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CASE NO.:

Appeal (crl.) 324 of 2004

PETITIONER:

Kalyan Chandra Sarkar

RESPONDENT:

Rajesh Ranjan alias Pappu Yadav & Anr.

DATE OF JUDGMENT: 12/03/2004

BENCH:

N. Santosh Hegde & B. P. Singh

JUDGMENT:

J U D G M E N T

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

SANTOSH HEGDE, J.

Heard learned counsel for the parties.

Leave granted.

The appellant herein is the complainant in CBI Case

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

complaint, the first respondent herein conspired with the other

accused named in the said complaint to murder his brother Ajit

Sarkar who was then a MLA from Purnea constituency in the

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

Sarkar took place on 14.6.1998 when said Ajit Sarkar was

returning in his official car with 3 others after attending a

Panchayat. It is the prosecution case that some other accused

named in the complaint followed the car in which said Ajit

Sarkar was travelling on two motorbikes and attacked Ajit

Sarkar, his friends Asfaq Alam, Hamender Sharma and Ajit

Sarkar's bodyguard Ramesh Oraon with sophisticated weapons

consequent to which said Ajit Sarkar, Asfaq Alam and

Hamender Sharma died and Ramesh Oraon was seriously

injured. A complaint in this regard was registered with the

jurisdictional Police at the instance of the appellant and the

original investigation was initiated by the said Police. However,

when it was noticed that the said jurisdictional Police were not

conducting proper investigation, the same was transferred to the

Central Bureau of Investigation (CBI) which registered a fresh

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

view of political rivalry between the deceased and the first

respondent herein, the latter entered into a criminal conspiracy

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

pursuant to the said conspiracy on 12.6.1998 the first

respondent held a meeting with co-accused Harish Chaudhary

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

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

create an alibi for himself and Harish Chaudhary for their

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

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

the prosecution is that later on the first respondent from Delhi

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

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

Rajan Tiwari that he would provide the required fire-arms

through co-accused Harish Chaudhary. Pursuant to the said

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assurance, the prosecution alleges that on the date of the

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

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

revolver and another accused Amar Yadav armed with a .38

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

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

stated above, 3 persons including Ajit Sarkar died and his

bodyguard Ramesh Oraon suffered serious injuries. During the

course of investigation, some of the accused persons including

the first respondent were arrested and a chargesheet was filed

before the Additional Sessions Judge, XI at Patna in Sessions

Trial No.976 of 1999.

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

respondent had made a number of applications for grant of bail

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

the impugned order, the High Court allowed the application of

the first respondent and directed his release on bail on his

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

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

conditions mentioned therein.

Being aggrieved by the said order of the High Court

enlarging the said respondent on bail, the brother of the

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

respondent the CBI has supported the appellant in this appeal.

Mr. R F Nariman, learned senior counsel appearing for

the appellant contended that the crime committed by the

appellant is so heinous and gruesome that that by itself should

have been sufficient to reject the bail application of the first

respondent. He pointed out from the record that the first

respondent had filed an application for bail before the High

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

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

rejection of bail came to be dismissed by this Court on

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

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

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

application filed by the first respondent for grant of bail before

the High Court was rejected by the said court on 3.5.2000

which order became final because no SLP was filed before this

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

26.7.2000 which also came to be rejected against which no SLP

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

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

be allowed vide order dated 6.9.2000 and an appeal filed

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

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

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

sixth application for grant of bail which was rejected by the

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

respondent preferred a SLP to this Court which came to be

rejected on 7.12.2001. The seventh application was filed by the

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

dismissed on 13.3.2002 and a SLP filed against the said order

came to be dismissed on 10.5.2002. The learned counsel

submitted in this background the eighth attempt by the

respondent became successful and the High Court by its order

dated 23.5.2003 granted bail to the first respondent which is the

subject-matter of this appeal. The learned counsel then

submitted that though this Court in the earlier order of

cancellation of bail had specifically negatived the ground on

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

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

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very same grounds which the learned counsel submits amounts

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

the judgment of this Court that while cancelling the bail this

Court had decided certain questions of law which were binding

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

findings of this Court proceeded to make the impugned order

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

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

application of mind by the High Court to the provision of

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

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

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

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

mentioned therein shall not be released on bail if there appears

to be a reasonable ground for believing that such person is

guilty of an offence punishable with death or imprisonment for

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

also applicable to the courts entertaining a bail application

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

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

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

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

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

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

impugned order, therefore, on that ground also the impugned

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

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

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

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

accused is involved in heinous crimes. Learned counsel also

pointed out that the first respondent has misused his liberty by

interfering with the administration of justice.

