Full Judgment Text
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CASE NO.:
Appeal (crl.) 1248 of 2005
PETITIONER:
State through C.B.I.
RESPONDENT:
Amaramani Tripathi
DATE OF JUDGMENT: 26/09/2005
BENCH:
Ashok Bhan & R.V. Raveendran
JUDGMENT:
J U D G M E N T
(Arising out of S.L.P. (CRL) NO.3503 OF 2004)
With
Criminal APPEAL NO.1249/2005
(Arising out of S.L.P. (Crl.) No.769 OF 2005)
State of U.P. through C.B.I. ...
Appellant
Vs.
Madhumani Tripathi ...
Respondent
BHAN, J.
Leave granted.
The State of Uttar Pradesh through CBI
aggrieved by the orders dated 29th April, 2004 and
8th July, 2004 passed by a Single Judge of Allahabad
High Court (Lucknow Bench) in Crl. Misc. Case
No.1402(B)/2004 and No.1954(B)/2004 releasing the
accused Amarmani Tripathi (Accused No.5) and
Madhumani Tripathi (Accused No.4) on bail have
filed these appeals.
On 9th May, 2003 Madhumita Shukla was shot dead
in her house located in Paper Mill Colony by two
persons who were later on identified as Santosh
Kumar Rai and Prakash Chandra Pandey.
Investigation in the case revealed that Madhumita
Shukla was killed pursuant to a conspiracy
involving Amarmani Tripathi and his wife Smt.
Madhumani Tripathi, Nidhi Shukla lodged a Report in
regard to the blind murder of her sister Madhumita
Shukla on 9.5.2003 in the Mahanagar Police Station,
Lucknow. The case was transferred to Crime Branch,
CID on 17.5.2003. On a request made by the State
on 17.6.2003, the CBI took over the investigation.
The case of the prosecution in brief is as
follows:
Amarmani Tripathi, a Minister in the U.P.
Government, at the relevant time, was having an
affair with deceased Madhumita Shukla, a young
Poetess. This led to Madhumita’s pregnancy thrice.
On the first two occasions, the pregnancy was
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aborted at the instance of Amarmani. On the third
occasion, inspite of pressure and persuasion by
Amarmani, Madhumita refused to abort the pregnancy.
The post-mortem revealed a six month old foetus in
her womb. D.N.A. test of the foetus established
the paternity of Amarmani.
Madhumani Tripathi, wife of Amarmani, was upset
when she learnt about the illicit intimacy between
Amarmani and the deceased. She made several calls
to the deceased and her family members to threaten
and abuse them. During the end of March, 2003
Madhumani Tripathi informed one Rohit Chaturvedi
(cousin of Amarmani) that she was troubled by her
husband’s relationship with Madhumita and requested
him to help her to teach a ’lesson’ to Madhumita.
Rohit Chaturvedi, therefore, introduced one Santosh
Rai as a person who can help her. Madhumani told
Santosh Rai that Madhumita should be finished,
whatever be the expense.
On 14.4.2003 when Rohit Chaturvedi came to
Lucknow, Madhumani asked him to instruct Santosh
Rai to do the work assigned to him without delay.
On the same evening Rohit Chaturvedi informed
Amarmani that Bhabhi Madhumani wanted Madhumita to
be eliminated. Amarmani told Rohit that it may be
done taking care to see that his name was not
linked to the incident. He also stated that being
a Minister in the U.P. Govt., shall protect them.
Amarmani was no longer interested in Madhumita as
she was becoming a nuisance and he had found other
interests. Amarmani felt that if Madhumita gave
birth to the love-child, it could adversely affect
his image as a politician and Minister and also
cause problem in his family.
Madhumani kept on pressing Rohit to get the
work done. On 1.5.2003 Madhumani told him that all
limits have been crossed and action should be taken
immediately. Madhumani rang up Rohit several times
to tell Santosh Rai to do her work and Rohit passed
on the message to Satonsh Rai. Santosh Rai met
Madhumani in this connection on 5.5.2003.
Santosh Rai assured Rohit that the work will be
done within 2 to 4 days. In pursuance of it, on
9.5.2003 Santosh Rai along with Prakash Pandey went
to the house of Madhumita and shot her with a
country made pistol (katta) from close range,
resulting in her death.
