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CASE NO.: Appeal (crl.)  1172 of 2006

PETITIONER: Rajesh Ranjan Yadav @ Pappu Yadav

RESPONDENT: CBI through its Director

DATE OF JUDGMENT: 16/11/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T (Arising out of Special Leave Petition (Criminal) No. 2327 of 2006)

MARKANDEY KATJU, J.

       Leave granted.

       This appeal under Article 136 of the Constitution of India has been  filed against the impugned judgment and order dated 27.4.2006 of the Patna  High Court by which the appellant’s application for bail has been dismissed,  but with the following observations:

"Since the petitioner has actually remained in custody in  connection with the present case for about 5 years and 7 months  as per submission on behalf of petitioner, hence, considering  the spirit of the last order of the Apex Court dated 3.10.05, the  trial court is directed to hold trial at least for about three days in  a week on an average so that the examination of prosecution  witnesses may be concluded without any delay preferably  within three months.  Thereafter, the court shall ask the defence  to submit the list of its wi5tnesses and make efforts to conclude  the trial expeditiously, preferably within six months.  If the trial  cannot conclude within the aforesaid period of six months from  today, the petitioner would be at liberty to renew his pray for  bail.

With this observation, this application for bail is  dismissed at this stage."

       The appellant is an accused in a case under Sections 302/34/120B IPC  read with Section 27 of the Arms Act.  The appellant’s bail application had  been rejected earlier on several occasions by the High Court as well as by  this Court.  The last order of this Court dated 3.10.2005 states as under:

"Having heard the learned senior counsel appearing for the  petitioner, we are of the opinion that the application for bail  may not be entertained at this stage.  The special leave petition  is dismissed.  However, we would request the learned Sessions  Judge to expedite the trial.  If the trial is not completed within a  period of six months from today, it would be open to the  petitioner to renew the bail application.  Learned Sessions  Judge may consider the desirability of directing the CBI to  examine the important witnesses at an early date and preferably  within a period of four months."

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We have been informed that now all the prosecution witnesses have  been examined and cross-examined, and only the defence witnesses have to  be examined.

       Shri R.K. Jain, learned senior counsel appearing for the appellant  stated that 60/70 defence witnesses are proposed to be examined and some  more defence witnesses on behalf of other accused are to be examined.   Hence, he submitted that it would take a long time to examine these  witnesses.  He submitted that the appellant has been in jail for more than six  years and hence he should be released on bail.  Learned counsel also  submitted that if ultimately the appellant is found innocent by the trial court,  he would have undergone a long period of incarceration in jail which would  be violative of Article 21 of the Constitution.  

       The appellant is a 4th term Member of Parliament (Lok Sabha) and  learned counsel for the appellant has submitted that as per the material on  record there appears to be no prima facie evidence that the appellant is guilty  of the charges of offence.

Learned counsel for the appellant relied on the decision of this Court  in Babu Singh & Ors vs. State of Uttar Pradesh AIR 1978 SC 527.  In  paragraph 8 of the said judgment it was observed as under:

       "Personal liberty, deprived when bail is refused, is too  precious a value of our constitutional system recognized under  Art. 21 that the crucial power to negate it is a great trust  exercisable, not casually but judicially, with lively concern for  the cost to the individual and community.  To glamorize  impressionistic orders as discretionary may, on occasions, make  a litigative gamble decisive of a fundamental right.  After all,  personal liberty of an accused or convict is fundamental,  suffering lawful eclipse only in terms of procedure established  by ’law’.  The last four words of Art. 21 are the life of that  human right."

Learned counsel for the appellant then relied on the decision of this  Court in Kashmira Singh vs. State of Punjab 1977(4) SCC 291.  In  paragraph 2 of the said decision it was observed as under:

