Bail Can be granted in Corruption Matters : Rajasthan High Court Jaipur

The important judgment of Hon'ble Supreme Court on criminal appeal and bail in Corruption matters on the basis of which bail application can be allowed.

P. Satyanarayana Murthy Vs. The District Inspector of Police and ANR.

 

[Criminal Appeal No. 31 of 2009]

 

AMITAVA ROY, J.

 

1. The instant appeal calls in question the judgment and order dated 25.4.2008 rendered by the High Court of Judicature, Andhra Pradesh at Hyderabad in Criminal Appeal No. 262 of 2002, sustaining the conviction of the appellant under Section 13(1)(d)(i) & (ii) read with Section 13(2) of the Prevention of Corruption Act 1988 (for short hereinafter referred to as "the Act") and sentence thereunder, however setting aside his conviction and sentence under Section 7 of the Act.

 

2. We have heard Mr. A.T.M. Ranga Ramanujam, learned senior counsel for the appellant and Ms. Prerna Singh, learned counsel for the respondents.

 

3. The prosecution case stems from a complaint laid by one S. Jagan Mohan Reddy (since deceased) to the Deputy Superintendent of Police, Anti Corruption Bureau, Kurnool alleging that the appellant who, at the relevant time was the Assistant Director, Commissionerate of Technical Education, Hyderabad had on 3.10.1996 demanded by way of illegal gratification Rs. 1000/- for effecting renewal of the recognition of his (complainant) typing institute, being run in the name and style of Rama Typewriting Institute in Laxminagar B. Camp, Kurnool since 1992.

 

The complaint disclosed that on negotiation, the demand was scaled down to Rs. 500/- and the appellant asked him (complainant) to meet him on 4.10.1996 in Room No. 68 of Meenakshi Lodge, Kurnool with the money demanded. Acting on the complaint, a case was registered and a trap was laid on 4.10.1996 and the tainted currency notes were recovered, in the process thereof, from the possession of the appellant.

 

On completion of the investigation, charge- sheet was filed against the appellant, whereafter the charges under Sections 7 & 13(1)(d)(i) & (ii) read with Section 13(2) of the Act were framed against him to which he pleaded "not guilty". At the trial, the prosecution examined seven witnesses and also adduced documentary evidence in support of the charges. As the complainant- S. Jagan Mohan Reddy had expired prior thereto, he could not be examined by the prosecution.

 

4. After the closure of the evidence of the prosecution, the appellant was examined under Section 313 Cr.P.C. and was confronted with all the incriminating materials brought on record. He, however, denied the same.

 

5. The learned trial court, on an elaborate analysis of the evidence available, convicted the appellant under Sections 7 and 13(1)(d)(i) & (ii) read with Section 13(2) of the Act and sentenced him to undergo R.I. for one year on each count and to pay fine of Rs. 1000/-, in default to suffer S.I. for three months for each offence. The sentences of imprisonment were, however, ordered to run concurrently.

 

6. As adverted to hereinabove, the High Court in the appeal preferred by the appellant, while upholding his conviction under Section 13(1)(d)(i) & (ii) read with Section 13(2) of the Act, did set at naught his conviction under Section 7 of the Act. The sentence qua his conviction under Section 13(1)(d)(i) & (ii) read with Section 13(2) of the Act was, as a corollary, sustained.

 

7. The learned senior counsel for the appellant has insistently urged that the prosecution had failed to prove any demand for the alleged illegal gratification involved and, thus, the vitally essential ingredient of the offences both under Sections 7 and 13 of the Act being conspicuously absent, the appellant ought to have been acquitted of the charge on both counts. The learned senior counsel has maintained that even assuming without admitting that the recovery of the tainted notes from the appellant had been established, sans the proof of demand which is a sine qua non for an offence both under Sections 7 and 13 of the Act, the appellant's conviction as recorded by the High Court is on the face of the record unsustainable in law and on facts.

 

Without prejudice to the above, learned senior counsel has asserted that the money shown to have been recovered from the possession of the appellant was by no means an illegal gratification demanded by him, but was towards fees for renewal of the recognition of the complainant's typing institute together with penalty and incidental expenses, and thus, his conviction under Section 13(1)(d)(i) & (ii)) read with Section 13(2) of the Act as sustained by the High Court, if allowed to stand, would result in travesty of justice.

 

8. Learned senior counsel for the appellant to buttress his contentions, placed reliance on the decision of this Court in B. Jayaraj vs. State of Andhra Pradesh (2014) 13 SCC 55.

 

9. Learned counsel for the State, as against this, has assiduously argued that the evidence of the prosecution witnesses, taken as a whole, demonstrably proved the demand, receipt and recovery of the illegal gratification sought for and as such no interference with the appellant's conviction is warranted. According to the learned counsel, having regard to the office held by the appellant at the relevant point of time, he was even otherwise not authorized to receive any deposit towards the renewal of recognition of the complainant's typing institute and that the evidence adduced by the prosecution did prove the complicity of the appellant in the offence for which he has been charged, beyond a reasonable doubt. In reinforcement of her pleas, learned counsel has drawn our attention to the relevant excerpts of the evidence on record more particularly that of PW1- S. Udaya Bhasker and PW3-G. Sudhakar.

 

10. Learned counsel for the respondents sought to distinguish the decision rendered in B. Jayaraj (supra) contending that in the face of persuasive evidence of demand on record, the same is of no avail to the appellant.

 

11. The materials on record have been duly traversed by us in order to adequately appreciate and weigh the competing contentions. Though dealt with exhaustively by the two courts below, having regard to the profuse reference to the evidence on record made in the course of the arguments, we consider it to be apt to advert thereto in bare essentials and to the extent indispensable. Admittedly, the complainant S. Jagan Mohan Reddy, the then Principal of the Rama Typewriting Institute, Laxminagar, B. Camp, Kurnool could not be examined as a witness for the prosecution, as he had expired before the trial.

 

To reiterate, in his complaint lodged with the Deputy Superintendent of Police, Anti Corruption Bureau, Kurnool Range, Kurnool on 3.10.1996, he alleged that on the same date, the appellant, who was then the Assistant Director, Commissionerate of Technical Education, Hyderabad, had visited his institute and had pointed out that because of his omission to file an application for renewal of recognition thereof for the year 1997, cancellation of recognition would ensue resulting in loss of seniority of the institute.

 

According to the complainant, situated thus, he requested for the assistance of the appellant who assured that it would be possible only if he was paid Rs. 1000/-. According to the complainant, he pleaded his inability to pay such amount. On this, the appellant reduced his demand to Rs. 500/- and instructed him (complainant) to meet him on 4.10.1996 in Room No. 68, Meenakshi Lodge, Kurnool along with challan of Rs. 360/-, being Rs. 60 as renewal fee and Rs. 300 as penalty. The complainant, being disinclined to pay the illegal gratification as demanded, lodged a complaint with the Deputy Superintendent of Police, Anti Corruption Bureau, Kurnool and sought action against the appellant.

 

12. After registering the complaint, the investigating agency initiated a proceeding for laying a trap on 4.10.1996 at the venue indicated by the appellant. In the course of preparatory steps, five currency notes of denomination of Rs. 100/- were arranged on which phenolphthalein powder was applied and were handed over to the complainant to be paid to the appellant on demand. PW1-S. Udaya Bhaskar was identified to accompany the complainant as an aspiring owner of a new proposed typewriting institute.

 

The members of the trap team were briefed accordingly and instructions were given to the complainant to flag a signal in time for the interception of the appellant after he had received the tainted notes. Accordingly, the complainant accompanied by PW1-S. Udaya Bhaskar went to the place agreed upon i.e. Room No. 68, Meenakshi Lodge, Kurnool on 4.10.1996 with the trap team waiting outside for the signal to intervene. According to the prosecution, the complainant and PW1-S. Udaya Bhaskar did meet the appellant in Room No. 68, Meenakshi Lodge, Kurnool and on reaching the room, the complainant gave one renewal application along with the challan to the appellant who enquired as to whether he (complainant) had brought the amount which he had directed him to bring on the previous day.

 

On this, the complainant took out Rs. 500/- from the pocket of his shirt on which the phenolphthalein powder had been applied and handed over the same to the appellant. The prosecution version is that the appellant, accordingly, kept the amount in the pocket of his shirt and it was then on signal being received by the trap team, he was intercepted and apprehended with the money accepted by him.

 

13. PW1-S. Udaya Bhaskar has stated on oath that at the relevant point of time, he was the Assistant Engineer in Panchayat Raj Department, Orvakal and that as planned by the investigating agency to entrap the appellant, he along with the complainant had gone to room No. 68, Meenakshi Lodge, Kurnool on 4.10.1996 for meeting the appellant. Both of them entered into the room of appellant, whereupon the complainant handed over one renewal application along with the challan to the appellant.

 

This witness stated that on this, the appellant enquired as to whether the complainant had brought the amount which he had directed him to bring on the previous day. The witness stated that the complainant then took out the currency notes amounting to Rs. 500/- from the pocket of his shirt as arranged and did hand over the same to the complainant, who after counting the same, kept those in the pocket of his shirt. The witness also testified, that he then told the appellant that he too had started a typing institute and would require a license.

 

The appellant, in reply, asked him to do the needful as others had been doing. According to this witness, while he was talking to the appellant, as previously arranged, the complainant signalled the trap team, whereupon the appellant was apprehended and the currency notes were recovered from him. On verification, the said notes tallied with those which had been decided to be used in the trap operation. The fingers of the hands of the appellants, when dipped in the sodium carbonate solution also turned pink. The pocket of the shirt of the appellant, as testified by this witness, also turned pink when rinsed in sodium carbonate solution.

 

14. The evidence of PW3-S. Sivaiah Naidu is to the effect that he, on 6.8.1996 had made an application to the Technical Board for recognition of his institute, whereafter on 3.10.1996, the appellant in the capacity of Assistant Director of Technical Education, inspected his institute and verified all records. According to this witness, when he enquired about the recognition certificate, the appellant stated that unless some amount was paid to him way of gratification, he would not issue the recognition certificate. The witness alleged that he too was asked to meet the appellant in Room No. 68, Meenakshi Lodge,Kurnool at 8.30 P.M.

 

15. PW7-Iliyase Sait, who at the relevant time was posted as Deputy Superintendent of Police, Kurnool Range, Kurnool, in his evidence narrated in detail the steps taken to arrange for the trap to nab the appellant, instructions to the members of the trap team, recovery of five currency notes amounting to Rs. 500/- smeared with phenolphthalein powder from the possession of the appellant and submission of charge-sheet against him on completion of the investigation.

 

16. The evidence of other witnesses being not essentially related to the aspect of demand, receipt and recovery of the amount of illegal gratification with which the appellant had been charged, does not call for a detailed reference.

 

17. It is expedient at this juncture to set out the relevant extracts of Sections 7 (as it stands today) and 13 of the Act under which the appellant had been charged.

 

"7. Public servant taking gratification other than legal remuneration in respect of an official act: Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than [three years] but which may extend to [seven years] and shall also be liable to fine." --- --- --- --- --- --- --- ---

 

"13. Criminal misconduct by a public servant (1) A public servant is said to commit the offence of criminal misconduct,- --- --- --- ---

 

(d) if he,- by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage;" --- --- --- --- ---

 

18. This Court in A. Subair vs. State of Kerala (2009)6 SCC 587, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.

 

19. In State of Kerala and another vs. C.P. Rao (2011) 6 SCC 450, this Court, reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.

 

20. In a recent enunciation by this Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj (supra) in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i) & (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved.

 

The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d)(i) & (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.

 

21. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) & (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.

 

22. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder.

 

23. The sheet anchor of the case of the prosecution is the evidence, in the facts and circumstances of the case, of PW1-S. Udaya Bhaskar. The substance of his testimony, as has been alluded to hereinabove, would disclose qua the aspect of demand, that when the complainant did hand over to the appellant the renewal application, the latter enquired from the complainant as to whether he had brought the amount which he directed him to bring on the previous day, whereupon the complainant took out Rs. 500/- from the pocket of his shirt and handed over the same to the appellant.

 

Though, a very spirited endeavour has been made by the learned counsel for the State to co-relate this statement of PW1- S. Udaya Bhaskar to the attendant facts and circumstances including the recovery of this amount from the possession of the appellant by the trap team, identification of the currency notes used in the trap operation and also the chemical reaction of the sodium carbonate solution qua the appellant, we are left unpersuaded to return a finding that the prosecution in the instant case has been able to prove the factum of demand beyond reasonable doubt. Even if the evidence of PW1- S. Udaya Bhaskar is accepted on the face value, it falls short of the quality and decisiveness of the proof of demand of illegal gratification as enjoined by law to hold that the offence under Section 7 or 13(1)(d)(i) & (ii) of the Act has been proved.

 

True it is, that on the demise of the complainant, primary evidence, if any, of the demand is not forthcoming. According to the prosecution, the demand had in fact been made on 3.10.1996 by the appellant to the complainant and on his complaint, the trap was laid on the next date i.e. 4.10.1996. However, the testimony of PW1- S. Udaya Bhaskar does not reproduce the demand allegedly made by the appellant to the complainant which can be construed to be one as contemplated in law to enter a finding that the offence under Section 7 or 13(1)(d)(i) & (ii) of the Act against the appellant has been proved beyond reasonable doubt.

 

24. In our estimate, to hold on the basis of the evidence on record that the culpability of the appellant under Sections 7 and 13(1)(d)(i) & (ii) has been proved, would be an inferential deduction which is impermissible in law. Noticeably, the High Court had acquitted the appellant of the charge under Section 7 of the Act and the State had accepted the verdict and has not preferred any appeal against the same. The analysis undertaken as hereinabove qua Sections 7 and 13(1)(d)(i) & (ii) of the Act, thus, had been to underscore the indispensability of the proof of demand of illegal gratification.

 

25. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas vs. State of Assam (2013)12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.

 

26. The materials on record when judged on the touch stone of the legal principles adumbrated hereinabove, leave no manner of doubt that the prosecution, in the instant case, has failed to prove unequivocally, the demand of illegal gratification and, thus, we are constrained to hold that it would be wholly un-safe to sustain the conviction of the appellant under Section 13(1)(d)(i) & (ii) read with Section 13(2) of the Act as well. In the result, the appeal succeeds. The impugned judgment and order of the High Court is hereby set-aside. The appellant is on bail. His bail bond stands discharged. Original record be sent back immediately.

