SRI DASAIAH AND SMT. RATHNAMMAVs. THE STATE OF KARNATAKA

KARNATAKA HIGH COURT

SINGLE BENCH

( Before : Aravind Kumar, J )

SRI DASAIAH AND SMT. RATHNAMMA — Appellant

Vs.

THE STATE OF KARNATAKA — Respondent

Criminal Petition No. 3788 of 2011

Decided on : 05-08-2011

Penal Code, 1860 (IPC) – Section 302

Counsel for Appearing Parties

A.M. Balaji and B.M. Mohan Kumar, for the Appellant; B. Raja Subrahmanya Bhat, HCGP, for the Respondent

ORDER

Aravind Kumar, J.—Petitioners 1 and 2 are arraigned as accused No. 1 and 2 in Crime No. 398/2009 by Hassan Town Police for offence punishable u/s 302 of Indian Penal Code is before this Court seeking for being enlarged on bail.

2. Case of the prosecution is that deceased is the husband of second Petitioner and she had an illicit relationship with the first Petitioner and inspite of repeated requests by the deceased to his wife not to indulge in such activity it did not yield any fruitful result and villagers had also advised both the Petitioners i.e., 1 and 2 not to indulge in such activity for which both the Petitioners had stated that No. one had right to interfere with their personal relationship and since deceased was coming in the way of Petitioners having their illicit relationship, he is said to have been murdered by the Petitioners. A report came to be filed on 23.12.2009 by PC 338 stating that a dead body is found in between APMG yard and bye-pass road and on the basis of said report Cr. No. 398/2009 came to be registered against unknown persons u/s 302 of Indian Penal Code by Hassan Town P.S. A missing complaint lodged by sister’s daughter of deceased on 19.02.2010 before Belur P.S. and investigation was taken up by Belur P.S. and by that time they had received information from Hassan Town P.S. about a unknown dead body having been found about 2 months back and as such complainant was requested to identify the dead body of photograph and clothes found on the said dead body and same was identified by the complainant and as such a charge has been lodged against Petitioners by Hassan Town P.S. They have been apprehended and produced before jurisdictional court and they are in judicial custody from the date of their arrest. Petitioners having been unsuccessful in obtaining bail before jurisdictional Sessions Court are before this. Court praying for being enlarged on bail.

3. Heard Sri. Mohan Kumar, Learned Counsel appearing for Petitioners and Sri Raja Subrahnianya Bhat, learned HCGP appearing for Respondent State and perused the records made available to the court by learned HCGP. As referred to above case of prosecution is that deceased was coming in the way of Petitioners having illicit relationship and as such deceased was murdered by accused No. 1 and 2. A missing complaint came to be lodged by deceased sister’s daughter on 19.02.2010 before Belur Police Station and same came to be registered as UDR 42/2010 alleging that her uncle Puttaraju was missing since two months and requested Belur Town police to investigate. In the meanwhile Hassan Police had already registered a case in Crime No. 398/2009 on the basis of a report made by PC 338 stating that a dead body was lying between Hassan, bye pass road and. APMC yard. On the complaint made by sister’s daughter of deceased said Belur police directed the complainant to verify as to whether dead body that was found near APMC yard is that of the deceased Puttaraju. She is said to have come to Hassan Town Police Station and made enquiries and she was shown the photographs of the dead person and his belongings namely clothes that was on the dead body at the time dead body was found and she identified the person in photograph and body shown therein as also belongings of the deceased Puttaraju. After taking up investigation in Crime 398/2009 and recording statements of witnesses, accused persons were apprehended. It is to be noticed at this stage that Smt. Manjula who is CW-16 has given a statement that deceased Puttaraju knew about illicit relationship between accused persons and as such he had objected to the same and since he was objecting and coming in their way to have illicit relationship she expressed suspicion on accused No. 1 and 2 to have committed murder of Puttaraju. On the basis of said suspicion pointed out at the Petitioners further investigation is said to have been made and statement of Sri. Rangaswamy (CW-18) and Sri. Krishnaiah (CW-19) has been recorded. It is seen from the statement of CW-18 and 19 that these are the two persons who are said to have last seen deceased In the company of accused persons. It. is also stated therein that accused No. 1 along with deceased went inside Ullas Bar, Hassan at about 6 P.M. and accused No. 2 was waiting outside the bar on the said date namely 22.12.2009. Admittedly prosecution has not produced any material to show that any person from the said Ullas Bar has been examined. Thus reading of these two statements and also statement of CW-16 Smt. Manjula (sister’s daughter) it emerges that accused No. 1 and 2 are apprehended on basis of suspicion expressed by complainant. Perusal of the statements of CW-18 and CW-19 would reveal that there is inconsistency between these statements and only on the ground of suspicion Petitioners have been arrayed as accused No. 1 and 2. No. incriminating materials/property is seized from accused persons. Thus, it is for the prosecution to prove during trial, the guilt of accused persons. Admittedly charge sheet has been filed and already four witnesses have been examined on behalf of prosecution and Petitioners being permanent resident of Hassan District and owning properties, there is little chance of absconding from the place of their residence or obstruct trial. In these circumstances, I am of the considered view that Petitioners are entitled to be enlarged on bail. Hence petition is allowed. Petitioners are ordered to be released on bail on execution of bond for a sum of Rs. 1,00,000/- each and two sureties for the likesum and subject to following conditions:

(i) Petitioners shall not leave the jurisdiction of Sessions Court without express permission and they shall appear before Sessions Court on all the dates of hearing.

(ii) Petitioners shall not terroise or induce the prosecution witnesses in any manner whatsoever.

(iii) If any such incident is reported prosecution is at liberty to move this Court for cancellation of bail granted.

(iv) Petitioners shall appear before jurisdictional police namely Hassan. Town Police once in 15 days i.e., 15th and 30th between 10 A.M. and 5 P.M. and mark their attendance till conclusion of trial.

GANAPATI AND OTHERS Vs. THE STATE OF MYSORE

Once the police had filed a charge sheet in the case, the Magistrate was not at all justified in entertaining any petition filed on behalf of the private complainant and that too acting upon it. behind the back of the accused and cancelling the bail granted to the petitioners-accused.

(1972) CriLJ 417

MYSORE HIGH COURT

SINGLE BENCH

( Before : M. Santhosh, J )

GANAPATI AND OTHERS — Appellant

Vs.

THE STATE OF MYSORE — Respondent

Decided on : 19-03-1971

Indian Penal Code, 1860 (IPC) — Sections 147, 148, 307 — Cancelling the bail granted

ORDER

M. Santhosh, J.—The five petitioners before this Court are accused in the court of the J. M. F. C., at Alland. A charge sheet was filed by the Police Norona against the petitioners before the said Magistrate alleging that they had committed offences under Sections 147. 148. 149. 447 and 307 I. P. C. On 28-10-1970 all these petitioners were produced before the learned Magistrate and he released all the petitioners on bail and thereafter posted the case for hearing to 9-11-1970. On 9-11-1970. all the five petitioners appeared before the court and thereafter the case, as shown in the order sheet was adjourned to 19-11-1970-Later on the very day i. e. 9-11-1970. the learned Magistrate passed the impugned order which reads as follows:

Heard in open court. Perused the affidavits and records. Bail cancelled. Issue non-baillable warrant to accused. Call on 17/11.

Sd/- J. M. F. C.

This order dated 9-11-1970 passed by the learned Magistrate is challenged in this revision petition.

2. Sri Santhosh Hegde. the learned Counsel appearing on behalf of the petitioners has contended that it is not open to the learned Magistrate to take cognizance of any application filed by a private person and take action against the accused on the strength of it. when the charge sheet against the accused has been filed by the police. It is also pointed out that the learned Magistrate having once granted bail to the accused, cannot cancel bail, behind the back of the accused without hearing them or giving them opportunity of being heard. The accused had appeared in court on 9-11-1970 and after the case had been adjoined to 19-11-1970. the learned Magistrate subsequently on the same day on an application said to have been filed by the person who had given a complaint to the police, cancelled the order of bail without hearing the accused behind their back and issued non-baillable warrant.

3. There is force in the contention of the learned Counsel. The learned Magistrate seems to have acted in an extraordinary manner. The order sheet discloses that on 9-11-1970. the petitioners-accused who had been released on bail were present in court and the case was adjourned to 19-11-1970. Subsequently, on the same day on an application given on behalf of the complainant, the learned Magistrate without notice to the accused and behind their back passed the impugned order cancelling the bail granted to the petitioner-accused. Not only did he cancel the bail -granted to the petitioners-accused but he also issued non-baillable warrants against the accused who had appeared in court on the very same day. Another peculiar feature of this case is that though he had adjourned the case to 19-11-1970. the learned Magistrate seems to have advanced the case and posted it to 17-11-1970. the impugned order passed by the learned Magistrate cannot at all be justified. Once the police had filed a charge sheet in the case, the Magistrate was not at all justified in entertaining any petition filed on behalf of the private complainant and that too acting upon it. behind the back of the accused and cancelling the bail granted to the petitioners-accused.

