07 November 1996
Supreme Court
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SRI CHANDRASWAMI Vs C.B.I.

Bench: J.S. VERMA,B.N. KIRPAL
Case number: Crl.A. No.-001912-001912 / 1996
Diary number: 79006 / 1996
Advocates: Vs P. PARMESWARAN


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PETITIONER: CHANDRASWAMI & ANOTHER ... APPELLANTS

       Vs.

RESPONDENT: CENTRAL BUREAU OF INVESTIGATION

DATE OF JUDGMENT:       07/11/1996

BENCH: J.S. VERMA, B.N. KIRPAL

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      A complaint  dated 25.8.1987 was received from one Shri Lakhu Bhai  Pathak of  U.K. whereupon  a case  under Section 120B read with Section 420 I.P.C. was registered against the appellants.      In brief,  the allegations of the aforesaid complainant were that  during the  year 1983,  the  appellants  came  in contact with  the complainant  Lakhu Bhai Pathak and led him to believe  that they  wielded sufficient influence in India to secure  for him  lucrative contracts  in  India.  It  was further alleged   that  in the  month of December, 1983, the appellants induced him to pay an amount of US$ one lakh for procuring a  contract for  him. This  amount was  alleged to have been  paid to  appellant  No.1,  Chandraswami,  by  two cheques, one  for US$  27,000, dated  29.12.1983 and another for US$  73,000, dated  30.12.1983. Both  the  cheques  were stated to have been handed over to appellant No.1 on January 4, 1984 in New York.      Both the appellants denied the aforesaid allegations as being  false   and  baseless.   However,  on  the  aforesaid complaint having  been lodged,  the appellants were arrested on 13.2.1988  but were  ordered to be released on bail, vide order  dated   17.2.1988  of   the   learned   Addl.   Chief Metropolitan Magistrate, New Delhi. While passing the order, some  conditions   were  imposed   including  one  that  the appellants  would   not  leave  the  country  without  prior permission  of   the  Court   and  they   would   join   the investigation as and when required.      On an application being filed, the High Court of Delhi, vide order  dated 4.8.1988,  allowed the  appellants  to  go abroad on  certain conditions.  Thereafter,  the  appellants went  abroad   on  a  number  of  occasions  after  securing permission  from   the  Delhi  High  Court.  The  last  such permission was granted under order dated 4.9.1995.      Pursuant  to   the  order   passed  by  this  Court  on 28.11.1995 in  a  Public  Interest  Litigation,  being  Writ Petition No.640  of 1995 (Anukul Chandra Pradhan v. U.O.I. & Anr.), which  was confirmed  by order  dated  2.4.1996,  the appellants have  been restrained from going abroad. In reply