"It would indeed be a travesty of justice to keep a person in jail  for a period of five or six years for an offence which is  ultimately found not to have been committed by him.  Can the  Court ever compensate him for his incarceration which is found  to be unjustified?  Would it be just at all for the Court to tell a  person: "We have admitted your appeal because we think you  have a prima facie case, but unfortunately we have no time to  hear your appeal for quite a few years and, therefore, until we  hear your appeal, you must remain in jail, even though you may  be innocent?"  What confidence would such administration of  justice inspire in the mind of the public?  It may quite  conceivably happen, and it has in fact happened in a few cases  in this Court, that a person may serve out his full term of     imprisonment before his appeal is taken up for hearing.  Would  a judge not be overwhelmed with a feeling of contrition while  acquitting such a person after hearing the appeal?  Would it not  be an affront to his sense of justice?   Of what avail would the  acquittal to be such a person who had already served out his  term of imprisonment or at any rate a major part of it?  It is,  therefore, absolutely essential that the practice which this Court  has been following in the past must be reconsidered and so long  as this Court is not in a position to hear the appeal of an  accused within a reasonable period of time, the Court should  ordinarily, unless there are cogent grounds for acting otherwise,

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release the accused on bail in cases where special leave has  been granted to the accused to appeal against his conviction and  sentence."

Learned counsel for the appellant then relied on the decision of this  Court in Bhagirathsinh vs. State of Gujarat 1984 (1) SCC 284, Shaheen  Welfare Association  vs. Union of India & Ors. 1996(2) SCC 616,  Joginder Kumar vs. State of U.P. & Ors. 1994(4) SCC 260 etc.

In our opinion none of the aforesaid decisions can be said to have laid  down any absolute and unconditional rule about when bail should be granted  by the Court and when it should not.  It all depends on the facts and  circumstances of each case and it cannot be said there is any absolute rule  that because a long period of imprisonment has expired bail must necessarily  be granted.

As observed by this Court in State of U.P. vs. Amarmani Tripathi  2005(8) SCC 21, vide paragraph 18:

"It is well settled that the matters to be considered in an  application for bail are (i) whether there is any prima facie or  reasonable ground to believe that the accused had committed  the offence; (ii) nature and gravity of the charge; (iii) severity  of the punishment in the event of conviction; (iv) danger of the  accused absconding or fleeing, if released on bail; (v) character,  behaviour, means, position and standing of the accused; (vi)  likelihood of the offence being repeated; (vii) reasonable  apprehension of the witnesses being tampered with; and (viii)  danger, of course, of justice being thwarted by grant of bail [see  Prahlad Singh Bhati v. NCT, Delhi [2001(4) SCC 280] and  Gurcharan Singh v. State (Delhi Admn.[(1978(1) SCC 118].   While a vague allegation that the accused may tamper with the  evidence or witnesses may not be a ground to refuse bail, if the  accused is of such character that his mere presence at large  would intimidate the witnesses or if there is material to show  that he will use his liberty to subvert justice or tamper with the  evidence, then bail will be refused.  We may also refer to the  following principles relating to grant or refusal of bail stated in  Kalyan Chandra Sarkar v. Rajesh Ranjan [(2004(7) SCC 528  pp. 535-36, para 11]:  

"11. The law in regard to grant or refusal of bail is  very settled.  The court granting bail should exercise its  discretion in a judicious manner and not as a matter of  course.  Though at the stage of granting bail a detailed  examination of evidence and elaborate documentation of  the merit of the case need not be undertaken, there is a  need to indicate in such orders reasons for prima facie  concluding why bail was being granted particularly  where the accused is charged of having committed a  serious offence.  Any order devoid of such reasons would  suffer from non-application of mind.  It is also necessary  for the court granting bail to consider among other  circumstances, the following factors also before granting  bail; they are:

(a)  The nature of accusation and the severity of  punishment in case of conviction and the nature of  supporting evidence.                           (b)   Reasonable apprehension of tampering with  the witness or apprehension of threat to the complainant.       

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(c)   Prima facie satisfaction of the court in support  of the charge. (See Ram Govind Upadhyay v. Sudarshan  Singh 2002(3) SCC 598 and Puran v. Rambilas 2001 (6)  SCC 338).

This Court also in specific terms held that (SCC pp.536- 37, para 14):                  "The condition laid down under Section  437 (1)(i) 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 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 entitled the accused to be 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."                                                                  (emphasis supplied) The above decisions have referred to the decision of this Court in the  appellant’s own case Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu  Yadav & anr. 2004(7) SCC 528 in which it was clearly held that the mere  fact that the accused has undergone a long period of incarceration by itself  would not entitle him to be enlarged on bail.

