STATE OF BIHAR Vs. RAJBALLAV PRASAD @ RAJBALLAV PD. YADAV @ RAJBALLABH YADAV
Section 34 - Acts done by several persons in futherance of common intention
Section 420 - Cheating and dishonestly inducing delivery of property
Section 120 B - Punishment of criminal conspiracy
Section 376 - Punishment for rape
Section 366 A - Procuration of minor girl
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 1141 of 2016, Judgment Date: Nov 24, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1141 OF 2016
STATE OF BIHAR .....APPELLANT(S)
VERSUS
RAJBALLAV PRASAD @ RAJBALLAV PD. YADAV @
RAJBALLABH YADAV ...RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
Respondent herein is facing trial in Mahila Police Station
Case No. 15 of 2016, wherein he is charged for committing offences under
Sections 376, 420/34, 366-A, 370, 370-A, 212, 120-B of the Indian Penal
Code, Sections 4, 6 and 8 of the Protection of Children from Sexual
Offences Act, 2012 (“POCSO Act” for short) as well as Sections 4, 5 and 6
of the Immoral Traffic Act, 1956. He is one of the co-accused in the said
trial. FIR in this behalf was registered on the basis of written complaint
of the prosecutrix Preeti Kumari (minor) on 09.02.2016. During
investigation, the respondent was identified as the main accused having
committed the rape on the said minor. However, since at that time, he was
allegedly absconding, the trial court issued process under Section 82 of
the Code of Criminal Procedure, 1973 (“Cr.P.C.” for short) and thereafter
on 27.07.2006 issued process under Section 83 against the respondent. At
that stage, apprehending his imminent arrest, the respondent surrendered
before the trial court on 10.03.2016 and was taken into custody. After
conclusion of the investigation, chargesheet in the case was filed on
20.04.2016 and the charges were framed on 06.08.2016.
Pending trial, the respondent filed bail application before the learned
Additional Sessions Judge which was heard and dismissed by the trial court
vide order dated 30.05.2016. Obviously, dissatisfied with this dismissal
order, the respondent approached the High Court for grant of bail which
came up for hearing before the High Court on 27.07.2016. However,
permission was sought to withdraw the said bail application and accepting
this request, the bail petition was dismissed as withdrawn on 27.07.2016.
Within three weeks thereafter i.e. on 19.08.2016, the respondent preferred
another bail petition before the High Court. This time he has succeeded in
his attempt as the High Court has, vide judgment dated 30.09.2016, directed
release of the respondent on bail. Certain conditions are also imposed
while granting this bail. It is the State which feels aggrieved by the
impugned order granting bail to the respondent and has challenged this
order in the present proceedings. Notice was issued in the SLP on
07.10.2016 for actual returnable date i.e. 17.10.2016. Thereafter, the
material date of hearing is 08.11.2016 when the following order was passed:
“We have heard learned counsel for the parties for some time.
In the instant case, the High Court has granted bail to the respondent
herein during the pendency of the trial against the respondent who is
facing the charges under Sections 376, 420/34, 366-A, 370, 370-A, 212, 120-
B of the Indian Penal Code as well as the charges under Section 4, 6 and 8
of the POCSO Act, 2012. He is also facing trial for offences under
Sections 4, 5 and 6 of the Immoral Traffic Act, 1956. The case is pending
in the Court of Additional Sessions Judge-Ist-cum-Special Judge, Nalanda at
Biharsharif. The deposition of the Prosecutrix is yet to be recorded.
Without making any observation at this stage, we are of the opinion that in
order to enable the Prosecutrix to give her statement fearlessly and
without any pressure, it would be necessary that she deposes when the
respondent is in custody. For this reason, we suspend the judgment and
order dated 30th September, 2016 passed by the High Court granting bail to
the respondent herein for a period of two weeks from the date the
respondent is taken into custody to enable the Prosecutrix to give her
evidence. We direct that the respondent shall surrender to the Trial Court
tomorrow i.e. 09.11.2016 and would be taken into custody in the same manner
he was facing incarceration before he was granted bail by the High Court,
for a period of two weeks.
