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PETITIONER: STATE THROUGH DELHI ADMINISTRATION

       Vs.

RESPONDENT: SANJAY GANDHI

DATE OF JUDGMENT05/05/1978

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) FAZALALI, SYED MURTAZA SHINGAL, P.N.

CITATION:  1978 AIR  961            1978 SCR  (3) 950  1978 SCC  (1) 411  CITATOR INFO :  D          1985 SC 969  (12)

ACT: Constitution  of  India, 1950, Art.  136-Appeal  by  special leave   against  an  order  rejecting  an  application   for cancellation of bail-Court cannot permit use of new material against accused. Constitution  of  India, 1950, Art.  136-Appeal  by  special leave   against  an  order  rejecting  an  application   for cancellation  of the bail-Interference with the findings  of the  High  Court  as to whether the  accused  tampered  with prosecution witnesses, when justified. Bail,  cancellation  of--Power  to  cancel  bail,  must   be exercised  with care and circumspection and  in  appropriate cases-Crl.P.C. (Act 11 of 1974), 1973, s. 439(2). Bail  cancellation  of-Grounds must bear  casual  connection with  same  act or conduct of accused--CrI.P.C.  (Act  2  of 1974). 1973, Ss. 439(2) r/w 437(5). Burden   of   proof,  extent  of-In   an   application   for cancellation  of bail, the proof of the plea that  witnesses turned  hostile  because they were won over by  the  accused need  not be beyond a reasonable doubt-Evidence  Act,  1872- Ss.3, 101-104 r/w Crl.P.C. S. 439(2).

HEADNOTE: The  respondent  who  was arraigned as accused No.  2  in  a prosecution for offences u/Ss. 120B r/w Ss. 409, 435 and 201 I.P.C. instituted by the Central Bureau of Investigation  in the  Court of the Chief Metropolitan Magistrate,  Delhi  was granted anticipatory bail, by the High Court of Delhi.  When the  Committal  Proceedings commenced in the  Court  of  the Chief Metropolitan Magistrate, Delhi on February 20, 1978 as per the time schedule fixed by this Court, the two approvers in  the case turned hostile, resiled from  their  statements made  to the police u/s 161 of Crl.P.C., and  retracted  the confessions  made to the Chief Metropolitan Magistrate.   An application  filed for cancellation of the respondents  bail was  dismissed by a learned single Judge of the  Delhi  High Court on 11-4-1978. Allowing the appeal in part, the Court HELD  :  1. In an appeal by special leave against  an  order

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rejecting  ax application for cancellation of bail,  no  new material  which  was not available to the  High  Court  will normally be allowed to be relied upon by the State, it would be  unfair  to the respondent to make use of  that  material without giving him an adequate opportunity to meet it on the ground  that the additional data came into  existence  after the  High Court gave its judgment.  Though,  in  appropriate cases, the Court has the power to take additional  evidence, that  power has to be exercised sparingly,  particularly  in appeals brought under Article 136 of the Constitution.  [956 D-E] 2.   In  an  appeal  by  special  leave  against  an   order rejecting  an application for cancellation of the bail,  the High Court’s findings are normally treated by this Court  as binding  on  issues  like  :  whether  the  prosecution  has succeeded  in  proving  its case  that  the  respondent  has tampered with its witnesses and that 951 there is a reasonable apprehension that he will continue  to indulge  in  that  course of Conduct, if he  is  allowed  to remain  at  large.   If  two  views  of  the  evidence   are reasonably  possible and the High Court has taken one  view, this Court will be disinclined to interfere therewith in  an appeal under Art. 136 of the Constitution. (958 E-F) In  the  instant  case :-(a) the  High  Court  has  rejected incontrovertible    -evidence       on        hypertechnical considerationsthough it points in one direction  only, leaving no manner of doubt that therespondent       has misused the facility     afforded  to him by that  Court  by granting anticipatory bail to him(b) Even  excluding   the last incident in regard  to   Charan  Singh  which   is really first in point of time and though it is  corroborated by  an entry in the General Diary, the other evidence  viz., (i)  Yadav’s complaint of the 14th February, (ii)  Khedkar’s complaint  of  even  date, (iii) Yadav’s  admission  in  his evidence that he did make the written complaint in spite  of the fact that he had turned hostile, (iv) the affidavits  of Sat  Pal Singh, Ganpat Singh and Digambar Das in  regard  to the  incident  of the 17th and (v) the  affidavit  of  Sarup Singh  regarding  the  incident  of  February  28.   furnish satisfactory  proof  that  the  respondent  has  abused  his liberty by attempting to suborn the prosecution witness.  He has  therefore forfeited his right to remain free. [960  G-H 961 A) 3.Section  439(2)  of  the  Code  of  Criminal  Procedure confers jurisdiction on the High Court or Court of  Sessions to  direct that any person who has between released on  bail under  Chapter XXXIII be arrested and committed to  custody. The  power to take back in custody an accused who  has  been enlarged  on  bail  has  to  be  exercised  with  care   and circumspection.  But the power, though of an  extra-ordinary nature, is meant to be exercised in appropriate cases  when, by  a preponderance of probabilities, it is clear  that  the accused  is  interfering  with  the  course  of  justice  by tampering with witnesses. Refusal to exercise that wholesome power in such cases, few though they may be, will reduce  it to  a  dead letter and will suffer the courts to  be  silent spectators  to the subversion of the judicial process.  [961 A-C] Madhukar  Purshottam  Mondakal  v. Talab  Haji  Hussain  60, Bombay Law Reporter 465 and Gurcharan Singh & Ors. v.  State (Delhi Administration), 1978 Criminal Law journal, 129, 137; Principles in, applied. 4.Rejection  of  bail  when bail is applied  for  is  one thing;  cancellation  of  bail  already  granted  is   quite