4. The learned Magistrate has failed to act in judicial manner. I have therefore no hesitation in setting aside the impugned order passed by the learned Magistrate.

5. In the result, the revision petition is allowed and the impugned order dated 9-11-1970 passed by the learned Magistrate. Alland. in C. C. No. 285 of 1970 cancelling the bail granted to the petitioners-accused is set aside.

Provisions for bail and bonds under Pocso Act 2012

Pocso Act 2012

S 31. Application of Code of Criminal Procedure, 1973 to proceedings before a Special Court:

Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 including the provisions as to bail and bonds shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a court of Sessions and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.


Second Schedule of the Cr.P.C shall be applicable for the purpose of Bail


Cr.P.C

438. Direction for grant of bail to person apprehending arrest

(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, interalia, the following factors, namely:–

(i)the nature and gravity of the accusation;
(ii)the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii)the possibility of the applicant to flee from justice; and.
(iv)where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,
either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

(1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court,

(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.

(2) When the High Court or the Court of Session makes a direction under subsection (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including-
(i)a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii)a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii)a condition that the person shall not leave India without the previous permission of the Court;
(iv)such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).

439. Special powers of High Court or Court of Session regarding bail
(1) A High Court or Court of Session may direct-

(a)that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

(b)that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.


“II- CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS

Offence Cognisable or Non-Cognisable Bailable or Non-bailable By what court triable
If punishable with death, imprisonment for life, or imprisonment for more than 7 years. Cognisable Non-bailable Court of Session
If punishable with imprisonment for 3 years and upwards but not more than 7 years. Ditto Ditto Magistrate of the first class
If punishable with imprisonment for less than 3 years or with fine only. Non-Cognisable Bailable Any Magistrate

Anticipatory bail is subject to extraordinary equitable discretion of Court

An order of anticipatory bail virtually converts a non bailable offence under the Code to a bailable one subject, of course, to appropriate conditions which the Court can in the interests of justice impose. The circumstances are not enumerated in detail in Section 438 of the Cr. P.C. on proof of which such extraordinary equitable discretion can be invoked. The legislature has thought it fit to leave it to the trained intuitions and informed discretion of superior Courts to identify the cases where such extraordinary equitable discretion can and ought to be invoked. Such powers are certainly there for the superior Courts. But such powers have to be invoked only sparingly and in exceptional cases in aid of justice.Continue Reading

Granting bail under NDPS Act

06-12-1989-N.D.P.S. Act is a special Act dealing with special class of crimes which is an international menace. Therefore the Legislature in its wisdom has enacted certain special provisions affecting the powers of the Trial Court in matter of granting bail. The cases are tribal by the Special Courts created u/s 36 of the Act. Although the Magistrate before whom the person accused of crime under the N.D.P.S. Act is produced, may authorise his detention for a period not exceeding 15 days, the Magistrate is, upon expiry of the aforementioned period, obliged to forward such person to the Special Court. u/s 36A(c), the Special Court may exercise, in relation to the person forwarded to it under clause (b) of that section, the same power which a Magistrate may exercise u/s 167 of the Code of Criminal Procedure. It is the Special Court who takes cognizance of the crime just as a Magistrate does in respect of other cases, under the Indian Penal Code. In other words, the Special Courts constituted under the N.D.P.S. Act perform the same functions in respect of the offences under the N.D.P.S. Act which the Magistrate performs in respect of other offences under the Indian Penal Code.Continue Reading