The Trial Court is impressed upon to start recording the evidence of the
Prosecutrix immediately and endeavour to complete the same within the said
period of two weeks.
We also hope and expect that the respondent shall not try to exert any
pressure, directly or indirectly, upon the Prosecutrix or other prosecution
witnesses.
List the matter for further directions on 23.11.2016. Dasti, in addition,
is permitted.”
Pursuant to the aforesaid order, the respondent surrendered and period of
two weeks expired yesterday i.e. on 23.11.2016 when this appeal was also
finally heard. During this period, statement of prosecutrix has been
recorded and she has been cross-examined as well.
Mr. Gopal Subramaniam, learned senior counsel appearing for the appellant
submitted that since other witnesses remained to be examined are also
material witnesses, it was necessary, in the interest of justice, that
respondent remains in jail during the period of trial. He, therefore,
impressed the Court to hear the appeal on merits as according to the
appellant, in the facts and circumstances of this case, bail order should
not have been passed by the High Court and it has committed grave
illegality in passing such an order. In view thereof, we heard the matter
finally and both the sides advanced detailed submissions.
It was argued by Mr. Subramaniam that the impugned judgment was perverse as
it did not take into consideration relevant factors which needed to be
kept in mind while deciding as to whether bail is to be granted or not,
even though such relevant factors were taken note of. It was further
submitted that the High Court started its discussion by observing that
presumption of innocence would continue to run in favour of the accused
(respondent herein) until the guilt is brought home. Thereafter, it
discussed the merits of the case. In the process, as per the appellant,
the Court failed to satisfactorily address the pivotal and relevant
considerations for grant/refusal of the bail, namely, whether the
respondent was likely to influence the witnesses or the trial in case he is
released on bail pending trial or whether the respondent was likely to
abscond and not available for trial. The learned senior counsel argued
that having regard to the background of this case, it could clearly be
discerned that there was reasonable apprehension that there was a
likelihood intimidating and coercing the witnesses by the respondent as not
only respondent was an influential person, being MLA of the area in
question, but had in fact, made such attempts in the past. Complaints were
made by the prosecutrix and family members. It was also pointed out that
the Court also failed to notice that on an earlier occasion, to secure his
attendance, process under Section 82 of Cr.P.C. had to be initiated.
Another submission of learned senior counsel was that when the first bail
application was dismissed by the High Court hardly three weeks ago i.e. on
27.07.2016, there was no change in the circumstances from that date till
the filing of the second bail application on 19.08.2016 in which the
impugned order has been passed. Learned senior counsel also pointed out
that bail application of co-accused had been refused by the High Court on
20.08.2016 and while doing so, High Court had directed to conclude the
trial in terms of POCSO Act without unnecessary delay, on day to day basis.
All these aspects, according to the appellant, are conveniently bypassed
by the High Court, thereby making the order vulnerable to challenge. Few
judgments were cited in support of the proposition that in such a
situation, this Court can interdict with the order of grant of bail.
It may also be pointed out at this stage that in the special leave
petition, another ground taken to challenge the impugned order is that when
earlier application was dismissed by a particular Judge of the High Court
on 27.07.2016, as per the directives of this Court, second application
should also have to be listed before the same Judge. However, the second
application was taken by the Chief Justice himself wherein the impugned
order has been passed rather than assigning it to the Judge who had passed
the order on 27.07.2016. However, Mr. Subramaniam did not press this
ground too hard, except submitting that propriety demanded that matter is
posted before the same Judge who had passed the order on 27.07.2016 before
whom the first bail application had come up for hearing.