 

.......................CJI. (H.L. DATTU)

 

.........................J. (V. GOPALA GOWDA)

 

.........................J. (AMITAVA ROY)

 

NEW DELHI;

 

SEPTEMBER 14, 2015.

 

 

Selvaraj Vs. State of Karnataka

 

[Criminal Appeal No.1172 of 2008]

 

ARUN MISHRA, J.

 

1. The appeal has been preferred as against the judgment and order convicting and sentencing the appellant for commission of offence punishable under section 5(1)(d) of the Prevention of Corruption Act, 1947, thereby reversing the judgment of acquittal passed by the trial court and sentencing him for three months with a fine of Rs.50,000/- and in default to undergo SI for six months.

 

2. Briefly, the prosecution case is that the appellant was working as First Division Assistant in the District Treasury, Hassan. Peter Philip, CW- 1 contacted him to secure refund of loan subsidy in a sum of Rs.13,990/-. He met the accused on 28.1.1988 who demanded illegal gratification of Rs.200/-. As the complainant CW-1 did not like it, he contacted the Lokayukta Police on 1.2.1988 and lodged a complaint. On the said date itself, trap was arranged. The Investigating Officer (IO) secured presence of PW-1 and PW-2, the two officials of the Zila Parishad to act as trap witnesses and smeared phenolphthalein powder on the bait money and handed over the same to CW-1 with instruction to pay the same on demand. PW-2 was instructed to act as a shadow witness.

 

3. Peter Philip, CW-1, went along with PW-2 to the said office. CW-1 requested the accused for passing the bill. On demand, CW-1 paid the money to the accused who kept the same under the book on his table. PW-2 witnessed the transaction. On a signal being given by CW-1, the IO along with PW-1 came to the scene, phenolphthalein test was done on hand wash, colour of the solution turned pink, the solution was collected in a separate bottle and sealed, the money was recovered from the possession of the accused as per the seizure memo.

 

4. The complainant CW-1 died before the commencement of the trial. The prosecution examined, in all, 9 witnesses, 23 documents were exhibited and 8 material objects were submitted. The Special Judge, Hassan, vide judgment and order dated 16.4.1999 acquitted the accused. On appeal, the High Court has reversed the conviction, hence, the appeal has been filed in this Court.

 

5. It was submitted by learned counsel appearing on behalf of the appellant that several material circumstances were considered by the learned Trial Judge which have not been adverted to by the High Court while reversing the judgment of acquittal. Thus, an illegality has been committed. The evidence which has been adduced could not be said to be reliable. The inherent improbabilities have been ignored and the material contradictions have been lightly brushed aside. There is no assessment of the evidence made by the High Court while reversing the judgment of acquittal.

 

6. Learned counsel appearing on behalf of the State has supported the judgment and contended that the High Court has given adequate reasons so as to discard the trivial contradictions. The prosecution has proved the guilt beyond the periphery of doubt. No case for interference in the appeal is made out. After hearing learned counsel for the parties at length, and going into the oral and documentary evidence on record, we are of the considered opinion that in the peculiar facts and circumstances of the instant case, the judgment and order of acquittal ought not to have been interfered with by the High Court.

 

7. The trial court has given varied reasons while acquitting the appellant. The trial court was cautious in considering the evidence in minute details as the complainant CW-1, Peter Philip, had died who could not be examined and subjected to cross-examination by the accused. Particularly, when the complainant had died and could not be subjected to cross-examination, in our opinion, quality and credibility of the evidence adduced by the prosecution cannot be dispensed with.

 

8. The accused was holding the post of First Division Assistant. He had been transferred on promotion as Head Accountant in Sub-Treasurey at Sagar. He stood relieved on 30.1.1988 before the date of incident. The accused was not working as First Division Assistant in the District Treasury Office at Hassan on 1.2.1988. The trial court has relied upon the relieving order Ex. D-1. The trial court has also observed that K.C. Rajan, PW-4, has admitted that the accused had been promoted and transferred as Head Accountant and was relieved on 30.1.1988. However, he had not handed over the charge, and on 1.2.1988 the accused did not mark his attendance as he was under transfer.

 

The accused was supposed to hand over charge to one Shivaramaiah who was not available on 1.2.1988 as he had gone to attend a departmental examination. On 1.2.1988, the accused was preparing 'charge list' in the office. Relying upon Ex. P-8 the trial court came to the conclusion that on transfer of the accused on 1.2.1988, G.T. Shivaramaiah was placed in charge of the work which used to be looked after by the accused.

 

Charge list has not been produced in case it was prepared by the accused on 1.2.1988. The accused on 1.2.1988 was not competent to transact any official business. Relying upon the work distribution register, attendance register and the relieving order, the version of K.C. Rajan, PW-4, has not been accepted by the trial court. It was also opined that the surrounding circumstances did not lend credibility to the prosecution version.

 

9. The trial court has also given reason for acquittal that K.C. Rajan, PW-4 was competent to give final clearance. The accused was not the final authority. There was some objection by the District Treasury Office. The bill was again presented for clearance to the Treasury on 21.1.1988. Thus, it was doubted that the accused had deliberately withheld the bill and demanded illegal gratification of Rs.200/- from Peter Philip, CW-1, on 28.1.1988. The same has been found to be improbable. Cogent evidence was required in the circumstances. The trial court has found that even before recording the First Information Report, the IO had sent for and secured the presence of the witnesses.

 

Thus, the FIR was based upon the deliberations between Peter Philip, CW-1 and L.Somasekhar, PW-8. The trial court also found that there was a discrepancy from where the money was recovered; whether it was lying on the table or inside the drawer of the table. It was held that the money was not recovered from the possession of the accused. The colour of the wash in MO-4 was not pink but contained dirty particles. The accused was not in possession of the subsidy bill. Thus, there was no reason to give him the money. The prosecution case that the accused was working as First Division Assistant on 1.2.1988 and was in-charge of the billing section, has not been found to be proved.

 

10. The High Court while reversing the judgment of acquittal in a short and cryptic judgment, has not cared to go into the various reasoning employed by the trial court. It has gone into only two factual aspects; firstly, into discrepancy as to time when the FIR was registered and witnesses were summoned, which was found not to be material one; and secondly, it observed whether the money was recovered from the drawer of the table or it was lying on the table, was insignificant as witnesses might not have remembered it due to lapse of time, which are the only reasons attributed for reversing the judgment of acquittal.

 

11. It is apparent that the High Court has failed in its duty to come to the close quarter of the reasoning employed by the trial court while reversing the judgment of acquittal. Appreciation of evidence to hold it to be credible was required which has not been done by the High Court at all. In a cursory manner without re-appraisal of the evidence and probabilities, the judgment of acquittal has been reversed. Though the High Court has the power to re-appraise the evidence in appeal against acquittal but that has not been done.

 

It is incumbent upon the High Court while reviewing the evidence and to reverse the order of acquittal to consider all matters on record including the reasons given by the trial court in respect of the order of acquittal and should consider all the circumstances in favour of the accused which has not been done. In Kanu Ambu Vish v. The State of Maharashtra [1971 (1) SCC 503], this Court has laid down thus :

 

"15. On a consideration of the evidence, we think that the reversal of the order of acquittal by the High Court was not warranted. Though the High Court has power on a review of the evidence to reverse the order of acquittal, yet in doing so it should not only consider all matters on record including the reasons given by the Trial Court in respect of the order of acquittal, but should particularly consider those aspects which are in favour of the accused and ought not also to act on conjunctions or surmises nor on inferences which do not arise on the evidence in the case. In the view we have taken, the Appeal is allowed, the judgment of the High Court reversed and the Appellant acquitted. The Appellant being on bail, his bail bond is cancelled."

 

12. Considering the reasons given by the trial court and on appraisal of the evidence, in our considered view, the view taken by the trial court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [2002 (9) SCC 639] has laid down that as the appreciation of evidence made by the trial court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus :

 

"9. We have, with the assistance of learned counsel for the parties, carefully perused the evidence, particularly, the evidence of PW-19, PW-27, PW-30, PW-31, besides PW-34. In our opinion, the appreciation of evidence by the trial court of these witnesses is sound and proper. On the other hand, the High Court has fallen into an error by treating the case as one under Section 13(1)(e) read with Section 13(2) of the 1988 Act and by proceeding to hold the appellant guilty by invoking the Explanation to Section 13(1)(e), which Explanation is conspicuous by its absence insofar as Section 5(1)(e) of the Act is concerned.

 

We are unable to appreciate the submission of learned counsel for the State that PW-31, being the mother-in- law of the appellant who had supported the explanation offered by the appellant regarding receipt of Rs. 50,000/- and Rs. 40,000/- by him from her should not be believed. She is a prosecution witness. She was never declared hostile. The prosecution cannot wriggle out of her statement. As a matter of fact, the main sustenance is sought by the High Court of its view on the basis of her evidence. The explanation offered by the appellant has not been accepted by the High Court by invoking proviso to Section 13(1)(e).

 

The High Court has opined that since the amount allegedly received by the appellant from his mother-in-law had "not been intimated in accordance with the provisions of law", his explanation is not acceptable and the appellant would be deemed to have committed criminal misconduct within the meaning of Section 13(2) of the 1988 Act. We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds.

 

It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal."

 

Similar is the decision of this Court in State through Inspector of Police, A.P.v. K. Narasimhachary [2005 (8) SCC 364] :

 

"24. Having regard to the facts and circumstances of this case, we are of the opinion that two views are possible and the view of the High Court cannot be said to be wholly improbable; it cannot be said, in view of the discussions made hereinbefore, that the materials brought on record would lead to only one conclusion i.e. the guilt of the accused. The impugned judgment, therefore, is sustained."

 

13. Coming to the question whether the view taken by the trial court while acquitting the accused was probable, we find that in view of the fact that complainant Peter Philip, CW-1 died before the trial, as such he was not available for cross-examination with respect to the facts which were in his knowledge as to the demand of bribe and its payment.

 

We have to carefully look into the other evidence available. In the absence of the complainant, the onus lay upon the prosecution to adduce credible evidence and to prove the guilt beyond the periphery of doubt. K.M.Eregowda, PW-2, had stated that 10 to 12 other officials were sitting in the same room in which bribe was paid. Taking of bribe in the presence of 10 to 12 other officials of the Treasury Office is quite improbable. It assumes significance in the circumstances from which place the money was recovered; whether it was from the possession of the accused. PW-1 has stated that he found currency notes on the table, and the accused was standing behind the table. Whereas K.N. Eregowda, PW-2, has stated that the currency notes were kept by the accused beneath the book on the table. Another witness L.Somashekara, PW-8, IO, has stated that he recovered the money from the drawer of the table.

 

The versions given by the three witnesses are different from each other. Even if we ignore the contradictions between the versions of PW-1 and PW-2, the contradiction with respect to place of recovery of money whether it was inside the drawer of table or was lying on the table beneath the book is material one and could not have been ignored. Apart from that, we find that the IO has stated that he had seized Ex. P- 14, release order of subsidy on 1.2.1988 and it had been mentioned thereon that it had been paid. As subsidy stood paid, it was incumbent upon the prosecution to prove when, in fact, it was paid. Whether it was paid on 1.2.1988 or earlier, which fact has not been proved as the very basis of the crime is release of subsidy, for which bribe was being demanded by the accused.

 

Though it is not necessary to prove whether the accused was in a position to do the work for which he has demanded the bribe, or was having the competence to do the work for which he has demanded the bribe, however, in the peculiar facts of the instant case when the accused was under transfer, he had been relieved on 30.1.1988 and while Mr. G.T. Shivaramaiah was given the charge of the post accused was occupying, he was not on duty on 1.2.1988.

 

Even if we accept that he was preparing the 'charge list' on 1.2.1988, which has not been produced, coupled with the fact that the complaint was lodged on the same date and it appears even before registration of the FIR, trap witnesses were called, all these facts improbabilised the version of the prosecution and the trial court had opined in the circumstances that there were some deliberations before recording the FIR. Since the complainant was not available for cross- examination, the view taken by the trial court could not be said to be the one which was not possible in the prevailing scenario. Even if two views are possible on the facts, one taken by the trial court did not call for interference, especially in appeal against acquittal.

 

14. In A. Subair v. State of Kerala [2009 (6) SCC 587], this Court has laid down that illegal gratification has to be proved like any criminal offence and when the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest the conviction on such evidence. This Court while recording acquittal, has laid down thus :

 

"31. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence. It is true that the judgments of the courts below are rendered concurrently but having considered the matter thoughtfully, we find that the High Court as well as the Special Judge committed manifest errors on account of unwarranted inferences. The evidence on record in this case is not sufficient to bring home the guilt of the appellant. The appellant is entitled to the benefit of doubt."

 

15. in State of Kerala & Anr. v. C.P. Rao [2011 (6) SCC 450], it has been laid down that recovery of tainted money is not sufficient to convict the accused. There has to be corroboration of the testimony of the complainant regarding the demand of bribe and when the complainant is not available for examination during the trial, court has to be cautious while sifting the evidence of other witnesses. Charge has to be proved beyond reasonable doubt. This Court has laid down thus :

 

"12. Those observations quoted above are clearly applicable in this case. In the context of those observations, this Court in para 28 of A. Subair (supra) made it clear that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is proved to the contrary by proper proof of demand and acceptance of illegal gratification, which is the vital ingredient to secure the conviction in a bribery case. In view of the aforesaid settled principles of law, we find it difficult to take a view different from the one taken by the High Court.

 

13. In coming to this conclusion, we are reminded of the well settled principle that when the court has to exercise its discretion in an appeal arising against an order of acquittal, the Court must remember that the innocence of the accused is further re-established by the judgment of acquittal rendered by the High Court. Against such decision of the High Court, the scope of interference by this Court is an order of acquittal has been very succinctly laid down by a three-Judge Bench of this Court in Sanwat Singh v. State of Rajasthan [1961 (3) SCR 120]. At page 129, Subba Rao, J. (as His Lordship then was) culled out the principles as follows :

 

"9. The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded;

 

(2) the principles laid down in Sheo Swarup case [(1934-34) 61 I.A. 398] afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as

 

(i) "substantial and compelling reasons",

 

(ii) "good and sufficiently cogent reasons", and

 

(iii) "strong reasons" are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified."