Court should not impose excessive condition for granting bail

  1. Criminal Procedure Code, 1973 (CrPC) – Section 437 – Bail – Conditions for – Excessively onerous condition that accused should pay a huge sum of Rs. 2 lacs at stage of FIR – Accused failed to make the payment of said amount and languishing in jail endlessly – Not proper. Order passed by Metropolitan Magistrate imposing condition that accused should pay a huge sum of Rs. 2 lacs to be set at liberty, not proper. If he had paid it is a different matter. But the fact that he was not able to pay that amount and in default thereof he is to languish in jail for more than 10 months now, is sufficient indication that he was unable to make up the amount. Can he be detained in custody endlessly for his inability to pay the amount in the range of Rs. 2 lacs. If the cheques issued by his surety were dishonoured, the Court could perhaps have taken it as a ground to suggest to the payee of the cheques to resort to his legal remedies provided by law.
  2. Similarly if the Court was dissatisfied with the conduct of the surety as for his failure to raise funds for honouring the cheques issued by him, the Court could have directed the appellant to substitute him with another surety. But to keep him in prison for such a long period, that too in a case where bail would normally be granted for the offences alleged, is not only hard but improper. It must be remembered that the Court has not even come to the conclusion that the allegations made in the FIR are true. That can be decided only when the trial concludes, if the case is charge-sheeted by the police. There is no doubt that if the appellant was not in a position to abide by the conditions imposed for granting bail he should have raised his objection at that time or should have challenged the order soon after his release on bail. No doubt he should have done so at the earlier stage. But his failure to do so then cannot now be used as a bar for preventing him from approaching the Court with a prayer to release him from jail. He cannot be detained in custody for long without conviction in a case of this nature.

Continue Reading

Under S. 167(2) of Cr.P.C accused person is entitled to be released on bail if investigation is not completed within sixty days.

Powerful Legal Research enterprise

The Provision is Mandatory.

In Natabar Parida v. State of Orissa, AIR 1975 SC 1465, the Court explained the mandatory character of the requirement of the proviso to S. 167(2) that an accused person is entitled to be released on bail if the investigation is not completed within sixty days. The Court said:

“But then the command of the Legislature in proviso(a) is that the accused person has got to be released on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation may still be proceeding. In serious offences of criminal conspiracy-murders, dacoities, robberies by inter-State gangs or the like it may not be possible for the police, in the circumstances as they do exist in the various parts of our country, to complete the investigation within the period of 60 days. Yet the intention of the Legislature seems to be to grant no discretion to the Court and to make it obligatory for it to release the accused on bail. Of course, it has been provided in proviso(a) that the accused released on bail under S. 167 will be deemed to be so released under the provisions of Chapter XXXIII and for the purposes of that Chapter. That may empower the Court releasing him on bail, if it considers necessary so to do to direct that such person be arrested and committed to custody as provided in sub-section (5) of S. 437 occurring in Chapter XXXIII. It is also clear that after the taking of the cognizance the power of remand is to be exercised under S. 309 of the new Code. But if it is not possible to complete, the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail. Such a law may be a “paradise for the criminals,” but surely it would not be so, as sometimes it is supposed to be because of the Courts. It would be so under the command of the Legislature.”

In Bashir v. State of Harayana, (1977) 4 SCC 410, the question arose whether a person who has been released under the proviso to S. 167(2) could later be committed to custody merely because a challan was subsequently filed. The Court hold that he could not be so committed to custody. But, the bail could be cancelled under S. 437(5) if the Court came to the conclusion that there were sufficient grounds, after the filing of the challan to believe that the accused had committed a non-bailable offence and that it was necessary to arrest him and commit him to custody. The Court said:

“Sub-section (2) of Section 167 and proviso(a) thereto make it clear that no Magistrate shall authorise the retention of the accused person in custody under this section for a total period exceeding sixty days. On the expiry of sixty days the accused person shall be released on bail if he is prepared to and does furnish bail. So far there is no controversy. The question arises as to what is the position of the person so released when a challan is subsequently filed by the police.”

