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CASE NO.: Appeal (crl.)  1248 of 2005

PETITIONER: State through C.B.I.                             

RESPONDENT: Amaramani Tripathi                                               

DATE OF JUDGMENT: 26/09/2005

BENCH: Ashok Bhan & R.V. Raveendran

JUDGMENT: J U D G M E N T  (Arising out of S.L.P. (CRL) NO.3503 OF 2004) With Criminal APPEAL NO.1249/2005 (Arising out of S.L.P. (Crl.) No.769 OF 2005)

State of U.P. through C.B.I.                            ...  Appellant                            Vs. Madhumani Tripathi                                       ...  Respondent

BHAN, J.  

       Leave granted.

       The State of Uttar Pradesh through CBI  aggrieved by the orders dated 29th April, 2004 and  8th July, 2004 passed by a Single Judge of Allahabad  High Court (Lucknow Bench) in Crl. Misc. Case  No.1402(B)/2004 and  No.1954(B)/2004 releasing the  accused Amarmani Tripathi (Accused No.5) and  Madhumani Tripathi (Accused No.4) on bail have  filed these appeals.  

       On 9th May, 2003 Madhumita Shukla was shot dead  in her house located in Paper Mill Colony by two  persons who were later on identified as Santosh  Kumar Rai and Prakash Chandra Pandey.   Investigation in the case revealed that Madhumita  Shukla was killed pursuant to a conspiracy  involving Amarmani Tripathi and his wife Smt.  Madhumani Tripathi, Nidhi Shukla lodged a Report in  regard to the blind murder of her sister Madhumita  Shukla on 9.5.2003 in the Mahanagar Police Station,  Lucknow.  The case was transferred to Crime Branch,  CID on 17.5.2003.  On a request made by the State  on  17.6.2003, the CBI took over the investigation.

The case of the prosecution in brief is as  follows:

Amarmani Tripathi, a Minister in the U.P.  Government, at the relevant time, was having an  affair with deceased Madhumita Shukla, a young  Poetess.  This led to Madhumita’s pregnancy thrice.   On the first two occasions, the pregnancy was

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aborted at the instance of Amarmani.  On the third  occasion, inspite of pressure and persuasion by  Amarmani, Madhumita refused to abort the pregnancy.   The post-mortem revealed a six month old foetus in  her womb.  D.N.A. test of the foetus established  the paternity of Amarmani.

Madhumani Tripathi, wife of Amarmani, was upset  when she learnt about the illicit intimacy between  Amarmani and the deceased.  She made several calls  to the deceased and her family members to threaten  and abuse them.  During the end of March, 2003  Madhumani Tripathi informed one Rohit Chaturvedi  (cousin of Amarmani)  that she was troubled by her  husband’s relationship with Madhumita and requested  him to help her to teach a ’lesson’ to Madhumita.   Rohit Chaturvedi, therefore, introduced one Santosh  Rai as a person who can help her. Madhumani told  Santosh Rai that  Madhumita should be finished,  whatever be the expense.   

On 14.4.2003 when Rohit Chaturvedi came to  Lucknow, Madhumani asked him  to instruct Santosh  Rai to do the work assigned to him without delay.   On the same evening Rohit Chaturvedi informed  Amarmani that Bhabhi Madhumani wanted Madhumita to  be eliminated.  Amarmani told Rohit that it may be  done taking care to see that his name was not  linked to the incident.  He also stated that being  a Minister in the U.P. Govt., shall protect them.   Amarmani was no longer interested in Madhumita as  she was becoming a nuisance and he had found other  interests.  Amarmani felt that if Madhumita gave  birth to the love-child, it could adversely affect  his image as a politician and Minister and also  cause problem in his family.

Madhumani kept on pressing Rohit  to get the  work done.  On 1.5.2003 Madhumani told him that all  limits have been crossed and action should be taken  immediately.  Madhumani rang up Rohit several times  to tell Santosh Rai to do her work and Rohit passed  on the message to Satonsh Rai.  Santosh Rai met  Madhumani in this connection on 5.5.2003.     Santosh Rai assured Rohit that the work will be  done within 2 to 4 days.   In pursuance of it, on  9.5.2003 Santosh Rai along with Prakash Pandey went  to the house of Madhumita and shot her with a  country made pistol (katta) from close range,  resulting in her death.   