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another.   It  is easier to reject a bail application  in  a non-bailable  case than to cancel a bail granted in  such  a case.  Cancellation of bail necessarily involves the  review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused  to retain  his  freedom  during  the  trial.   The  fact   that prosecution  witnesses have turned hostile cannot by  itself justify  the inference that the accused has won  them  over. The  objective fact that witnesses have turned hostile  must be  shown  to bear a causal connection with  the  subjective involvement therein of the respondent.  Without such  proof, a bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won over by  the accused.  Inconsistent testimony can no more be ascribed  by itself  to  the  influence of the  accused  than  consistent testimony, by itself, can be ascribed to the pressure of the prosecution.  It is therefore necessary for the  prosecution to  show some act or conduct on the part of  the  respondent from  which  a  reasonable  inference  may  arise  that  the witnesses have gone back on their statements as a result  of an intervention by or on behalf of the respondent. [957 AF] 5.It  is not necessary for the prosecution to prove by  a mathematical  certainty  or even beyond a  reasonable  doubt that the witnesses have turned hostile because they are  won over by the accused.  The issue of cancellation of bail  can only  arise in criminal cases, but that does not  mean  that every  incidental matter in a criminal case must  be  proved beyond  a  reasonable doubt like the guilt of  the  accused. Indeed, proof of facts by preponderance 952 of  probabilities  as  in a civil case  is  not  foreign  to criminal  jurisprudence because, in cases where the  statute raises  a  presumption  of  guilt  as,  for,  example,   the Prevention  of  Corruption Act, the accused is  entitled  to rebut  that presumption by proving his defence by a  balance of  probabilities.  He does not have to establish  his  case beyond a reasonable doubt.  The same standard of proof as in a civil case applies to proof of incidental issues  involved in  a  criminal trial like the cancellation of  bail  of  an accused.  The prosecution, therefore, can establish its case in  an application for cancellation of bail by showing on  a preponderance   of  probabilities  that  the   accused   has attempted  to  tamper or has tampered  with  its  witnesses. Proving  by  the test of balance of probabilities  that  the accused   has  abused  his  liberty  or  that  there  is   a reasonable  apprehension  that he will  interfere  with  the course  of  justice  is  all  that  is  necessary  for   the prosecution to do in order to succeed in an application  for cancellation of bail. [957 G-H, 958 A-D]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 188 of 1978. Appeal  by Special Leave from the Judgment and  Order  dated the  11th  April, 1978 of the Delhi High Court  in  Criminal Misc.  Application No. 130 of 1978. Ram Jethmalani, and R. N. Sachthey for the Appellant. A.N.  Mulla, D. Mathur, B. R. Handa and D. Goburdhan  for Respondent. The Judgment of the Court was delivered by CHANDRACHUD, C.J.-The respondent is arraigned as accused No. 2  in  a  prosecution instituted by the  Central  Bureau  of

