of five or six years for an offence which is
ultimately found not to have been committed by him. Can the
Court ever compensate him for his incarceration which is found
to be unjustified? Would it be just at all for the Court to tell a
person: "We have admitted your appeal because we think you
have a prima facie case, but unfortunately we have no time to
hear your appeal for quite a few years and, therefore, until we
hear your appeal, you must remain in jail, even though you may
be innocent?" What confidence would such administration of
justice inspire in the mind of the public? It may quite
conceivably happen, and it has in fact happened in a few cases
in this Court, that a person may serve out his full term of
imprisonment before his appeal is taken up for hearing. Would
a judge not be overwhelmed with a feeling of contrition while
acquitting such a person after hearing the appeal? Would it not
be an affront to his sense of justice? Of what avail would the
acquittal to be such a person who had already served out his
term of imprisonment or at any rate a major part of it? It is,
therefore, absolutely essential that the practice which this Court
has been following in the past must be reconsidered and so long
as this Court is not in a position to hear the appeal of an
accused within a reasonable period of time, the Court should
ordinarily, unless there are cogent grounds for acting otherwise,
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release the accused on bail in cases where special leave has
been granted to the accused to appeal against his conviction and
sentence."
Learned counsel for the appellant then relied on the decision of this
Court in Bhagirathsinh vs. State of Gujarat 1984 (1) SCC 284, Shaheen
Welfare Association vs. Union of India & Ors. 1996(2) SCC 616,
Joginder Kumar vs. State of U.P. & Ors. 1994(4) SCC 260 etc.
In our opinion none of the aforesaid decisions can be said to have laid
down any absolute and unconditional rule about when bail should be granted
by the Court and when it should not. It all depends on the facts and
circumstances of each case and it cannot be said there is any absolute rule
that because a long period of imprisonment has expired bail must necessarily
be granted.
As observed by this Court in State of U.P. vs. Amarmani Tripathi
2005(8) SCC 21, vide paragraph 18:
"It is well settled that the matters to be considered in an
application for bail are (i) whether there is any prima facie or
reasonable ground to believe that the accused had committed
the offence; (ii) nature and gravity of the charge; (iii) severity
of the punishment in the event of conviction; (iv) danger of the
accused absconding or fleeing, if released on bail; (v) character,
behaviour, means, position and standing of the accused; (vi)
likelihood of the offence being repeated; (vii) reasonable
apprehension of the witnesses being tampered with; and (viii)
danger, of course, of justice being thwarted by grant of bail [see
Prahlad Singh Bhati v. NCT, Delhi [2001(4) SCC 280] and
Gurcharan Singh v. State (Delhi Admn.[(1978(1) SCC 118].
While a vague allegation that the accused may tamper with the
evidence or witnesses may not be a ground to refuse bail, if the
accused is of such character that his mere presence at large
would intimidate the witnesses or if there is material to show
that he will use his liberty to subvert justice or tamper with the
evidence, then bail will be refused. We may also refer to the
following principles relating to grant or refusal of bail stated in
Kalyan Chandra Sarkar v. Rajesh Ranjan [(2004(7) SCC 528
pp. 535-36, para 11]:
"11. The law in regard to grant or refusal of bail is
very settled. The court granting bail should exercise its
discretion in a judicious manner and not as a matter of
course. Though at the stage of granting bail a detailed
examination of evidence and elaborate documentation of
the merit of the case need not be undertaken, there is a
need to indicate in such orders reasons for prima facie
concluding why bail was being granted particularly
where the accused is charged of having committed a
serious offence. Any order devoid of such reasons would
suffer from non-application of mind. It is also necessary
for the court granting bail to consider among other
circumstances, the following factors also before granting
bail; they are:
(a) The nature of accusation and the severity of
punishment in case of conviction and the nature of
supporting evidence.
(b) Reasonable apprehension of tampering with
the witness or apprehension of threat to the complainant.
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(c) Prima facie satisfaction of the court in support
of the charge. (See Ram Govind Upadhyay v. Sudarshan
Singh 2002(3) SCC 598 and Puran v. Rambilas 2001 (6)
SCC 338).
This Court also in specific terms held that (SCC pp.536-
37, para 14):
"The condition laid down under Section 437 (1)(i)
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 entitled the accused to be 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."