According to the prosecution, the murder of  Madhumita was a result of the conspiracy among  Madhumani, Amarmani, Rohit Chaturvedi, Santosh Rai  and Prakash Pandey.  Amarmani was arrested on  23.9.2003.  On 19.12.2003 a charge-sheet was filed  against six accused, namely, (1) Santosh Kumar Rai  @ Satya Prakash, (2) Prakash Chander Pandey @  Pappu, (3) Rohit Chaturvedi, (4) Madhumani  Tripathi, (5) Amarmani Tripathi and (6) Yagya  Narain Dixit.  On the date of filing of the  chargesheet, accused no.4, Madhumani Tripathi,  was  absconding. However, when the first bail  application filed by Amarmani Tripathi was rejected  by the High Court by order dated 11.3.2004 on the

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ground that the co-accused (Madhumani Tripathi) had  not surrendered, Madhumani surrendered on  25.3.2004.

Amarmani made a second bail application under  Section 439 Cr.P.C. in Crl. Misc. Case  No.1402(B)/2004.  The High Court by order dated  29.4.2004 granted bail to Amarmani on the following  reasoning: a)      The entire theory of Amarmani being part of  the conspiracy to murder Madhumita was based  on the confessional statement of the co- accused Rohit Chaturvedi (recorded on  17.11.2003 by Vikas Dhul, Metropolitan  Magistrate, at New Delhi). Rohit had made  his confession conditional of being treated  as an approver.  Rohit had subsequently   retracted from the confession. The  admissibility of the confession against a  co-accused is doubtful. b)      Normally, Courts should first examine the  material,  other than the confessional  statement of a co-accused, to find out  if  there is any evidence of  conspiracy/abetment.  The confessional  statement of a co-accused should be  considered only as a supporting piece of  evidence, and not as the substantive  evidence against an accused.  The  confessional statement of a co-accused, more  so, one that has been retracted, cannot be  made the foundation for establishing the  guilt of an accused.  In this case, if the  said confessional statement of Rohit is  excluded, there is no evidence, direct or  otherwise to show that Amarmani was in any  manner,  party to the conspiracy to kill  Madhumita. c)      The other material relied on by the  prosecution against Amarmani are: (i)  illicit relationship between Amarmani and  the deceased; (ii) DNA test report showing  that Amarmani was the father of the foetus  in the womb of the deceased; (iii) pressure  applied by Amarmani on the deceased to abort  the pregnancy; (iv) undated letter of the  deceased addressed to Amarmani finding fault  with him for ignoring her.  These were yet  to be tested in trial.  More importantly it  cannot be said that the only inference that  can be drawn from the said material is that  Amarmani was a party to the conspiracy to  murder the deceased.  These material can  only lead to an inference that the conduct  of Amarmani was immoral and that there was  an effort on his part to cover up such  conduct and nothing more. d)      The criminal history of the accused Amarmani  (20 criminal cases ending in acquittal and 4  cases pending including a case of  kidnapping) cannot be a ground to refuse  bail. e)      The contention of the CBI that the  investigation was still in progress in  pursuance of the permission for further

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investigation granted by the High Court by  order dated 8.4.2004 under Section 173(8) of  the Cr.P.C. was not tenable as such further  investigation was only in regard to  Madhumani and not in regard to Amarmani.   Charge-sheet had already been submitted.   Madhumani was in jail and shall remain  available for interrogation, if any, by CBI.   f)      Amarmani was in jail since September, 2003  The investigation was already concluded.   There was no chance of Amarmani either  fleeing, or tampering with the witnesses.   There was nothing to connect the  disappearance of the domestic servants of  Amarmani, with him, whom CBI wanted to  interrogate.   If it was found at any stage  that he was not co-operating in the trial of  the case or found to be tutoring/maneuvering  any witness, CBI can move an application for  cancellation of bail at that stage.  