According to the prosecution, the murder of
Madhumita was a result of the conspiracy among
Madhumani, Amarmani, Rohit Chaturvedi, Santosh Rai
and Prakash Pandey. Amarmani was arrested on
23.9.2003. On 19.12.2003 a charge-sheet was filed
against six accused, namely, (1) Santosh Kumar Rai
@ Satya Prakash, (2) Prakash Chander Pandey @
Pappu, (3) Rohit Chaturvedi, (4) Madhumani
Tripathi, (5) Amarmani Tripathi and (6) Yagya
Narain Dixit. On the date of filing of the
chargesheet, accused no.4, Madhumani Tripathi, was
absconding. However, when the first bail
application filed by Amarmani Tripathi was rejected
by the High Court by order dated 11.3.2004 on the
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ground that the co-accused (Madhumani Tripathi) had
not surrendered, Madhumani surrendered on
25.3.2004.
Amarmani made a second bail application under
Section 439 Cr.P.C. in Crl. Misc. Case
No.1402(B)/2004. The High Court by order dated
29.4.2004 granted bail to Amarmani on the following
reasoning:
a) The entire theory of Amarmani being part of
the conspiracy to murder Madhumita was based
on the confessional statement of the co-
accused Rohit Chaturvedi (recorded on
17.11.2003 by Vikas Dhul, Metropolitan
Magistrate, at New Delhi). Rohit had made
his confession conditional of being treated
as an approver. Rohit had subsequently
retracted from the confession. The
admissibility of the confession against a
co-accused is doubtful.
b) Normally, Courts should first examine the
material, other than the confessional
statement of a co-accused, to find out if
there is any evidence of
conspiracy/abetment. The confessional
statement of a co-accused should be
considered only as a supporting piece of
evidence, and not as the substantive
evidence against an accused. The
confessional statement of a co-accused, more
so, one that has been retracted, cannot be
made the foundation for establishing the
guilt of an accused. In this case, if the
said confessional statement of Rohit is
excluded, there is no evidence, direct or
otherwise to show that Amarmani was in any
manner, party to the conspiracy to kill
Madhumita.
c) The other material relied on by the
prosecution against Amarmani are: (i)
illicit relationship between Amarmani and
the deceased; (ii) DNA test report showing
that Amarmani was the father of the foetus
in the womb of the deceased; (iii) pressure
applied by Amarmani on the deceased to abort
the pregnancy; (iv) undated letter of the
deceased addressed to Amarmani finding fault
with him for ignoring her. These were yet
to be tested in trial. More importantly it
cannot be said that the only inference that
can be drawn from the said material is that
Amarmani was a party to the conspiracy to
murder the deceased. These material can
only lead to an inference that the conduct
of Amarmani was immoral and that there was
an effort on his part to cover up such
conduct and nothing more.
d) The criminal history of the accused Amarmani
(20 criminal cases ending in acquittal and 4
cases pending including a case of
kidnapping) cannot be a ground to refuse
bail.
e) The contention of the CBI that the
investigation was still in progress in
pursuance of the permission for further
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investigation granted by the High Court by
order dated 8.4.2004 under Section 173(8) of
the Cr.P.C. was not tenable as such further
investigation was only in regard to
Madhumani and not in regard to Amarmani.
Charge-sheet had already been submitted.
Madhumani was in jail and shall remain
available for interrogation, if any, by CBI.
f) Amarmani was in jail since September, 2003
The investigation was already concluded.
There was no chance of Amarmani either
fleeing, or tampering with the witnesses.
There was nothing to connect the
disappearance of the domestic servants of
Amarmani, with him, whom CBI wanted to
interrogate. If it was found at any stage
that he was not co-operating in the trial of
the case or found to be tutoring/maneuvering
any witness, CBI can move an application for
cancellation of bail at that stage.
Amarmani’s wife Madhumani applied to the
Sessions Judge, Lucknow for bail in Crl. Misc.
