• Kalyan Chandra Sarkar Vs. Rajesh Ranjan

  • CASE NO.:

    Appeal (crl.)  324 of 2004

    PETITIONER:

    Kalyan Chandra Sarkar

    RESPONDENT:

    Rajesh Ranjan alias Pappu Yadav & Anr.

    DATE OF JUDGMENT: 12/03/2004

    BENCH:

    N. Santosh Hegde & B. P. Singh

    JUDGMENT:

    J U D G M E N T

    (Arising out of S.L.P (Crl) No. 4774 of 2003)

    SANTOSH HEGDE, J.

    Heard learned counsel for the parties.

    Leave granted

    The appellant herein is the complainant in CBI Case

    No.RC.12(S)/98/SIC.IV/New Delhi. According to the said

    complaint, the first respondent herein conspired with the other

    accused named in the said complaint to murder his brother Ajit

    Sarkar who was then a MLA from Purnea constituency in the

    State of Bihar. The incident leading to the murder of said Ajit

    Sarkar took place on 14.6.1998 when said Ajit Sarkar was

    returning in his official car with 3 others after attending a

    Panchayat. It is the prosecution case that some other accused

    named in the complaint followed the car in which said Ajit

    Sarkar was travelling on two motorbikes and attacked Ajit

    Sarkar, his friends Asfaq Alam, Hamender Sharma and Ajit

    Sarkar's bodyguard Ramesh Oraon with sophisticated weapons

    consequent to which said Ajit Sarkar, Asfaq Alam and

    Hamender Sharma died and Ramesh Oraon was seriously

    injured. A complaint in this regard was registered with the

    jurisdictional Police at the instance of the appellant and the

    original investigation was initiated by the said Police. However,

    when it was noticed that the said jurisdictional Police were not

    conducting proper investigation, the same was transferred to the

    Central Bureau of Investigation (CBI) which registered a fresh

    case. During the course of investigation the CBI found that in

    view of political rivalry between the deceased and the first

    respondent herein, the latter entered into a criminal conspiracy

    with the other co-accused to eliminate said Ajit Sarkar and

    pursuant to the said conspiracy on 12.6.1998 the first

    respondent held a meeting with co-accused Harish Chaudhary

    and others in Siliguri. It is also found that the first respondent

    instructed some of the co-accused to falsify certain records to

    create an alibi for himself and Harish Chaudhary for their

    absence from the place and the time of proposed attack and he

    himself left for New Delhi from Bagdogra. The further case of

    the prosecution is that later on the first respondent from Delhi

    instructed the other co-accused Rajan Tiwari over the phone to

    eliminate Ajit Sarkar by all means and he also assured the said

    Rajan Tiwari that he would provide the required fire-arms

    through co-accused Harish Chaudhary. Pursuant to the said

    assurance, the prosecution alleges that on the date of the

    incident i.e. on 14.6.1998 at about 4.30 p.m. said Rajan Tiwari

    armed with an AK-47 rifle, Harish Chaudhary with a .455

    revolver and another accused Amar Yadav armed with a .38

    revolver waylaid the car in which Ajit Sarkar was travelling at a

    place near Ankur Hotel in Subhash Nagar and in that attack, as

    stated above, 3 persons including Ajit Sarkar died and his

    bodyguard Ramesh Oraon suffered serious injuries.  During the

    course of investigation, some of the accused persons including

    the first respondent were arrested and a chargesheet was filed

    before the Additional Sessions  Judge, XI at  Patna  in  Sessions

    Trial No.976 of 1999.

    From the records, it is seen that after his arrest the first

    respondent had made a number of applications for grant of bail

    pending trial and most of such attempts had failed and it is by

    the impugned order, the High Court allowed the application of

    the first respondent and directed his release on bail on his

    furnishing a bail-bond of Rs.50,000 with two sureties of the like

    sum to the satisfaction of the trial court, subject to the

    conditions mentioned therein.

    Being aggrieved by the said order of the High Court

    enlarging the said respondent on bail, the brother of the

    deceased Ajit Sarkar is before us in this appeal. The second

    respondent the CBI has supported the appellant in this appeal.

