Full Judgment Text
2023INSC767
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL.) NO.3482 OF 2023
XXX …PETITIONER (S)
VERSUS
UNION TERRITORY OF ANDAMAN
& NICOBAR ISLANDS & ANR. …RESPONDENT(S)
WITH
SPECIAL LEAVE PETITION (CRL.)No.5192 OF 2023
WITH
SPECIAL LEAVE PETITION (CRL.)No.5131 OF 2023
AND WITH
SPECIAL LEAVE PETITION (CRL.)No.5099 OF 2023
J U D G M E N T
VIKRAM NATH, J.
1. Special leave to appeal Criminal No. 3482 of
2023 has been filed by the victim (redacted as
Signature Not Verified
Digitally signed by
Neetu Khajuria XXX) assailing the correctness of the order
Date: 2023.08.24
16:21:09 IST
Reason:
SLP(Crl.) No.3482 of 2023 Page 1 of 11
th
dated 20 February, 2023 passed by the
Calcutta High Court Circuit Bench at Port Blair
granting bail to respondent no. 2 (Jitendra
Narain), Ex-Chief Secretary of Andaman and
Nicobar Islands for offences u/s 376(D)/ 228A/
1
506/ 120B of the Indian Penal Code, 1860 .
Special Leave Petition (Crl.) No. 5099 of 2023
has been preferred by the State/Union Territory
of Andaman and Nicobar Islands for the same
relief as claimed in Special Leave to Appeal (Crl.)
No. 3482 of 2023. Further Special Leave Petition
(Crl.) No. 5131 of 2023 has been filed by the
State/Union Territory of Andaman and Nicobar
Islands assailing the correctness of the order
nd
dated 22 February, 2023 passed by the
Calcutta High Court granting bail to the sole
respondent (Sandeep Singh alias Rinku), co-
accused arising out of the same FIR. Lastly,
Special Leave Petition (Crl.)No. 5192 of 2023
has been filed by State-Union Territory of
Andaman and Nicobar Islands assailing the
nd
order dated 22 February, 2023 granting bail
1
IPC
SLP(Crl.) No.3482 of 2023 Page 2 of 11
to sole respondent (Rishishwar Lal Rishi)
another co-accused from the same FIR. The
nd
orders dated 22 February, 2023 are primarily
based on the ground of parity as bail has been
granted to the alleged main accused Jitendra
th
Narain on 20 February 2023.
2. We have heard learned counsels for the victim-
petitioner, the State-Union Territory of
Andaman and Nicobar Islands and the three
accused/respondents.
3. As the main order has been passed in the case
th
of Jitendra Narain on 20 February, 2023, at
the outset, the same is being referred to. The
Division Bench of the High Court considered the
brief facts and thereafter noted that any
reference made on the submissions relating to
the evidence collected during investigation and
the various pleas raised on behalf of the
accused, could materially affect the trial, and
accordingly, did not deal with the same. The
High Court specifically noted this aspect in the
following words:
“ We do not want to discuss all these materials in
detail because that may influence the trial and
SLP(Crl.) No.3482 of 2023 Page 3 of 11
merit of the case and it has also potency to
prejudice the accused and in some manner to the
prosecution also.”
4. The High Court further noted that as the
accused Jitendra Narain, an IAS officer has
already been transferred to Delhi, if some
stringent conditions are put, the petitioner
(Respondent No.2 herein) would not be in a
position to influence any of the witnesses in the
Islands. The Division Bench also noticed that
Jitendra Narain being in service, there would be
no chance of him absconding. The Court further
noticed that there was no material to impress
that in case he was released, he would influence
the witnesses or there would be any danger of
justice being thwarted. On such considerations,
the Division Bench proceeded to grant bail,
subject to the following five conditions being
imposed in addition to the terms and conditions
that would be imposed by the Chief Judicial
Magistrate:
“ 1) The petitioner shall not visit the Andaman &
Nicobar Islands except for the purpose of
SLP(Crl.) No.3482 of 2023 Page 4 of 11
attending the trial on proper receipt of notice
from the Trial Court.
2) He shall not keep any contact with any person
or official of these Islands by Phone or by any
other mode of communication during the
currency of this order.
3) He shall not threaten, induce or coerce any
witness of the case in any manner. Whatsoever,
during the currency of this order by any means
of communication.
4) He shall not leave the Union of India except on
the permission by the competent authority of the
Union of India on urgent official work.
5) The petitioner through his counsel shall
submit his Passport before the Trial Court
during the currency of the trial and in case of his
official visit to outside, the Passport can be
handed over to him by the Trial Court on proper
application, being filed to that effect.”
5. In the case of the two other co-accused
Rishishwar Lal Rishi and Sandeep Singh alias
Rinku, the Division Bench not only considered
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the order dated 20 February, 2023 granting
bail to Jitendra Narain, the main accused, but
also took into consideration the lesser role for
offences u/s 354/ 376/120 B of the IPC alleged
against them and granted bail imposing similar
five conditions.