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Investigation in the Court of the learned Chief Metropolitan Magistrate Delhi.  Omitting details which are not  necessary for  the present purpose the case of the prosecution  is  as follows : One  Shri  Amrit Nahata had produced a  film  called  ’Kissa Kursi Ka’, which portrayed the story of the political doings of  the respondent and his mother, Smt.  Indira Gandhi,  the former  Prime  Minister  of India.   The  Board  of  Censors declined  to grant a certificate for exhibition of the  film whereupon,  Shri Nahata filed a writ petition in this  Court for  a Writ of Mandamus.  On October 29, 1975,  a  direction was given by the Court that the film be screened on November 17  to  enable  the Judges to  see  whether  the  censorship certificate was refused rightly. In order to prevent  this Court  from exercising its constitutional  jurisdiction  and with  a  view  to preventing the film  from  being  publicly exhibited,  the  respondent and his  co-accused  Shri  Vidya Charan Shukla, who was then the Minister for Information and Broadcasting,  entered into a conspiracy to take  possession of  the  film  and  to destroy it.   In  pursuance  of  that conspiracy,  13  steel trunks containing 150 spools  of  the film were brought under special escort from Bombay to  Delhi at the behest of Shri.  Shukla.  The consignment reached the New Delhi Railway Station on November 10, 1975.  The  spools were then loaded in two tempo vehicles belonging to the res- pondent  or to his company, M/s.  Maruti Ltd.,  Gurgaon,  of which  respondent was the Managing Director.  The  vehicles, which were driven by Ram Chander and Charan Singh were taken to Gurgaon at 953 the  premises  of Maruti Limited where,  under  instructions given  by  the  respondent, the  spools  were  destroyed  by setting  fire to them some time prior to November 24,  1975. A positive print of the film was lying in the Auditorium  of the  Ministry  at Mahadev Road, New Delhi, which  was  taken charge  of by one Ghose, a Deputy Secretary in the  Ministry of  Information  and Broadcasting.  The loaded  it  in  Shri Shukla’s  staff car whereupon Shri Shukla himself  delivered the  print at No. 1, Safdarjang Road, where  the  respondent and  his  mother  used to live at the  relevant  time.   The Supreme  Court  was  informed that it was  not  possible  to screen the film for evaluation by the Judges.  And the  writ petition filed by Shri Nahata came to an abrupt end upon  an affidavit  being filed on March 22, 1976, by Chose that  the spools  of the film had got mixed up with some  other  films received   by   the  Government  in  connection   with   the International Film Festival. After  the  emergency  was lifted  and  the  present  Janata Government  came  into  power,  a  certain  information  was received in consequence of which a raid was effected on  the Gurgaon  premises of the Maruti Limited.  The  raid  yielded incriminating  material to show that the 13 boxes which  had been  received from Bombay at the New Delhi Railway  Station contained the spools of the film ’Kissa Kursi Ka’ which were burnt and destroyed in the factory premises.  R. B. Khedkar. a Security Officer of the Maruti Limited and his  assistant, Kanwar  Singh Yadav, who was the Security Supervisor of  the company,  were arrested on the very day of the raid.   Yadav made  a statement on the following day stating how the  film was   burnt  in  the  premises  of  the  factory.    Yadav’s confessional   statement   was   recorded   by   the   Chief Metropolitan  Magistrate on June 3 and Khedkar’s on June  4. They  were granted pardon under section 306 of the  Code  of Criminal  Procedure on July 14, 1977.  During the course  of investigation,  various  statements were  recorded  by  the-

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police  including  those  of the two drivers  of  the  tempo vehicles, Ram Chander and Charan Singh, a watchman called Om Prakash and several employees of the Store Department of the company. After  completion  of the investigation, a  chargesheet  was filed  by the C.B.I. in the Court of the Chief  Metropolitan Magistrate  citing 138 witnesses for proving  charges  under section  120B  read with sections 409, 435 and  201  of  the Penal  Code as also for substantive offences under the  last mentioned three sections of the Penal Code. In  certain proceedings for contempt and perjury which  were filed in this Court against Shri Shukla, it was directed  by the  Court on January 2, 1978, that the  Chief  Metropolitan ’Magistfate shall commence the hearingof   the   case   on February 15 and that the Sessions Court will co   the  trial on March 20, 1978, and shall proceed with the hearingfrom day to day.  By an order dated February/March 14, the  Court extended the time limit by four days in each case. The  committal  proceedings commenced in the  Court  of  the learned Chief Metropolitan Magistrate, Delhi on February 20, 1978.   Khedkar who was examined on that day  supported  the procecution fully except 10 329 SCI/178 954 that  he  admitted  in his  cross-examination  that  he  had written two inland letters, which may tend to throw a  cloud on his evidence.  On February 21, the second approver  Yadav was examined by the prosecution. He resiled both from  the statement which he made to the policeunder section 161 of the Code of Criminal Procedure as well as fromhis judicial confession.  The recording of Yadav’s evidence  was over on the 22nd. On February 27, 1978, an application was filed by the  Delhi Administration, in the High Court of Delhi for  cancellation of  the  respondent’s bail.  That  application  having  been dismissed  by a learned single Judge on April 11, 1978,  the Administration has filed this appeal by special leave. Before  the High Court, the following submissions were  made on behalf of the appellant (1)That  the respondent was charged with offences  amongst which  is  the offence under section 409 of the  Penal  Code which is punishable imprisonment for life.  The  respondent, having been accused of a non-bailable offence, it was  wrong in the first instance to enlarge him on bail. (2)initially, the investigation was started in respect  of the  conspiracy and theft of the Mm from the custody of  the Government.   The  respondent  had  obtained  an  order   of anticipatory  bail from the Delhi High, Court in respect  of those   offences.   It  transpired  during  the  course   of investigation that a far more serious offence under  section 120B  read with section 409 of the Penal Code was  committed by the respondent and the co-accused.  Even though prior  to July 14, 1977, on which date the chargesheet was filed,  the State  was  in possession of information  showing  that  the respondent  was  trying to tamper with  the  witnesses,  the State  did  not apply for cancellation of  the  anticipatory bail  nor did it ask the Magistrate to issue a  non-bailable warrant because the very witnesses who were attempted to  be tampered  with  had  complained  to  the  police  that   the respondent  was  trying  to win them over.   In  the  larger interest  of justice, the State did not adopt  a  vindictive attitude towards the respondent by asking that he should  be taken into custody; (3)It  was the duty of the High Court to enforce the  pro- visionsof  section 437 of the Code of Criminal  Procedure