 

16. In G.V. Nanjundiah v. State (Delhi Administration) [1987 (Supp) SCC 266], it was laid down that the allegation of bribe taking should be considered along with other material circumstances. Demand has to be proved by adducing clinching evidence. When the fact indicating that the complainant was aware of the amount, was not withheld by the accused, this Court disbelieved the allegation of the complainant meeting the accused and presence of strangers at the time of giving bribe was held to be unnatural.

 

17. Thus, acceptance of the bribe has not been established by adducing cogent evidence. In view of the circumstances discussed above, the view taken by the trial court was a plausible one and could not have been interfered with by the High Court, that too without coming to the close quarters of the reasoning and re-appraisal of the evidence. The judgment of the High Court is not only cryptic but also no attempt has been made to look into the evidence - both oral and documentary. Thus, we have no hesitation in setting aside the judgment and order passed by the High Court and restore that of the trial court.

 

The appeal is allowed.

 

...................CJI. (H.L. Dattu)

 

.....................J. (Arun Mishra)

 

.....................J. (Amitava Roy)

 

New Delhi;

 

August 18, 2015.

 

Krishan Chander Vs. State of Delhi

 

[Criminal Appeal No. 14 of 2016 arising out of SLP (CRL.) No.703 of 2015]

 

V. GOPALA GOWDA, J.

 

Leave granted.

 

This criminal appeal is directed against the impugned judgment and order dated 7.11.2014 passed by the High Court of Delhi at New Delhi in Crl. Appeal No. 634 of 2008 wherein the High Court has dismissed the appeal filed by the appellant and upheld the order of conviction and sentence passed against the appellant by the court of Special Judge, Delhi (for short the "trial court") in CC No. 21 of 2005. The trial court convicted the appellant vide its judgment dated 14.7.2008 for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short "the PC Act") and vide order dated 15.7.2008 sentenced him to undergo rigorous imprisonment for two years with fine of Rs.5,000/- for the offence punishable under Section 7 of the PC Act and in default to undergo simple imprisonment for two months.

 

For the offences punishable under Section 13(2) of the PC Act, he was further sentenced to undergo rigorous imprisonment for two years with fine of Rs.5,000/- and in default to undergo simple imprisonment for two months. Both the sentences imposed upon him for the above said offences were to run concurrently. Brief facts of the case are stated hereunder to appreciate the rival legal contentions urged on behalf of the parties:-

 

The prosecution case before the trial court was that on 29.7.2004, an FIR No. 662 of 2004 was registered at Police Station, Nangloi, Delhi under Sections 279 and 337 of Indian Penal Code (for short "IPC") against one Krishan Kumar (PW-9), the brother of the complainant-Jai Bhagwan (PW-2). Krishan Kumar was arrested on 29.7.2004 in connection with the alleged offences referred to in the above said FIR.

 

The complainant-Jai Bhagwan (PW-2) had approached Assistant Sub-Inspector (ASI) Ranbir Singh (PW-11), the Investigating Officer of the said case for release of Krishan Kumar on bail. The Investigating Officer is stated to have accepted the bail bond for release of Krishan Kumar and directed the appellant (a constable at the said Police Station) to release him on bail in connection with the alleged offences referred to supra. The appellant alleged to have demanded a bribe of Rs.5000/- from the complainant-Jai Bhagwan for releasing his brother Krishan Kumar on bail. It is alleged that under duress, complainant-Jai Bhagwan (PW-2) paid Rs.4,000/- as bribe to the appellant. Thereafter, Krishan Kumar (PW-9) was released on bail and the appellant asked the complainant-Jai Bhagwan to pay him the balance amount of Rs.1,000/- on 30.7.2004 between 6.00 p.m. and 7.00 p.m. at Ditchau Kalan Bus Stand, Najafgarh.

 

The complainant-Jai Bhagwan (PW-2) approached the office of Anti Corruption Branch on 30.07.2004 and made a written complaint regarding the demand of bribe by the appellant from him. The said written complaint was recorded by Sunder Dev (PW-12) in presence of Anoop Kumar Verma (PW-6). The complainant-Jai Bhagwan took with him two Government Currency notes (for short the "GC notes") in the denomination of Rs.500/- each and handed over the same to Inspector Sunder Dev (PW-12) who noted down the serial numbers of the said GC notes. Thereafter, phenolphthalein powder was applied to the said GC notes and recorded in the pre-raid proceedings and its effect was demonstrated. The tainted GC notes were given to the complainant-Jai Bhagwan, who kept the same in the left pocket of his shirt.

 

As per the instructions, panch witness- Anoop Kumar Verma (PW-6) was directed to remain close to complainant-Jai Bhagwan to overhear the conversation between the complainant-Jai Bhagwan and the appellant. He was further instructed to give a signal to the raiding party by hurling his hand over his head when bribe amount had actually been given by the complainant-Jai Bhagwan. On 30.07.2004, at around 4.30 p.m., the complainant-Jai Bhagwan, panch witness- Anoop Kumar Verma, Inspector Sunder Dev (PW-12), Sub-Inspector B.S. Yadav (PW-10) and Constable Rajiv Kumar (PW-5) along with other members of the raiding party left for Ditchau Kalan Bus Stand in a government vehicle and reached the spot at around 5.45 p.m. At around 7.00 p.m., appellant reached the spot and had conversation with complainant-Jai Bhagwan.

 

Both the complainant and the appellant moved towards a water trolley, had water and again continued their conversation. Panch witness- Anoop Kumar Verma followed them. After sometime, the complainant-Jai Bhagwan took out the tainted GC notes from the left pocket of his shirt and gave them to the appellant which he took with his right hand and kept the same in the left pocket of his shirt. Soon after the said transaction, panch witness- Anoop Kumar Verma gave the pre-determined signal to the raiding team upon which the team rushed to the spot. Anoop Kumar Verma informed the raiding team that the appellant had demanded and accepted the bribe money of Rs.1000/- from the complainant-Jai Bhagwan. Inspector Sunder Dev introduced himself as Inspector from Anti Corruption Branch to the appellant upon which he immediately took out the tainted GC notes from the pocket of his shirt with his left hand and threw the same on the ground. The said GC notes were then picked up from the ground by panch witness-Anoop Kumar Verma on the instructions of Inspector-Sunder Dev.

 

The serial numbers of the recovered GC notes were matched with those noted in the pre-raid proceedings. The wash of right and left hand of the appellant as well as the wash of left pocket of his shirt was taken in colorless solution of sodium carbonate which turned pink. The solution was transferred into clean glass bottles which were sealed and labeled. Thereafter, the appellant was arrested and FIR No. 36 of 2004 was registered against him for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the PC Act.

 

The learned Special Judge after examining the evidence on record convicted the appellant vide its judgment dated 14.7.2008 for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act and vide order dated 15.7.2008 sentenced him to undergo rigorous imprisonment for two years with fine of Rs.5,000/- for the offence punishable under Section 7 of the PC Act and in default to undergo simple imprisonment for two months. For the offence punishable under Section 13(2) of the PC Act he was further sentenced to undergo rigorous imprisonment for two years with fine of Rs.5,000/- and in default to undergo simple imprisonment for two months. Both the sentences imposed upon him for the above said offences were to run concurrently.

 

Aggrieved by the decision of the learned Special Judge, the appellant filed Crl. Appeal No.634 of 2008 before the High Court of Delhi at New Delhi urging various grounds. The High Court vide its judgment and order dated 07.11.2014 upheld the decision of the learned Special Judge. The correctness of the same is questioned in this appeal urging various grounds. Mr. Sidharth Luthra, the learned senior counsel on behalf of the appellant contended that the High Court has failed to appreciate the fact that Krishan Kumar (PW-9) at the time of occurrence was already released on bail in connection with the case registered in FIR No. 662 of 2004 by the appellant as per the directions of Ranbir Singh, ASI (PW-11).

 

Thus, the demand of bribe money of Rs.1000/- by the appellant from the complainant- Jai Bhagwan is highly improbable. It was further contended by him that the demand of illegal gratification by the accused is a sine qua non for constitution of an offence under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. A mere production of the tainted money recovered from the appellant along with positive result of phenolphthalein test, sans the proof of demand of bribe is not enough to establish the guilt of the charge made against appellant. In support of the above legal submission, he placed reliance upon the judgments of this Court in the cases of B. Jayaraj v. State of Andhra Pradesh[1], A. Subair v. State of Kerala[2] and State of Kerala & Anr. v. C.P. Rao[3], wherein this Court, after interpreting Sections 7 and 13(1)(d) of the PC Act, has held that the demand of bribe money made by the accused in a corruption case is a sine qua non to punish him for the above said offences.

 

The learned senior counsel has also placed reliance upon the three Judge Bench decision of this Court in the case of P. Satyanarayana Murthy v. The Dist. Inspector of Police, State of Andhra Pradesh & Anr.[4], in which I was one of the companion Judges, wherein this Court, after referring to the aforesaid two Judge Bench judgments on the question of necessity of demand of bribe money by the accused, has reiterated the view stated supra. It was further contended by him that the High Court has failed to appreciate the fact that the complainant-Jai Bhagwan turned hostile during his examination before the trial court and did not support the prosecution case that the demand of Rs.1000/- as illegal gratification was made by the appellant from him for release of Krishna Kumar (PW-2) on bail.

 

It was further contended by the learned senior counsel that the High Court has failed to re-appreciate the evidence on record that Panch witness- Anoop Kumar Verma was directed by the official of Anti Corruption Branch to remain close to the complainant-Jai Bhagwan in order to hear the conversation and see the transaction between the appellant and the complainant-Jai Bhagwan. He further submitted that the learned Special Judge as well as the High Court have arrived at an erroneous finding without considering the fact that the appellant after reaching the spot walked with the complainant-Jai Bhagwan for about 15 to 20 steps while conversing with each other. Thereafter, both moved towards water trolley and after taking water proceeded ahead. Around that time the complainant- Jai Bhagwan took out the tainted GC notes from his pocket and gave it to the appellant.

 

From the said evidence, it is clear that panch witness- Anoop Kumar Verma did not hear the conversation between the appellant and the complainant-Jai Bhagwan. Therefore, there was no occasion to reach the conclusion that the appellant demanded any bribe from the complainant-Jai Bhagwan. He further contended that Ranbir Singh, ASI who was Investigating Officer in the case in which the arrest of Krishan Kumar was made, accepted his bail bond and directed the appellant to release him. It is an admitted fact that Krishan Kumar was released on bail in the presence of and as per the directions of Ranbir Singh, ASI. Therefore, there was no occasion for the appellant to demand any bribe money from the complainant-Jai Bhagwan. It was further contended that the High Court has failed to appreciate the fact that the alleged demand and the acceptance of amount of Rs. 1000/- is not corroborated by any independent witness despite the fact that the transaction alleged to have taken in a public place.

 

On the other hand, Mr. P.S. Patwalia, the learned Additional Solicitor General (ASG), on behalf of the respondent-State sought to justify the impugned judgment and order passed by the High Court which is on proper appreciation of evidence on record and it is well reasoned and therefore not vitiated in law. Hence, he would submit that no interference with the same is required by this Court in exercise of its appellate jurisdiction. He has submitted that the High Court has rightly re-appreciated the evidence of the complainant-Jai Bhagwan and other prosecution witnesses and concurred with the findings recorded on the charges. Further it was submitted by him that the trial court while appreciating the evidence of the complainant-Jai Bhagwan relied upon the decision of this Court in the case of Sat Paul v. Delhi Administration[5], paragraphs 41 and 51 of which decision in recording the finding on the charges against the appellant, are extracted hereunder:

 

"41. The fallacy underlying this view stems from the assumption that the only purpose of cross-examination of a witness is to discredit him; it ignores the hard truth that another equally important object of cross- examination is to elicit admissions of facts which would help build the case of the cross-examiner. When a party with the leave of the court, confronts his witness with his previous inconsistent statement, he does so in the hope that the witness might revert to what he had stated previously. If the departure from the prior statement is not deliberate but is due to faulty memory or a like cause, there is every possibility of the witness veering round to his former statement.

 

Thus, showing faultness of the memory in the case of such a witness would be another object of cross- examining and contradicting him by a party calling the witness. In short, the rule prohibiting a party to put questions in the manner of cross- examination or in a leading form to his own witness is relaxed not because the witness has already forfeited all right to credit but because from his antipathetic altitude or otherwise, the court feels that for doing justice, his evidence will be more fully given, the truth more effectively extricated and his credit more adequately tested by questions put in a more pointed, penetrating and searching way.

 

xx xx xx

 

51. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony.

 

If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto."

 

It was further submitted that the trial court by placing reliance upon the Sat Paul's case (supra) found a part of the complainant-Jai Bhagwan's testimony reliable and held that the demand of bribe money by the appellant from the complainant-Jai Bhagwan to release his brother Krishan Kumar (PW- 9) can be said to be proved. He has placed reliance on the following finding and reasons recorded by the trial court, which relevant portion from para 16 reads thus:

 

"16...It is true that complainant has not testified entirely in terms of his statement recorded u/s 161 Cr.P.C and he was declared hostile and was cross examined with the leave of the court. But simply because he did not testify strictly as per the prosecution case does not mean that his statement is altogether effaced from the record." Therefore, he would submit that the decision of the trial court on the charges framed against the appellant is based on proper evaluation of the evidence on record which has been rightly accepted by the High Court.

 

Therefore, the same cannot be termed as erroneous in law and need not be interfered with by this Court in exercise of its appellate jurisdiction. It was further contended by him that though the complainant-Jai Bhagwan turned hostile witness and he has deposed before the trial court by stating that he had inserted the tainted GC notes in the left pocket of appellant's shirt. The trial court has held that evidence of Anoop Kumar Verma and inspector-Sunder Dev have supported the case of the prosecution who have demolished the version given by the complainant-Jai Bhagwan (PW-2) in his examination-in-chief. He has further submitted that as far as proof of demand of Rs.1000/- as illegal gratification made by the appellant is concerned, the trial court has rightly recorded the finding of fact holding that the appellant was caught red-handed accepting the bribe money at the Ditchau Kalan Bus Stand at Najafgarh and this evidence was sufficient enough to show that the complainant-Jai Bhagwan (PW-2) was asked by the appellant to bring the said amount as illegal gratification for having released Krishan Kumar (PW-9) on bail.