Mr. Dushyant Dave, learned senior counsel appearing for the respondent,
made a passionate plea that this special leave petition is required to be
dismissed only on the ground that the appellant has taken a false plea
regarding assigning bail application by the said Court to itself, rather
than sending it to the same Judge who had heard first bail application. He
pointed out that in the impugned order itself, it has been observed that
since no decision on merit of the first bail application was taken which
was dismissed as withdrawn by order dated 27.07.2016, there was no legal
impediment in proceedings with the second bail application and more
pertinently statement of Additional Advocate General who appeared on behalf
of the State in the High Court was specifically recorded to the effect that
he had no objection to the consideration of the bail of the respondent by
the said Court. It is only after recording this that the bail application
was taken up for hearing and order was passed. It was, thus, submitted
that the State, which was supposed to act more responsibly than an
individual person, had not come to the Court with clean hands and tried to
prejudice this Court by suppressing the aforesaid fact while taking such a
plea. Reference was made to the judgment of this Court in Rajabhai Abdul
Rehman Munshi v. Vasudev Dhanjibhai Mody[1] and it was pleaded that this
conduct of the appellant/State warranted that the petition be not
entertained.
No doubt, there may be some substance in the aforesaid plea of Mr. Dave
having regard to the fact that the Principal Additional Advocate General
had himself stated before the High Court that the State had no objection
for the consideration of the bail of the respondent by the concerned Court.
In this backdrop, the State is not justified in challenging the order on
the ground that the matter should not have been dealt with by the Chief
Justice but should have been marked to the Judge who passed order on
27.07.2016 in the first bail application. May be, because of this reason,
this ground of challenge is not pressed seriously by Mr. Subramaniam. In
any case, we are of the opinion that in the facts and circumstances of the
present case, we are not persuaded by the argument of Mr. Dave that
consequence thereof should be to dismiss the special leave petition. There
are at least two reasons for this observation, which are as follows:
(i) Statement of Principal Additional Advocate General that the
State had no objection for the consideration of the bail application by the
said Court has been recorded in the beginning of the order itself and,
therefore, question of suppression thereof does not arise. This fact was
known to this Court when the SLP was entertained and notice was issued.
Therefore, the question of misleading the Court on this count does not
arise.
(ii) More importantly, the primary reason for issuing the notice in
the SLP was that this Court wanted to examine, on merits, as to whether
discretion exercised by the High Court under the given circumstances is
appropriately exercised and it was a fit case for grant of bail to the
respondent, who is an under trial. We are concerned with a criminal trial
and the foremost consideration in the mind of this Court is that the trial
is conducted fairly. These sentiments of the Court were expressed to Mr.
Dave at the time of hearing itself.
Mr. Dave, thus, argued the case on merits also with a fervent plea that
once the bail is granted by the High Court, this Court should not interfere
with the discretion exercised by the High Court. It was argued that the
respondent had valid reasons to file the second bail application inasmuch
as in the meantime charges were framed on 06.08.2016, which is material
change of circumstance.
Refuting the averments of Mr. Subramaniam, Mr. Dave further argued that
after the grant of bail, the respondent had not abused the same in any
manner whatsoever and there was no material that he has tried to influence
the witnesses or tried to temper with the records and the observations of
the High Court in this behalf in the impugned order were perfectly
justified. He further submitted that once it is found that High Court had
applied its mind by passing a detailed order and granted bail, such an
exercise of discretion should not be interfered with by this Court in
exercise of powers under Article 136 of the Constitution. In support of
this proposition, he referred to many judgments gist whereof is as under:
(i) State (Delhi Administration) v. Sanjay Gandhi[2]
“13. Rejection of bail when bail is applied for is one thing; cancellation
of bail already granted is quite another. It is easier to reject a bail
application in a non-bailable case than to cancel a bail granted in such a
case. Cancellation of bail necessarily involves the review of a decision
already made and can by and large be permitted only if, by reason of
supervening circumstances, it would be no longer conducive to a fair trial
to allow the accused to retain his freedom during the trial. The fact that
prosecution witnesses have turned hostile cannot by itself justify the
inference that the accused has won them over...”
(ii) Bhagirathsinh v. State of Gujarat[3]
“7. In our opinion, the learned Judge appears to have misdirected himself
while examining the question of directing cancellation of bail by
interfering with a discretionary order made by the learned Sessions Judge.