**********

“Sub-section (5) to Section 437 is important. It provides that any Court which has released a person on bail under sub-section (1) or subsection (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. As under Section 167(2) a person who has been released on the ground that he had been in custody for a period of over sixty days is deemed to be released under the provisions of Chapter XXXIII, his release should be considered as one under S. 437(1) or (2). Section 437(5) empowers the Court to direct that the person so released may be arrested if it considers it necessary to do so. The power of the Court to cancel bail if it considers it necessary is preserved in cases where a person has been released on bail under S. 437(1) or (2) and these provisions are applicable to a person who has been released under Section 167(2). Under Section 437(2) when a person is released pending inquiry on the ground that there are not sufficient grounds to believe that he has committed a non-bailable offence may be committed to custody by Court which released him on bail if it is satisfied that there are sufficient grounds for so doing after inquiry is completed. As the provisions of Section 437(1) (2) and (5) are applicable to a person who has been released under Section 167(2) the mere fact that subsequent to his release a challan has been filed, is not sufficient to commit him to custody. In this case the bail was cancelled and the appellants were ordered to be arrested and committed to custody on the ground that subsequently a charge-sheet had been filed and that before the appellants were directed to be released under Section 167(2) their bail petitions were dismissed on merits by the Sessions Court and the High Court. The fact that before an order was passed under Section 167(2) the bail petitions of the accused were dismissed on merits is not relevant for the purpose of taking action under Section 437(5). Neither is it a valid ground that subsequent to release of the appetlants a challan was filed by the police. The Court before directing the arrest of the accused and committing them to custody should consider it necessary to do so under Section 437(5). This may be done by the Court coming to the conclusion that after the challan had been filed there are sufficient grounds that the accused had committed a non-bailable offence and that it is necessary that he should be arrested and committed to custody. It may also order arrest and committal to custody on other grounds such as tampering of the evidence or that his being at large is not in the interests of justice. But it is necessary that the Court should proceed on the basis that he has been deemed to have been released under Section 437(1) and (2).”

In Talab Hazi Hussain v. Mondkar, AIR 1958 SC 376 a case arising under the old Code, the Court considered the grounds on which bail might be cancelled. It was said:

“There can be no more important requirement of the ends of justice than the uninterrupted progress of a fair trial; and it is for the continuance of such a fair trial that the (inherent) powers of the High Courts are sought to be invoked by the prosecution in cases where it is alleged that accused persons, either by suborning or intimidating witnesses, are obstructing the smooth progress of a fair trial. Similarly, if an accused person who is released on bail jumps bail and attempts to run to a foreign country to escape the trial, that again would be a case where the exercise of the (inherent) power would be justified in order to compel the accused to submit to a fair trial and not to escape its consequences by taking advantage of the fact that he has been released on bail and by absconding to another country. In other words, if the conduct of the accused person subsequent to his release on bail puts in jeopardy the progress of a fair trial itself and if there is no other remedy which can be effectively used against the accused person, in such a case the (inherent) power of the High Court can be legitimately invoked. In regard to non-bailable offences there is no need to invoke such power because S. 497(5) specifically deals with such cases.”

The result of our discussion and the case-law in this:An order for release on bail made under the proviso to S. 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under S. 309(2). The order for release on bail may however be cancelled under S. 437(5) or S. 439(2). Generally the grounds for cancellation of bail, broadly, are, interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts. Where bail has been granted under the proviso to S. 167(2) for the default of the prosecution in not completing the investigation in sixty days. after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed.

Sanjay Chandra Versus CBI[ALL SC 2011 NOVEMBER]

KEYWORDS:-BAIL

Apex court

In deciding BAIL applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial.

(2011) 13 SCALE 107

(SUPREME COURT OF INDIA)

Sanjay Chandra Appellant
Versus
CBI Respondent

(Before : H.L. Dattu and G.S. Singhvi, JJ.)

Criminal Appeal No. 2178 of 2011 (Arising out of SLP (Crl.) No. 5650 of 2011) : Decided On: 23-11-2011

Criminal Procedure Code, 1973—Section 439—Constitution of India—Article 21—BAIL—Provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant BAIL to accused pending trial or in appeal against convictions—Since jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and interest of the society in general—BAIL is rule and committal to jail an exception.

Criminal Procedure Code, 1973—Section 439—BAIL—In determining whether to grant BAIL, both seriousness of charge and severity of punishment should be taken into consideration—Grant or refusal to grant BAIL lies within discretion of Court—Grant or denial is regulated, to a large extent, by facts and circumstances of each particular case—But, right to BAIL is not to be denied merely because of sentiments of community against accused.

Criminal Procedure Code, 1973—Section 439—Constitution of India—Article 21—BAIL—When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of Constitution is violated—Every person, detained or arrested, is entitled to speedy trial—Accused are charged with economic offences of huge magnitude—However, investigating agency has already completed investigation and charge sheet is already filed before Special Judge, CBI—Their presence in custody may not be necessary for further investigation—Appellants are entitled to grant of BAIL pending trial on stringent conditions—BAIL granted.