 

We have carefully heard Mr. Sidhartha Luthra, the learned senior counsel on behalf of appellant and Mr. P.S. Patwalia, the learned Additional Solicitor General on behalf of respondent-State. On the basis of factual and legal aspects of the case and evidence on record produced in the case, it is clear that the High Court has recorded the concurrent findings on the charges framed against the Appellant in the impugned judgment and order. It has also failed to re-appreciate the evidence on record properly and consider the law on the relevant aspect of the case. Therefore, the said findings are not only erroneous in law but also suffer from error in law.

 

Hence, the same is liable to be set aside. We are of the view that as the complainant-Jai Bhagwan in his examination- in-chief before the trial court has categorically stated that it was Ranbir Singh, ASI (PW-11) who demanded Rs.5000/- for release of his brother, Krishan Kumar (PW-9) in connection with the offences registered against him in FIR No.662 of 2004, the trial court has wrongly accepted a part of testimony of the complainant-Jai Bhagwan while recording such findings on the charges to convict the appellant when there is nothing on record to show that it is the appellant who had demanded bribe money from the complainant-Jai Bhagwan.

 

In his examination-in-chief before the trial court, he categorically stated thus :- "......One Police Officer who was in civil uniform, who was the IO of that case, met me in the Police station told me that I would have to spend Rs.5000/- for the bail of my brother......On the directions of that IO, I had given Rs.4000/- to accused Krishan on account of duress. That IO asked me that he would send accused Krishan to collect balance amount of Rs.1000/- to Najafgarh." During the trial, the said witness did not support the prosecution version and therefore he was declared as hostile witness and thereafter, he was cross-examined by Mr. Alok Saxena, the learned Additional Public Prosecutor to the following effect:

 

"I did not mention in my complaint that one ASI Ranbir Singh asked Constable Krishan Kumar to release my brother and he himself went for some other work and I requested Constable Krishan Kumar to release my brother and he demanded Rs.5000/- from me for releasing my brother (confronted with portion A to A of his complaint Ex. PW2/A......It is incorrect to suggest that accused Krishan Kumar had demanded Rs.5000/- from me and today I am giving a false exception that one IO had demanded Rs.5000/- from me in order to save the accused......I did not tell to the police that after receiving signal from the panch witnesses, Raid Officer came near me and challenged the accused that he had taken Rs.1000/- as bribe from me on which accused became perplexed and he took out those treated GC notes from his pocket and threw the same on the ground (confronted with portion B to B of his statement-ExPW-2/H recorded). He has further stated that:

 

"It is wrong to suggest that accused Krishan had accepted bribe from me in his right hand and kept the same in his pocket and after seeing raiding party. It is further wrong to suggest that I am deposing falsely." The High Court has also erroneously appreciated the same and held thus: "23. ...As regards the demand of bribe of Rs.1000/- its conscious acceptance by the appellant, as already noticed, has been proved by PW-6 and fully corroborated by PW-12." Adverting to the evidence of Ranbir Singh, ASI (PW-11) who is the Investigation Officer in the above case registered against Krishan Kumar; in his examination-in-chief before the trial court, he stated as under :- "......After getting Sri Kishan medically examined, the accused brought him to PS Nangloi.

 

No surety of Sri Kishan was present in the PS at that time. After about one hour one Jai Bhagwan brother of Sri Kishan came to P.S. Nangloi and presented the bail bond of his brother Sri Krishan. I accepted the bail bond of Sri Kishan at 10.00 pm and gave instruction to the accused to release Sri Kishan. I reported back at P.S. Nangloi at 11.55 pm and made the entry vide DD NO. 29/A dated 29.7.2004. I also recorded about the arrest and release of Sri Kishan in this very DD, although I accepted the surety bond of Sri Kishan in this very DD, although I accepted the surety bond of Sri Kishan at 10.00 PM on 29.7.2004."

 

From the aforesaid admitted facts stated in his statement of evidence, it is very clear that it was Ranbir Singh, ASI, who directed the appellant to release Krishan Kumar. Therefore, at the time of his releasing on bail, there was no occasion for the appellant to demand bribe money from the complainant-Jai Bhagwan as he was already released on bail in the above criminal case by Ranbir Singh, ASI, (PW-11). We are unable to agree with the above contentions urged by the learned ASG that the complainant-Jai Bhagwan turned hostile witness in the case before the trial court, however, the statement of evidence of Anoop Kumar Verma (PW-6) and inspector-Sunder Dev (PW-12) was sufficient to support the case of the prosecution with regard to acceptance of bribe amount by the appellant from Jai Bhagwan (PW-2). This Court is of the view that whenever a prosecution witness turns hostile his testimony cannot be discarded altogether. In this regard, reliance is placed by the ASG on the decision of this court in the case of Rabindra Kumar Dey v. State of Orissa[6].

 

The relevant para 12 of the aforesaid case reads thus:

 

"12. It is also clearly well settled that the mere fact that a witness is declared hostile by the party calling him and allowed to be cross-examined does not make him an unreliable witness so as to exclude his evidence from consideration altogether. In Bhagwan Singh v. State of Haryana Bhagwati, J., speaking for this Court observed as follows: "The prosecution could have even avoided requesting for permission to cross- examine the witness under Section 154 of the Evidence Act. But the fact that the court gave permission to the prosecutor to cross-examine his own witness, thus characterising him as, what is described as a hostile witness, does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence."

 

(emphasis supplied)

 

However, in the instant case, from the material on record, it is amply clear that the complainant-Jai Bhagwan turned hostile on two important aspects namely, demand and acceptance of bribe by the appellant which is sine qua non for constituting the alleged offence under Sections 7 and 13(1)(d) read with 13(2) of the PC Act convicting the appellant and sentencing him for the period and fine as mentioned above. As far as the evidence of Panch witness- Anoop Kumar Verma (PW-6) is concerned, in his examination-in-chief, he stated thus: "...Thereafter, the complainant and the accused walked for 15-20 steps and had some talk with the complainant and the complainant took out those GC notes from his pocket and gave in the right hand of accused which he kept in the left pocket of his shirt..." Anoop Kumar Verma (PW-6) in his examination-in-chief has not deposed as to the exact conversation that took place between the appellant and the complainant-Jai Bhagwan at the time when he had approached him to give bribe money.

 

He has simply mentioned about "some talk" had taken place between them but has failed to bring to light the factum of demand of bribe money by the appellant from the complainant-Jai Bhagwan. Thus, it is amply clear that panch witness- Anoop Kumar Verma did not hear the conversation between the appellant and the complainant-Jai Bhagwan. Therefore, there was no occasion for both the courts below to reach the conclusion that the appellant demanded any bribe from the complainant-Jai Bhagwan. The Investigation Officer (PW-10) in his evidence, has not at all spoken of the contents of the statement of the complainant-Jai Bhagwan (PW-2), recorded by him under Section 161 of the Cr.P.C.

 

Further, PW-2 in the light of the answers elicited from him in the cross-examination by Public Prosecutor, with regard to the contents of 161 statement which relevant portions are marked in his cross-examination and the said statements were denied by him, the prosecution was required to prove the said statements of the PW-2 through the Investigating Officer to show the fact that PW-2 Jai Bhagwan in his evidence has given contrary statements to the Investigation Officer at the time of investigation and, therefore, his evidence in examination-in-chief has no evidentiary value.

 

The same could have been used by the prosecution after it had strictly complied with Section 145 of the Indian Evidence Act, 1872. Therefore, the I.O. should have spoken to the above statements of PW2 in his evidence to prove that he has contradicted in his earlier Section 161 statements in his evidence and, therefore, his evidence cannot be discarded to prove the prosecution case. It becomes amply clear from the perusal of the evidence of PW-10, I.O. in the case that the same has not been done by the prosecution. Thus, the statements of PW-2 marked from Section 161 of Cr.P.C. in his cross- examination cannot be said to be proved in the case to place reliance upon his evidence to record the findings on the charge. The position of law in this regard is well settled by this Court in the case of V.K. Mishra v. State of Uttarakhand[7].

 

The relevant paras are extracted hereinbelow:

 

"16. Section 162 CrPC bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police under Section 161(1) CrPC can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162(1) CrPC. The statements under Section 161 CrPC recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose:

 

(i) of contradicting such witness by an accused under Section 145 of the Evidence Act;

 

(ii) the contradiction of such witness also by the prosecution but with the leave of the Court; and

 

(iii) the re-examination of the witness if necessary.

 

17. The court cannot suo motu make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 CrPC "if duly proved" clearly show that the record of the statement of witnesses cannot be admitted in evidence straightaway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross- examination of the investigating officer. The statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of the Evidence Act that is by drawing attention to the parts intended for contradiction.

 

18. Section 145 of the Evidence Act reads as under: '145. Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.'

 

19. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination.

 

The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted.

 

If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act that is, by drawing attention to the parts intended for contradiction."

 

(emphasis laid by this Court)

 

Thus, the contradiction of evidence of the complainant-Jai Bhagwan (PW-2) does not prove the factum of demand of bribe by the appellant from the complainant-Jai Bhagwan as the statement recorded under Section 161 of Cr.P.C. put to him in his cross-examination was not proved by B.S. Yadav (PW-10) by speaking to those statements in his evidence and therefore, the evidence of PW-2 is not contradicted and proved his Section 161 statement in the case. Further, the appellant in his examination under Section 313 of Code of Criminal Procedure, 1973 has, inter alia, stated thus:

 

"Q 4: it is in evidence against you that on 28.07.2004 you demanded Rs. 5000/- as bribe from complainant Jai Bhagwan and you accepted Rs. 4000/- as bribe from him and asked the complainant to bring Rs. 1000/- on 30.07.2004 near Dichau Kalan bus stand, Najafgarh. What you have to say?

 

Ans. It is incorrect.

 

XXX XXX XXX

 

Q 14: It is evidence against you that at about 7:00 p.m. you came and you met with complainant and moved towards one water rairi and you demanded and accepted Rs. 1000/- as bribe from the complainant in the presence of panch witness with your right hand and kept the same in left pocket of your shirt. What you have to say? Ans. It is incorrect.

 

Q 15: It is in further evidence against you that in the meantime panch witness gave pre-determined signal and thereafter the members of raiding party came and you were apprehended and panch witness told the raiding officer that you had demanded and accepted the bribe of Rs. 1000/- from the complainant (PW-2) with your right hand and kept the same in your left pocket of your shirt.

 

What you have to say?

 

Ans. It is incorrect." After a careful reading of the evidence of the complainant-Jai Bhagwan (PW- 2), statements made by the appellant in his examination under Section 313 of Cr.P.C. as well as the evidence of Anoop Kumar Verma (PW-6) and inspector-Sunder Dev (PW-12), it is clear that there was no demand of bribe money by the appellant from the complainant-Jai Bhagwan. It is well settled position of law that the demand for the bribe money is sine qua non to convict the accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The same legal principle has been held by this Court in the case of B. Jayaraj (supra), A. Subair (supra) and P. Satyanarayana Murthy (supra) upon which reliance is rightly placed by the learned senior counsel on behalf of the appellant. The relevant paragraph 7 from B. Jayaraj case (supra) reads thus:

 

"7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. and C.M. Girish Babu v. CBI."

 

(emphasis supplied)

 

In the case of P. Satyanarayana Murthy (supra), it was held by this Court as under: "21. In State of Kerala and another vs. C.P. Rao, this Court, reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. 22. In a recent enunciation by this Court to discern the imperative pre- requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i) & (ii) of the Act.

 

It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act.

 

Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d) (i) & (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.

 

23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1) (d)(i) & (ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder."

 

(emphasis supplied)

 

Further, in the case of Satvir Singh v. State of Delhi[8], this Court has held thus:

 

"34. This Court, in K.S. Panduranga case has held that the demand and acceptance of the amount of illegal gratification by the accused is a condition precedent to constitute an offence, the relevant paragraph in this regard from the abovesaid decision is extracted hereunder: (SCC pp. 740-41, para 39) "39. Keeping in view that the demand and acceptance of the amount as illegal gratification is a condition precedent for constituting an offence under the Act, it is to be noted that there is a statutory presumption under Section 20 of the Act which can be dislodged by the accused by bringing on record some evidence, either direct or circumstantial, that money was accepted other than for the motive or the reward as stipulated under Section 7 of the Act.

 

When some explanation is offered, the court is obliged to consider the explanation under Section 20 of the Act and the consideration of the explanation has to be on the touchstone of preponderance of probability. It is not to be proven beyond all reasonable doubt. In the case at hand, we are disposed to think that the explanation offered by the accused does not deserve any acceptance and, accordingly, we find that the finding recorded on that score by the learned trial Judge and the stamp of approval given to the same by the High Court cannot be faulted." (emphasis supplied) 35. The learned Senior Counsel for the appellant has also placed reliance upon the case of Banarsi Dass referred to supra wherein it was held that: (SCC pp. 456-57, para 24)

 

"24. In M.K. Harshan v. State of Kerala this Court in somewhat similar circumstances, where the tainted money was kept in the drawer of the accused who denied the same and said that it was put in the drawer without his knowledge, held as under: (SCC pp. 723-24, para 8) '8. ... It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly, there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification.'..."

 

(emphasis supplied)

 

In view of the aforesaid reasons, the approach of both the trial court and the High Court in the case is erroneous as both the courts have relied upon the evidence of the prosecution on the aspect of demand of illegal gratification from the complainant-Jai Bhagwan (PW-2) by the appellant though there is no substantive evidence in this regard and the appellant was erroneously convicted for the charges framed against him. The prosecution has failed to prove the factum of demand of bribe money made by the appellant from the complainant-Jai Bhagwan (PW-2), which is the sine qua non for convicting him for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act.

 

Thus, the impugned judgment and order of the High Court is not only erroneous but also suffers from error in law and therefore, liable to be set aside. For the reasons stated supra, the impugned judgment and order of the High Court as well as the trial court are set aside. The appeal is allowed. The Jail Superintendent is directed to release the appellant forthwith from the Jail if he is not required in connection with any other case. The Registry is directed to communicate the above portion of the order to the concerned Jail Superintendent to comply with the directions issued to him.