Case N.960/2004. It was rejected by order dated
20.4.2004. Thereafter she approached the High
Court for bail in Crl. Misc. Case No.1954(B) of
2004. The High Court granted bail to Madhumani
by order dated 8.7.2004 on the following
reasoning:
a) Madhumani is not the main accused, but only an
alleged conspirator/abettor. Her husband,
whom the Prosecution considers to be the main
conspirator had already been granted bail and
grounds on which he was granted bail are also
available for granting bail to her.
b) Madhumani is only a housewife without any
criminal antecedents. She has not been named
in the FIR or in the statements of Nidhi Shukla
and Desraj (servant of the deceased) recorded
under Section 161 Cr.P.C. Her name came to be
linked with the murder for the first time in
the confessional statement of Rohit made on
17.11.2003. The admissibility of such
confessional statement, particularly, against
a co-accused is doubtful and that question has
to be considered at the time of trial.
c) There is no allegation that Madhumani made
any attempt to tamper with the evidence. She
was available for interrogation on 4.8.2003 and
6.9.2003. When she moved an application on
24.9.2003 for surrender, the special Judicial
Magistrate, CBI by order dated 6.10.2003,
rejected the application for surrender on the
ground that she was not wanted till that date.
All circumstances show that Madhumani was
available from the date of incident till
6.10.2003. Though she was said to be
absconding after her name cropped up in the
conspiracy, she subsequently surrendered before
Court when the first application of Amarmani
for bail was rejected on the ground that she
was absconding. There is no chance of her
fleeing.
d) The entire material against her regarding
intimacy between her husband and the deceased
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and subsequent developments is purely based on
circumstances and the evidence indicated only
a possible motive. The mobile phone calls
attributed to her and printouts relating
thereto are not sufficient to infer any
conspiracy, as the Mobile phones used were not
in her name, but in the name of her husband.
The Parchi allegedly handed over by her to the
hired killers (containing the name, address and
telephone numbers of the deceased) is yet to
be proved as being in her handwriting.
e) The prosecution case is based on two
contradictory theories of conspiracy, one
hatched by her husband, the other hatched by
her, by joining hands with her husband.
f) The sessions court committed an error in
rejecting her bail application being influenced
by the fact that it is a media highlighted case
and by the fact that her husband is an
influential person.
Being aggrieved by the two orders of the
Allahabad High Court granting bail to Amarmani
and Madhumani, the State has approached this
Court. Shri Gopal Subramanium, learned Additional
Solicitor General appearing for the petitioner,
submitted that the material on record, before the
High Court clearly disclosed the following
position:
i) That the murder of pregnant Madhumita, a
heinous crime, was committed in pursuance of
a conspiracy hatched by accused 1 to 5. The
murder was committed by the killers
(accused 1 & 2), hired by accused no.4 with
the concurrence, support and protection of
accused no.5, through accused no.3. There
was material to show (i) the illicit
relationship of Amarmani with the deceased
resulting in three pregnancies; (ii)
Amarmani’s intention to get out of the
relationship; (iii) Amarmani’s attempt to
put an end to the last pregnancy also, by
requiring his servant Pappu Chaudhary to
pose as the father of the foetus and give
consent for abortion; (iv) Madhumani’s ire
and jealously against the deceased and
expression of an intention to get rid of
her; (v) Madhumani’s subsequent action in
engaging killers (accused 1 and 2) through
accused No.3 to kill Madhumita; and (vi) the
consent of Amarmani for Killing Madhumita,
as instructed by his wife without involving
his name and assuring protection to the
persons committing the murder.
ii) That Amarmani was interfering with the
investigation, by trying to side-track it
and mislead the Police into a false trail,
planting false stories in the media,
creating false evidence and threatening
witnesses either directly or by using the
police. He even managed to get the Police
Officers (including an officer of the Rank
of SSP) who were not toeing his line,
transferred.
iii) That after release on bail in pursuance to
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the order of the High Court, Amarmani was
attempting to threaten/coerce/buy over
witnesses (Nidhi Shukla, sister, Shanti
Kumari Shukla and Najib Khan).
iv) That Madhumani had already absconded
earlier. Only the rejection of bail
application of her husband on that ground
made her to surrender. There is every
likelihood of her again fleeing, if she
continuous to be on bail. Further, if
Amarmani alone is denied bail, the
threatening of witnesses will be taken over
by Madhumani.