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to the  aforesaid writ  petition, the respondent stated that the investigation  in the first information report lodged by Lakhu  Bhai   Pathak  was   still  pending.  Thereafter,  on 12.4.1996, the  respondent filed a charge-sheet in the Court of  the   Chief  Metropolitan  Magistrate  (C.M.M.),  Delhi, against the  two appellants.  The C.M.M.,  Delhi, vide order dated 2.5.1996,  took cognizance  of the  offence and issued non-bailable   warrants   against   both   the   appellants. Consequent thereto,  the appellants  were arrested in Madras on 2.5.1996  and  have  been  in  custody  since  then.  The appellants,  on   3.5.1996,   filed   an   application   for cancellation of  the non-bailable  warrants and  also  moved another  application   for  grant   of  bail.   Both   these applications were dismissed by the C.M.M. on 4.5.1996. He also  passed an order cancelling the bail granted earlier to the appellants on 17.2.1988.      The orders  dated 2.5.1996 and 4.5.1996 were challenged by appellant  No.1 under  Section 482  Cr.P.C. before before the  High   Court,  but  without  success.  By  order  dated 8.5.1996, the prayer for bail was rejected by the High Court of Delhi.  The three  main grounds  for rejecting bail were; (i) new  material had  come to light; the C.B.I. apprehended that the  appellants may tamper with the evidence; and (iii) the Supreme  Court had  restrained the appellants from going abroad in view of the apprehension expressed by the C.B.I.      Charges were  then framed by the C.M.M., Delhi, against the appellants  on 21.5.1996. Thereupon, another application for bail,  being Criminal  Misc.  (main)  No.1267/1996,  was filed in  the High Court of Delhi but the same was dismissed on 24.5.1996.  The trial of the appellants then commenced on 3.6.1996.      Applications for  bail were  again filed  by  appellant No.1 before the Additional Chief Metropolitan Magistrate and Special Judge,  Delhi but  were dismissed  on  6.6.1996  and 7.6.1996 respectively.      On 5th,  7th and  8th July, 1996, the complainant Lakhu Bhai Pathak  was examined  and partly cross-examined. On the basis of  his statement,  the C.M.M.  Delhi, vide  his order dated 9.7.19961  added the  former Prime  Minister of  India Shri P.V.  Narasimha Rao  as  an  accused  to  the  criminal conspiracy and he was summoned for the offence under Section 120(B)  read  with  Section  420  I.P.C.  The  summons  were returnable on  24.7.1996. The dates which were earlier fixed for recording of evidence in the trial were cancelled.      On 21.9.1996, charges were ordered to be framed against the newly  added accused  but no  further evidence has since been recorded.  Remaining cross-examination alone remains in the testimony of Lakhu Bhai Pathak.      In the  meantime, after  summons  were  issued  by  the C.M.M., Delhi,  to Narasimha  Rao, the  appellants moved yet another application  for bail  before the C.M.M., Delhi. The said application  too was  dismissed on  10.7.1996.  Another application for  bail was filed by the appellants before the C.M.M., Delhi,  but the  same  was  dismissed  on  3.8.1996. Thereupon  a  petition  under  Section  482  Cr.P.C.,  being Criminal Misc.(main)  No.2068/1996, was  filed in  the  High Court of  Delhi challenging  the said  order dated 3.8.1996. The main  contention which  was raised in the High Court was that the  prosecution evidence  had started on 23.6.1996 and as the  trial of  the appellants  had not concluded within a period of  60 days  from  the  first  date  for  taking  the evidence, they  were entitled  to be  released on bail under Section 437(6) of Cr.P.C.      The  High   Court  by   the  impugned   judgment  dated 17.9.1996, reiterated  its  earlier  order  dated  8.5.1996,

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whereby it  had held  that bail  could not be granted to the appellants as  there was  an apprehension  that they may, if released on  bail, tamper with the evidence or influence the witnesses. The  High Court  rejected the  contention of  the counsel for  the appellants  that the  provisions of Section 437(6) Cr.P.C.  gave a  mandate to the Court that in case of non-compliance of the provisions of the said Section, it had no option  but to  release the  appellants on bail observing that there  was strong  apprehension that the appellants may tamper with  the evidence  and influence  the witnesses,  if they were admitted to bal       It  was contended  by the learned counsel on behalf of the appellants,  challenging the  aforesaid  decision  dated 17.9.1996 of  the Delhi  High Court,  that the provisions of Section  437(6)  Cr.P.C.  were  clearly  applicable  in  the present case  and that  the appellants should be released on bail. It  was further  contended that,  taking all the facts and circumstances of the case into consideration, this was a fit case where the bail should not have been refused.      Mr. K.N.  Bhatt, learned  Additional Solicitor  General submitted  that  there  was  an  apprehension  that  if  the appellants  were   released  on  bail,  they  might  try  to influence the witnesses or tamper with the evidence.      We propose  to examine  the plea  for grant  of bail by looking at  the totality  of the  facts and circumstances of the case  at this  stage, without going into the question of interpretation or applicability of Section 437(6) Cr.P.C. So also, we  do not  propose to  examine if the cancellation of the bail  granted to the appellants earlier in point of time was justified.       The  complaint relates  to an  offence alleged to have been committed  by the  appellants nearly  16 years ago. Not much  progress  has  taken  place  in  the  conduct  of  the proceedings but  the examination-in-chief  and a part of the cross-examination of  the complainant, the main witness, has been completed.  The appellants  have been  in custody since 2.5.1996. The  only reason  put forth by the trial court, as well as  the High Court, for not releasing the appellants on bail is  that there  is an apprehension that they are likely to influence  the witnesses or tamper with the evidence. The main witness in the present case is the complainant himself, who has  been zealously pursuing this case since 1987. It is his perseverance  throughout these  long years that has made it possible  for the  case to  reach the  stage at  which it presently stands.  His commitment  to  see  the  prosecution reach its  logical end  is strong and he is not likely to be influenced by  the accused.  In spite  of our  query at  the hearing, the learned Additional Solicitor General was unable to point  out any  evidence which  could now  be tampered or influenced by  the accused. We are, therefore, not satisfied that if  the appellants  are released on bail, they would be in a  position to  influence the witnesses, the main witness being the complainant himself, or tamper with the evidence.      Section 437(1)  provides that  when any  person accused of, or  suspected of,  the Commission  of  any  non-bailable offence is  brought before  a Court,  he may  be released on bail unless  his case  falls in clauses (i) or (ii) thereof. The present  case is  not covered  by the  said two clauses. Therefore, ordinarily,  a person  who is suspected of having committed an  offence under  Section 120B  read with Section 420  I.P.C.  would  be  entitled  to  bail;  of  course  the paramount consideration  would always  be to ensure that the enlargement of  such persons on bail will not jeopardise the prosecution case.  Any such  likelihood is  not shown by the learned Additional  Solicitor General. Moreover, the learned