    Mr. R F Nariman, learned senior counsel appearing for

    the appellant contended that the crime committed by the

    appellant is so heinous and gruesome that that by itself should

    have been  sufficient  to reject the bail application of the first

    respondent. He pointed out from the record that the first

    respondent had filed an application for bail before the High

    Court which came to be rejected by the High Court as per its

    order dated 16.9.1999. A SLP filed against the said order of

    rejection of bail came to be dismissed by this Court on

    7.10.1999. A second application for bail filed by him was also

    rejected by the High Court on 22.11.1999. A SLP filed against

    the said order was rejected by this Court on 4.2.2000. A third

    application filed by the first respondent for grant of bail before

    the High Court was rejected by the said court on 3.5.2000

    which order became final because no SLP was filed before this

    Court. A fourth application for grant of bail was made on

    26.7.2000 which also came to be rejected against which no SLP

    was filed before this Court. The fifth application filed by the

    first respondent for grant of bail before the High Court came to

    be allowed vide order dated 6.9.2000 and  an appeal filed

    against the grant of said bail, this Court was pleased to allow

    the said appeal and cancel the bail granted to the respondent as

    per its order dated 25.7.2001. Thereafter, the respondent  filed a

    sixth application for grant of bail which was rejected by the

    High Court on 5.11.2001. Against the said rejection order, the

    respondent preferred a SLP to this Court which came to be

    rejected on 7.12.2001. The seventh application was filed by the

    respondent before the High Court for grant of bail came to be

    dismissed on 13.3.2002 and a SLP filed against the said order

    came to be dismissed on 10.5.2002. The learned counsel

    submitted in this background the eighth attempt by the

    respondent became successful and the High Court by its order

    dated 23.5.2003 granted bail to the first respondent which is the

    subject-matter of this appeal. The learned counsel then

    submitted that though this Court in the earlier order of

    cancellation of bail had specifically negatived the ground on

    which bail was granted by the High Court  still in this round,

    the High Court by the impugned order again granted bail on the

    very same grounds which the learned counsel submits amounts

    to ignoring the findings of this Court.  He also pointed out from

    the judgment of this Court that while cancelling the bail this

    Court had decided certain questions of law which were binding

    on the High Court.  Still the High Court regardless of the said

    findings of this Court proceeded to make the impugned order

    without even referring to the same. For example, he pointed out

    that this Court in the said order had held that there was non-

    application of mind by the High Court to the provision of

    section 437(1)(1) of the Cr.P.C. which this Court had held is a

    sine qua non for granting bail. He also pointed out that this

    Court had also held in the said judgment that there is a

    prohibition in section 437(1)(1) that the class of persons

    mentioned therein shall not be released on bail if there appears

    to be a reasonable ground for believing that such person is

    guilty of an offence punishable with death or imprisonment for

    life.  He submitted that this Court had held that said condition is

    also applicable to the courts entertaining a bail application

    under Section 439 of the Code.  He argued assuming that the

    said enunciation of law is erroneous, still because it is a finding

    given in the case of the first respondent himself, so far as his

    case is concerned, it is a binding precedent unless reversed by

    the apex Court itself in a manner known to law. He submitted

    that the High Court has not followed the said mandate in the

    impugned order, therefore, on that ground also the impugned

    order is liable to be set aside.  Shri Nariman further submitted

    that this Court in the said order dated 25.7.2001 has held that

    the fact that an accused was in custody for a certain period of

    time by itself is not a ground to grant bail in matters where the

    accused is involved in  heinous crimes. Learned counsel also

    pointed out that the first respondent has misused his liberty by

    interfering with the administration of justice.