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

appearing for the CBI supporting the appellant, contended that

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

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

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

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

dated 25.7.2001, this Court had specifically held the grounds on

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

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

an earlier order, the High Court while rejecting the bail

application had reserved liberty to renew the bail application

after framing of charge in the case, are by themselves

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

of the same the High Court again proceeded to grant bail

practically on the very same ground without there being any

change in the circumstances. Learned ASG also contended that

liberty reserved in the order of this Court dated 25.7.2001 that

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

first respondent, the High Court is free to consider such

application without being in any manner influenced by the

observations made in the said order of this Court would not

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

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

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

been no change in circumstances nor has the High Court given

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

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

6.9.2000. Learned counsel also contended that after the High

Court granted bail to the first respondent by the impugned order

on 23.5.2003, the first respondent has been indulging in

threatening witnesses. He pointed out from the records that after

the respondent was granted bail on 23.5.2003 by the High Court

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a number of witnesses who were examined had turned hostile

obviously because of the influence used and threats given to

these witnesses. From the material on record, learned counsel

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

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

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

was also under such threat thus, the first respondent has

misused the privilege of freedom granted to him by the High

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

influential personality and with the political power and

monetary clout which he wields freely to give threat to

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

further evidence. Learned counsel also pointed out from the

evidence that there is material on record to show the

involvement of the first respondent in the conspiracy to kill the

deceased.

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

the first respondent contended that the observations of this

Court in its judgment dated 25.7.2001 that while granting bail

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

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

incuriam being contrary to the wordings of the Section itself.

He submitted that the observations of this Court in the said

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

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

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

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

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

Magistrate under section 437 of the Code. Learned counsel

also pointed out that section 437 imposes a jurisdictional

embargo on grant of bail by courts other than the courts

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

and such a restriction is deliberately omitted in section 439 of

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

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

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

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

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

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

Mr. Tulsi also contended that the present appeal not

being one for cancellation of bail on the grounds contemplated

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

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

this Court should not interfere unless it is shown that the

respondent has violated the terms under which the bail was

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

evidence to implicate the first respondent in the charge of

conspiracy. He submitted that though the prosecution has

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

any evidence against the respondent. According to learned

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

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

This confession, according to learned counsel, is per se

inadmissible in evidence, hence, same cannot be of any

assistance to the prosecution. He countered the argument

addressed on behalf of the appellant that the witnesses have

turned hostile only after the first respondent was released on

bail. He submitted that many other witnesses who were

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

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

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

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

bail is cancelled, the respondent will have to suffer the

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imprisonment inspite of the fact that there is no acceptable

material to support the prosecution case.

Before we discuss the various arguments and the material

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

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

bailable offences.

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

settled. The Court granting bail should exercise its discretion in

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

stage of granting bail a detailed examination of evidence and

elaborate documentation of the merit of the case need not be

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

prima facie concluding why bail was being granted particularly

where the accused is charged of having committed a serious

offence. Any order devoid of such reasons would suffer from

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

granting bail to consider among other circumstances, the

following factors also before granting bail; they are,

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

in case of conviction and the nature of supporting evidence;

(b) Reasonable apprehension of tampering of the witness or

apprehension of threat to the complainant;

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

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

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

another (2001 (6) SCC 338).

In regard to cases where earlier bail applications have

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

subsequent application for grant of bail by noticing the grounds

on which earlier bail applications have been rejected and after

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

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

why in spite of such earlier rejection the subsequent application

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

Bearing in mind the above principles which on facts are

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

merits of the above appeal.