 

..............................CJI. [T.S. THAKUR]

 

................................J. [V. GOPALA GOWDA]

 

New Delhi,

 

January 6, 2016  

Sanjay Chandra v. CBI

2011 (13) SCALE 107, (2012) 1 SCC 40

Hon'ble Judges/Coram:

H.L. Dattu and G.S. Singhvi, JJ.

JUDGMENT

H.L. Dattu, J.

1. Leave granted in all the Special Leave Petitions.

2. These appeals are directed against the common judgment and Order of the learned Single Judge of the

High Court of Delhi, dated 23rd May 2011 in Bail Application No. 508/2011, Bail Application No.

509/2011 & Crl. M.A. 653/2011, Bail Application No. 510/2011, Bail Application No. 511/2011 and Bail

Application No. 512/2011, by which the learned Single Judge refused to grant bail to the accusedAppellants.

These cases were argued together and submitted for decision as one case.

3. The offence alleged against each of the accused, as noticed by the Ld. Special Judge, CBI, New Delhi,

who rejected bail applications of the Appellants, vide his order dated 20.4.2011, is extracted for easy

reference:

Sanjay Chandra (A7) in Crl. Appeal No. 2178 of 2011 (arising out of SLP (Crl.) No. 5650 of 2011):

6. The allegations against accused Sanjay Chandra are that he entered into criminal conspiracy with

accused A. Raja, R.K. Chandolia and other accused persons during September 2009 to get UAS licence

for providing telecom services to otherwise an ineligible company to get UAS licences. He, as Managing

Director of M/s Unitech Wireless (Tamil Nadu) Limited, was looking after the business of telecom

through 8 group companies of Unitech Limited. The first-come-first- served procedure of allocation of

UAS Licences and spectrum was manipulated by the accused persons in order to benefit M/s Unitech

Group Companies. The cutoff date of 25.09.2007 was decided by accused public servants of DoT

primarily to allow consideration of Unitech group applications for UAS licences. The Unitech Group

Companies were in business of realty and even the objects of companies were not changed to 'telecom' and

registered as required before applying. The companies were ineligible to get the licences till the grant of

UAS licences. The Unitech Group was almost last within the applicants considered for allocation of UAS

licences and as per existing policy of first-come-first-served, no licence could be issued in as many as 10

to 13 circles where sufficient spectrum was not available. The Unitech companies got benefit of spectrum

in as many as 10 circles over the other eligible applicants. Accused Sanjay Chandra, in conspiracy with

accused public servants, was aware of the whole design of the allocation of LOIs and on behalf of the

Unitech group companies was ready with the drafts of Rs. 1658 crores as early as 10th October, 2007.

Vinod Goenka (A5) in Crl. Appeal No. 2179 of 2011 (arising out of SLP(Crl) No. 5902 of 2011):

5. The allegations against accused Vinod Goenka are that he was one of the directors of M/s Swan

Telecom (P) Limited in addition to accused Shahid Usman Balwa w.e.f. 01.10.2007 and acquired majority

stake on 18.10.2007 in M/s Swan Telecom (P) Limited (STPL) through DB Infrastructure (P) Limited.

Accused Vinod Goenka carried forward the fraudulent applications of STPL dated 02.03.2007 submitted 

by previous management despite knowing the fact that STPL was ineligible company to get UAS licences

by virtue of clause 8 of UASL guidelines 2005. Accused Vinod Goenka was an associate of accused

Shahid Usman Balwa to create false documents including Board Minutes of M/s Giraffe Consultancy (P)

Limited fraudulently showing transfer of its shares by the companies of Reliance ADA Group during

February 2007 itself. Accused/applicant in conspiracy with accused Shahid Usman Balwa concealed or

furnished false information to DoT regarding shareholding pattern of STPL as on the date of application

thereby making STPL an eligible company to get licence on the date of application, that is, 02.03.2007.

Accused/applicant was an overall beneficiary with accused Shahid Usman Balwa for getting licence and

spectrum in 13 telecom circles.

12. Investigation has also disclosed pursuant to TRAI recommendations dated 28.08.2007 when M/s

Reliance Communications Ltd. got the GSM spectrum under the Dual Technology policy, accused

Gautam Doshi, Hari Nair and Surendra Pipara transferred the control of M/s Swan Telecom Pvt. Ltd., and

said structure of holding companies, to accused Shahid Balwa and Vinod Goenka. In this manner they

transferred a company which was otherwise ineligible for grant of UAS license on the date of application,

to the said two accused persons belonging to Dynamix Balwa (DB) group and thereby facilitated them to

cheat the DoT by getting issued UAS Licences despite the ineligibility on the date of application and till

18.10.2007.

13. Investigation has disclosed that accused Shahid Balwa and Vinod Goenka joined M/s Swan Telecom

Pvt. Ltd. and M/s Tiger Traders Pvt. Ltd. as directors on 01.10.2007 and DB group acquired the majority

stake in TTPL/ M/s Swan Telecom Pvt. Ltd. (STPL) on 18.10.2007. On 18.10.2007 a fresh equity of 49.90

lakh shares was allotted to M/s DB Infrastructure Pvt. Ltd. Therefore on 01.10.2007, and thereafter,

accused Shahid Balwa and Vinod Goenka were incharge of, and were responsible to, the company M/s

Swan Telecom Pvt. Ltd. for the conduct of business. As such on this date, majority shares of the company

were held by D.B. Group.

Gautam Doshi (A9), Surendra Pipara (A10) and Hari Nair (A 11) in Crl. Appeal Nos. 2180,2182 &

2181 of 2011 (arising out of SLP (Crl) Nos. 6190,6315 & 6288 of 2011):

7. It is further alleged that in January-February, 2007 accused Gautam Doshi, Surendra Pipara and Hari

Nath in furtherance of their common intention to cheat the Department of Telecommunications,

structured/created net worth of M/s Swan Telecom Pvt. Ltd., out of funds arranged from M/s Reliance

Telecom Ltd. or its associates, for applying to DoT for UAS Licences in 13 circles, where M/s Reliance

Telecom Ltd. had no GSM spectrum, in a manner that its associations with M/s Reliance Telecom Ltd.

may not be detected, so that DOT could not reject its application on the basis of Clause 8 of the UASL

Guidelines dated 14.12.2005.

8. In pursuance of the said common intention of accused persons, they structured the stake-holding of M/s

Swan Telecom Pvt. Ltd. in a manner that only 9.9% equity was held by M/s Reliance Telecom Ltd. (RTL)

and rest 90.1% was shown as held by M/s Tiger Traders Pvt. Ltd. (later known as M/s Tiger Trustees Pvt.

Ltd. - TTPL), although the entire company was held by the Reliance ADA Group of companies through

the funds raised from M/s Reliance Telecom Ltd. etc.

9. It was further alleged that M/s Swan Telecom Pvt. Ltd. (STPL) was, at the time of application dated

02.03.2007, an associate of M/s Reliance ADA Group / M/s Reliance Communications Limited / M/s

Reliance Telecom Limited, having existing UAS Licences in all telecom circles. Investigations have also

disclosed that M/s Tiger Traders Pvt. Ltd., which held majority stake (more than 90%) in M/s Swan

Telecom Pvt. Ltd. (STPL), was also an associate company of Reliance ADA Group. Both the companies

has not business history and were activated solely for the purpose of applying for UAS Licences in 13

telecom circles, where M/s Reliance Telecom Ltd. did not have GSM spectrum and M/s Reliance

Communications Ltd. had already applied for dual technology spectrum for these circles. Investigation has

disclosed that the day to day affairs of M/s Swan Telecom Pvt. Ltd. and M/s Tiger Traders Pvt. Ltd. were 

managed by the said three accused persons either themselves or through other officers/consultants related

to the Reliance ADA group. Commercial decisions of M/s Swan Telecom Pvt. Ltd. and M/s Tiger Traders

Pvt. Ltd. were also taken by these accused persons of Reliance ADA group. Material inter-company

transactions (bank transactions) of M/s Reliance Communications / M/s Reliance Telecommunications

Ltd. and M/s Swan Telecom Pvt. Ltd. (STPL) and M/s Tiger Traders Pvt. Ltd. were carried out by same

group of persons as per the instructions of said accused Gautam Doshi and Hari Nair.

10. Investigations about the holding structure of M/s Tiger Traders Pvt. Ltd. has revealed that the

aforesaid accused persons also structured two other companies i.e. M/s Zebra Consultancy Private Limited

& M/s Parrot Consultants Private Limited. Till April, 2007, by when M/s Swan Telecom Pvt. Ltd. applied

for telecom licences, 50% shares of M/s Zebra Consultancy Private Limited & M/s Parrot Consultants

Private Limited, were purchased by M/s Tiger Traders Pvt. Ltd. Similarly, 50% of equity shares of M/s

Parrot Consultants Private Limited & M/s Tiger Traders Private Limited were purchased by M/s Zebra

Consultancy Private Limited. Also, 50% of equity shares of M/s Zebra Consultancy Private Limited and

M/s Tiger Traders Private Limited were purchased by M/s Parrot Consultants Private Limited. These 3

companies were, therefore, cross holding each other in an interlocking structure w.e.f. March 2006 till 4th

April, 2007.

11. It is further alleged that accused Gautam Doshi, Surendra Pipara and Hari Nair instead of withdrawing

the fraudulent applications preferred in the name of M/s Swan Telecom (P) Limited, which was not

eligible at all, allowed the transfer of control of that company to the Dynamix Balwa Group and thus,

enabled perpetuating and (sic.) illegality. It is alleged that TRAI in its recommendations dated 28.08.2007

recommended the use of dual technology by UAS Licencees. Due to this reason M/s Reliance

Communications Limited, holding company of M/s Reliance Telecom Limited, became eligible to get

GSM spectrum in telecom circles for which STPL had applied. Consequently, having management control

of STPL was of no use for the applicant/accused persons and M/s Reliance Telecom Limited. Moreover,

the transfer of management of STPL to DB Group and sale of equity held by it to M/s Delphi Investments

(P) Limited, Mauritius, M/s Reliance Telecom Limited has earned a profit of around Rs. 10 crores which

otherwise was not possible if they had withdrawn the applications. M/s Reliance Communications Limited

also entered into agreement with M/s Swan Telecom (P) Limited for sharing its telecom infrastructure. It

is further alleged that the three accused persons facilitated the new management of M/s Swan Telecom (P)

Limited to get UAS licences on the basis of applications filed by the former management. It is further

alleged that M/s Swan Telecom (P) Limited on the date of application, that is, 02.03.2007 was an associate

company of Reliance ADA group, that is, M/s Reliance Communications Limited/ M/s Reliance Telecom

Limited and therefore, ineligible for UAS licences.

12. Investigation has also disclosed pursuant to TRAI recommendations dated 28.08.2007 when M/s

Reliance Communications Ltd. got the GSM spectrum under the Dual Technology policy, accused

Gautam Doshi, Hari Nair and Surendra Pipara transferred the control of M/s Swan Telecom Pvt. Ltd., and

said structure of holding companies, to accused Shahid Balwa and Vinod Goenka. In this manner they

transferred a company which was otherwise ineligible for grant of UAS license on the date of application,

to the said two accused persons belonging to Dynamix Balwa (DB) group and thereby facilitated them to

cheat the DoT by getting issued UAS Licences despite the ineligibility on the date of application and till

18.10.2007.

4. The Special Judge, CBI, New Delhi, rejected Bail Applications filed by the Appellants by his order

dated 20.04.2011. The Appellants moved the High Court by filing applications under Section 439 of the

Code of Criminal Procedure (in short, "Code of Criminal Procedure"). The same came to be rejected by

the learned Single Judge by his order dated 23.05.2011. Aggrieved by the same, the Appellants are before

us in these appeals.

5. Shri. Ram Jethmalani, Shri. Mukul Rohatgi, Shri Soli J. Sorabjee and Shri. Ashok H. Desai, learned

senior counsel appeared for the Appellants and Shri. Harin P. Raval, learned Additional Solicitor General, 

appears for the Respondent-CBI.

[From paragraphs 6 to 9 and 11, the counsels for petitioners raised arguments in favour of granting bail

to their clients. They said that accused summoned under S. 87 CrPC cannot be sent to judicial custody

and should have been granted bail. Further it was contended that gravity of offence which is a substantial

factor for denial of bail should be determined by maximum sentence and not by any other measure. The

plea of presumption of innocence was also raised and it was said that accused will cooperate with the

court.]

* * * * * *

[In paragraph 10 Shri. Haren P. Raval, the learned Additional Solicitor General replied to the arguments

of petitioners and raised contention against the grant of bail to the accused. Shri Raval said that bail

should be rejected in the larger interest of society, seriousness of economic crime, the influential nature of

the accused who can temper with the witnesses. Shri. Raval would further urged that there was no reason

or change in circumstance as to why this Court should take a different view from the order of 20th June

2011 in Sharad Kumar Etc. v. Central Bureau of Investigation (in SLP (Crl) No. 4584-4585 of 2011)

rejecting bail to some of the co-accused in the same case. In paragraph 12, the Apex Court responded to

this argument and said that in the earlier case the Petitioner was before this Court before framing of

charges by the Trial Court. In the present case the charges are framed and the trial has commenced. The

Apex Court added that in view of the changed circumstances the earlier and the present proceedings

cannot be compared]

* * * * * *

13. The Appellants are facing trial in respect of the offences under Sections 420-B, 468,471 and 109 of

Indian Penal Code and Section 13(2) read with 13(i)(d) of Prevention of Corruption Act, 1988. Bail has

been refused first by the Special Judge, CBI, New Delhi and subsequently, by the High Court. Both the

courts have listed the factors, on which they think, are relevant for refusing the Bail applications filed by

the applicants as seriousness of the charge; the nature of the evidence in support of the charge; the likely

sentence to be imposed upon conviction; the possibility of interference with witnesses; the objection of the

prosecuting authorities; possibility of absconding from justice.

14. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to

secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is

neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be

required to ensure that an accused person will stand his trial when called upon. The courts owe more than

verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be

innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in

custody pending completion of trial could be a cause of great hardship. From time to time, necessity

demands that some un-convicted persons should be held in custody pending trial to secure their attendance

at the trial but in such cases, 'necessity' is the operative test. In this country, it would be quite contrary to

the concept of personal liberty enshrined in the Constitution that any person should be punished in respect

of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived

of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most

extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail,

one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive

content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct

whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the

purpose of giving him a taste of imprisonment as a lesson.