    Mr. K.K. Sud, learned Additional Solicitor General

    appearing for the CBI supporting the appellant, contended that

    the High Court has seriously erred in granting bail to the first

    respondent in spite of the fact that this Court by an earlier order

    had set aside the bail granted to him  by the High Court on

    6.9.2000. He contended that in the said order of this Court

    dated 25.7.2001, this Court had specifically held the grounds on

    which the High Court had granted bail viz., (a) that the

    respondent was in custody for more than a year; and (b) that in

    an earlier order, the High Court while rejecting the bail

    application had reserved liberty to renew the bail application

    after framing of charge in the case, are by themselves

    insufficient for grant of bail. Learned A.S.G. contended  in spite

    of the same  the High Court again proceeded to grant bail

    practically on the very same ground without there being any

    change in the circumstances.  Learned ASG also contended that

    liberty reserved in the order of this Court dated 25.7.2001 that

    in the event of there being any fresh application for bail by the

    first respondent, the High Court is free to consider such

    application without being in any manner influenced by the

    observations made in the said order of this Court would not

    amount to giving a carte blanche to the High Court to grant bail

    to the first respondent merely for the asking of it, or by ignoring

    the findings given in the said order. He urged that there has

    been no change in circumstances nor has the High Court given

    any other or additional ground for grant of bail than what was

    given by the High Court in its order when it granted bail on

    6.9.2000. Learned counsel also contended that after the High

    Court granted bail to the first respondent by the impugned order

    on 23.5.2003, the first respondent has been indulging in

    threatening witnesses. He pointed out from the records that after

    the respondent was granted bail on 23.5.2003 by the High Court

    a number of witnesses who were examined had turned hostile

    obviously because of the influence used and threats given to

    these witnesses. From the material on record, learned counsel

    pointed out PWs.21 to 24, 26 and 27 are some such witnesses

    who had turned hostile. He also submitted that there is material

    on record to show that the surviving eye-witness Ramesh Oraon

    was also under such threat thus, the first respondent has

    misused the privilege of freedom granted to him by the High

    Court.  He also contended that the first respondent is a very

    influential personality and with the political power and

    monetary clout which he wields freely to give threat to

    witnesses, the witnesses are not likely to come forward to give

    further evidence.  Learned counsel also pointed out from the

    evidence that there is material on record to show the

    involvement of the first respondent in the conspiracy to kill the

    Mr. K.T.S. Tulsi, learned senior counsel appearing for

    the first respondent contended that the observations of this

    Court in its judgment dated 25.7.2001 that while granting bail

    under section 439 of the Code the High Court is also bound by

    the conditions mentioned in section 437(1)(1) of the Code is per

    incuriam being contrary to the wordings of the Section itself.

    He submitted that the observations of this Court in the said

    judgment that the conditions found in section 437(1)(1) are sine

    qua non for granting bail under section 439 is arrived at by this

    Court on a wrong reading of that Section. He further submitted

    that the power of the Sessions Court and the High Court to

    grant bail under section 439 is independent of the power of the

    Magistrate under section 437 of the Code.  Learned counsel

    also pointed out that section 437 imposes a jurisdictional

    embargo on grant of bail by courts other than the courts

    mentioned in Section 439 of the Code in non-bailable offences,

    and such a restriction is deliberately omitted in section 439 of

    the Code when it comes to the power of the High Court or the

    Court of Sessions to grant bail even in non-bailable offences. In

    this regard, he placed reliance on a judgment of the High Court

    of Madhya Pradesh delivered by Faizanuddin, J., as His

    Lordship then was, in Badri Prasad Puran Badhai v. Bala

    Prasad Mool Chand Sahu & Ors. [1985 MP Law Journal 258].

    Mr. Tulsi also contended that the present appeal not

    being one for cancellation of bail on the grounds contemplated

    in section 439(2) of the Code ought not to be entertained by us

    being one in the nature of an appeal against an interim order

    this Court should not interfere unless it is shown that the

    respondent has violated the terms under which the bail was

    granted to him. He also submitted there is absolutely no legal

    evidence to implicate the first respondent in the charge of

    conspiracy. He submitted that though the prosecution has

    examined about 30 witnesses, it has not been able to establish

    any evidence against the respondent. According to learned

    counsel, the trump card of the prosecution seems to be an

    alleged confession made by one of co-accused Rajan Tiwari.

    This confession, according to learned counsel, is per se

    inadmissible in evidence, hence, same cannot be of any

    assistance to the prosecution. He countered the argument

    addressed on behalf of the appellant that the witnesses have

    turned hostile only after the first respondent was released on

    bail. He submitted that many other witnesses who were

    examined even when the appellant was still in custody, had also

    turned hostile. He pointed out that the respondent has been in

    custody for more than 3 = years and there is no possibility of

    the trial concluding in the near future which would mean that if

    bail is cancelled, the respondent will have to suffer the

    imprisonment inspite of the fact that there is no acceptable

    material to support the prosecution case.

    Before we discuss the various arguments and the material

    relied upon by the parties for and against grant of bail, it is

    necessary to know the law in regard to grant of bail in non-

    bailable offences.