It may further be mentioned that in another case of the appellant  Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav & anr.  2005(3) SCC 284 where he sought bail, it was observed by this Court as  under:

"In the normal course one would have expected an accused  whose bail has been cancelled and who was intending to make  an application for grant of bail to behave in a manner not to  give any room for the prosecution to contend that he has been  misusing the facilities available to him in law while he is in jail.   But it seems, it is not the attitude of the respondent.

       Immediately after cancellation of bail by this Court the  respondent had moved a fresh application before the High  Court for grant of bail which came to be allowed by the order of  the High Court dated 21-9-2004 and pursuant to the said order  of bail the respondent came to be released from jail.  The said  order of the High Court granting bail was challenged before this  Court by the complainant and the investigating agency (CBI)  but what happened in between is worth noticing.  On 26-9-2004  when the respondent was out of jail because of the bail granted  by the High Court, he instead of getting himself treated for the  ailment which he was complaining of, it is alleged that he was  hosting a party for his co-prisoners in the jail late in the night of    that day.  While the authorities in the reports submitted  pursuant to the directions issued by this Court did not admit that  a party was given by the accused on 26-9-2004 they did admit  that between 9.30 p.m. to 10.00 p.m. on that night the  respondent did unauthorizedly visit the jail contrary to all  restrictions on the entry to the jail under the Jail Manual. A  complaint in regard to this unauthorized entry of the respondent

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to the prohibited areas of the jail premises is registered and  based on the direction issued by the High Court of Patna, an  investigation is going on in this regard and some of the jail  authorities have been transferred.

       On 1-10-2004 this Court while entertaining the appeal of  the complaint against the grant of bail by the High Court  directed the respondent to surrender to custody forthwith.   Consequent to which he was taken back to custody.

       It has also come on record that while in judicial custody  the respondent was using cell phone which was seized from  him and he was closely interacting with hardcore criminals who  were undergoing jail sentence or are undertrial prisoners.  

Respondent 1 while in judicial custody has been accused  of hatching a conspiracy to murder one Dimple Mehta in  relation whereto a first information report being Purnea Sadar  PS Case No.  159 of 2004 has been lodged on 28-9-2004 under  Sections 302/120-B/34 IPC and Section 27 of the Arms Act.

It appears from the order-sheet dated 25-2-2003 of the  Court of Additional Sessions Judge, XI Patna that the informant  Shri Kalyan Chandra Sarkar had been given threats by veteran  criminals and, thus, the Senior SP of Patna as well as SP was  directed to make proper security arrangement for him and his  family members.

Para 3.12 of the report submitted by the Central Bureau  of Investigation in response to this Court’s order dated 2-12- 2004 is as under:

"3.12.  Investigation further reveals that Shri  Dipak Kumar Singh, IAS, the Inspector General of  Prisons had on 1-11-2004, forwarded a report of the  Special Branch dated 30-10-2004, that Shri Rajesh  Ranjan @ Pappu Yadav was meeting several visitors in  the Administrative Block of Beur Jail (not the specified  meeting place for visitors to the jail) and more  significantly, that several such visitors, who entered the  jail under the pretext of meeting him  (Shri Pappu Yadav)  were actually meeting other dreaded hardcore criminals  lodged in the jail.  The Inspector General of Prisons had  also urged the Jail Superintendent to allow interviews  with prisoners in strict accordance with the provisions of  the Jail Manual."

It is now beyond any controversy that such visits by a  large number of persons inside the jail are in violation of the  provisions of the Bihar Jail Manual and in particular Rules 623,  626-628 thereof.  Even upon his election as a Member of  Parliament from Madhepura Constituency he was not entitled to  have such visitors having regard to the Special Rules for  Division 1 Prisoners, Rule 1000 which permits interviews only  once every fortnight and Rule 1001 which debars political  matters being included in the conversation.  These Rules also  stand violated.          Thus the material recorded hereinabove shows that the  respondent has absolutely no respect for rule of law nor is he in  any manner afraid of the consequences of his unlawful acts.   This is clear from the fact that some of the acts of the  respondent recorded hereinabove have been committed even  when his application for grant of bail is pending.