One could have appreciated the anxiety of the learned Judge of the High
Court that in the circumstances found by him that the victim attacked was a
social and political worker and therefore the accused should not be granted
bail but we fail to appreciate how that circumstance should be considered
so overriding as to permit interference with a discretionary order of the
learned Sessions Judge granting bail. The High Court completely overlooked
the fact that it was not for it to decide whether the bail should be
granted but the application before it was for cancellation of the bail.
Very cogent and overwhelming circumstances are necessary for an order
seeking cancellation of the bail and the trend today is towards granting
bail because it is now well-settled by a catena of decisions of this Court
that the power to grant bail is not to be exercised as if the punishment
before trial is being imposed. The only material considerations in such a
situation are whether the accused would be readily available for his trial
and whether he is likely to abuse the discretion granted in his favour by
tampering with evidence. The order made by the High Court is conspicuous by
its silence on these two relevant considerations. It is for these reasons
that we consider in the interest of justice a compelling necessity to
interfere with the order made by the High Court.”
(iii) Bihar Legal Support Society v. Chief Justice of India and
another[4]
“3. The question whether special leave petitions against refusal of bail
or anticipatory bail should be listed immediately or not is a question
within the administrative jurisdiction of the Chief Justice and we cannot
give any direction in that behalf. But, we may point out that every
petitioner who files a special leave petition against (sic refusal) of bail
or anticipatory bail has an opportunity of mentioning his case before the
learned Chief Justice in his administrative capacity for urgent listing and
wherever a case deserves urgent listing, the Chief Justice makes an
appropriate order for urgent listing. It may, however, be pointed out that
this Court was never intended to be a regular court of appeal against
orders made by the High Court or the sessions court or the Magistrates. It
was created as an Apex Court for the purpose of laying down the law for the
entire country and extraordinary jurisdiction for granting special leave
was conferred upon it under Article 136 of the Constitution so that it
could interfere whenever it found that law was not correctly enunciated by
the lower courts or tribunals and it was necessary to pronounce the correct
law on the subject. This extraordinary jurisdiction could also be availed
by the Apex Court for the purpose of correcting grave miscarriage of
justice, but such cases would be exceptional by their very nature...”.
We have given our earnest consideration to the submissions of the counsel
on either side.
We may observe at the outset that we are conscious of the limitations which
bind us while entertaining a plea against grant of bail by the lower court,
that too, which is a superior court like High Court. It is expected that
once the discretion is exercised by the High Court on relevant
considerations and bail is granted, this Court would normally not interfere
with such a discretion, unless it is found that the discretion itself is
exercised on extraneous considerations and/or the relevant factors which
need to be taken into account while exercising such a discretion are
ignored or bypassed. In the judgments relied upon by the learned counsel
for the respondent, which have already been noticed above, this Court
mentioned the considerations which are to be kept in mind while examining
as to whether order of bail granted by the court below was justified.
There have to be very cogent and overwhelming circumstances that are
necessary to interfere with the discretion in granting the bail. These
material considerations are also spelled out in the aforesaid judgments,
viz. whether the accused would be readily available for his trial and
whether he is likely to abuse the discretion granted in his favour by
tampering with the evidence. We have kept these very considerations in
mind while examining the correctness of the impugned order.
We may also, at this stage, refer to the judgment in the case of Puran v.
Rambilas & Anr.[5], wherein principles while dealing with application for
bail as well as petition for cancellation of bail were delineated and
elaborated. Insofar as entertainment of application for bail is concerned,
the Court pointed out that reasons must be recorded while granting the
bail, but without discussion of merits and demerits of evidence. It was
clarified that discussing evidence is totally different from giving reasons
for a decision. This Court also pointed out that where order granting bail
was passed by ignoring material evidence on record and without giving
reasons, it would be perverse and contrary to the principles of law. Such
an order would itself provide a ground for moving an application for
cancellation of bail. This ground for cancellation, the Court held, is
different from the ground that the accused misconducted himself or some new
facts call for cancellation.