Amarmani’s wife Madhumani applied to the  Sessions Judge, Lucknow for bail in Crl. Misc.  Case N.960/2004.  It was rejected by order dated  20.4.2004.  Thereafter she approached the High  Court for bail in Crl. Misc. Case No.1954(B) of  2004.  The High Court granted bail to Madhumani  by order dated 8.7.2004 on the following  reasoning: a) Madhumani is not the main accused, but only an  alleged    conspirator/abettor.  Her husband,  whom the Prosecution considers to be the main  conspirator had already been granted bail and  grounds on which he was granted bail are also  available for granting bail to her. b) Madhumani is only a housewife without any  criminal antecedents.  She has not been named  in the FIR or in the statements of Nidhi Shukla  and Desraj (servant of the deceased) recorded  under Section 161 Cr.P.C.  Her name came to be  linked with the murder for the first time in  the confessional statement of Rohit made on  17.11.2003.  The admissibility of such  confessional statement, particularly,  against  a co-accused is doubtful and that question has  to be considered at the time of trial. c)      There is no allegation that Madhumani made  any attempt to tamper with the evidence.  She  was available for interrogation on 4.8.2003 and  6.9.2003. When she moved an application on  24.9.2003 for surrender, the special Judicial  Magistrate, CBI by order dated 6.10.2003,  rejected the application for surrender  on the  ground that she was not wanted till that date.   All circumstances show that Madhumani was  available from the date of incident till  6.10.2003.  Though she was said to be  absconding after her name cropped up in the  conspiracy, she subsequently surrendered before  Court when the first application of Amarmani  for bail was rejected on the ground that she  was absconding.  There is no chance of her  fleeing.  d) The entire material against her regarding  intimacy between her husband and the deceased

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and subsequent developments is purely based on  circumstances and the  evidence indicated only  a possible motive.  The mobile phone calls  attributed to her and printouts relating  thereto are not sufficient to infer any  conspiracy, as the Mobile phones used were not  in her name, but in the name of her husband.   The Parchi allegedly handed over by her to the  hired killers (containing the name, address and  telephone numbers of the deceased)  is yet to  be proved as being in her handwriting. e) The prosecution case is based on two  contradictory theories of conspiracy, one  hatched by her husband, the other hatched by  her, by joining hands with her husband.  f)  The sessions court committed an error in  rejecting her bail application being influenced  by the fact that it is a media highlighted case  and by the fact that her husband is an  influential person.  

Being aggrieved by the two orders of the  Allahabad High Court granting bail to Amarmani  and Madhumani, the State has approached this  Court. Shri Gopal Subramanium, learned Additional  Solicitor General appearing for the petitioner,  submitted that the material on record, before the  High Court clearly disclosed the following  position: i)      That the murder of pregnant Madhumita, a  heinous crime, was committed in pursuance of  a conspiracy hatched by accused 1 to 5.  The  murder was committed by the  killers  (accused 1 & 2), hired by accused no.4 with  the concurrence, support and protection of  accused no.5, through accused no.3.  There  was  material to show  (i) the illicit  relationship of Amarmani with the deceased  resulting in three pregnancies; (ii)  Amarmani’s intention to get out of the  relationship; (iii) Amarmani’s attempt to  put an end to the last pregnancy also, by  requiring his servant Pappu Chaudhary to  pose as the father of the foetus and give  consent for abortion; (iv) Madhumani’s ire  and jealously against the deceased and  expression of an  intention to get rid of  her; (v) Madhumani’s subsequent action in  engaging killers (accused 1 and 2) through  accused No.3 to kill Madhumita; and (vi) the  consent of Amarmani for Killing  Madhumita,  as instructed by his wife without involving   his name and assuring protection to the  persons committing the murder. ii)     That Amarmani was interfering with the  investigation, by trying to side-track it  and mislead the Police into a false trail,  planting false stories in the media,  creating false evidence and threatening  witnesses either directly or by using the  police.  He even managed to get the Police  Officers (including an officer of the Rank  of SSP) who were not toeing his line,  transferred. iii)    That after release on bail in pursuance to

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the order of the High Court, Amarmani was  attempting to threaten/coerce/buy over  witnesses (Nidhi Shukla, sister, Shanti  Kumari Shukla and Najib Khan). iv)     That Madhumani had already absconded  earlier.  Only the rejection of bail  application of her husband on that ground  made her to surrender.  There is every  likelihood of her again fleeing, if she  continuous to be on bail.  Further, if  Amarmani alone is denied bail, the  threatening of witnesses will be taken over  by Madhumani.