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when it was broughtto its notice that the respondent, being charged   with  an  offence  under  section  409  which   is punishable  with life imprisonment was illegally  oil  bail, particularly   when  he  had  misused  his   liberty.    The obligation of the Court to enforce the provisions of section 437  of the Code of Criminal Procedure does not depend  upon whether the State has acted with vigilance and promptitude. (4)  The burden which rests on the State in ’an  application for  cancellation of bail is of a limited nature.  All  that is necessary for the State to show, in support I of its plea that  bail  be  cancelled, is that  there  is  a  reasonable apprehension that by tampering with witnesses, 95 5 the  accused  is  interfering with the  course  of  justice. It’is neither necessary to prove the fact of tampering  with mathematical certainty nor indeed beyond a reasonable doubt. The test to be adopted in such matters is one of ’reasonable apprehension’. (5)On  February  13 and 14, 1978,  approver  Yadav,  first through  Khedkar  and  then by an  application  written  and signed  by himself, complained to the C.B.I. Officers  that the  respondent  was  trying to  tamper  with  his  evidence through Ram Chander, the driver of the tempo.  Within a week thereafter,  that  is  on February 21,  1978,  Yadav  turned hostile  by going back upon the statement which he had  made before the police under section 161 of the Code of  Criminal Procedure and on his confessional statement recorded by  the Magistrate on the basis of which he had secured pardon a few days  earlier.  This incident   by itself was sufficient  to justify  the  State’s  plea  that  there  was  a  reasonable apprehension  in  the  mind  of  the  prosecution  that  the respondent was tampering with their witnesses. , (6)The  fact  that the respondent had contacted  Yadav  on February 17 and was seen in Yadav’s company on that date was supported  by the evidence of Ganpat Singh, a  Postal  Peon, Digamber  Das, an employee of the Maruti Limited and  Satpal Singh,  a constable of the Haryana Armed Police.  There  was no  justification for disbelieving the affidavits  of  these three persons. (7)As far back as July 1977, the respondent had attempted to tamper  with two witnesses, Charan Singh and A. K.  Dangwal. Both  of these witnesses had given written  applications  to the police complaining of attempts made by the respondent to win  them  over.   The entries made by  the  police  in  the General  Diary  corroborated the complaints  made  by  these witnesses.   The  two  complaints,  though  not  acted  upon promptly  by  the police by asking for the  cancellation  of respondent’s bail, render it highly probable that during the later  stages of the trial several witnesses turned  hostile on   account  of  the  pressure  and  influence  which   the respondent exercised on them. (8)It was through Ram Chander that approver Yadav was  ap- proached  and  tampered  with.  On February  21,  1978,  Ram Chander  was sitting in the Court though his  presence,  was not  necessary and indeed, he entered the  court-room  along with  a  group  of  respondent’s  partisans  for  whom   the respondent had obtained the Magistrates permission by seeing him in his chamber. (9)These very contentions have been repeated before us  by Shri  Ram Jethamalani who also relied upon  some  additional data  in support of the application for cancellation of  the respondent’s bail.  The new material on which counsel relies has  come into existence after the High Court delivered  its judgment on April 1.1 and in the very nature of things,  the High Court has had no opportunity to consider its weight and