(emphasis supplied)
The above decisions have referred to the decision of this Court in the
appellant’s own case Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu
Yadav & anr. 2004(7) SCC 528 in which it was clearly held that the mere
fact that the accused has undergone a long period of incarceration by itself
would not entitle him to be enlarged on bail.
It may further be mentioned that in another case of the appellant
Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav & anr.
2005(3) SCC 284 where he sought bail, it was observed by this Court as
under:
"In the normal course one would have expected an accused
whose bail has been cancelled and who was intending to make
an application for grant of bail to behave in a manner not to
give any room for the prosecution to contend that he has been
misusing the facilities available to him in law while he is in jail.
But it seems, it is not the attitude of the respondent.
Immediately after cancellation of bail by this Court the
respondent had moved a fresh application before the High
Court for grant of bail which came to be allowed by the order of
the High Court dated 21-9-2004 and pursuant to the said order
of bail the respondent came to be released from jail. The said
order of the High Court granting bail was challenged before this
Court by the complainant and the investigating agency (CBI)
but what happened in between is worth noticing. On 26-9-2004
when the respondent was out of jail because of the bail granted
by the High Court, he instead of getting himself treated for the
ailment which he was complaining of, it is alleged that he was
hosting a party for his co-prisoners in the jail late in the night of
that day. While the authorities in the reports submitted
pursuant to the directions issued by this Court did not admit that
a party was given by the accused on 26-9-2004 they did admit
that between 9.30 p.m. to 10.00 p.m. on that night the
respondent did unauthorizedly visit the jail contrary to all
restrictions on the entry to the jail under the Jail Manual. A
complaint in regard to this unauthorized entry of the respondent
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to the prohibited areas of the jail premises is registered and
based on the direction issued by the High Court of Patna, an
investigation is going on in this regard and some of the jail
authorities have been transferred.
On 1-10-2004 this Court while entertaining the appeal of
the complaint against the grant of bail by the High Court
directed the respondent to surrender to custody forthwith.
Consequent to which he was taken back to custody.
It has also come on record that while in judicial custody
the respondent was using cell phone which was seized from
him and he was closely interacting with hardcore criminals who
were undergoing jail sentence or are undertrial prisoners.
Respondent 1 while in judicial custody has been accused
of hatching a conspiracy to murder one Dimple Mehta in
relation whereto a first information report being Purnea Sadar
PS Case No. 159 of 2004 has been lodged on 28-9-2004 under
Sections 302/120-B/34 IPC and Section 27 of the Arms Act.
It appears from the order-sheet dated 25-2-2003 of the
Court of Additional Sessions Judge, XI Patna that the informant
Shri Kalyan Chandra Sarkar had been given threats by veteran
criminals and, thus, the Senior SP of Patna as well as SP was
directed to make proper security arrangement for him and his
family members.
Para 3.12 of the report submitted by the Central Bureau
of Investigation in response to this Court’s order dated 2-12-
2004 is as under:
"3.12. Investigation further reveals that Shri
Dipak Kumar Singh, IAS, the Inspector General of
Prisons had on 1-11-2004, forwarded a report of the
Special Branch dated 30-10-2004, that Shri Rajesh
Ranjan @ Pappu Yadav was meeting several visitors in
the Administrative Block of Beur Jail (not the specified
meeting place for visitors to the jail) and more
significantly, that several such visitors, who entered the
jail under the pretext of meeting him (Shri Pappu Yadav)
were actually meeting other dreaded hardcore criminals
lodged in the jail. The Inspector General of Prisons had
also urged the Jail Superintendent to allow interviews
with prisoners in strict accordance with the provisions of
the Jail Manual."
It is now beyond any controversy that such visits by a
large number of persons inside the jail are in violation of the
provisions of the Bihar Jail Manual and in particular Rules 623,
626-628 thereof. Even upon his election as a Member of
Parliament from Madhepura Constituency he was not entitled to
have such visitors having regard to the Special Rules for
Division 1 Prisoners, Rule 1000 which permits interviews only
once every fortnight and Rule 1001 which debars political
matters being included in the conversation. These Rules also
stand violated.
Thus the material recorded hereinabove shows that the
respondent has absolutely no respect for rule of law nor is he in
any manner afraid of the consequences of his unlawful acts.