The present case falls in the former category as the appellant is not
seeking cancellation of bail on the ground that the respondent misconducted
himself after the grant of bail or new facts have emerged which warrant
cancellation of bail. That would be a case where conduct or events based
grant of bail are to be examined and considered. On the other hand, when
order of grant of bail is challenged on the ground that grant of bail
itself is given contrary to principles of law, while undertaking the
judicial review of such an order, it needs to be examined as to whether
there was arbitrary or wrong exercise of jurisdiction by the Court granting
bail. If that be so, this Court has power to correct the same.
Keeping in view the aforesaid consideration, we proceed to discuss this
matter.
It is a matter of record that when FIR was registered against the
respondent and on the basis of investigation he was sought to be arrested,
the respondent had avoided the said arrest. So much so, the prosecution
was compelled to file an application under Section 82 of Cr.P.C. before the
trial court and the trial court even initiated the process under Section 83
of Cr.P.C. At that stage only that the respondent surrendered before the
trial court and was arrested.
The respondent's application was dismissed by the Additional Sessions Judge
vide orders dated 30.05.2016. While passing this order of rejection, the
trial court was persuaded by the submission of the Prosecutor that direct
and specific allegations had been levelled against the respondent of
committing rape upon the victim minor girl and he was identified by the
victim during the course of investigation while he was walking in the P.O.
House. It was also noted that prayer for bail of co-accused Sandeep Suman
@ Pushpanjay had already been rejected and the case of the respondent was
on graver footing and also that the respondent had a long criminal diary,
as would be evident from the Case Diary produced before the Court.
It has also come on record that the prosecutrix had her family members made
representations claiming that the respondent is threatening the family
members of the prosecutrix. So much so, having regard to several
complaints of intimidation of witnesses made on behalf of the prosecutrix
and her family members, the State administration has deputed a force of 1+4
for the safety and security of the prosecutrix and her family.
In spite of the aforesaid material on record, the High Court has made
casual and cryptic remarks that there is no material showing that the
accused had interfered with the trial by tampering evidence. On the other
hand, it has discussed the merits of the case/evidence which was not called
for at this stage. No doubt, in a particular case if it appears to the
court that the case foisted against the accused is totally false, that may
become a relevant factor while considering the bail application. However,
it can be said at this stage that the present case falls in this category.
That would be a matter of trial. Therefore, the paramount consideration
should have been as is pointed out above, whether there are any chances of
the accused person fleeing from justice or reasonable apprehension that the
accused person would tamper with the evidence/trial if released on bail.
These aspects are not dealt with by the High Court appropriately and with
the seriousness they deserved. This constitutes a sufficient reason for
interfering with the exercise of discretion by the High Court.
The High Court also ignored another vital aspect, namely, while rejecting
the bail application of co-accused, the High Court had ordered expeditious,
nay, day-to-day trial to ensure that the trial comes to an end most
expeditiously. When order had already been passed to fast-track the trial,
and the application for bail by co-accused Sandeep Suman @ Pushpanjay was
also rejected, the High Court, while considering the bail application of
the respondent, was supposed to take into consideration this material fact
as well. Further, while making a general statement of law that the accused
is innocent, till proved guilty, the provisions of Section 29 of POCSO Act
have not been taken into consideration, which reads follows:
“29. Presumption as to certain offence: Where a person is prosecuted for
committing or abetting or attempting to commit any offence under sections
3, 5, 7 and section 9 of this Act, the Special Court shall presume, that
such person has committed or abetted or attempted to commit the offence, as
the case may be unless the contrary is proved.”
Keeping in view all the aforesaid considerations in mind, we are of the
opinion that it was not a fit case for grant of bail to the respondent at
this stage and grave error is committed by the High Court in this behalf.