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relevance on the question in issue. Shri  A.  N. Mulla who appears on behalf of  the  respondent controverted   each  and  every  allegation  made   by   the appellant.   He  contends  that the  prosecution  has  been, launched out of political vendetta, that ,ordinary  offences triable by a Magistrate have been magnified beyond 956 all  proportion, that pardon was tendered to  the  so-called approvers though no charge could have been levelled  against them, for the sole purpose of attracting the application  of section 306(5) of the Criminal Procedure Code so as to  drag the  accused  to the Sessions Court, that  the  police  with their  unlimited  resources have left no stone  unturned  in order somehow to implicate the accused and that evidence  in regard to tampering of witnesses is manufactured with a view to  explaning away the tell-tale circumstance that  the  key witnesses,  including one of the approvers, have refused  to support  the  prosecution.  The  prosecution,  according  to counsel,  ventured into sensation-mongenng by  building  the super-structure of a Sessions trial on a slip foundation and having  been  disillusioned by the performance of  its  star witnesses,  it has resorted to the expedient of  asking  for cancellation of the respondent’s bail in order to give  prop to  a  failing  can based  on  trumped-up  charges.   Strong objection  was taken by the learned counsel to  the  attempt made  by the appellant to cite new and  additional  material before  us.  This, according to him is impermissible  in  an appeal filed by leave under article 136 of the Constitution, since  the only question that is open to us to  consider  is whether, on the, material before it, the High Court is right in coming to the conclusion to which it did- We  are not disposed to allow the State to rely on  any  new material  which was not available to the High  Court.  true, that the additional data came into existence after the  High Court  gave  its  judgment but it would  be  unfair  to  the respondent  to make use of that material without giving  him an  adequate  opportunity to meet it.  That  will  entail  a fairly long adjournment which may frustrate the very  object of the proceedings initiated by the State.  Besides,  though in  appropriate  cases  the  court has  the  power  to  take additional   evidence,  that  power  has  to  be   exercised sparingly, particularly in appeals brought under article 136 of  the Constitution.  The High Court, while dismissing  the State’s  application for cancellation of bail, has  reserved to it the liberty to approach it "if, at any time in future, the  respondent abuse& his liberty".  The  new  developments could, if the prosecution is so advised,be  brought  to the  High Court’s attention for  obtaining suitable  relief. We cannot spend our time in scanning affidavits and  sifting materialfor the first time for ourselves, for  determining whether  the new material can justify cancellation of  bail. We  propose, therefore, to limit ourselves to the facts  and incidents  which were before the High Court and on which  it has pronounced. We  ought  not  to  forget, while  dealing  with  the  rival contentions, that the trial is still pending in the Sessions Court  and  any observation made by us  in  this  incidental proceeding  may unwittingly influence the course  of  trial. We will take care to see that nothing is said on the  merits of the matter, no comment made on the veracity of  witnesses and no subtle guidance offered to unravel why the  witnesses have  turned  hostile.  These matters, at this  moment,  are within  the  exclusive domain of the Sessions Court  and  we cannot,  by employing an artifice, withdraw the decision  of these  questions to ourselves.  It is the privilege  of  the

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Sessions Court, not of- the Supreme Court, to try the 957 accused.  We must therefore make it clear that nothing  said by  us in our judgment shall influence the decision  of  the case  and the Sessions Judge is free to assess and  evaluate the  evidence,  unhampered by any observations we  may  have happened to make. Rejection  of  bail when bail is applied for is  one  thing; cancellation  of bail already granted is quite another.   It is  easier  to reject a bail application in  a  non-bailable case  than  to  cancel  a  bail  granted  in  such  a  case. Cancellation  of bail necessarily involves the review  of  a decision already made and can by and large be permitted only if,  by reason of supervening circumstances, it would be  no longer  conducive  to a fair trial to allow the  accused  to retain his freedom during the trial. The    fact     that prosecution  witnesses have turned hostile cannot by  itself justify  the  inference  that  the  accused  has  won   them over.brother,a  sister  or  a  parent  who  has  seen  the commission  of  crime,  may  resile  in  the  Court  from  a statement recorded during the course of investigation.  That happens  instinctively, out of natural love  and  affection, not  out  of persuasion by the accused.  The witness  has  a stake in the innocence of the accused and tries therefore to save him from the guilt.  Likewise, an employee may, out  of a  sense of gratitude-, oblige the employer by  uttering  an untruth without pressure or persuasion.  In other words, the objective  fact that witnesses have turned hostile  must  be shown  to  bear  a causal  connection  with  the  subjective involvement therein of the respondent.  Without such  proof, a bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won over by  the accused.  Inconsistent testimony can no more be ascribed  by itself  to  the  influence of the  accused  than  consistent testimony, by itself, can be ascribed to the pressure of the prosecution.  Therefore, Mr. Mulla is right that one has  to countenance  a reasonable possibility that the employees  of Maruti  like  the approver Yadav might have,  of  their  own volition, attemptedto    protect   the   respondent    from involvement in criminal charges. Their willingness now  to oblige the respondent              would depend uponlow much  the  respondent  has obliged them in  the  past.It  is therefore necessary for the prosecution to show some act  or conduct  on  the  part  of  the  respondent  from  which   a reasonable inference may arise that the witnesses have  gone back  on their statements as a result of an intervention  by or on behalf of the respondent. Before  we go to the facts of the case, it is  necessary  to consider  what precisely is the nature of the  burden  which rests on the prosecution in an application for  cancellation of bail.  Is it necessary for the prosecution to prove by  a mathematical  certainty  or even beyond a  reasonable  doubt that the witnesses have turned hostile because the, are  won over by the accused ? We think not.  The issue of  cancella- tion of bail can only arise in criminal cases, but that does not  mean  that every incidental matter in a  criminal  case must  be proved beyond a reasonable doubt like the guilt  of the accused.  Whether an accused is absconding and therefore his  property  can  be  attached under  section  83  of  the Criminal  Procedure  Code,  whether a search  of  person  of premises was taken as required by the provisions of  section 100 of the Code, whether a confession is recorded in  strict accordance with 958 the  requirements of section 164 of the Code and  whether  a