On the other hand Shri Rakesh Dwivedi, learned
Senior Counsel appearing for Amarmani submitted
that this is a case of blind murder. There is no
material showing any involvement of Amarmani in
the murder or in any conspiracy. There was never
any contact between Amarmani and the hired
killers. He submitted that the retracted
confessional statement of Rohit Chaturvedi which
alone linked Amarmani’s name to the conspiracy is
to be ignored, in view of the law laid down by
this Court; and if it is so ignored, there is
absolutely no material at all to show that
Amarmani was involved in the conspiracy. The,
material, including the statements of Nidhi,
Shanti Kumari, Pappu Chaudhary relied upon by the
prosecution and the post-mortem report showing the
six month foetus and the DNA report showing
Amarmani as the father, even if accepted could at
best establish an illicit relationship between
Amarmani and Madhumita and an attempt to abort the
pregnancy and nothing more. He submitted that the
conduct of Amarmani, even if it was morally
incorrect, can in no way be considered as proof of
an intention to kill Madhumita or proof of his
being a party to any conspiracy to kill Madhumita.
He also stated that any action taken by Amarmani
to safeguard himself and his wife, cannot be
branded as conspiracy.
Shri KTS Tulsi, learned Senior Counsel
appearing for Madhumani similarly contended that
if the confessional statement of Rohit is
excluded, there is nothing to link Madhumani to
the death of Madhumita. He pointed out that the
entire material, even assuming to be true, only
showed an illicit relationship between Amarmani
and the deceased and expression of anger by
Madhumani against such illicit relationship and
nothing more. He submits that the expression of
righteous indignation by a wife and verbal abuse
of the girl trying to wreck her marital life, is
not evidence of participation in any conspiracy to
kill the deceased.
Shri Dwivedi and Shri Tulsi, learned Senior
Counsel relied on several decisions regarding the
effect of confessional statements. They contended
that no interference was called for in regard to
the orders of the High Court granting bail to
Amarmani and Madhumani. They submitted that the
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basic rule is bail and not jail, unless there are
circumstances suggesting fleeing from justice or
thwarting justice either by repeating the offence
or intimidating witnesses (vide State of Rajasthan
vs. Balchand - 1977 (4) SCC 308 and Gudikanti
Narasimhulu vs. Public Prosecutor \026 1978 (1) SCC
240).
They relied on the decision in Bihar Legal
Support Society vs. Chief Justice of India [1986 (4)
SCC 767] wherein a Constitution Bench of this Court
observed as follows:
"The apex court must interfere only in
the limited class of cases where there
is a substantial question of law
involved which needs to be finally laid
at rest by the apex court for the entire
country or where there is grave, blatant
and atrocious miscarriage of justice.
Sometimes, we judges feel that when a
case comes before us and we find that
injustice has been done, how can we shut
our eyes to it. But the answer to this
anguished query is that the judges of
the apex court may not shut their eyes
to injustice but they must equally not
keep their eyes too wide open, otherwise
the apex court would not be able to
perform the high and noble role which it
was intended to perform according to the
faith of the Constitution makers. It is
for this reason that the apex court has
evolved, as a matter of self-discipline,
certain norms to guide it in the
exercise of its discretion in cases
where special leave petitions are filed
against orders granting or refusing bail
or anticipatory bail...... We reiterate
this policy principle laid down by the
bench of this Court and hold that this
Court should not ordinarily, save in
exceptional cases, interfere with orders
granting or refusing bail or
anticipatory bail, because these are
matters in which the High Court should
normally be the final arbiter."
(Emphasis
supplied)
Reliance is next placed on Dolat Ram and others
vs. State of Haryana 1995 (1) SCC 349, wherein the
distinction between the factors relevant for
rejecting bail in a non-bailable case and
cancellation of bail already granted, was brought
out :
"Rejection of bail in a non-bailable
case at the initial stage and the
cancellation of bail so granted, have
to be considered and dealt with on
different basis. Very cogent and
overwhelming circumstances are
necessary for an order directing the
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cancellation of the bail, already
granted. Generally speaking, the
grounds for cancellation of bail,
broadly (illustrative and not
exhaustive) are: interference or
attempt to interfere with the due
course of administration of justice or
evasion or attempt to evade the due
course of justice or abuse of the
concession granted to the accused in
any manner. The satisfaction of the
court, on the basis of material placed
on the record of the possibility of the
accused absconding is yet another
reason justifying the cancellation of
bail. However, bail once granted
should not be cancelled in a mechanical
manner without considering whether any
supervening circumstances have rendered
it no longer conducive to a fair trial
to allow the accused to retain his
freedom by enjoying the concession of
bail during the trial."