Counsel for the Parties:

Harin P. Raval, ASG, Ram Jethmalani, Mukul Rohatgi, Soil J. Sorabjee, Ashok H. Desai, Sr. Advs., Ritu Bhalla, Manu Sharma, Karan Kalia, Pranav Diesh, Ananya Ghosh, Sahil Sharma, Vijay Agarwal, Saurabh Kirpal, Ninad Laud, Purnima Bhat Kak, Shally Bhasin Maheshwari, Mahesh Agarwal, Siddharth Singla, Tapesh Kumar Singh, Rajiv Nanda, Anirudh Sharma, Harsh N. Parekh, Anando Mukherjee, Padmalakshmi Nigam and Arvind Kumar Sharma, Advs.

JUDGMENT

H.L. Dattu, J—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 accused-Appellants. 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 ` 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 ` 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.

6. Shri. Ram Jethmalani, learned senior counsel appearing for the Appellant Sanjay Chandra, would urge that the impugned judgment has not appreciated the basic rule laid down by this Court that grant of BAIL is the rule and its denial is the exception. Shri. Jethmalani submitted that if there is any apprehension of the accused of absconding from trial or tampering with the witnesses, then it is justified for the Court to deny BAIL. The learned senior counsel would submit that the accused has cooperated with the investigation throughout and that his behavior has been exemplary. He would further submit that the Appellant was not arrested during the investigation, as there was no threat from him of tampering with the witnesses. He would submit that the personal liberty is at a very high pedestal in our Constitutional system, and the same cannot be meddled with in a causal manner. He would assail the impugned judgment stating that the Ld. Judge did not apply his mind, and give adequate reasons before rejecting BAIL, as is required by the legal norms set down by this Court. Shri. Jethmalani further contends that it was only after the Appellants appeared in the Court in pursuance of summons issued, they were made to apply for BAIL, and, thereafter, denied BAIL and sent to custody. The learned senior counsel states that the trial Judge does not have the power to send a person, who he has summoned in pursuance of Section 87 Code of Criminal Procedure to judicial custody. The only power that the trial Judge had, he would contend, was to ask for a bond as provided for in Section 88 Code of Criminal Procedure. to ensure his appearance. Shri. Jethmalani submits that when a person appeared in pursuance of a bond, he was a free man, and such a free man cannot be committed to prison by making him to apply for BAIL and thereafter, denying him the same. Shri. Jethmalani further submits that if it was the intention of the Legislature to make a person, who appears in pursuance of summons to apply for BAIL, it would have been so legislated in Section 88 Code of Criminal Procedure. The learned senior counsel assailed the judgment of the Delhi High Court in the ‘Court on its own motion v. CBI’ 2004 (I) JCC 308, by which the High Court gave directions to Criminal Courts to call upon the accused who is summoned to appear to apply for BAIL, and then decide on the merits of the BAIL application. He would state that the High Court has ignored even the CBI Manual before issuing these directions, which provided for BAIL to be granted to the accused, except in the event of there being commission of heinous crime. The learned senior counsel would also argue that it was an error to have a “rolled up charge”, as recognized by the Griffiths’ case (R. v. Griffiths and Ors. (1966) 1 Q.B. 589). Shri.Jethmalani submitted that there is not even a prima facie case against the accused and would make references to the charge sheet and the statement of several witnesses. He would emphatically submit that none of the ingredients of the offences charged with were stated in the charge sheet. He would further contend that even if, there is a prima facie case, the rule is still BAIL, and not jail, as per the dicta of this Court in several cases.

7. Shri. Mukul Rohatgi, learned senior counsel appearing for the Appellant Vinod Goenka, while adopting the arguments of Shri. Jethmalani, would further supplement by arguing that the Ld. Trial Judge erred in making the persons, who appeared in pursuance of the summons, apply for BAIL and then denying the same, and ordering for remand in judicial custody. Shri. Rohatgi would further contend that the gravity of the offence charged with, is to be determined by the maximum sentence prescribed by the Statute and not by any other standard or measure. In other words, the learned senior counsel would submit that the alleged amount involved in the so-called Scam is not the determining factor of the gravity of the offence, but the maximum punishment prescribed for the offence. He would state that the only bar for BAIL pending trial in Section 437 is for those persons who are charged with offences punishable with life or death, and there is no such bar for those persons who were charged with offences with maximum punishment of seven years. Shri. Rohatgi also cited some case laws.