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The material on record also shows that the jail authorities  at Beur are not in a position to control the illegal activities of  this respondent for whatever reasons they may be."

The above observations clearly imply that the appellant’s conduct has  been such that he does not deserve bail. Learned counsel for the appellant further relied on the decision of this  Court in Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra &  anr. 2005 (5) SCC 294.  In paragraph 35 of the said decision it was observed  as under:

"Presumption of innocence is a human right.(See  Narendra Singh vs. State of M.P.,[(2004(10) SCC 699 para 31].   Article 21 in view of its expansive meaning not only protects  life and liberty but also envisages a fair procedure.  Liberty of a  person should not ordinarily be interfered with unless there  exists cogent grounds therefore.  Sub-section (4) of Section 21  must be interpreted keeping in view the aforementioned  salutary principles.  Giving an opportunity to the Public  Prosecutor to oppose an application for release of an accused  appears to be reasonable restriction but clause (b) of sub-section  (4) of Section 21 must be given a proper meaning."

Learned counsel for the appellant has repeatedly referred to Article 21  of the Constitution and on that basis has submitted that the appellant should  be released on bail particularly since he has already been imprisoned for  more than six years.

       We are of the opinion that while it is true that Article 21 is of great  importance because it enshrines the fundamental right to individual liberty,  but at the same time a balance has to be struck between the right to  individual liberty and the interest of society.  No right can be absolute, and  reasonable restrictions can be placed on them.  While it is true that one of  the considerations in deciding whether to grant bail to an accused or not is  whether he has been in jail for a long time, the Court has also to take into  consideration other facts and circumstances, such as the interest of the  society.

       It has been stated that the appellant has been a Member of Parliament  on four occasions.  In our opinion, this is wholly irrelevant.  The law is no  respecter of persons, and is the same for every one.

       A perusal of the FIR itself shows that it is a triple murder case, and the  incident was committed in broad day light with sophisticated weapons.  It is  true that the appellant was not named in the FIR, but it has come in the  statement before the Magistrate under Section 164 Cr.P.C. of one Ranjan  Tiwari that he and other assailants had been hired by the appellant to commit  this ghastly crime.

       We are not inclined to comment on the veracity or otherwise of the  statement of Ranjan Tiwari and other witnesses as it may influence the trial,  but looking at the allegations against the appellant both in the statement of  Ranjan Tiwari and other witnesses, we are of the opinion on the facts and  circumstances of the case, that this is certainly not a case for grant of bail to  the appellant, particularly since the prosecution witnesses have been  examined and now the defence witnesses alone have to be examined.  It  would, in our opinion, be wholly inappropriate to grant bail when not only  the investigation is over but even the trial is partly over, and the allegations  against the appellant are serious.

       The conduct of the appellant as noted in the decision in Kalyan  Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav & anr. 2005(3) SCC  284 (quoted above), is also such that we are not inclined to exercise our  discretion under Article 136 for granting bail to the appellant.  

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       Learned Addl. Solicitor General, Shri Amarendra Sharan, submitted  that the appellant himself was at least partly responsible for the delay in the  conclusion of the trial because most of the prosecution witnesses were cross- examined by his counsel for several days, mostly be asking irrelevant  questions, and this was deliberate dilatory tactics used for delaying the trial  so that on that basis the appellant may pray for bail.

       It is not necessary for us to go into this aspect of the matter because  we have already noted above that this is certainly not a case for grant of bail  to the appellant as the facts and circumstances of the case disclose.

       Learned counsel for the appellant then submitted that since the  appellant is not on bail, he cannot conduct his defence effectively.  In our  opinion if this argument is to be accepted, then logically in every case bail  has to be granted.  We cannot accept such a contention.

       On the facts and circumstances of the case, we find no merit in this  appeal.  The appeal is accordingly dismissed.  We, however, make it clear  that no further application for bail will be considered in this case by any  Court, as already a large number of bail applications have been rejected  earlier, both by the High Court and this Court.

       While we dismiss this appeal, we direct that the trial court shall ensure  that the defence witnesses are examined on a day-to-day basis in accordance  with a fixed time schedule so that the trial is completed as expeditiously as  possible and the judgment is delivered soon thereafter.  No costs.