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fact  was discovered in consequence of information  received from  an accused as required by section 27 of  the  Evidence Act  are  all  matters  which  fall  peculiarly  within  the ordinary sweep of criminal trials.  But though the guilt  of the  accused in cases which involve the assessment of  these facts has to be established beyond a reasonable doubt, these various  facts  are not required to be proved  by  the  same rigorous standard.  Indeed, proof of facts by  preponderance of  probabilities  as:  in a civil case is  not  foreign  to criminal  jurisprudence because, in cases where the  statute raises   a  presumption  of  guilt  as,  for  example,   the Prevention  of  Corruption Act, the accused is  entitled  to rebut  that presumption by proving his defence by a  balance of  probabilities.  He does not have to establish  his  case beyond a reasonable doubt.  The same standard of proof as in a civil case applies to proof of incidental issues  involved in  a  criminal trial like the cancellation of  bail  of  an accused.  The prosecution, therefore, can establish its case in  an application for cancellation of bail by showing on  a preponderance   of  probabilities  that  the   accused   has attempted  to  tamper or has tampered  with  its  witnesses. Proving  by  the test of balance of probabilities  that  the accused has abused his liberty or that there is a reasonable apprehension  that  he  will interfere with  the  course  of justice  is all that is necessary for the prosecution to  do in  order to succeed in an application for  cancellation  of bail. Our   task  therefore  is  to  determine  whether,  by   the application  of the test of probabilities,  the  prosecution has  succeeded in proving its case that the  respondent  has tampered  with its witnesses and that there is a  reasonable apprehension  that  he  will continue to  indulge  irk  that course  of  conduct  if he is allowed to  remain  at  large. Normally,  the  High Court’s findings are  treated  by  this Court  as binding on such issues, but, regretfully, we  have to  depart from that rule since the High Court has  rejected incontrovertible evidence on hypertechnical  considerations. if  two views of the evidence were reasonably  possible  and the  High Court had taken one view, we would have been  dis- inclined to interfere therewith in this appeal under article 1.36  of the Constitution.  But the evidence points  in  one direction  only,  leaving  no  manner  of  doubt  that   the respondent  has misused the facility afforded to him by  the High Court by granting anticipatory bail to him. The sequence of events is too striking to fail to catch  the watchful eye.  But, we will not enter too minutely.into  the several incidents on which the appellant relies to prove its case.  We will confine ourselves to some of the  outstanding instances  and show how the prosecution is justified in  its apprehension. Kanwar  Singh  Yadav was working at the relevant time  as  a Security Supervisor under R. B. Khedkar who was the Security officer  of Maruti Ltd.  Both of them were arrested  an  the very  day  of the raid, that is, on May 25,  1977.   On  the 26th, the police recorded Yadav’s statement and on the 28th, he  made  a petition to the Chief  Metropolitan  Magistrate, expressing his willingness to confess. 959 The confessional statement was recorded on June 3 and  Yadav was granted pardon on July 14, under section 306 of the Code of Criminal Procedure.  Khedkar made a confession on June  4 and  was granted pardon on July 14, 1977.  The C.B.I.  filed the chargesheet on 14th July itself. The  committal  proceedings were fixed by this Court  by  an order  dated  January  2,  1978  to  begin  peremptorily  on