       On the other hand Shri Rakesh Dwivedi, learned  Senior Counsel appearing for Amarmani submitted  that this is a case of blind murder.  There is no  material showing any involvement of Amarmani in  the murder or in any conspiracy.  There was never  any contact between Amarmani and the hired  killers.   He submitted that the retracted  confessional statement of Rohit Chaturvedi which  alone linked Amarmani’s name to the conspiracy is  to be ignored, in view of the law laid down by  this Court; and if it is so ignored, there is  absolutely no material at all to show that  Amarmani was involved in the conspiracy.  The,  material, including the statements of  Nidhi,  Shanti Kumari, Pappu Chaudhary relied upon by the  prosecution and the post-mortem report showing the  six month foetus and the DNA report showing  Amarmani as the father, even if accepted could at  best establish an illicit relationship between  Amarmani and Madhumita and an attempt to abort the  pregnancy and nothing more.  He submitted that the  conduct of Amarmani, even if it was morally  incorrect, can in no way be considered as proof of  an intention to kill Madhumita or proof of his  being a party to any conspiracy to kill Madhumita.   He also stated that any action taken by Amarmani  to safeguard himself and his wife, cannot be  branded as conspiracy.

Shri KTS Tulsi, learned Senior Counsel  appearing for Madhumani similarly contended that  if the confessional statement of Rohit is  excluded, there is nothing to link Madhumani to  the death of Madhumita.  He pointed out that the  entire material, even assuming to be true, only  showed an illicit relationship between Amarmani  and the deceased and expression of anger by  Madhumani against such illicit relationship and  nothing more.  He submits that the expression of  righteous indignation by a wife and verbal abuse  of the girl trying to wreck her marital life, is  not evidence of participation in any conspiracy to  kill the deceased.  

Shri Dwivedi and Shri Tulsi, learned Senior  Counsel  relied on several decisions regarding the  effect of confessional statements.  They contended  that no interference was called for in regard to  the orders of the High Court  granting bail to  Amarmani and Madhumani. They submitted that the

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basic rule is bail and not jail, unless there are  circumstances suggesting fleeing from justice or  thwarting justice either by repeating the offence  or intimidating witnesses (vide State of Rajasthan  vs. Balchand - 1977 (4) SCC 308 and Gudikanti  Narasimhulu vs. Public Prosecutor \026 1978 (1) SCC  240).  

       They relied on the decision in Bihar Legal  Support Society vs. Chief Justice of India [1986 (4)  SCC 767] wherein a Constitution Bench of this Court  observed as follows:

"The apex court must interfere only in  the limited class of cases where there  is a substantial question of law  involved which needs to be finally laid  at rest by the apex court for the entire  country or where there is grave, blatant  and atrocious miscarriage of justice.   Sometimes, we judges feel that when a  case comes before us and we find that  injustice has been done, how can we shut  our eyes to it.  But the answer to this  anguished query is that the judges of  the apex court may not shut their eyes  to injustice but they  must equally not  keep their eyes too wide open, otherwise  the apex court would not be able to  perform the high and noble role which it  was intended to perform according to the  faith of the Constitution makers.  It is  for this reason that the apex court has  evolved, as a matter of self-discipline,  certain norms to guide it in the  exercise of its discretion in cases  where special leave petitions are filed  against orders granting or refusing bail  or anticipatory bail...... We reiterate  this policy principle laid down by the  bench of this Court and hold that this  Court should not ordinarily, save in  exceptional cases, interfere with orders  granting or refusing bail or  anticipatory bail, because these are  matters in which the High Court should  normally be the final arbiter."

                                            (Emphasis  supplied)

Reliance is next placed on Dolat Ram and others  vs. State of Haryana 1995 (1) SCC 349, wherein the  distinction between the factors relevant for  rejecting bail in a non-bailable case and  cancellation of bail already granted, was brought  out :    

"Rejection of bail in a non-bailable  case at the initial stage and the  cancellation of bail so granted, have  to be considered and dealt with on  different basis.  Very cogent and  overwhelming circumstances are  necessary for an order directing the

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cancellation of the bail, already  granted.  Generally speaking, the  grounds for cancellation of bail,  broadly (illustrative and not  exhaustive) are: interference or  attempt to interfere with the due  course of administration of justice or  evasion or attempt to evade the due  course of justice or abuse of the  concession granted to the accused in  any manner.  The satisfaction of the  court, on the basis of material placed  on the record of the possibility of the  accused absconding is yet another  reason justifying the cancellation of  bail.  However, bail once granted  should not be cancelled in a mechanical  manner without considering whether any  supervening circumstances have rendered  it no longer conducive to a fair trial  to allow the accused to retain his  freedom by enjoying the concession of  bail during the trial."