8. Shri. Ashok H. Desai, learned senior counsel appearing for the Appellants Hari Nair and Surendra Pipara, adopted the principal arguments of Shri.Jethmalani. In addition, Shri. Desai would submit that a citizen of this country, who is charged with a criminal offence, has the right to be enlarged on BAIL. Unless there is a clear necessity for deprivation of his liberty, a person should not be remanded to judicial custody. Shri. Desai would submit that the Court should bear in mind that such custody is not punitive in nature, but preventive, and must be opted only when the charges are serious. Shri. Desai would further submit that the power of the High Court and this Court is not limited by the operation of Section 437. He would further contend that Surendra Pipara deserves to be released on BAIL in view of his serious health conditions.

9. Shri. Soli J. Sorabjee, learned senior counsel appearing for Gautam Doshi, adopted the principal arguments of Shri. Jethmalani. Shri. Sorabjee would assail the finding of the Learned Judge of the High Court in the impugned judgment that the mere fact that the accused were not arrested during the investigation was proof of their influence in the society, and hence, there was a reasonable apprehension that they would tamper with the evidence if enlarged on BAIL. Shri. Sorabjee would submit that if this reasoning is to be accepted, then BAIL is to be denied in each and every criminal case that comes before the Court. The learned senior counsel also highlighted that the accused had no criminal antecedents.

10. Shri. Haren P. Raval, the learned Additional Solicitor General, in his reply, would submit that the offences that are being charged, are of the nature that the economic fabric of the country is brought at stake. Further, the learned ASG would state that the quantum of punishment could not be the only determinative factor for the magnitude of an offence. He would state that one of the relevant considerations for the grant of BAIL is the interest of the society at large as opposed to the personal liberty of the accused, and that the Court must not lose sight of the former. He would submit that in the changing circumstances and scenario, it was in the interest of the society for the Court to decline BAIL to the Appellants. Shri. Raval would further urge that consistency is the norm of this Court and 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. Shri. Raval would further state that the investigation in these cases is monitored by this Court and the trial is proceeding on a day-to-day basis and that there is absolutely no delay on behalf of the prosecuting agency in completing the trial. Further, he would submit that the Appellants, having cooperated with the investigation, is no ground for grant of BAIL, as they were expected to cooperate with the investigation as provided by the law. He would further submit that the test to enlarge an accused on BAIL is whether there is a reasonable apprehension of tampering with the evidence, and that there is an apprehension of threat to some of the witnesses. The learned ASG would further submit that there is more reason now for the accused not to be enlarged on BAIL, as they now have the knowledge of the identity of the witnesses, who are the employees of the accused, and there is an apprehension that the witnesses may be tampered with. The learned ASG would state that Section 437 of the Code of Criminal Procedure. uses the word “appears”, and, therefore, that the argument of the learned senior counsel for the Appellants that the power of the trial Judge with regard to a person summoned under Section 87 is controlled by Section 88 is incorrect. Shri. Raval also made references to the United Nations Convention on Corruption and the Report on the Reforms in the Criminal Justice System by Justice Malimath, which, we do not think, is necessary to go into. The learned ASG also relied on a few decisions of this Court, and the same will be dealt with in the course of the judgment. On a query from the Bench, the learned ASG would submit that in his opinion, BAIL should be denied in all cases of corruption which pose a threat to the economic fabric of the country, and that the balance should tilt in favour of the public interest.

11. In his reply, Shri. Jethmalani would submit that as the presumption of innocence is the privilege of every accused, there is also a presumption that the Appellants would not tamper with the witnesses if they are enlarged on BAIL, especially in the facts of the case, where the Appellants have cooperated with the investigation. In recapitulating his submissions, the learned senior counsel contended that there are two principles for the grant of BAIL – firstly, if there is no prima facie case, and secondly, even if there is a prima facie case, if there is no reasonable apprehension of tampering with the witnesses or evidence or absconding from the trial, the accused are entitled to grant of BAIL pending trial. He would submit that since both the conditions are satisfied in this case, the Appellants should be granted BAIL.

12. 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 v. 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.

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, (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.”

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, (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, (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.), (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., (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 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.

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., (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, (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 Maharashtra, (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., (2000) 9 SCC 443, Mahesh Kumar Bhawsinghka v. State of Delhi (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, 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.

24. 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 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, (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.