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February  15, 1978.  The respondent obtained a  modification of  that order, by virtue of which the proceedings began  on February 20. One day before the proceedings were originally scheduled  to begin,  that is on 14th February, the two  approvers.  Yadav and Khedkar appeared at the C.B.I. office and filed  written complaints  dated  the 13th that the respondent  was  making repeated  attempts to call Yadav to meet him by sending  the car with Ram Chander, the driver of the respondent.  One  of these  complaints  is  signed  by Yadav  and  the  other  by Khedkar.   Yadav turned hostile when he was examined on  the 21st  February  before the Committing Magistrate.   He  went back  on his police statement, resiled from  his  confession and  risked  his  pardon.  But he  admitted  in  his  cross- examination  to the Public Prosecutor that he had given  the complaint  to the C.B.I. He explained it away by offering  a series of excuses but we will only characterise that attempt as  lame and unconvincing.  A deeper probe into  the  matter and its critical analysis is likely to exceed the legitimate bounds  of this proceeding and therefore we will  stop  with the  observation that there is more than satisfactory  proof of the respondent having attempted to suborn Yadav.  Whether Yadav succumbed to the persuasion is not for us to say.  The Sessions   Judge   shall  have  to  decide   that   question uninfluenced by anything appearing herein. We          are concerned  with the respondent’s conduct, not  with  Yadav’s reaction  or  his  motives.         Khedkar  stuck  to   the complaint. That is in regard to the event of the 14th February.  On the 17th  ’  Yadav and the respondent were  seen  together,  the former  leaving,, the Maruti factory with the respondent  in his  car.   This is supported by the affidavits of  Sat  Pal Singh, a constable of the Haryana Armed Constabulary who was on  duty  at the Factory, Ganpat Singh, a  Postal  Peon  and Digambar Das, an Assistant Despatch Clerk in Maruti.  It  is undisputed that the respondent had gone for official work to the  factory on the 17th.  The High Court objects the  inci- dent firstly because it is not mentioned in the petition for cancellation of the respondent’s bail.  The affidavit of Ved Prakash, Inspector of Police, C.B.I., shows that information of  the  incident  was  received on  the  24th  whereas  the petition  was drafted on the 22nd February.  That apart,  we cannot understand the High Court to say that the  affidavits of  the  three witnesses could not be accepted  because  the verification  clause of the affidavits was "most  defective" as it could not be said "what part of the affidavit is  true to  the knowledge of the deponent and what part  thereof  is true  to the belief of the deponent".  This reason has  been cited  by the learned Judge for rejecting many  an  incident but then it was open to him to ask for better particulars of 960 verification. The  witnesses claim to have seen with  their own  eyes  that  Yadav  drove  away  with  the   respondent. The incident consisted of one single event and there was  no possibility of the witnesses’ knowledge being mixed up  with their  belief.  We find it impossible. to endorse this  part of  the High Court’s reasoning and are inclined to the  view that  the  respondent ultimately succeeded  in  establishing contact  with  Yadav.  Whether the respondent  succeeded  in achieving  his ’ultimate object is beyond us to, say  except that  Yadav  turned hostile in the  Committing  Magistrate’s court on February 21. The  High  Court has also rejected the  affidavit  of  Sarup Singh that on February 28, 1978, while he was doing duty  as an  armed. constable at the factory, he saw  the  respondent