They also relied on the decision in S.N.  Bhattacharjee vs. State of West  Bengal 2004 (11)  SCC 165 where the above principle is reiterated.   The decisions in Dolat Ram and Bhattacharjee cases  (supra) relate to applications for cancellation of  bail and not appeals against orders granting bail.   In an application for cancellation, conduct  subsequent to release on bail and the supervening  circumstances alone  are relevant.  But in an appeal  against grant of bail, all aspects that were  relevant under Section 439 read with Section 437,  continue to be relevant.  We, however, agree that  while considering  and deciding appeals against  grant of bail,  where the accused has been at large  for a considerable time, the post bail conduct and  supervening circumstances will also have to be taken  note of.  But they are not the only factors to be  considered as in the case of applications for  cancellation of bail.   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 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 vs. NCT, Delhi 2001  (4) SCC 280 and Gurcharan Singh vs. State (Delhi  Administration) AIR 1978 SC 179).  While a vague  allegation that 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

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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 vs. Rajesh Ranjan, 2004 (7) SCC 528:  

"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 with 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, 2002 (3) SCC 598  and Puran vs. Ram Bilas 2001 (6)  SCC 338."

This Court also in specific terms held  that:  

"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

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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."

In Panchanan Mishra vs. Digambar Mishra, 2005  (3) SCC 143, this Court observed :

"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.....  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."

       Therefore, the general rule that this Court will  not ordinarily interfere in matters relating to bail,  is subject to exceptions where there are special  circumstances and when the basic requirements for  grant of bail are completely ignored by the High  Court. (see Pawan vs. Ram Prakash Pandey \026 2002 (9)  SCC 166; Ram Pratap Yadav vs. Mitra Sen Yadav \026 2003  (1) SCC 15 and Kalyan Chandra Sarkar vs. Rajesh  Ranjan \026 2004 (7) SCC 528.   

While a detailed examination of the evidence is  to be avoided while considering the question of bail,  to ensure that there is no pre-judging and no  prejudice, a brief examination to be satisfied about  the existence or otherwise of a prima facie case is  necessary.  An examination of the material in this  case, set out above, keeping in view the aforesaid  principles, disclose prima facie, the existence of a  conspiracy to which Amarmani and Madhumani were  parties.  The contentions of Respondents that the

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confessional statement of Rohit Chaturvedi is  inadmissible in evidence and that should be excluded  from consideration, for purpose of bail is untenable.   This Court had negatived a somewhat similar  contention, in Kalyan Chandra Sarkar (supra) thus :

"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  hereinafter including that of the  witnesses sought to be recalled are  all matters to be considered at the  stage of the trial."  

But what is more relevant, in this case is the  conduct of Amarmani from day of the murder in  trying to interfere, detract and mislead the  investigation and to threaten and coerce  witnesses.  We may refer to the following  circumstances disclosed by statements recorded  under Section  161 Cr.P.C. : i)      Nidhi Shukla and Shanti Kumari Shukla  (sister and mother of the deceased  respectively) have stated that on  10.5.2003 Amarmani met them near the  mortuary and informed them that he will  handle the entire situation and  instructed them with threats, to be  careful while making any statement and  not to link him or his wife in regard to  the murder.  This was repeated during the  second week of May 2003, by summoning the  mother of the deceased to his house. ii)     The statement of Mr. Anil Aggarwal, SSP,  Lucknow shows that on the intervening  night of 9th and 10th May, 2003 (at about  1.00 a.m), Amarmani called him on his  mobile phone and made enquiries about the  murder and informed him that he or his