15. In the instant case, as we have already noticed that the "pointing finger of accusation" against the

Appellants is 'the seriousness of the charge'. The offences alleged are economic offences which has 

resulted in loss to the State exchequer. Though, they contend that there is possibility of the Appellants

tampering witnesses, they have not placed any material in support of the allegation. In our view,

seriousness of the charge is, no doubt, one of the relevant considerations while considering bail

applications but that is not the only test or the factor: The other factor that also requires to be taken note of

is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and

Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the

Constitutional Rights but rather "recalibration of the scales of justice." The provisions of Code of Criminal

Procedure. confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in

appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and

caution by balancing valuable right of liberty of an individual and the interest of the society in general. In

our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our

opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends

respect for the requirement that a man shall be considered innocent until he is found guilty. If such power

is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an

individual. This Court, in Kalyan Chandra Sarkar v. Rajesh Ranjan MANU/SC/0045/2005 : (2005) 2 SCC

42, observed that "under the criminal laws of this country, a person accused of offences which are nonbailable,

is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in

accordance with law. Such detention cannot be questioned as being violative of Article 21 of the

Constitution, since the same is authorized by law. But even persons accused of non- bailable offences are

entitled to bail if the Court concerned comes to the conclusion that the prosecution has failed to establish a

prima facie case against him and/or if the Court is satisfied by reasons to be recorded that in spite of the

existence of prima facie case, there is need to release such accused on bail, where fact situations require it

to do so."

16. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It is also

observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under

Article 21 of the Constitution. In the case of State of Rajasthan v. Balchand MANU/SC/0152/1977 :

(1977) 4 SCC 308, this Court opined:

2. The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances

suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape

of repeating offences or intimidating witnesses and the like, by the Petitioner who seeks enlargement on

bail from the Court. We do not intend to be exhaustive but only illustrative.

3. It is true that the gravity of the offence involved is likely to induce the Petitioner to avoid the course of

justice and must weigh with us when considering the question of jail. So also the heinousness of the crime.

Even so, the record of the Petitioner in this case is that, while he has been on bail throughout in the trial

court and he was released after the judgment of the High Court, there is nothing to suggest that he has

abused the trust placed in him by the court; his social circumstances also are not so unfavourable in the

sense of his being a desperate character or unsocial element who is likely to betray the confidence that the

court may place in him to turn up to take justice at the hands of the court. He is stated to be a young man

of 27 years with a family to maintain. The circumstances and the social milieu do not militate against the

Petitioner being granted bail at this stage. At the same time any possibility of the absconsion or evasion or

other abuse can be taken care of by a direction that the Petitioner will report himself before the police

station at Baren once every fortnight.

17. In the case of Gudikanti Narasimhulu v. Public Prosecutor MANU/SC/0089/1977 : (1978) 1 SCC 240,

V.R. Krishna Iyer, J., sitting as Chamber Judge, enunciated the principles of bail thus:

3. What, then, is "judicial discretion" in this bail context In the elegant words of Benjamin Cardozo:

The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a

knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his 

inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and

unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy,

disciplined by system, and subordinated to "the primordial necessity of order in the social life". Wide

enough in all conscience is the field of discretion that remains.

Even so it is useful to notice the tart terms of Lord Camden that the discretion of a Judge is the law of

tyrants: it is always unknown, it is different in different men; it is casual, and depends upon constitution,

temper and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly and passion to

which human nature is liable...

Perhaps, this is an overly simplistic statement and we must remember the constitutional focus in

Articles 21 and 19 before following diffuse observations and practices in the English system. Even in

England there is a growing awareness that the working of the bail system requires a second look from the

point of view of correct legal criteria and sound principles, as has been pointed out by Dr Bottomley.

6. Let us have a glance at the pros and cons and the true principle around which other relevant factors

must revolve. When the case is finally disposed of and a person is sentenced to incarceration, things stand

on a different footing. We are concerned with the penultimate stage and the principal rule to guide release

on bail should be to secure the presence of the applicant who seeks to be liberated, to take judgment and

serve sentence in the event of the Court punishing him with imprisonment. In this perspective, relevance of

considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe

sentence, if such be plausible in the case. As Erle. J. indicated, when the crime charged (of which a

conviction has been sustained) is of the highest magnitude and the punishment of it assigned by law is of

extreme severity, the Court may reasonably presume, some evidence warranting, that no amount of bail

would secure the presence of the convict at the stage of judgment, should he be enlarged. Lord Campbell,

C.J. concurred in this approach in that case and Coleridge J. set down the order of priorities as follows:

I do not think that an accused party is detained in custody because of his guilt, but because there are

sufficient probable grounds for the charge against him as to make it proper that he should be tried, and

because the detention is necessary to ensure his appearance at trial. It is a very important element in

considering whether the party, if admitted to bail, would appear to take his trial; and I think that in

coming to a determination on that point three elements will generally be found the most important: the

charge, the nature of the evidence by which it is supported, and the punishment to which the party would

be liable if convicted.

In the present case, the charge is that of wilful murder; the evidence contains an admission by the

prisoners of the truth of the charge, and the punishment of the offence is, by law, death.

7. It is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is

pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also

bears upon the issue.

8. Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the

benignant jurisdiction of the Court to be freed for the time being.

9. Thus the legal principles and practice validate the Court considering the likelihood of the applicant

interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only

traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail

to find whether he has a bad record - particularly a record which suggests that he is likely to commit

serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless

bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of

society. Bail discretion, on the basis of evidence about the criminal record of a Defendant is therefore not

an exercise in irrelevance.

13. Viewed from this perspective, we gain a better insight into the rules of the game. When a person, 

charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a

bail plea when the appeal before this Court pends Yes, it has. The panic which might prompt the accused

to jump the gauntlet of justice is less, having enjoyed the confidence of the Court's verdict once.

Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release

becomes weaker when the fact stares us in the face that a fair finding - if that be so - of innocence has

been recorded by one Court. It may not be conclusive, for the judgment of acquittal may be ex facie

wrong, the likelihood of desperate reprisal, if enlarged, may be a deterrent and his own safety may be

more in prison than in the vengeful village where feuds have provoked the violent offence. It depends.

Antecedents of the man and socio- geographical circumstances have a bearing only from this angle.

Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest

danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and

police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not

stampede the Court into a complacent refusal.

18. In Gurcharan Singh v. State (Delhi Admn.) MANU/SC/0420/1978 : (1978) 1 SCC 118, this Court took

the view:

22. In other non-bailable cases the Court will exercise its judicial discretion in favour of granting bail

subject to sub- section (3) of Section 437 Code of Criminal Procedure if it deems necessary to act under it.

Unless exceptional circumstances are brought to the notice of the Court which may defeat proper

investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an

offence punishable with death or imprisonment for life. It is also clear that when an accused is brought

before the Court of a Magistrate with the allegation against him of an offence punishable with death or

imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the

first proviso to Section 437(1) Code of Criminal Procedure and in a case where the Magistrate entertains

a reasonable belief on the materials that the accused has not been guilty of such an offence. This will,

however, be an extraordinary occasion since there will be some materials at the stage of initial arrest, for

the accusation or for strong suspicion of commission by the person of such an offence.

24. Section 439(1) Code of Criminal Procedure of the new Code, on the other hand, confers special

powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437(1)there is

no ban imposed under Section 439(1), Code of Criminal Procedure against granting of bail by the High

Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for

life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached

by an accused only after he has failed before the Magistrate and after the investigation has progressed

throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the

Court of Session will have to exercise its judicial discretion in considering the question of granting of bail

under Section 439(1) Code of Criminal Procedure of the new Code. The overriding considerations in

granting bail to which we adverted to earlier and which are common both in the case of

Section 437(1) and Section 439(1) Code of Criminal Procedure of the new Code are the nature and

gravity of the circumstances in which the offence is committed; the position and the status of the accused

with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of

repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction

in the case; of tampering with witnesses; the history of the case as well as of its investigation and other

relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out.

19. In Babu Singh v. State of U.P. MANU/SC/0059/1978 : (1978) 1 SCC 579, this Court opined:

8. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. and yet,

the issue is one of liberty, justice, public safety and burden on the public treasury, all of which insist that a

developed jurisprudence of bail is integral to a socially sensitized judicial process. As Chamber Judge in

this summit Court I had to deal with this uncanalised case-flow, ad hoc response to the docket being the

flickering candle light. So it is desirable that the subject is disposed of on basic principle, not improvised

brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our 

constitutional system recognised under Article 21that the curial power to negate it is a great trust

exercisable, not casually but judicially, with lively concern for the cost to the individual and the

community. To glamorise 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

Article 21 are the life of that human right.

...

16. Thus the legal principle and practice validate the Court considering the likelihood of the applicant

interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only

traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail

to find whether he has a bad record-particularly a record which suggests that he is likely to commit

serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless

bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of

society. Bail discretion, on the basis of evidence about the criminal record of a Defendant, is therefore not

an exercise in irrelevance.

17. The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and

permissible only when the law authorising it is reasonable, even-handed and geared to the goals of

community good and State necessity spelt out in Article 19. Indeed, the considerations I have set out as

criteria are germane to the constitutional proposition I have deduced. Reasonableness postulates

intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose

but for the bi-focal interests of justice-to the individual involved and society affected.

18. We must weigh the contrary factors to answer the test of reasonableness, subject to the need for

securing the presence of the bail applicant. It makes sense to assume that a man on bail has a better

chance to prepare or present his case than one remanded in custody. and if public justice is to be

promoted, mechanical detention should be demoted. In the United States, which has a constitutional

perspective close to ours, the function of bail is limited, "community roots" of the applicant are stressed

and, after the Vera Foundation's Manhattan Bail Project, monetary suretyship is losing ground. The

considerable public expense in keeping in custody where no danger of disappearance or disturbance can

arise, is not a negligible consideration. Equally important is the deplorable condition, verging on the

inhuman, of our sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration

makes refusal of bail unreasonable and a policy favouring release justly sensible.

20. Viewed from this perspective, we gain a better insight into the rules of the game. When a person,

charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a

bail plea when the appeal before this Court pends Yes, it has. The panic which might prompt the accused

to jump the gauntlet of justice is less, having enjoyed the confidence of the Court's verdict once.

Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release

becomes weaker when the fact stares us in the face that a fair finding - if that be so - of innocence has

been recorded by one Court. It may be conclusive, for the judgment of acquittal may be ex facie wrong,

the likelihood of desperate reprisal, it enlarged, may be a deterrent and his own safety may be more in

prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents

of the man and socio-geographical circumstances have a bearing only from this angle. Police

exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger

of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police

prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not

stampede the Court into a complacent refusal.

20. In Moti Ram v. State of M.P. MANU/SC/0132/1978 : (1978) 4 SCC 47, this Court, while discussing

pre-trial detention, held: 

14. The consequences of pre-trial detention are grave. Defendants presumed innocent arc subjected to the

psychological and physical deprivations of jail life, usually under more onerous conditions than are

imposed on convicted Defendants. The jailed Defendant loses his job if he has one and is prevented from

contributing to the preparation of his defence. Equally important, the burden of his detention frequently

falls heavily on the innocent members of his family.

21. The concept and philosophy of bail was discussed by this Court in Vaman Narain Ghiya v. State of

Rajasthan MANU/SC/8394/2008 : (2009) 2 SCC 281, thus:

6. "Bail" remains an undefined term in Code of Criminal Procedure. Nowhere else has the term been

statutorily defined. Conceptually, it continues to be understood as a right for assertion of freedom against

the State imposing restraints. Since the UN Declaration of Human Rights of 1948, to which India is a

signatory, the concept of bail has found a place within the scope of human rights. The dictionary meaning

of the expression "bail" denotes a security for appearance of a prisoner for his release. Etymologically,

the word is derived from an old French verb "bailer" which means to "give" or "to deliver", although

another view is that its derivation is from the Latin term "baiulare", meaning "to bear a burden". Bail is a

conditional liberty. Stroud's Judicial Dictionary (4th Edn., 1971) spells out certain other details. It states:

...when a man is taken or arrested for felony, suspicion of felony, indicted of felony, or any such case, so

that he is restrained of his liberty. And, being by law bailable, offereth surety to those which have

authority to bail him, which sureties are bound for him to the King's use in a certain sums of money, or

body for body, that he shall appear before the justices of goal delivery at the next sessions, etc. Then upon

the bonds of these sureties, as is aforesaid, he is bailed-that is to say, set at liberty until the day appointed

for his appearance.

Bail may thus be regarded as a mechanism whereby the State devolutes upon the community the function

of securing the presence of the prisoners, and at the same time involves participation of the community in

administration of justice.

7. Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law.

Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A

balance is required to be maintained between the personal liberty of the accused and the investigational

right of the police. It must result in minimum interference with the personal liberty of the accused and the

right of the police to investigate the case. It has to dovetail two conflicting demands, namely, on the one

hand the requirements of the society for being shielded from the hazards of being exposed to the

misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of

criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty. Liberty

exists in proportion to wholesome restraint, the more restraint on others to keep off from us, the more

liberty we have. (See A.K. Gopalan v. State of Madras)

8. The law of bail, like any other branch of law, has its own philosophy, and occupies an important place

in the administration of justice and the concept of bail emerges from the conflict between the police power

to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in

favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on

the assumption of his guilt.

22. More recently, in the case of Siddharam Satlingappa Mhetre v. State of

MaharashtraMANU/SC/1021/2010 : (2011) 1 SCC 694, this Court observed that "(j)ust as liberty is

precious to an individual, so is the society's interest in maintenance of peace, law and order. Both are

equally important." This Court further observed:

116. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes

imperative according to the peculiar facts and circumstances of the case.

This Court has taken the view that when there is a delay in the trial, bail should be granted to the accused 

(See Babba v. State of Maharashtra (2005) 11 SCC 569, Vivek Kumar v. State of

U.P. MANU/SC/0890/2000 : (2000) 9 SCC 443, Mahesh Kumar Bhawsinghka v. State of

Delhi MANU/SC/2641/2000 : (2000) 9 SCC 383).