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coming  to the factory and heard him assuring Yadav that  he need  not worry.  The verification clause of  the  affidavit was again thought to be ’defective".  We are unable to agree with  this part of the learned Judge’s judgment for  reasons already indicated. We  are  also unable to agree with the High Court  that  the complaint filed by Charan Singh on July 12 in regard to  the incident  of July 5, 1977 and the complaint filed by  A.  K. Dangwal on July 9 in regard to the incident of July 7,  1977 are  "irrelevant" since the prosecution did not even  oppose the  grant of bail to the respondent after  the  chargesheet was  filed  on  July 14, 1977.  It is true that  it  is  not possible  to  accept Shri Jethmalani’s  explanation  of  the inactivity  on  the  part  of  the  prosecution  even  after receiving the two complaints showing that the respondent was trying  to  tamper  with  the  witnesses.   Concessions   of benevolence  cannot readily be made in favour of the  prose- cution.   But it cannot be overlooked that Charan Singh  did turn  hostile,  though that happened after the,  High  Court gave  its judgment on April 1 1. The respondent  knows  that the  witness  turned hostile and significantly,  though  the witness  refused  to  support the  prosecution  he  made  an important admission that he bad submitted a written applica- tion or complaint to Inspector Ved Prakash on July 12,  1977 and  that  "whatever  is mentioned in  that  application  is correct".   That  application which is really  a  complaint, contains the most flagrant allegation of attempted tampering with  the  witness  by the respondent,  through  his  driver Chattar  Singh.   Reference to this incident is not  in  the nature of Additional evidence properly so called because the witness  was examined in the Sessions Court in the  presence of  the  respondent and his advocates.  They know  what  the witness stated in his open evidence and what explanation  he gave  for  making.  the complaint on  July  12,  1977.   The Sessions  Court will no doubt assess its value but  for  our limited  purpose,  the episode is difficult  to  dismiss  as irrelevant. Even  excluding the last incident in regard to Charan  Singh which  is  really first in point of time and  though  it  is corroborated by an entry in the General Diary, we are of the opinion  that (i) Yadav’s complaint of the,  14th  February, (ii)  Khedkar’s  complaint  of  even  date,  (iii)   Yadav’s admission  in  his  evidence that he did  make  the  written complaint  inspite  of the fact that he had  turned  hostile (iv)  the  affidavits  of Sat Pal Singh,  Ganpat  Singh  and Digambar  Das in regard to the incident of the 17th and  (v) the affidavit of Sarup Singh 961 regarding the incident of February 28, furnish  satisfactory proof  that  the  respondent  has  abused  his  liberty   by attempting  to,  suborn the prosecution  witnesses.  He  has therefore forfeited his right to remain free. Section  439(2)  of the Code of Criminal  Procedure  confers jurisdictionon  the  High Court or Court of  Sessions  to direct that any person whohas  been  released  on   bail under  Chapter XXXIII be arrested and committed to  custody. The  power to take back in custody an accused who  has  been enlarged  on  bail  has  to  be  exercised  with  care   and circumspection.  But the power, though of an  extra-ordinary nature, is meant to be exercised in appropriate cases  when, by  a preponderance of probabilities, it is clear  that  the accused  is  interfering  with  the  course  of  justice  by tampering   with  witnesses.   Refusal  to   exercise   that wholesome power in such cases, few though they may be,  will reduce it to a dead letter and will suffer the Courts to  be

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silent spectators to the subversion of the judicial process. We  might  as well wind up the Courts and bolt  their  doors against all than. permit a few to ensure that justice  shall not be done. The  power to cancel bail was exercised by the  Bombay  High Court   in  Madhukar  Purshottam  Jondkar  v.   Talab   Haji Hussain(1)  where  the accused was charged with  a  bailable offence.   The  test adopted by that Court was  whether  the material placed before the Court was "such as to lead to the conclusion  that there is a strong prima facie case that  if the  accused  were  to be allowed to be at  large  he  would tamper with the prosecution witnesses and impede the  course of justice".  An appeal preferred by the accused against the judgment  of  the Bombay High Court was  dismissed  by  this Court.   In  Gurcharan  Singh and  others  v.  State  (Delhi Administration,(2)  while confirming the order of  the  High Court  cancelling  the  bail  of  the  accused,  this  Court observed  that  the  only question which the  Court  had  to consider  at that stage was whether "there was  prima  facie case  made  out,  as  alleged,  on  the  statements  of  the witnesses  and  on  other  materials",  that  "there  was  a likelihood of the appellants tampering with the  prosecution witnesses".   It is by the application of this test that  we have come to the conclusion that the respondent’s bail ought to be cancelled. But avoidance of undue hardship or harassment is the  quint- essence  of judicial process.  Justice, at all time  and  in all situations, has to be tempered by mercy, even as against persons  who  attempt  to tamper with  its  processes.   The apprehension  of the prosecution is that ’Maruti  witnesses’ are  likely to be won over.  The instances discussed  by  us are  also  confined  to the attempted  tampering  of  Maruti witnesses  like  Yadav  and Charan  Singh,  though  we  have excluded  Charan Singh’s complaint from  our  consideration. Since  the  appellant’s  counsel has  assured  us  that  the prosecution  will examine the Maruti  witnesses  immediately and that their evidence will occupy no (1)  60 Bombay Law Reporter 465. (2)  1978 Criminal Law Journal 129. 137. 962 more  than  a  month,  it  will  be  enough  to  limit   the cancellation  of respondent’s bail to that period.  We  hope and  trust  that no unfair advantage will be  taken  of  our order  by stalling the proceedings or, by asking for a  stay on some pretext or the other.  If that is done, the arms  of law  shall  be  long enough.  Out of  abundant  caution,  we reserve liberty to the State to apply to the High Court,  if necessary,  but only if strictly necessary.  We are  hopeful that the State too will take our order in its true spirit. In  the  result, we allow the appeal partly, set  aside  the judgment  of  the  High Court dated April 1  1,  cancel  the respondents  bail for a period of one month from to-day  and direct that he be. taken into custody.  Respondent will,  in the normal course, be entitled to be released on fresh  bail on the expiry of the aforesaid period.  The learned Sessions Judge will be at liberty to fix the amount and conditions of bail.  The order of anticipatory bail will stand modified to the extent indicated herein. S. R.                        Appeal allowed in part. 9 63