We would like to reproduce following discussion from the judgment in the
case of Kanwar Singh Meena v. State of Rajasthan & Anr.[6]:
“10...While cancelling bail under Section 439(2) of the Code, the primary
considerations which weigh with the court are whether the accused is likely
to tamper with the evidence or interfere or attempt to interfere with the
due course of justice or evade the due course of justice. But, that is not
all. The High Court or the Sessions Court can cancel bail even in cases
where the order granting bail suffers from serious infirmities resulting in
miscarriage of justice. If the court granting bail ignores relevant
materials indicating prima facie involvement of the accused or takes into
account irrelevant material, which has no relevance to the question of
grant of bail to the accused, the High Court or the Sessions Court would be
justified in cancelling the bail. Such orders are against the well
recognized principles underlying the power to grant bail. Such orders are
legally infirm and vulnerable leading to miscarriage of justice and absence
of supervening circumstances such as the propensity of the accused to
tamper with the evidence, to flee from justice, etc. would not deter the
court from cancelling the bail. The High Court or the Sessions Court is
bound to cancel such bail orders particularly when they are passed
releasing accused involved in heinous crimes because they ultimately result
in weakening the prosecution case and have adverse impact on the society.
Needless to say that though the powers of this court are much wider, this
court is equally guided by the above principles in the matter of grant or
cancellation of bail.
xx xx xx
18. Taking an overall view of the matter, we are of the opinion that in
the interest of justice, the impugned order granting bail to the accused
deserves to be quashed and a direction needs to be given to the police to
take the accused in custody...”
As indicated by us in the beginning, prime consideration before us is to
protect the fair trial and ensure that justice is done. This may happen
only if the witnesses are able to depose without fear, freely and
truthfully and this Court is convinced that in the present case, that can
be ensured only if the respondent is not enlarged on bail. This importance
of fair trial was emphasised in Panchanan Mishra v. Digambar Mishra &
Ors.[7] while setting aside the order of the High Court granting bail in
the following terms:
“13. We have given our careful consideration to the rival submissions made
by the counsel appearing on either side. The object underlying the
cancellation of bail is to protect the fair trial and secure justice being
done to the society by preventing the accused who is set at liberty by the
bail order from tampering with the evidence in the heinous crime and if
there is delay in such a case the underlying object of cancellation of bail
practically loses all its purpose and significance to the greatest
prejudice and the interest of the prosecution. It hardly requires to be
stated that once a person is released on bail in serious criminal cases
where the punishment is quite stringent and deterrent, the accused in order
to get away from the clutches of the same indulge in various activities
like tampering with the prosecution witnesses, threatening the family
members of the deceased victim and also create problems of law and order
situation.”
Such sentiments were expressed much earlier as well by the Court in Talab
Haji Hussain v. Madhukar Purshottam Mondkar & Ors.[8] in the following
manner:
“6...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...”
We are conscious of the fact that the respondent is only an under-trial and
his liberty is also a relevant consideration. However, equally important
consideration is the interest of the society and fair trail of the case.
Thus, undoubtedly the courts have to adopt a liberal approach while
considering bail applications of accused persons. However, in a given
case, if it is found that there is a possibility of interdicting fair trial
by the accused if released on bail, this public interest of fair trial
would outweigh the personal interest of the accused while undertaking the
task of balancing the liberty of the accused on the one hand and interest
of the society to have a fair trial on the other hand. When the witnesses
are not able to depose correctly in the court of law, it results in low
rate of conviction and many times even hardened criminals escape the
conviction. It shakes public confidence in the criminal justice delivery
system. It is this need for larger public interest to ensure that
criminal justice delivery system works efficiently, smoothly and in a fair
manner that has to be given prime importance in such situations. After all,
if there is a threat to fair trial because of intimidation of witnesses
etc., that would happen because of wrongdoing of the accused himself, and
the consequences thereof, he has to suffer. This is so beautifully
captured by this Court in Masroor v. State of Uttar Pradesh & Anr.[9] in
the following words:
“15. There is no denying the fact that the liberty of an individual is
precious and is to be zealously protected by the courts. Nonetheless, such
a protection cannot be absolute in every situation. The valuable right of
liberty of an individual and the interest of the society in general has to
be balanced. Liberty of a person accused of an offence would depend upon
the exigencies of the case. It is possible that in a given situation, the
collective interest of the community may outweigh the right of personal
liberty of the individual concerned. In this context, the following
observations of this Court in Shahzad Hasan Khan v. Ishtiaq Hasan Khan
[(1987) 2 SCC 684] are quite apposite: (SCC p. 691, para 6)
“6… Liberty is to be secured through process of law, which is administered
keeping in mind the interests of the accused, the near and dear of the
victim who lost his life and who feel helpless and believe that there is no
justice in the world as also the collective interest of the community so
that parties do not lose faith in the institution and indulge in private
retribution.””