They also relied on the decision in S.N.
Bhattacharjee vs. State of West Bengal 2004 (11)
SCC 165 where the above principle is reiterated.
The decisions in Dolat Ram and Bhattacharjee cases
(supra) relate to applications for cancellation of
bail and not appeals against orders granting bail.
In an application for cancellation, conduct
subsequent to release on bail and the supervening
circumstances alone are relevant. But in an appeal
against grant of bail, all aspects that were
relevant under Section 439 read with Section 437,
continue to be relevant. We, however, agree that
while considering and deciding appeals against
grant of bail, where the accused has been at large
for a considerable time, the post bail conduct and
supervening circumstances will also have to be taken
note of. But they are not the only factors to be
considered as in the case of applications for
cancellation of bail.
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 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 vs. NCT, Delhi 2001
(4) SCC 280 and Gurcharan Singh vs. State (Delhi
Administration) AIR 1978 SC 179). While a vague
allegation that 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
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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 vs. Rajesh Ranjan, 2004 (7) SCC 528:
"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 with 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, 2002 (3) SCC 598
and Puran vs. Ram Bilas 2001 (6)
SCC 338."
This Court also in specific terms held
that:
"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
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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."
In Panchanan Mishra vs. Digambar Mishra, 2005
(3) SCC 143, this Court observed :
"The object underlying the
cancellation of bail is to protect
the fair trial and secure justice
being done to the society by
preventing the accused who is set
at liberty by the bail order from
tampering with the evidence in the
heinous crime..... It hardly
requires to be stated that once a
person is released on bail in
serious criminal cases where the
punishment is quite stringent and
deterrent, the accused in order to
get away from the clutches of the
same indulge in various activities
like tampering with the
prosecution witnesses, threatening
the family members of the deceased
victim and also create problems of
law and order situation."
Therefore, the general rule that this Court will
not ordinarily interfere in matters relating to bail,
is subject to exceptions where there are special
circumstances and when the basic requirements for
grant of bail are completely ignored by the High
Court. (see Pawan vs. Ram Prakash Pandey \026 2002 (9)
SCC 166; Ram Pratap Yadav vs. Mitra Sen Yadav \026 2003
(1) SCC 15 and Kalyan Chandra Sarkar vs. Rajesh
Ranjan \026 2004 (7) SCC 528.
While a detailed examination of the evidence is
to be avoided while considering the question of bail,
to ensure that there is no pre-judging and no
prejudice, a brief examination to be satisfied about
the existence or otherwise of a prima facie case is
necessary. An examination of the material in this
case, set out above, keeping in view the aforesaid
principles, disclose prima facie, the existence of a
conspiracy to which Amarmani and Madhumani were
parties. The contentions of Respondents that the
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confessional statement of Rohit Chaturvedi is
inadmissible in evidence and that should be excluded
from consideration, for purpose of bail is untenable.
This Court had negatived a somewhat similar
contention, in Kalyan Chandra Sarkar (supra) thus :
"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
hereinafter including that of the
witnesses sought to be recalled are
all matters to be considered at the
stage of the trial."
But what is more relevant, in this case is the
conduct of Amarmani from day of the murder in
trying to interfere, detract and mislead the
investigation and to threaten and coerce
witnesses. We may refer to the following
circumstances disclosed by statements recorded
under Section 161 Cr.P.C. :
i) Nidhi Shukla and Shanti Kumari Shukla
(sister and mother of the deceased
respectively) have stated that on
10.5.2003 Amarmani met them near the
mortuary and informed them that he will
handle the entire situation and
instructed them with threats, to be
careful while making any statement and
not to link him or his wife in regard to
the murder. This was repeated during the
second week of May 2003, by summoning the
mother of the deceased to his house.
ii) The statement of Mr. Anil Aggarwal, SSP,
Lucknow shows that on the intervening
night of 9th and 10th May, 2003 (at about
1.00 a.m), Amarmani called him on his
mobile phone and made enquiries about the
murder and informed him that he or his
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wife had nothing to do with the murder
and that his wife was a very simple house
wife and that he (Anil Aggarwal) should
help him.