23. The principles, which the Court must consider while granting or declining bail, have been culled out

by this Court in the case of Prahlad Singh Bhati v. NCT, DelhiMANU/SC/0193/2001 : (2001) 4 SCC 280,

thus:

The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to

the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to

keep in mind the nature of accusations, the nature of the 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, reasonable possibility of securing the presence of the

accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of

the public or State and similar other considerations. It has also to be kept in mind that for the purposes of

granting the bail the legislature has used the words "reasonable grounds for believing" instead of "the

evidence" which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether

there is a genuine case against the accused and that the prosecution will be able to produce prima facie

evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the

guilt of the accused beyond reasonable doubt.

24. In State of U.P. v. Amarmani Tripathi MANU/SC/0677/2005 : (2005) 8 SCC 21, this Court held as

under:

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 and Gurcharan Singh v. State (Delhi Admn.)). 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: (SCC pp. 535-36, para 11)

11. 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 v.

Sudarshan Singh and Puran v. Rambilas.) 

22. While a detailed examination of the evidence is to be avoided while considering the question of bail, to

ensure that there is no prejudging and no prejudice, a brief examination to be satisfied about the existence

or otherwise of a prima facie case is necessary.

25. Coming back to the facts of the present case, both the Courts have refused the request for grant of bail

on two grounds: The primary ground is that offence alleged against the accused persons is very serious

involving deep rooted planning in which, huge financial loss is caused to the State exchequer; the

secondary ground is that the possibility of the accused persons tempering with the witnesses. In the

present case, the charge is that of cheating and dishonestly inducing delivery of property, forgery for the

purpose of cheating using as genuine a forged document. The punishment of the offence is punishment for

a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be

relevant, but at the same time, the punishment to which the party may be liable, if convicted, also

bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the

charge and the severity of the punishment should be taken into consideration. The grant or refusal

to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large

extent, by the facts and circumstances of each particular case. But at the same time, right to bail is

not to be denied merely because of the sentiments of the community against the accused. The

primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the

State of the burden of keeping him, pending the trial, and at the same time, to keep the accused

constructively in the custody of the Court, whether before or after conviction, to assure that he will

submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is

required. This Court in Gurcharan Singh and Ors. v. State AIR 1978 SC 179 observed that two

paramount considerations, while considering petition for grant of bail in non-bailable offence, apart from

the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering

with the prosecution witnesses. Both of them relate to ensure of the fair trial of the case. Though, this

aspect is dealt by the High Court in its impugned order, in our view, the same is not convincing.

26. When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of

the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the

question is : whether the same is possible in the present case. There are seventeen accused persons.

Statement of the witnesses runs to several hundred pages and the documents on which reliance is

placed by the prosecution, is voluminous. The trial may take considerable time and it looks to us

that the Appellants, who are in jail, have to remain in jail longer than the period of detention, had

they been convicted. It is not in the interest of justice that accused should be in jail for an indefinite

period. No doubt, the offence alleged against the Appellants is a serious one in terms of alleged huge

loss to the State exchequer, that, by itself, should not deter us from enlarging the Appellants on bail

when there is no serious contention of the Respondent that the accused, if released on bail, would

interfere with the trial or tamper with evidence. We do not see any good reason to detain the

accused in custody, that too, after the completion of the investigation and filing of the charge-sheet.

This Court, in the case of State of Kerala v. Raneef MANU/SC/0001/2011 : (2011) 1 SCC 784, has stated:

15. In deciding bail applications an important factor which should certainly be taken into consideration by

the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied

bail but is ultimately acquitted, who will restore so many years of his life spent in custody Is Article 21 of

the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in

such a case of course this is not the only factor, but it is certainly one of the important factors in deciding

whether to grant bail. In the present case the Respondent has already spent 66 days in custody (as stated in

Para 2 of his counter-affidavit), and we see no reason why he should be denied bail. A doctor incarcerated

for a long period may end up like Dr. Manette in Charles Dicken's novel A Tale of Two Cities, who forgot

his profession and even his name in the Bastille.

27. In 'Bihar Fodder Scam', this Court, taking into consideration the seriousness of the charges alleged and

the maximum sentence of imprisonment that could be imposed including the fact that the Appellants were 

in jail for a period more than six months as on the date of passing of the order, was of the view that the

further detention of the Appellants as pre-trial prisoners would not serve any purpose.

28. We are conscious of the fact that the accused are charged with economic offences of huge magnitude.

We are also conscious of the fact that the offences alleged, if proved, may jeopardize the economy of the

country. At the same time, we cannot lose sight of the fact that the investigating agency has already

completed investigation and the charge sheet is already filed before the Special Judge, CBI, New Delhi.

Therefore, their presence in the custody may not be necessary for further investigation. We are of the view

that the Appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the

apprehension expressed by CBI.

29. In the view we have taken, it may not be necessary to refer and discuss other issues canvassed by the

Learned Counsel for the parties and the case laws relied on in support of their respective contentions. We

clarify that we have not expressed any opinion regarding the other legal issues canvassed by Learned

Counsel for the parties.

30. In the result, we order that the Appellants be released on bail on their executing a bond with two

solvent sureties, each in a sum of `5 lakhs to the satisfaction of the Special Judge, CBI, New Delhi on the

following conditions:

a. The Appellants shall not directly or indirectly make any inducement, threat or promise to any person

acquainted with the facts or the case so as to dissuade him to disclose such facts to the Court or to any

other authority.

b. They shall remain present before the Court on the dates fixed for hearing of the case. If they want to

remain absent, then they shall take prior permission of the court and in case of unavoidable circumstances

for remaining absent, they shall immediately give intimation to the appropriate court and also to the

Superintendent, CBI and request that they may be permitted to be present through the counsel.

c. They will not dispute their identity as the accused in the case.

d. They shall surrender their passport, if any (if not already surrendered), and in case, they are not a holder

of the same, they shall swear to an affidavit. If they have already surrendered before the Ld. Special Judge,

CBI, that fact should also be supported by an affidavit.

e. We reserve liberty to the CBI to make an appropriate application for modification/recalling the order

passed by us, if for any reason, the Appellants violate any of the conditions imposed by this Court.

31. The appeals are disposed of accordingly. 

 

 

BAIL IN CURRUPTION CASES 

 

Raj Kumar Agrawal vs Central Bureau Of Investigation ... on 18 June, 2013

                

                      

                Raj Kumar Agrawal..............................Petitioner

 

                             VERSUS

 

                Central Bureau of Investigation....... Opposite Party

 

                CORAM: HON'BLE MR. JUSTICE R.R.PRASAD

 

                

 

. When huge amount of Rs.2,14,88,000/- was seized from a vehicle bearing registration no.JH-05-AC-2185, Deputy Director (Investigation), Income Tax Department, Ranchi informed about it to the Officer-in-Charge of Namkum Police Station for taking necessary action. Upon it, a case was registered as Namkum P.S. case no.58 of 2012 under Sections 171(F)/188 read with Section 34 of the Indian Penal Code against Sudhanshu Tripathy, representative of Shah Sponge Limited and others. Meanwhile, Public Interest Litigation bearing W.P (PIL) No.1801 of 2012 and W.P.(PIL) No.1802 of 2012 was filed before this Court highlighting malpractices being adopted by the candidates for the election of Rajya Sabha. This Court having found prima facie a grave case of involvement of money power, horse trading influencing voters, the members of the Legislative Assembly relating to process of election of council of Sates, directed the Election Commission to hand over the matter to the C.B.I. Accordingly, investigation of aforesaid Namkum Police Station Case was taken over by the C.B.I, who got it renumbered as R.C.02(S) of 2012-AHD-R.

 

In course of investigation, statements of some of the persons were recorded under Section 164 of the Code of Criminal Procedure, who disclosed the name of certain M.L.As to whom the petitioner had given money for casting votes in his favour. Thereupon a petition was filed on 20.4.2012 by the Investigating Officer before the Court stating therein that the petitioner and others seems to have committed offence punishable under Sections 7, 8, 12 of the Prevention of Corruption Act and as such, prayer was made to issue search warrant. The prayer made by the C.B.I was allowed. In spite of such prayer being made, C.B.I did not do anything to get the case registered under Sections 7,8,12 of the Prevention of Corruption Act. When notice under Section 160 of the Code of Criminal Procedure was issued, petitioner being apprehensive that he would be arrested filed an anticipatory bail application, bearing A.B.A No.581 of 2013 before the Judicial Commissioner, Ranchi who transferred the case to the court of Special Judge,C.B.I, who having found the case being registered under Section 171(F)/188 read with Section 34 of the Indian Penal Code rejected it as non-maintainable after making certain observation which is as follows :

 

" The petitioner is not named in the FIR. Investigating Officer of this case has summoned the petitioner to appear before him on 5.4.2013 for the purpose of answering certain questions relating to case. From perusal of the order dated 20.4.2012, it does transpired that learned court below has anywhere held in its order that prima facie case under Sections 7,8,12 of the Prevention of Corruption Act is made out, still the case is under Sections 171(F)/188 read with Section 34 of the Indian Penal Code which is bailable in nature."

Thereafter the petitioner surrendered before the Sub-

divisional Judicial Magistrate-cum-Special Judge, C.B.I, Ranchi on 9.4.2013 and filed an application for bail wherein prayer was made to admit the petitioner on bail as the offences alleged are bailable. However, submission was made on behalf of the C.B.I that though the petitioner is not named in the FIR but certain materials have been collected showing commission of the offences of the Indian Penal Code as well as Prevention of Corruption Act. The court having found that the offences under which FIR has been registered are bailable and also taking into account the observation made by the learned Special Judge are bailable and that the C.B.I has still not instituted the case for commission of the offences under Sections 7,8,12 of the Prevention of Corruption Act granted bail to the petitioner, vide its order dated 9.4.2013. On the very next day, i.e.10.4.2013, an application was filed for adding Sections 7,8,12,13 and 15 of the Prevention of Corruption Act in the FIR earlier instituted which prayer was allowed. Thereafter an application was filed before the C.B.I under Section 439(2) of the Code of Criminal Procedure for cancellation of bail granted to the petitioner, who after hearing the parties, cancelled the bail, vide its order dated 7.5.2013 after holding that in spite of the case being registered under the bailable offences, the court should have taken into account the materials collected and placed before the court showing commission of the offences under Sections 7,8, and 12 of the Prevention of Corruption Act, notice of which had been taken by the Court while issuing search warrant against the petitioner.

 

Thus, it was held that the court has granted bail to the petitioner improperly. Hence, the bail was cancelled. It does appear that after the bail was cancelled, the petitioner was taken into custody.

 

Being aggrieved with the said order cancelling bail, this application has been filed.

 

Mr.Anil Kumar Sinha, learned Sr. Counsel appearing for the petitioner submitted that admittedly on the day when the bail has been granted to the petitioner by the learned Magistrate, offences alleged by the time were bailable and even the learned Special Judge who has cancelled the bail had observed while disposing of the anticipatory bail application of the petitioner that the offences under which case has been registered are bailable and by holding so, anticipatory bail application was dismissed as non- maintainable. The conduct of the C.B.I does not seems to be fair as if the C.B.I had collected materials showing commission of the offence punishable under the Prevention of Corruption Act, it ought to have been pointed out to the court.

 

It was further submitted that once a person is granted bail of the offences bailable in nature, bail granted to that person never warrants to be cancelled if during investigation the case turns out to be a case of commission of offence of non-bailable and thereby learned Special Judge certainly committed illegality in cancelling the bail granted to the petitioner earlier.

 

In this regard it was further submitted that though the bail has been cancelled on filing application under Section 439(2) of the Code of Criminal Procedure but the C.B.I has never been able to make out a case for cancellation as it is never the case of the C.B.I that the petitioner after being released on bail had interfered or attempted to interfere with due course of administration of justice or evaded or attempted to evade due course of justice or abused the concession granted to the petitioner in any manner and it has never been made out a case to show that the petitioner would possibly abscond and thereby the court cancelling the bail certainly committed illegality and therefore, order under which bail of the petitioner has been cancelled warrants to be set aside.

 

Learned counsel did fairly submits that in a situation where bail is granted in the event of offence being bailable but in course of investigation, the case turns out to be a case of commission of offence of non-bailable offences, the bail never warrants to be cancelled on that ground but the person needs to take a fresh bail which proposition gets reflected from the decision rendered in a case of Prahlad Singh Bhati vs. NCT, Delhi and another [(2001) 4 SCC 280] and also in a case of Hamida vs Rashid @ Rasheed and others [(2008) 1 SCC 474 ] but the court did not take into account this aspect of the mater while cancelling the bail of the petitioner.

 

As against this, Mr.M.Khan, learned counsel appearing for the C.B.I submitted that no doubt it is true that on the day when the bail was granted the offences under which FIR has been instituted were bailable but the materials had been placed before the court, who granted bail, to the effect that certain materials have been collected showing commission of the offence by the petitioner under the Prevention of Corruption Act but the court below did not take into account this aspect of the matter, rather went on the levelling of the section and not on the nature of the offence alleged to have been committed and thereby the court can certainly be said to have committed illegality in granting bail and when learned Special Judge, in the circumstances, found the bail being granted improperly, cancelled the bail it did not commit any illegality and hence, it never warrants to be quashed.

 

Having heard learned counsel appearing for the parties, it does appear that the case had initially been instituted under Sections 171(F)/188 read with Section 34 of the Indian Penal Code. When the investigation was taken over by the C.B.I under the order of this Court, it registered the case for the same offences and went on investigating the case. After proceeding with investigation for several months, one application seems to have been filed before the court below on 20.4.2012 stating therein about the commission of offence under the Prevention of Corruption Act and prayed for issuance of search warrant which was issued. Upon it, when the petitioner apprehended his arrest, he filed an anticipatory bail application before the learned Sessions Judge who transferred the case before the Special Judge, C.B.I and the learned Judge having recorded that offences under which the case has been registered are bailable did hold that anticipatory bail application is not maintainable. In that event, the petitioner surrendered before the court below who granted bail after taking into account the observation made by the learned Special Judge and also of the fact that the offence under Sections 7, 12,13 and 15 of the Prevention of Corruption Act has not been registered.