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wife had nothing to do with the murder  and that his wife was a very simple house  wife and that he (Anil Aggarwal) should  help him. iii)    When Anil Aggarwal learnt that there was  six month old foetus in the womb of the  deceased and that without removing the  foetus, the body had been handed over to  the relatives of the deceased, he  immediately instructed that the body  should be brought back and the Doctor  should  remove the foetus and preserve it  for purposes of investigation.  In  pursuance of it, action was taken to stop  the vehicle in which the body was being  taken to the native place.  Amarmani  again called the SSP (Anil Aggarwal) on  the mobile phone and told him that he  knew Madhumita and that she was a simple  girl.   That there was some mistake in  the report that Madhumita was pregnant  and the body of Madhumita had already  started decomposing and the family should  be permitted to proceed to their village  immediately with the body so that funeral  can be performed before sun set. iv)     That on 15.5.2003 Amarmani again  contacted Anil Aggarwal, SSP on his  mobile phone and informed him that from  his own sources and investigation he had   found out that Madhumita was married to  one Anuj Mishra, a student of IIT Kanpur,  and that he had located the Priest who  had performed  the marriage in November- December, 2002.    He also stated that if  the marriage could be proved the  aspersion cast on his character can be  removed by showing that the deceased was  pregnant on account of her marriage with  Anuj Mishra.  He instructed the SSP to  send Yagya Narain Dixit, SO, Manek Nagar  to him, so that he would tell him what is  to be done to prove such marriage. v)      On the same day around 10 p.m. Amarmani  again called Anil Aggarwal, SSP urging  him to depute Yagya Narain Dixit, SO  Manek Nagar (who was apparently close to  him and was arrayed as the 6th accused  being charged under Section 201 of the  IPC.  He later on died in an accident) to  verify the marriage with Anuj Mishra.   Amarmani again called Anil Aggarwal on  the morning of 16.5.2003 at around 10  a.m. on the mobile and reiterated the  demand. Again on the evening of 16.5.05  he called the SSP on his mobile to  enquire about the progress and sounded  very anxious and stated that the matter  was getting delayed.  When the SSP asked  Amarmani to send the person who has given  the information about the marriage of  Madhumita with Anuj Mishra to his office  so that he could send some police officer  to Kanpur to verify the matter and also  informed Amarmani that he (SSP) will

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decide who should be deputed to verify  the matter, the very next day (17.5.2003)  the SSP was transferred, at the instance  of Amarmani.   The statement of the SSP shows that  Amarmani tried to side track the matter  by implicating Anuj Mishra and to ensure  that the foetus is not removed or  preserved or examined. When SSP refused  to comply, he was transferred.  Kamaal  Khan, NDTV correspondent/Bureau Chief,  Lucknow and Deepak Gidwani, Bureau Chief,  Sahara Samay T.V. have clearly stated  that Amarmani informed them that he had  complained to the Chief Minister that  investigation was not being done properly  and got Anil Aggarwal, SSP transferred;  and that he also informed them that his  private investigation showed that  deceased had married Anuj Mishra. vi)     Amarmani thereafter managed to ensure  that his confidant Yagya Narain Dixit was  deputed to threaten Rishi Khare, room  mate of Anuj Mishra, to admit that there  was a marriage between Anuj Mishra and  Madhumita. The statement of Rishi Khare,  the room mate of Anuj Misra at IIT  Hostel, Kanpur showed that at the  instance of Amarmani, Yagya Narain Dixit,  SO of Manek Nagar suggested, threatened  and coerced him to admit that he was a  witness to the marriage of Madhumita with   Anuj Mishra in spite of his repeatedly  stating that he was not aware of any such  marriage; and he even held out promises  to Rishi Khare on behalf of Amarmani  after repeatedly speaking to Amarmani  Tripathi over the phone in his presence. vii)    The statement of Rishi Khare shows that  he and his father and his landlord were  taken by Yagya Narain Dixit to meet  Amarmani, who demanded that he should  speak about the wedding of Anuj Mishra  and deceased.  In his presence Amarmani  also informed Yagya Narain Dixit that if  Rishi Khare refused to admit of being a  witness to such marriage he should use  tougher methods to make him admit the  wedding between Anuj Mishra and  Madhumita.  He also threatened Rishi  Khare that he can be framed by showing  that a country made revolver was  recovered from him, thereby landing him  in jail.   viii)   Kamaal Khan, NDTV correspondent/Bureau  Chief, Lucknow and Deepak Gidwani, Bureau  Chief, Sahara Samay T.V. were invited by  him and told them that he had a major  scoope which would turn the entire story  of the Madhumita’s case upside down.   That Madhumita’s case was not being  investigated properly and he was doing  his own investigation.  That he has been  able to identify the real killers of  Madhumita.   Madhumita was married to

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Anuj Mishra and the marriage was  performed by a priest who was present in  the house and was introduced to them.   