iii) When Anil Aggarwal learnt that there was
six month old foetus in the womb of the
deceased and that without removing the
foetus, the body had been handed over to
the relatives of the deceased, he
immediately instructed that the body
should be brought back and the Doctor
should remove the foetus and preserve it
for purposes of investigation. In
pursuance of it, action was taken to stop
the vehicle in which the body was being
taken to the native place. Amarmani
again called the SSP (Anil Aggarwal) on
the mobile phone and told him that he
knew Madhumita and that she was a simple
girl. That there was some mistake in
the report that Madhumita was pregnant
and the body of Madhumita had already
started decomposing and the family should
be permitted to proceed to their village
immediately with the body so that funeral
can be performed before sun set.
iv) That on 15.5.2003 Amarmani again
contacted Anil Aggarwal, SSP on his
mobile phone and informed him that from
his own sources and investigation he had
found out that Madhumita was married to
one Anuj Mishra, a student of IIT Kanpur,
and that he had located the Priest who
had performed the marriage in November-
December, 2002. He also stated that if
the marriage could be proved the
aspersion cast on his character can be
removed by showing that the deceased was
pregnant on account of her marriage with
Anuj Mishra. He instructed the SSP to
send Yagya Narain Dixit, SO, Manek Nagar
to him, so that he would tell him what is
to be done to prove such marriage.
v) On the same day around 10 p.m. Amarmani
again called Anil Aggarwal, SSP urging
him to depute Yagya Narain Dixit, SO
Manek Nagar (who was apparently close to
him and was arrayed as the 6th accused
being charged under Section 201 of the
IPC. He later on died in an accident) to
verify the marriage with Anuj Mishra.
Amarmani again called Anil Aggarwal on
the morning of 16.5.2003 at around 10
a.m. on the mobile and reiterated the
demand. Again on the evening of 16.5.05
he called the SSP on his mobile to
enquire about the progress and sounded
very anxious and stated that the matter
was getting delayed. When the SSP asked
Amarmani to send the person who has given
the information about the marriage of
Madhumita with Anuj Mishra to his office
so that he could send some police officer
to Kanpur to verify the matter and also
informed Amarmani that he (SSP) will
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decide who should be deputed to verify
the matter, the very next day (17.5.2003)
the SSP was transferred, at the instance
of Amarmani.
The statement of the SSP shows that
Amarmani tried to side track the matter
by implicating Anuj Mishra and to ensure
that the foetus is not removed or
preserved or examined. When SSP refused
to comply, he was transferred. Kamaal
Khan, NDTV correspondent/Bureau Chief,
Lucknow and Deepak Gidwani, Bureau Chief,
Sahara Samay T.V. have clearly stated
that Amarmani informed them that he had
complained to the Chief Minister that
investigation was not being done properly
and got Anil Aggarwal, SSP transferred;
and that he also informed them that his
private investigation showed that
deceased had married Anuj Mishra.
vi) Amarmani thereafter managed to ensure
that his confidant Yagya Narain Dixit was
deputed to threaten Rishi Khare, room
mate of Anuj Mishra, to admit that there
was a marriage between Anuj Mishra and
Madhumita. The statement of Rishi Khare,
the room mate of Anuj Misra at IIT
Hostel, Kanpur showed that at the
instance of Amarmani, Yagya Narain Dixit,
SO of Manek Nagar suggested, threatened
and coerced him to admit that he was a
witness to the marriage of Madhumita with
Anuj Mishra in spite of his repeatedly
stating that he was not aware of any such
marriage; and he even held out promises
to Rishi Khare on behalf of Amarmani
after repeatedly speaking to Amarmani
Tripathi over the phone in his presence.
vii) The statement of Rishi Khare shows that
he and his father and his landlord were
taken by Yagya Narain Dixit to meet
Amarmani, who demanded that he should
speak about the wedding of Anuj Mishra
and deceased. In his presence Amarmani
also informed Yagya Narain Dixit that if
Rishi Khare refused to admit of being a
witness to such marriage he should use
tougher methods to make him admit the
wedding between Anuj Mishra and
Madhumita. He also threatened Rishi
Khare that he can be framed by showing
that a country made revolver was
recovered from him, thereby landing him
in jail.
viii) Kamaal Khan, NDTV correspondent/Bureau
Chief, Lucknow and Deepak Gidwani, Bureau
Chief, Sahara Samay T.V. were invited by
him and told them that he had a major
scoope which would turn the entire story
of the Madhumita’s case upside down.