This very aspect of balancing of two interests has again been discussed
lucidly in Neeru Yadav v. State of Uttar Pradesh & Anr.[10] in the
following words:
“16. The issue that is presented before us is whether this Court can annul
the order passed by the High Court and curtail the liberty of the second
respondent? We are not oblivious of the fact that liberty is a priceless
treasure for a human being. It is founded on the bedrock of the
constitutional right and accentuated further on the human rights principle.
It is basically a natural right. In fact, some regard it as the grammar of
life. No one would like to lose his liberty or barter it for all the wealth
of the world. People from centuries have fought for liberty, for absence of
liberty causes sense of emptiness. The sanctity of liberty is the fulcrum
of any civilised society. It is a cardinal value on which the civilisation
rests. It cannot be allowed to be paralysed and immobilised. Deprivation of
liberty of a person has enormous impact on his mind as well as body. A
democratic body polity which is wedded to the rule of law, anxiously guards
liberty. But, a pregnant and significant one, the liberty of an individual
is not absolute. Society by its collective wisdom through process of law
can withdraw the liberty that it has sanctioned to an individual when an
individual becomes a danger to the collective and to the societal order.
Accent on individual liberty cannot be pyramided to that extent which would
bring chaos and anarchy to a society. A society expects responsibility and
accountability from its members, and it desires that the citizens should
obey the law, respecting it as a cherished social norm. No individual can
make an attempt to create a concavity in the stem of social stream. It is
impermissible. Therefore, when an individual behaves in a disharmonious
manner ushering in disorderly things which the society disapproves, the
legal consequences are bound to follow. At that stage, the court has a
duty. It cannot abandon its sacrosanct obligation and pass an order at its
own whim or caprice. It has to be guided by the established parameters of
law.
17. Coming to the case at hand, it is found that when a stand was taken
that the second respondent was a history-sheeter, it was imperative on the
part of the High Court to scrutinise every aspect and not capriciously
record that the second respondent is entitled to be admitted to bail on the
ground of parity. It can be stated with absolute certitude that it was not
a case of parity and, therefore, the impugned order [Mitthan Yadav v. State
of U.P., Criminal Misc. Bail Application No. 31078 of 2014, decided on 22-9-
2014 (All)] clearly exposes the non-application of mind. That apart, as a
matter of fact it has been brought on record that the second respondent has
been charge-sheeted in respect of number of other heinous offences. The
High Court has failed to take note of the same. Therefore, the order has to
pave the path of extinction, for its approval by this Court would
tantamount to travesty of justice, and accordingly we set it aside.”
In Ramesh & Ors. v. State of Haryana[11], which was decided only two days
ago i.e. on 22.11.2016, this Court discussed the problem of witnesses
turning hostile, and if that is for wrong reasons, observed that it affects
the very fabric of criminal justice delivery system. We would like to
reproduce following passages therefrom:
“40. On the analysis of various cases, following reasons can be discerned
which make witnesses retracting their statements before the Court and
turning hostile:
“(i) Threat/intimidation.
(ii) Inducement by various means.
(iii) Use of muscle and money power by the accused.
(iv) Use of Stock Witnesses.
(v) Protracted Trials.
(vi) Hassles faced by the witnesses during investigation and trial.
(vii) Non-existence of any clear-cut legislation to check hostility of
witness.”