    The law in regard to grant or refusal of bail is very well

    settled.  The Court granting bail should exercise its discretion in

    a judicious manner and not as a matter of course.  Though at the

    stage of granting bail a detailed examination of evidence and

    elaborate documentation of the merit of the case need not be

    undertaken, there is a need to indicate in such orders reasons for

    prima facie concluding why bail was being granted particularly

    where the accused is charged of having committed a serious

    offence.  Any order devoid of such reasons would suffer from

    non-application of mind.  It is also necessary for the court

    granting bail to consider among other circumstances, the

    following factors also before granting bail; they are,

    (a)          The nature of accusation and the severity of punishment

    in case of conviction and the nature of supporting evidence;

    (b)          Reasonable apprehension of tampering of the witness or

    apprehension  of threat to the complainant;

    (c)           Prima facie satisfaction of the Court in support of the

    charge; (See Ram Govind Upadhyay Vs. Sudarshan Singh and

    others (2002 (3) SCC  598) and Puran Vs. Rambilas and

    another (2001 (6) SCC 338).

    In regard to cases where earlier bail applications have

    been rejected there is a further onus on the court to consider the

    subsequent application for grant of bail by noticing the grounds

    on which earlier bail applications have been rejected and after

    such consideration if the court is of the opinion that bail has to

    be granted then the said court will have to give specific reasons

    why in spite of such earlier rejection the subsequent application

    for bail should be granted. (See Ram Govind Upadhyay, supra).

    Bearing in mind the above principles which on facts are

    applicable to the present case also, we will now consider the

    merits of the above appeal.

    We have already noticed from the arguments of learned

    counsel for the appellant that the present accused had earlier

    made seven applications for grant of bail which were rejected

    by the High Court and some such rejections have been affirmed

    by this Court also. It is seen from the records when the seventh

    application for grant of bail was allowed by the High Court, the

    same was challenged before this Court and this Court accepted

    the said challenge by allowing the appeal filed by the Union of

    India and another and cancelled the bail granted by the High

    Court as per the order of this Court made in Criminal Appeal

    No.745/2001 dated 25th July, 2001.  While cancelling the said

    bail this Court specifically held that the fact that the present

    accused was in custody for more than one year (at that time)

    and the further fact that while rejecting an earlier application,

    the High Court had given liberty to renew the bail application in

    future, were not grounds envisaged under Section 437(1)(1) of

    the Code.  This Court also in specific terms held that condition

    laid down under Section 437 (1)(1) is sine qua non for granting

    bail even under Section 439 of the Code.  In the impugned

    order it is noticed that the High Court has given the period of

    incarceration already undergone by the accused and the

    unlikelihood of trial concluding in the near future as grounds

    sufficient to enlarge the accused on bail, in spite of the fact that

    the accused stands charged of offences punishable with life

    imprisonment or even death penalty.   In such cases, in our

    opinion, the mere fact that the accused has undergone certain

    period of incarceration (three years in this case) by itself would

    not entitle the accused to being enlarged on bail, nor the fact

    that the trial is not likely to be concluded in the near future

    either by itself or coupled with the period of incarceration

    would be sufficient for enlarging the appellant on bail when the

    gravity of the offence alleged is severe and there are allegations

    of tampering with the witnesses by the accused during the

    period he was on bail.

    Learned counsel for the appellant as also learned

    Additional Solicitor General have pointed out to us that there

    are allegations of threatening of the witnesses and that the

    prosecution has filed an application for the recall of witnesses

    already examined which has been allowed, but the same is

    pending in revision before the High Court. In such

    circumstances the High Court could not have merely taken the

    period of incarceration and the delay in concluding the trial as

    grounds sufficient to enlarge the respondent on bail.

    We notice from the impugned order that the High Court

    has not adverted to the complaint of the investigating agency as

    to the threat administered by the respondent to the witnesses as

    also to the fact of a number of witnesses having turned hostile

    after the respondent was enlarged on bail which are very

    relevant circumstances to be borne in mind while granting bail.

    Of course, the learned counsel for the respondent has pointed

    out that even when the respondent was in custody, some other

    witnesses had turned hostile. But the question for our

    consideration is whether the High Court was justified in not

    taking into consideration these facts while deciding to grant bail

    in a case where this Court has earlier come to the conclusion

    that grant of bail on the ground of period of incarceration by

    itself was not proper.

    Learned counsel for the respondent however, contended

    that all these points were argued before the High Court and the

    High Court though did not give a finding in regard to this

    aspect of the case, did bear in mind these factors and rejected

    these contentions since these allegations were frivolous.

    Learned counsel in this regard submitted that the High Court

    was justified in not giving any conclusive finding in regard to

    some of the arguments addressed on behalf of the parties

    because any such finding given by the High Court might have

    prejudiced the pending trial.