We have already noticed from the arguments of learned

counsel for the appellant that the present accused had earlier

made seven applications for grant of bail which were rejected

by the High Court and some such rejections have been affirmed

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

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

same was challenged before this Court and this Court accepted

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

India and another and cancelled the bail granted by the High

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

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

bail this Court specifically held that the fact that the present

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

and the further fact that while rejecting an earlier application,

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

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

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

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

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

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

incarceration already undergone by the accused and the

unlikelihood of trial concluding in the near future as grounds

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

the accused stands charged of offences punishable with life

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

opinion, the mere fact that the accused has undergone certain

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

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

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

either by itself or coupled with the period of incarceration

would be sufficient for enlarging the appellant on bail when the

gravity of the offence alleged is severe and there are allegations

of tampering with the witnesses by the accused during the

period he was on bail.

Learned counsel for the appellant as also learned

Additional Solicitor General have pointed out to us that there

are allegations of threatening of the witnesses and that the

prosecution has filed an application for the recall of witnesses

already examined which has been allowed, but the same is

pending in revision before the High Court. In such

circumstances the High Court could not have merely taken the

period of incarceration and the delay in concluding the trial as

grounds sufficient to enlarge the respondent on bail.

We notice from the impugned order that the High Court

has not adverted to the complaint of the investigating agency as

to the threat administered by the respondent to the witnesses as

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

after the respondent was enlarged on bail which are very

relevant circumstances to be borne in mind while granting bail.

Of course, the learned counsel for the respondent has pointed

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

witnesses had turned hostile. But the question for our

consideration is whether the High Court was justified in not

taking into consideration these facts while deciding to grant bail

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

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

itself was not proper.

Learned counsel for the respondent however, contended

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

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

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

these contentions since these allegations were frivolous.

Learned counsel in this regard submitted that the High Court

was justified in not giving any conclusive finding in regard to

some of the arguments addressed on behalf of the parties

because any such finding given by the High Court might have

prejudiced the pending trial.

We agree that a conclusive finding in regard to the points

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

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

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

"Giving reasons is different from discussing merits or demerits.

At the stage of granting bail a detailed examination of evidence

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

be undertaken. \005\005 That did not mean that whilst granting bail

some reasons for prima facie concluding why bail was being

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

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

expression of prima facie reasons for granting bail is a

requirement of law in cases where such orders on bail

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

appellate court has every right to know the basis for granting

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

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addressed by the learned counsel for the accused that the High

Court was not expected even to indicate a prima facie finding

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

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

established that a large number of witnesses who were

examined after the respondent was enlarged on bail had turned

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

threats administered by the respondent or his supporters to

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

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

investigating agency and ought to have given at least a prima

facie finding in regard to these allegations because they go to

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

consideration of these vital facts as to the allegations of threat

or inducement made to the witnesses by the respondent during

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

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

other ground apart from the ground of incarceration which

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

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

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

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

not sufficient either individually or coupled with the period of

incarceration to release the respondent on bail because of the

serious allegations of tampering of the witnesses made against

the respondent.

The next argument of learned counsel for the respondent

is that prima facie the prosecution has failed to produce any

material to implicate the respondent in the crime of conspiracy.

In this regard he submitted that most of the witnesses have

already turned hostile. The only other evidence available to the

prosecution to connect the respondent with the crime is an

alleged confession of the co-accused which according to the

learned counsel was inadmissible in evidence. Therefore, he

contends that the High Court was justified in granting bail since

the prosecution has failed to establish even a prima facie case

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

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

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

admissibility or otherwise of the confessional statement and the

effect of the evidence already adduced by the prosecution and

the merit of the evidence that may be adduced herein after

including that of the witnesses sought to be recalled are all

matters to be considered at the stage of the trial.

Before concluding, we must note though an accused has

a right to make successive applications for grant of bail the

court entertaining such subsequent bail applications has a duty

to consider the reasons and grounds on which the earlier bail

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

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

take a view different from the one taken in the earlier

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

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

also failed to take into consideration that at least on four

occasions order refusing bail has been affirmed by this Court

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

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

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

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

grounds which persuaded this Court to cancel the bail. Such

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

principle of binding nature of judgments of superior court

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

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ignore and thereby render ineffective the principles enunciated

therein which have a binding character.

For the reasons stated above, we are of the considered

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

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

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

trial being concluded in the near future, without taking into

consideration the other factors referred to hereinabove in this

judgment of ours.

This appeal, therefore, succeeds. The impugned order of

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

respondent are cancelled and the second respondent is directed

to take the first respondent into custody forthwith.