       The evidence collected above discloses that  there were repeated attempts by the accused Amarmani  to interfere, and side track the investigation and  threaten the witnesses to come out with a story that  will deflect the suspicion from him and his wife to  Anuj Mishra or others.  It is also not in dispute  that Amarmani was on bail in a kidnapping case, when  he indulged in these activities in May, 2003.  These  materials were placed by the prosecution before the  High Court to establish a reasonable apprehension of  tampering.  The learned Single Judge has, however,  completely ignored these materials relating to  tampering with evidence/witnesses.  This  necessitates interference with the order of the High  Court.   

Shri Subramanium, learned ASG next referred to  the threats to witnesses held out by Amarmani  after his release on bail.  Reliance is placed on  the four complaints received by the crucial  prosecution witnesses.  Nidhi Shukla, sister of  the deceased by letter dated 10.9.2004, and Shanti  Kumari, mother of the deceased by an undated  letter, have made  separate complaints to the CBI  in regard to efforts made by Amarmani to induce  them to accept money through one NK Mishra to  settle the matter and that when they refused, he  threatened them.  Another witness Najib Khan (a  family friend of the deceased) has also sent a  complaint dated 22.9.2004, stating that on that  day two persons knocked on his door, hurled abuses  at him and told him that the CBI officers were far  away and once the cases were closed, no one will  protect him and he will be killed.  Lastly, one  Birjesh Pathak, Member of Parliament has also sent  a complaint dated 16.9.2004 to the CBI alleging  that an attempt on his life was made on 7.9.2004  which, according to him, was at the instance of  Amarmani.  The said allegations are denied in the  counter-affidavit filed on behalf of Amarmani by  his brother/Pairokar.  It is contended that these  complaints must have been sent at the instance of  the CBI itself.  In so far as Brijesh Pathak is  concerned, it is also alleged that he is a close  confidant of Amarmani’s political rival.  However,  in the view we have taken, it is unnecessary to  examine this aspect.  

       The High Court has failed to deal with the vast  material placed by the CBI which clearly indicated  that the accused has, at all material times, tried  to interfere with the course of investigation,  tamper with witnesses, fabricate evidence,  intimidate or create obstacles in the path of  investigation officers and derail the case.   

The statement of Anil Aggarwal, SSP Lucknow is  revealing and in our opinion the High Court on  this statement alone should have rejected the bail  and, in any event, it is sufficient to allow the

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present appeal.  A senior police officer has  stated that the accused asked for his help against  his implication in the case.  The accused asked  the officer not to preserve the foetus and that  the body should be taken to her native place for  the last rites.  The officer also speaks about his  being rebuked by senior bureaucrats for recovering  the foetus.  It is relevant to note that the  officer was sought to be misled by the accused by  giving false information about a marriage between  Anuj Mishra and the deceased.  But for his  diligence, the foetus would not have been  preserved.  For doing his duty diligently, the  officer was punished with a transfer out of normal  course.  The very fact that a senior police  officer could be transferred out of Lucknow on 17th  of May, 2003, clearly shows the amount of  influence wielded by the accused. Ajay Kumar  Chaturvedi, the first investigating officer who  had also refused to tow the line of the accused  was also transferred on the same date.  Likewise,  Mr. Beni Singh Verma, Inspector of Police, CB-CID  and Mr. Dinanath Mishra , Inspector of Police, CB- CID were also transferred.  S/Sh.  N.V. Sirohi,  Mr. Vishwa Bhushan Singh, Mr. Sahab Rashid Khan  were also transferred but their transfer orders  were quashed by the High Court later on.   

       In Panchanan Mishra case (supra), it has been  held that the Court must apply its mind and go  into the merits and evidence on record and  determine whether prima facie case was established  against the accused.  It was held that the  seriousness and gravity of the crime was also a  relevant consideration.  That a balance has to be  drawn by the Court to protect fair trial and to  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  a heinous crime and if there is delay in such a  case the underlying object of cancellation of bail  practically looses all its purpose and  significance to the great prejudice and the  interest of the prosecution.  The Court summed up  the principle that the ground to deny bail will be  when by testing the balance of probabilities it  appears that the accused has abused his liberty or  that there is a reasonable apprehension that he  will interfere with the course of justice.  It was  noticed by the Court that once a person is  released on bail in serious criminal cases where  the punishment is stringent and deterrent, the  accused in order to get away from the clutches of  the same indulge in various activities like  tempering with the prosecution witnesses,  threatening the family members of the victim and  also create problems of law and order.   