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counsel for  the C.B.I.  had admitted  before the High Court that there  was nothing to indicate any attempt of tampering by the  accused in  India or  abroad during  the long period available to  them earlier. There is no reasonable basis for such an  apprehension now  at this stage and in the existing circumstances.      It was  pointed out  from the  High Court’s order dated 8.5.1996, that  the statements  of W.E.  Millar and  Kishore Kamdar revealed  that the appellants had indulged in similar activity of  cheating a  number of persons and therefore the apprehension was  not misplaced. We failto see how that is a factor supporting  the apprehension  of  tampering  in  this case.      Looking at  the nature  of the offence which is alleged to have  been committed, and the facts and circumstances now in existence,  we are of the view that the appellants should be released  on ball in this case, subject to the imposition of the necessary conditions.  We make  it  clear  that  this order is  subject  to  the  requirement  of  the  appellants remaining  in  custody  by  virtue  of  any  order  made  in connection with  any other  crime by  the competent court or authority. This  is  so,  because  of  several  other  cases pending in  courts against  the appellants,  and some  other crimes alleged to have been committed by them.      Accordingly, without  expressing  any  opinion  on  the merits of  the case,  we direct  that both the appellants be released on  bail, unless  required to  be detained  by  any order made in any other case/crime, on their furnishing bail bonds for  a sum of Rs.one lakh each with one surety in like amount each.  But this  order is  subject to  the appellants strictly adhering to the following conditions:      (1) The  appellants will  not leave      the country;      (2) The  appellants shall  not make      any attempt  to  contact any of the      prosecution witnesses,  directly or      through any other person, or in any      other way  try to  tamper with  the      evidence or  influence any  witness      in this  case  or  any  other  case      against them  or  any  other  crime      under    investigation    by    any      government agency;      ( 3  ) If  the appellants desire to      go out  of Delhi,  they  shall give      prior information  to C.B.I.  about      their  programme,   including   the      places and addresses where they can      be contacted during that period;      (4) The  appellants shall cooperate      in  the  early  completion  of  the      trial and shall attend the hearings      unless exempted;      (5) The  appellants shall  intimate      the place  of their   residence and      shall not  change the  same without      prior intimation  to the respondent      of   their   intention   to   shift      elsewhere;      (6)  The   appellants  will  appear      before the concerned officer of the      C.B.I.  or   any  other  government      agency   whenever    required    in      connection with any crime or matter      under investigation.

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    The judgment  of the  High Court  is set aside and this appeal is disposed of in the aforesaid terms.