    We agree that a conclusive finding in regard to the points

    urged by both the sides is not expected of the court considering

    a bail application. Still one should not forget as observed by

    this Court in the case Puran Vs. Rambilas and Another (supra)

    "Giving reasons is different from discussing merits or demerits.

    At the stage of granting bail a detailed examination of evidence

    and elaborate documentation of the merits of the case has not to

    be undertaken. That did not mean that whilst granting bail

    some reasons for prima facie concluding why bail was being

    granted did not have to be indicated."  We respectfully agree

    with the above dictum of this Court.  We also feel that such

    expression  of prima facie reasons for granting bail is a

    requirement of law in cases where such orders on bail

    application are appealable, more so because of the fact that the

    appellate court has every right to know the basis for granting

    the bail.  Therefore, we are not in agreement with argument

    addressed by the learned counsel for the accused that the High

    Court was not expected even to indicate a prima facie finding

    on all points urged before it while granting bail, more so in the

    background of the facts of this case where on facts it is

    established that a large number of witnesses who were

    examined after the respondent was enlarged on bail had turned

    hostile and there are complaints made to the court as to the

    threats administered by the respondent or his supporters to

    witnesses in the case. In such circumstances, the Court was

    duty bound to apply its mind to the allegations put forth by the

    investigating agency and ought to have given at least a prima

    facie finding in regard to these allegations because they go to

    the very root of the right of the accused to seek bail. The non

    consideration of these vital facts as to the allegations of threat

    or inducement made to the witnesses by the respondent during

    the period he was on bail has vitiated the conclusions arrived at

    by the High Court while granting bail to the respondent. The

    other ground apart from the ground of incarceration which

    appealed to the High Court to grant bail was the fact that a large

    number of witnesses are yet to be examined and there is no

    likelihood of the trial coming to an end in the near future. As

    stated herein above, this ground on the facts of this case is also

    not sufficient either individually or coupled with the period of

    incarceration to release the respondent on bail because of the

    serious allegations of tampering of the witnesses made against

    the respondent.

    The next argument of learned counsel for the respondent

    is that prima facie the prosecution has failed to produce any

    material to implicate the respondent in the crime of conspiracy.

    In this regard he submitted that most of the witnesses have

    already turned hostile. The only other evidence available to the

    prosecution to connect the respondent with the crime is an

    alleged confession of the co-accused which according to the

    learned counsel was inadmissible in evidence. Therefore, he

    contends that the High Court was justified in granting bail since

    the prosecution has failed to establish even a prima facie case

    against the respondent. From the High Court order we do not

    find this as a ground for granting bail. Be that as it may, we

    think that this argument is too premature for us to accept. The

    admissibility or otherwise of the confessional statement and the

    effect of the evidence already adduced by the prosecution and

    the merit of the evidence that may be adduced herein after

    including that of the witnesses sought to be recalled are all

    matters to be considered at the stage of the trial.

    Before concluding, we must note though an accused has

    a right to make successive applications for grant of bail the

    court entertaining such subsequent bail applications has a duty

    to consider the reasons and grounds on which the earlier bail

    applications were rejected. In such cases, the court also has a

    duty to record what are the fresh grounds which persuade it to

    take a view different from the one taken in the earlier

    applications. In the impugned order we do not see any such

    fresh ground recorded by the High Court while granting bail. It

    also failed to take into consideration that at least on four

    occasions  order refusing bail has been affirmed by this Court

    and subsequently when the High Court did grant bail, this Court

    by its order dated 26th July, 2000 cancelled the said bail by a

    reasoned order. From the impugned order, we do not notice any

    indication of the fact that the High Court took note of the

    grounds which persuaded this Court to cancel the bail. Such

    approach of the High Court, in our opinion, is violative of the

    principle of binding nature of judgments of superior court

    rendered in a lis between the same parties, and in effect tends to

    ignore and thereby render ineffective the principles enunciated

    therein which have a binding character.

    For the reasons stated above, we are of the considered

    opinion that the High Court was not justified in granting bail to

    the first respondent on the ground that he has been in custody

    for a period of 3 = years or that there is no likelihood of the

    trial being concluded in the near future, without taking into

    consideration the other factors referred to hereinabove in this

    judgment of ours.

    This appeal, therefore, succeeds. The impugned order of

    the High Court is set aside. The bail-bonds of the first

    respondent are cancelled and the second respondent is directed

    to take the first respondent into custody forthwith.

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