41. Threat and intimidation has been one of the major causes for the
hostility of witnesses. Bentham said: “witnesses are the eyes and ears of
justice”. When the witnesses are not able to depose correctly in the court
of law, it results in low rate of conviction and many times even hardened
criminals escape the conviction. It shakes public confidence in the
criminal justice delivery system. It is for this reason there has been a
lot of discussion on witness protection and from various quarters demand is
made for the State to play a definite role in coming out with witness
protection programme, at least in sensitive cases involving those in power,
who have political patronage and could wield muscle and money power, to
avert trial getting tainted and derailed and truth becoming a casualty. A
stern and emphatic message to this effect was given in Zahira Habibullah's
case as well.
42. Justifying the measures to be taken for witness protection to enable
the witnesses to depose truthfully and without fear, Justice Malimath
Committee Report on Reforms of Criminal Justice System, 2003 has remarked
as under:
“11.3 Another major problem is about safety of witnesses and their family
members who face danger at different stages. They are often threatened and
the seriousness of the threat depends upon the type of the case and the
background of the accused and his family. Many times crucial witnesses are
threatened or injured prior to their testifying in the court. If the
witness is still not amenable he may even be murdered. In such situations
the witness will not come forward to give evidence unless he is assured of
protection or is guaranteed anonymity of some form of physical
disguise…Time has come for a comprehensive law being enacted for protection
of the witness and members of his family.”
43. Almost to similar effect are the observations of Law Commission of
India in its 198th Report (Report on 'witness identity protection and
witness protection programmes'), as can be seen from the following
discussion therein:
“The reason is not far to seek. In the case of victims of terrorism and
sexual offences against women and juveniles, we are dealing with a section
of society consisting of very vulnerable people, be they victims or
witnesses. The victims and witnesses are under fear of or danger to their
lives or lives of their relations or to their property. It is obvious that
in the case of serious offences under the Indian Penal code, 1860 and other
special enactments, some of which we have referred to above, there are
bound to be absolutely similar situations for victims and witnesses. While
in the case of certain offences under special statutes such fear or danger
to victims and witnesses may be more common and pronounced, in the case of
victims and witnesses involved or concerned with some serious offences,
fear may be no less important. Obviously, if the trial in the case of
special offences is to be fair both to the accused as well as to the
victims/witnesses, then there is no reason as to why it should not be
equally fair in the case of other general offences of serious nature
falling under the Indian Penal Code, 1860. It is the fear or danger or
rather the likelihood thereof that is common to both cases. That is why
several general statutes in other countries provide for victim and witness
protection.”
No doubt, the prosecutrix has already been examined. However, few other
material witnesses, including father and sister of the prosecutrix, have
yet to be examined. As per the records, threats were extended to the
prosecutrix as well as her family members. Therefore, we feel that the High
Court should not have granted bail to the respondent ignoring all the
material and substantial aspects pointed out by us, which were the relevant
considerations.
For the foregoing reasons, we allow this appeal thereby setting aside the
order of the High Court. In case the respondent is already released, he
shall surrender and/or taken into custody forthwith. In case he is still in
jail, he will continue to remain in jail as a consequence of this judgment.
Before we part with, we make it clear that this Court has not expressed any
observations on the merits of the case. Whether the respondent is guilty
or not, of the charges framed against him, will be decided by the trial
court on its own merits after analysing the evidence that surfaces on
record during the trial.
.............................................J.
(A.K. SIKRI)
.............................................J.
(ABHAY MANOHAR SAPRE)
NEW DELHI;
NOVEMBER 24, 2016.
-----------------------
[1] (1964) 3 SCR 480
[2] (1978) 2 SCC 411
[3] (1984) 1 SCC 284
[4] (1986) 4 SCC 767
[5] (2001) 6 SCC 338
[6] (2012) 12 SCC 180
[7] (2005) 3 SCC 143
[8] 1958 SCR 1226
[9] (2009) 14 SCC 286
[10] (2014) 16 SCC 508
[11] Criminal Appeal No. 2526 of 2014 decided on November 22, 2016
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