SLP(Crl.) No.3482 of 2023 Page 5 of 11
6. Learned counsel for the victim as also the State
(petitioners) have drawn our attention to the
material collected during the investigation. The
Court has been taken through the Police Report
submitted u/s 173(2) of the Code of Criminal
Procedure, 1973 as also to specific instances
and incriminating material against the accused.
7. On the other hand, learned counsel for the
accused have pointed out the various
inconsistencies, contradictions and deficiencies
in investigation and the evidence collected to
show the falsehood of the prosecution case.
8. As indicated hereinafter, and subject to what
follows, but for entirely different reasons, we are
in agreement with the ultimate view of the High
Court. In this scenario, we consciously refrain
from commenting upon the contentions put
forth by learned counsel on both sides on the
alleged inconsistencies, contradictions and/or
deficiencies in the other side’s case.
9. The law regarding the parameters or
circumstances to be considered in granting bail
or refusing bail are well laid out in series of
SLP(Crl.) No.3482 of 2023 Page 6 of 11
judgements of this Court, however, we have
referred to a couple of them hereinafter.
10. A three judge Bench of this Court in
2
Jagjeet Singh vs. Ashish Mishra , reiterated
and approved the factors to be considered for
grant of bail as was laid down in the case of
3
Prasanta Kumar Sarkar vs. Ashis Chatterjee
in para 9 thereof:
"9. ... However, it is equally incumbent upon the
High Court to exercise its discretion judiciously,
cautiously and strictly in compliance with the
basic principles laid down in a plethora of
decisions of this Court on the point. It is well
settled that, among other circumstances, the
factors to be borne in mind while considering an
application for bail are:
(i) whether there is any prima face or reasonable
ground to believe that the accused had
committed the offence;
(il) nature and gravity of the accusation;
(ili) 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;
(vil) reasonable apprehension of the witnesses
being influenced; and
(viii) danger, of course, of justice being thwarted
by grant of bail."”
2
(2022) 9 SCC 321
3
(2010) 14 SCC 496
SLP(Crl.) No.3482 of 2023 Page 7 of 11
11. Having considered the matter and the
applicable law, this Court notes that the
decision of the Division Bench of the High Court
of Calcutta (Circuit Bench, Port Blair) dated
20.02.2023 in CRM (DB)/1/2023 has neither
dealt with the real issue, nor indicated reasons
which are germane and, in our view, required
consideration concerning the grant or rejection
of bail.
12. Rather, the High Court examined issues,
which ought not to have been the primary
factors when considering the prayer for bail of
respondent no. 2, especially what is recorded in
the first two paragraphs at Page 4 of the
Impugned Judgment. This could have entailed
remand to the High Court for a discussion, even
if short, on the merits of granting bail in the
present facts and circumstances. However, we
have independently considered the matter on
merits after hearing learned counsel in extenso .
Having done so, we do not find reason to
interfere with the Impugned Judgments. At the
SLP(Crl.) No.3482 of 2023 Page 8 of 11
same time, the interest of justice must be
preserved. In this light, we impose the following
conditions in addition to those laid down by the
High Court:
(A) The Trial Court shall proceed expeditiously
with the case and without any undue
adjournment(s), and;
(B) The accused-respondent shall render full
cooperation in the trial, and;
(C) The accused-respondent shall not leave
the territory of India. Condition No. 4 imposed
by the High Court shall stand modified
accordingly, and;
(D) Condition No. 5 imposed by the High
Court is varied and shall now read as ‘ The
Petitioner shall submit his Passport to the Trial
Court. In case, the Petitioner holds more than one
Passport (Diplomatic and/or Personal), the other
Passport shall also be deposited with the Trial
Court. ’
SLP(Crl.) No.3482 of 2023 Page 9 of 11
Any violation(s) of the terms and conditions
stipulated supra and by the High Court would
be grounds for cancellation of bail. The observa-
tions herein will not aid the accused nor impede
the Petitioner or the Prosecution at trial.
13. The Petitioner fears for her and her family’s
safety. It is made clear that the onus of
ensuring their safety is on the Union Territory
Administration. Similarly, the Union Territory
Police is put to notice in this regard. Insofar as
the Petitioner claims that the Director-General
of Police has not acted on her subsequent
complaints seeking registration of First
Information Reports against certain other
persons, the Director-General is directed to
examine the same and take an independent
decision on what action, if any, is called for, in
accordance with law, within ten days from
today. In these peculiar facts, we grant liberty
to the parties to apply in case of difficulty.
SLP(Crl.) No.3482 of 2023 Page 10 of 11
14. In view of the above discussion, the Special
Leave Petitions fail and are hereby dismissed.
15. Pending applications, if any, stand disposed of.
….………………………………..J.
(VIKRAM NATH)
……………………………………J.
(AHSANUDDIN AMANULLAH)
NEW DELHI
AUGUST 24, 2023
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