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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.