 

In such situation, I do not find any illegality with the order granting bail. However, on the very next day when those offences under the Prevention of Corruption Act was added in the FIR, an application for cancellation of bail was filed under Section 439(2) of the Code of Criminal Procedure which was cancelled holding that learned Magistrate while taking the case to be bailable in nature did not consider the plea taken by the C.B.I that certain materials have been collected showing commission of the offence under the Prevention of Corruption Act and that he should not have been guided by the observation made by the higher court in a bail application but the fact is that it was the Special Judge, who after noticing the aforesaid fact of commission of offence also under Sections 7,8, and 12 of the Prevention or Corruption Act, did hold that offence is bailable in nature and taking into account this aspect of the matter and also the fact that on the day of grant of bail, the case had not been registered under Sections 7,8, and 12 of the Prevention of Corruption Act bail had been granted and hence, the court seems to have committed illegality in cancelling the bail particularly when C.B.I has failed to make out a case of cancellation as has been stipulated under Section 439(2) of the Code of Criminal Procedure.

 

Under the circumstances, the Special Judge, C.B.I seems to have committed illegality in cancelling the bail and thereby the order cancelling the bail is hereby set aside.

 

However, the question still does arise upon finding the order of cancellation being not justified, whether the petitioner is required to be released?

 

To answer this question, I need not to travel for rather to refer to a case of Prahlad Singh Bhati vs. NCT, Delhi and another (supra) wherein it has been held that with the change in the nature of the offence, he accused becomes disentitled to the liberty granted to him in relation to a minor offence, if the offence is altered for an aggravated crime.

 

Similar view seems to have been taken by the Hon'ble Supreme Court in a case of Hamida vs Rashid @ Rasheed and others (supra). In that case FIR was registered under Section 324, 352 and 506 of the Indian Penal Code, though according to informant, it should have been registered under Section 307 of the Indian Penal Code. The accused was granted bail. During investigation, the injured died and the case was registered under Section 304 of the Indian Penal Code. Thereupon an application was filed before the High Court under Section 482 of the Code of Criminal Procedure praying therein to direct the C.B.I to permit them to remain on the same bail. Even after conversion of the offence of the offence into one under Section 304 of the Indian penal Code, that prayer was allowed by the High Court and when the matter was challenged before the Supreme Court, the Hon'ble Supreme Court quashed the order passed by the High Court after holding that such kind of order never warrants to be passed in an application filed under Section 482 of the Code of Criminal Procedure. In that event, the Hon'ble Supreme passed an order for taking the accused into custody forthwith but at the same time, it was observed that the accused would be at liberty to apply for bail for the offences for which they are charged before the appropriate court in accordance with law.

 

Coming to the case in hand, it be reiterated that the petitioner was granted bail on being found the offence alleged being bailable. However, subsequent to that the petitioner has been alleged to have committed offence under the Prevention of Corruption Act.

 

In such situation, he, in view of the decision referred to above, becomes disentitled to the liberty granted to him in relation to minor offence and needs to move for bail and since the petitioner is in custody, no order relating to his release warrants to be passed.

 

However, it is observed that if such application for regular bail in filed, the same be disposed of in accordance with law without being prejudiced by the fact that the bail had been cancelled and that the case is being monitored by the High Court.

 

Thus, this application stands disposed.

 

 

CONCLUSION ON LAW RELATING TO BAIL  

Let us first deal with a minor issue canvassed by Mr. Raval, learned ASG. It is submitted that this Court has refused to entertain the Special Leave Petition filed by one of the co-accused [Sharad Kumar Vs. CBI (supra)] and, therefore, there is no reason or change in the circumstance to take a different view in the case of the appellants who are also charge- sheeted for the same offence. We are not impressed by this argument. In the aforesaid petition, the petitioner was before this Court before framing of charges by the Trial Court. Now the charges are framed and the trial has commenced. We cannot compare the earlier and the present proceedings and conclude that there are no changed circumstances and reject these petitions. The appellants are facing trial in respect of the offences under Sections 420-B, 468, 471 and 109 of Indian Penal Code and Section 13(2) read 2 with 13(i)(d) of Prevention of Corruption Act, 1988. Bail has been refused first by the Special Judge, CBI, New Delhi and subsequently, by the High Court. Both the courts have listed the factors, on which they think, are relevant for refusing the Bail applications filed by the applicants as seriousness of the charge; the nature of the evidence in support of the charge; the likely sentence to be imposed upon conviction; the possibility of interference with witnesses; the objection of the prosecuting authorities; possibility of absconding from justice. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity’ is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if  left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. In the instant case, as we have already noticed that the pointing finger of accusation against the appellants is `the seriousness of the charge’. The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is possibility of the appellants tampering witnesses, they have not placed any material in  support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather recalibration of the scales of justice. The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual. This Court, in Kalyan Chandra Sarkar Vs. Rajesh Ranjan– (2005) 2 SCC 42, observed that under the criminal laws of this country, a person accused of offences which are non-bailable, is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 of the Constitution, since the same is authorized by law. But even persons accused of non- bailable offences are entitled to bail if the  Court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied by reasons to be recorded that in spite of the existence of prima facie case, there is need to release such accused on bail, where fact situations require it to do so. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution. In the case of State of Rajasthan v. Balchand, (1977) 4 SCC 308, this Court opined: The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. Even so, the record of the petitioner in this case is that, while he has been on bail throughout in the trial court and he was released after the judgment of the High Court, there is nothing to suggest that he has abused the trust placed in him by the court; his social circumstances also are not so unfavourable in the sense of his being a desperate character or unsocial element who is likely to betray the confidence that the court may place in him to turn up to take justice at the hands of the court. He is stated to be a young man of 27 years with a family to maintain. The circumstances and the social milieu do not militate against the petitioner being granted bail at this stage. At the same time any possibility of the absconsion or evasion or other abuse can be taken care of by a direction that the petitioner will report himself before the police station at Baren once every fortnight (17) In the case of Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240, V.R. Krishna Iyer, J., sitting as Chamber Judge, enunciated the principles of bail thus: What, then, is judicial discretion in this bail context? In the elegant words of Benjamin Cardozo: The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains Even so it is useful to notice the tart terms of Lord Camden that  the discretion of a Judge is the law of tyrants: it is always unknown, it is different in different men; it is casual, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice; in the worst,  it is every vice, folly and passion to which human nature is liable Perhaps, this is an overly simplistic statement and we must remember the  constitutional focus in Articles 21 and 19 before following diffuse observations and practices in the English system. Even in England there is a growing awareness that the working of the bail system requires a second look from the point of view of correct legal criteria and sound principles, as has been pointed out by Dr Bottomley. Let us have a glance at the pros and cons and the true principle around which other relevant factors must revolve. When the case is finally disposed of and a person is sentenced to incarceration, things stand on a different footing. We are concerned with the penultimate stage and the principal rule to guide release on bail should be to secure the presence of the applicant who seeks to be liberated, to take judgment and serve sentence in the event of the Court punishing him with imprisonment. In this perspective, relevance of considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe sentence, if such be plausible in the case. As Erle. J. indicated, when the crime charged (of which a conviction has been sustained) is of the highest  magnitude and the punishment of it assigned by law is of extreme severity, the Court may reasonably presume, some evidence warranting, that no amount of bail would secure the presence of the convict at the stage of judgment, should he be enlarged. Lord Campbell, C.J. concurred in this approach in that case and Coleridge J. set down the order of priorities as follows: I do not think that an accused party is detained in custody because of his guilt, but because there are sufficient probable grounds for the charge against him as to make it proper that he should be tried, and because the detention is necessary to ensure his appearance at trial …. It is a very important element in considering whether the party, if admitted to bail, would appear to take his trial; and I think that in coming to a determination on that point three elements will generally be found the most important: the charge, the nature of the evidence by which it is supported, and the punishment to which the party would be liable if convicted. In the present case, the charge is that of wilful murder; the evidence contains an admission by the prisoners of the truth of the charge, and the punishment of the offence is, by law, death It is thus obvious that the nature of the charge is the vital  factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue. Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. Thus the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record – particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habitual, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant is therefore not an exercise in irrelevance. Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has  been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before this Court pends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the Court’s verdict once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding — if that be so — of innocence has been recorded by one Court. It may not be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, if enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man and socio- geographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the Court into a complacent refusal. In Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118, this Court took the view:. In other non-bailable cases the Court will exercise its judicial discretion in favour of granting bail subject to sub- section (3) of Section 437 CrPC if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 437(1) CrPC and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some materials at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence. Section 439(1) CrPC of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437(1) there is no ban imposed under Section 439(1), CrPC against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1) CrPC of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437(1) and Section 439(1) CrPC of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of  jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out M In Babu Singh v. State of U.P., (1978) 1 SCC 579, this Court opined: The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden on the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. As Chamber Judge in this summit Court I had to deal with this uncanalised case-flow, ad hoc response to the docket being the flickering candle light. So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with  lively concern for the cost to the individual and the community. To glamorise 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 Article 21 are the life of that human right. …Thus the legal principle and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record–particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance. The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Article 19. Indeed, the considerations I have set out as criteria are germane to the constitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interests of justice–to the individual involved and society affected. We must weigh the contrary factors to answer the test of reasonableness, subject to the need for securing the presence of the bail applicant. It makes sense to assume that a man on bail has a better chance to prepare or present his case than one remanded in custody. And if public justice is to be promoted, mechanical detention should be demoted. In the United States, which has a constitutional perspective close to ours, the function of bail is limited, community roots of the applicant are stressed and, after the Vera Foundation’s Manhattan Bail Project, monetary suretyship is losing ground. The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible consideration. Equally important is the deplorable condition, verging on the inhuman, of our sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible. Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before this Court pends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the Court’s verdict once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding — if that be so — of innocence has been recorded by one Court. It may be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, it enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man  and socio-geographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the Court into a complacent refusal In Moti Ram v. State of M.P., (1978) 4 SCC 47, this Court, while discussing pre-trial detention, held: The consequences of pre-trial detention are grave. Defendants presumed innocent arc subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family. The concept and philosophy of bail was discussed by this Court in Vaman Narain Ghiya v. State of Rajasthan, (2009) 2 SCC 281, thus: Bail remains an undefined term in CrPC. Nowhere else has the term been statutorily defined. Conceptually, it continues to be understood as a right for assertion of freedom against the State imposing restraints. Since the UN Declaration of Human Rights of 1948, to which India is a signatory, the concept of bail has found a place within the scope of human rights. The dictionary meaning of the expression bail denotes a security for appearance of a prisoner for his release. Etymologically, the word is derived from an old French verb bailer; which means to give or to deliver, although another view is that its derivation is from the Latin term baiul are, meaning to bear a burden;. Bail is a conditional liberty. Stroud’s Judicial Dictionary (4th Edn., 1971) spells out certain other details. It states: when a man is taken or arrested for felony, suspicion of felony, indicted of felony, or any such case, so that he is restrained of his liberty. And, being by law bailable, offereth surety to those  which have authority to bail him, which sureties are bound for him to the King’s use in a certain sums of money, or body for body, that he shall appear before the justices of goal delivery at the next sessions, etc. Then upon the bonds of these sureties, as is aforesaid, he is bailed–that is to say, set at liberty until the day appointed for his appearance Bail may thus be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners, and at the same time involves participation of the community in administration of justice. Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police. It must result in minimum interference with the personal liberty of the accused and the right of the police to investigate the case. It has to dovetail two conflicting demands, namely, on the one hand the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged  to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty. Liberty exists in proportion to wholesome restraint, the more restraint on others to keep off from us, the more liberty we have. (See A.K. Gopalan v. State of Madras) The law of bail, like any other branch of law, has its own philosophy, and occupies an important place in the administration of justice and the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on the assumption of his guilt.

 

More recently, in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, this Court observed that just as liberty is precious to an individual, so is the society’s interest in maintenance of  peace, law and order. Both are equally important This Court further observed : Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case This Court has taken the view that when there is a delay in the trial, bail should be granted to the accused [See Babba v. State of Maharashtra, (2005) 11 SCC 569, Vivek Kumar v. State of U.P., (2000) 9 SCC 443, Mahesh Kumar Bhawsinghka v. State of Delhi, (2000) 9 SCC 383]. The principles, which the Court must consider while granting or declining bail, have been culled out by this Court in the case of Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280, thus: The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of the 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, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words reasonable grounds for believing instead of the evidence which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt In State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21, this Court held as under: "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 and Gurcharan Singh v. State (Delhi Admn.)]. 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 Kalyan Chandra Sarkar v. Rajesh Ranjan: (SCC pp. 535-36, para 11) 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 v. Sudarshan Singh and Puran v. Rambilas  While a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no prejudging and no prejudice, a brief examination to be satisfied about the existence or otherwise of a prima facie case is necessary) Coming back to the facts of the present case, both the Courts have refused the request for grant of bail on two grounds :- The primary ground is that offence alleged against the accused persons is very serious involving deep rooted planning in which, huge financial loss is caused to the State exchequer ; the secondary ground is that the possibility of the accused persons tempering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating using as genuine a forged document. The punishment of the offence is punishment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the  same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required. This Court in Gurcharan Singh and Ors. Vs. State AIR 1978 SC 179 observed that two paramount considerations, while considering petition for grant of bail in non-bailable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses. Both of them relate to ensure of the fair trial of the case. Though, this aspect is dealt by the High Court in its impugned order, in our view, the same is not convincing. When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is : whether the same is possible in the present case. There are seventeen accused persons. Statement of the witnesses runs to several hundred pages and the  documents on which reliance is placed by the prosecution, is voluminous. The trial may take considerable time and it looks to us that the appellants, who are in jail, have to remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice that accused should be in jail for an indefinite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trial or tamper with evidence. We do not see any good reason to detain the accused in custody, that too, after the completion of the investigation and filing of the charge-sheet. This Court, in the case of State of Kerala Vs. Raneef (2011) 1 SCC 784, has stated:  In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr. Manette in Charles Dicken’s novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille  In `Bihar Fodder Scam’, this Court, taking into consideration the seriousness of the charges alleged and the maximum sentence of imprisonment that could be imposed including the fact that the appellants were in jail for a period more than six months as on the date of passing of the order, was of the view that the further detention of the appellants as pre-trial prisoners would not serve any purpose.