That Madhumita’s case was not being
investigated properly and he was doing
his own investigation. That he has been
able to identify the real killers of
Madhumita. Madhumita was married to
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Anuj Mishra and the marriage was
performed by a priest who was present in
the house and was introduced to them.
The evidence collected above discloses that
there were repeated attempts by the accused Amarmani
to interfere, and side track the investigation and
threaten the witnesses to come out with a story that
will deflect the suspicion from him and his wife to
Anuj Mishra or others. It is also not in dispute
that Amarmani was on bail in a kidnapping case, when
he indulged in these activities in May, 2003. These
materials were placed by the prosecution before the
High Court to establish a reasonable apprehension of
tampering. The learned Single Judge has, however,
completely ignored these materials relating to
tampering with evidence/witnesses. This
necessitates interference with the order of the High
Court.
Shri Subramanium, learned ASG next referred to
the threats to witnesses held out by Amarmani
after his release on bail. Reliance is placed on
the four complaints received by the crucial
prosecution witnesses. Nidhi Shukla, sister of
the deceased by letter dated 10.9.2004, and Shanti
Kumari, mother of the deceased by an undated
letter, have made separate complaints to the CBI
in regard to efforts made by Amarmani to induce
them to accept money through one NK Mishra to
settle the matter and that when they refused, he
threatened them. Another witness Najib Khan (a
family friend of the deceased) has also sent a
complaint dated 22.9.2004, stating that on that
day two persons knocked on his door, hurled abuses
at him and told him that the CBI officers were far
away and once the cases were closed, no one will
protect him and he will be killed. Lastly, one
Birjesh Pathak, Member of Parliament has also sent
a complaint dated 16.9.2004 to the CBI alleging
that an attempt on his life was made on 7.9.2004
which, according to him, was at the instance of
Amarmani. The said allegations are denied in the
counter-affidavit filed on behalf of Amarmani by
his brother/Pairokar. It is contended that these
complaints must have been sent at the instance of
the CBI itself. In so far as Brijesh Pathak is
concerned, it is also alleged that he is a close
confidant of Amarmani’s political rival. However,
in the view we have taken, it is unnecessary to
examine this aspect.
The High Court has failed to deal with the vast
material placed by the CBI which clearly indicated
that the accused has, at all material times, tried
to interfere with the course of investigation,
tamper with witnesses, fabricate evidence,
intimidate or create obstacles in the path of
investigation officers and derail the case.
The statement of Anil Aggarwal, SSP Lucknow is
revealing and in our opinion the High Court on
this statement alone should have rejected the bail
and, in any event, it is sufficient to allow the
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present appeal. A senior police officer has
stated that the accused asked for his help against
his implication in the case. The accused asked
the officer not to preserve the foetus and that
the body should be taken to her native place for
the last rites. The officer also speaks about his
being rebuked by senior bureaucrats for recovering
the foetus. It is relevant to note that the
officer was sought to be misled by the accused by
giving false information about a marriage between
Anuj Mishra and the deceased. But for his
diligence, the foetus would not have been
preserved. For doing his duty diligently, the
officer was punished with a transfer out of normal
course. The very fact that a senior police
officer could be transferred out of Lucknow on 17th
of May, 2003, clearly shows the amount of
influence wielded by the accused. Ajay Kumar
Chaturvedi, the first investigating officer who
had also refused to tow the line of the accused
was also transferred on the same date. Likewise,
Mr. Beni Singh Verma, Inspector of Police, CB-CID
and Mr. Dinanath Mishra , Inspector of Police, CB-
CID were also transferred. S/Sh. N.V. Sirohi,
Mr. Vishwa Bhushan Singh, Mr. Sahab Rashid Khan
were also transferred but their transfer orders
were quashed by the High Court later on.
In Panchanan Mishra case (supra), it has been
held that the Court must apply its mind and go
into the merits and evidence on record and
determine whether prima facie case was established
against the accused. It was held that the
seriousness and gravity of the crime was also a
relevant consideration. That a balance has to be
drawn by the Court to protect fair trial and to
secure justice being done to the society by
preventing the accused who is set at liberty by
the bail order from tampering with the evidence in
a heinous crime and if there is delay in such a
case the underlying object of cancellation of bail
practically looses all its purpose and
significance to the great prejudice and the
interest of the prosecution. The Court summed up
the principle that the ground to deny bail will be
when by testing the balance of probabilities it
appears that the accused has abused his liberty or
that there is a reasonable apprehension that he
will interfere with the course of justice. It was
noticed by the Court that once a person is
released on bail in serious criminal cases where
the punishment is stringent and deterrent, the
accused in order to get away from the clutches of
the same indulge in various activities like
tempering with the prosecution witnesses,
threatening the family members of the victim and
also create problems of law and order.