       In Prahlad Singh Bhati Vs. NCT, Delhi, 2001 (4)  SCC 280, this Court reiterated that if a person  was suspected of the crime of an offence  punishable with death or imprisonment for life  then there must exist grounds which specifically  negate the existence of reasonable ground for  believing that such an accused is guilty of an

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offence punishable with the sentence of death or  imprisonment for life.  The jurisdiction to grant  bail must be exercised on the basis of well  settled principles having regard to the  circumstances of each case.  While granting bail,  the Court has to keep in mind the nature of  accusations, the nature of evidence in support  thereof, the severity of the punishment which  conviction will entail, the character, behaviour,  means and standing of the accused, circumstances  which are peculiar to the accused and reasonable  apprehension of witnesses being tempered with,  

In  Kalyan Chandra Sarkar case (supra), this  Court reiterated that while granting bail  discretion must be exercised in a judicious manner  and not as a matter of course.  It may not be  necessary to do detailed examination of evidence  and documentation of the merit of the case but  there is a need to indicate reasons for prima  facie conclusion why bail was being granted  particularly where the accused is charged of  having committed serious offence.   

In the present case, we find that the High  Court has granted bail being of the opinion that  the extra judicial confession given by Rohit  Chaturvedi one of the co-accused may not stand the  test of scrutiny by a judicial mind but that by  itself was not sufficient to grant the bail.   There is voluminous evidence collected by the CBI  to show the involvement of Amarmani Tripathi, and  his effort to interfere with the investigation of  the case before the grant of bail and also after  the grant of bail.  He tried to change the course  of investigation by creating false evidence of the  marriage of Madhumita with Anuj Mishra with the  help of Yagya Narain Dixit, a police officer, the  6th accused who died in an accident during the  course of investigation.  There are written  complaints with the investigating agency showing  that after his release on bail Amarmani Tripathi  tried to threaten as well as win over  Nidhi  Shukla, sister of the deceased, and her mother by  offering bribe.  In our opinion, the High Court  gravely erred in granting bail to Amarmani  Tripathi in such circumstances.  The High Court  practically failed to consider/take into  consideration the voluminous evidence which had  been collected by the investigation agency and  have been referred to by them in their statement  of objections to the application for grant of  bail.   

It is true that the position of Madhumani is  somewhat different from the case of her husband.   While her husband is a politician and ex-Minister,  she is no doubt a house wife. While her husband  has several criminal cases against him, she has no  such record.  While there is material to show  attempts by her husband to tamper with the  evidence and threaten witnesses, there is nothing  to show that she made any attempt to tamper with  the evidence.  But there is material to show that  she had absconded for several months and

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surrendered only when bail was refused to her  husband on the ground that she was absconding.   Further when the matter is considered in entirety,  with reference to the murder of Madhumita and the  propensity of the husband and wife to pressurize  and persuade others to act according to their  wishes there is reasonable ground for apprehension  that if her husband alone is taken into custody,  leaving her to remain outside, she may take over  the task of tampering the evidence and  manipulating/threatening witnesses.  Therefore,  interference  is called for even in regard to the  bail granted to Madhumani.

We are conscious of the fact that evidence in  this case has yet not been led in the Court.   Wherever we have referred to the word "evidence"  in this order the same may be read as material  collected by the prosecution.  Reference to the  material collected and the findings recorded  herein are for the purposes of these appeals only.   This may not be taken as an expression of opinion.   The Court would be at liberty to decide the matter  in the light of evidence which shall come on  record after it is led de hors any finding  recorded in this order.

For the reasons stated above, the orders dated  29th April, 2004 and 8th July, 2004 passed by the  High Court are set aside.  The bail bonds of the  respondents in each of these cases are cancelled.   Respondents are directed to surrender forthwith  and in case they fail to do so, the State should  take effective steps to take the respondents in  custody. The appeals stand disposed of.