This is clear from the fact that some of the acts of the
respondent recorded hereinabove have been committed even
when his application for grant of bail is pending.
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The material on record also shows that the jail authorities
at Beur are not in a position to control the illegal activities of
this respondent for whatever reasons they may be."
The above observations clearly imply that the appellant’s conduct has
been such that he does not deserve bail.
Learned counsel for the appellant further relied on the decision of this
Court in Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra &
anr. 2005 (5) SCC 294. In paragraph 35 of the said decision it was observed
as under:
"Presumption of innocence is a human right.(See
Narendra Singh vs. State of M.P.,[(2004(10) SCC 699 para 31].
Article 21 in view of its expansive meaning not only protects
life and liberty but also envisages a fair procedure. Liberty of a
person should not ordinarily be interfered with unless there
exists cogent grounds therefore. Sub-section (4) of Section 21
must be interpreted keeping in view the aforementioned
salutary principles. Giving an opportunity to the Public
Prosecutor to oppose an application for release of an accused
appears to be reasonable restriction but clause (b) of sub-section
(4) of Section 21 must be given a proper meaning."
Learned counsel for the appellant has repeatedly referred to Article 21
of the Constitution and on that basis has submitted that the appellant should
be released on bail particularly since he has already been imprisoned for
more than six years.
We are of the opinion that while it is true that Article 21 is of great
importance because it enshrines the fundamental right to individual liberty,
but at the same time a balance has to be struck between the right to
individual liberty and the interest of society. No right can be absolute, and
reasonable restrictions can be placed on them. While it is true that one of
the considerations in deciding whether to grant bail to an accused or not is
whether he has been in jail for a long time, the Court has also to take into
consideration other facts and circumstances, such as the interest of the
society.
It has been stated that the appellant has been a Member of Parliament
on four occasions. In our opinion, this is wholly irrelevant. The law is no
respecter of persons, and is the same for every one.
A perusal of the FIR itself shows that it is a triple murder case, and the
incident was committed in broad day light with sophisticated weapons. It is
true that the appellant was not named in the FIR, but it has come in the
statement before the Magistrate under Section 164 Cr.P.C. of one Ranjan
Tiwari that he and other assailants had been hired by the appellant to commit
this ghastly crime.
We are not inclined to comment on the veracity or otherwise of the
statement of Ranjan Tiwari and other witnesses as it may influence the trial,
but looking at the allegations against the appellant both in the statement of
Ranjan Tiwari and other witnesses, we are of the opinion on the facts and
circumstances of the case, that this is certainly not a case for grant of bail to
the appellant, particularly since the prosecution witnesses have been
examined and now the defence witnesses alone have to be examined. It
would, in our opinion, be wholly inappropriate to grant bail when not only
the investigation is over but even the trial is partly over, and the allegations
against the appellant are serious.
The conduct of the appellant as noted in the decision in Kalyan
Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav & anr. 2005(3) SCC
284 (quoted above), is also such that we are not inclined to exercise our
discretion under Article 136 for granting bail to the appellant.
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Learned Addl. Solicitor General, Shri Amarendra Sharan, submitted
that the appellant himself was at least partly responsible for the delay in the
conclusion of the trial because most of the prosecution witnesses were cross-
examined by his counsel for several days, mostly be asking irrelevant
questions, and this was deliberate dilatory tactics used for delaying the trial
so that on that basis the appellant may pray for bail.
It is not necessary for us to go into this aspect of the matter because
we have already noted above that this is certainly not a case for grant of bail
to the appellant as the facts and circumstances of the case disclose.
Learned counsel for the appellant then submitted that since the
appellant is not on bail, he cannot conduct his defence effectively. In our
opinion if this argument is to be accepted, then logically in every case bail
has to be granted. We cannot accept such a contention.
On the facts and circumstances of the case, we find no merit in this
appeal. The appeal is accordingly dismissed. We, however, make it clear
that no further application for bail will be considered in this case by any
Court, as already a large number of bail applications have been rejected
earlier, both by the High Court and this Court.
While we dismiss this appeal, we direct that the trial court shall ensure
that the defence witnesses are examined on a day-to-day basis in accordance
with a fixed time schedule so that the trial is completed as expeditiously as
possible and the judgment is delivered soon thereafter. No costs.