In Prahlad Singh Bhati Vs. NCT, Delhi, 2001 (4)
SCC 280, this Court reiterated that if a person
was suspected of the crime of an offence
punishable with death or imprisonment for life
then there must exist grounds which specifically
negate the existence of reasonable ground for
believing that such an accused is guilty of an
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offence punishable with the sentence of death or
imprisonment for life. The jurisdiction to grant
bail must be exercised on the basis of well
settled principles having regard to the
circumstances of each case. While granting bail,
the Court has to keep in mind the nature of
accusations, the nature of evidence in support
thereof, the severity of the punishment which
conviction will entail, the character, behaviour,
means and standing of the accused, circumstances
which are peculiar to the accused and reasonable
apprehension of witnesses being tempered with,
In Kalyan Chandra Sarkar case (supra), this
Court reiterated that while granting bail
discretion must be exercised in a judicious manner
and not as a matter of course. It may not be
necessary to do detailed examination of evidence
and documentation of the merit of the case but
there is a need to indicate reasons for prima
facie conclusion why bail was being granted
particularly where the accused is charged of
having committed serious offence.
In the present case, we find that the High
Court has granted bail being of the opinion that
the extra judicial confession given by Rohit
Chaturvedi one of the co-accused may not stand the
test of scrutiny by a judicial mind but that by
itself was not sufficient to grant the bail.
There is voluminous evidence collected by the CBI
to show the involvement of Amarmani Tripathi, and
his effort to interfere with the investigation of
the case before the grant of bail and also after
the grant of bail. He tried to change the course
of investigation by creating false evidence of the
marriage of Madhumita with Anuj Mishra with the
help of Yagya Narain Dixit, a police officer, the
6th accused who died in an accident during the
course of investigation. There are written
complaints with the investigating agency showing
that after his release on bail Amarmani Tripathi
tried to threaten as well as win over Nidhi
Shukla, sister of the deceased, and her mother by
offering bribe. In our opinion, the High Court
gravely erred in granting bail to Amarmani
Tripathi in such circumstances. The High Court
practically failed to consider/take into
consideration the voluminous evidence which had
been collected by the investigation agency and
have been referred to by them in their statement
of objections to the application for grant of
bail.
It is true that the position of Madhumani is
somewhat different from the case of her husband.
While her husband is a politician and ex-Minister,
she is no doubt a house wife. While her husband
has several criminal cases against him, she has no
such record. While there is material to show
attempts by her husband to tamper with the
evidence and threaten witnesses, there is nothing
to show that she made any attempt to tamper with
the evidence. But there is material to show that
she had absconded for several months and
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surrendered only when bail was refused to her
husband on the ground that she was absconding.
Further when the matter is considered in entirety,
with reference to the murder of Madhumita and the
propensity of the husband and wife to pressurize
and persuade others to act according to their
wishes there is reasonable ground for apprehension
that if her husband alone is taken into custody,
leaving her to remain outside, she may take over
the task of tampering the evidence and
manipulating/threatening witnesses. Therefore,
interference is called for even in regard to the
bail granted to Madhumani.
We are conscious of the fact that evidence in
this case has yet not been led in the Court.
Wherever we have referred to the word "evidence"
in this order the same may be read as material
collected by the prosecution. Reference to the
material collected and the findings recorded
herein are for the purposes of these appeals only.
This may not be taken as an expression of opinion.
The Court would be at liberty to decide the matter
in the light of evidence which shall come on
record after it is led de hors any finding
recorded in this order.
For the reasons stated above, the orders dated
29th April, 2004 and 8th July, 2004 passed by the
High Court are set aside. The bail bonds of the
respondents in each of these cases are cancelled.
Respondents are directed to surrender forthwith
and in case they fail to do so, the State should
take effective steps to take the respondents in
custody.
The appeals stand disposed of.