IMPORTANT

Triple murder - Accused was four time M.P. and was in jail for 6 years - No ground to grant bail.

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

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

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

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

"It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi, 2001(2) RCR (Criminal) 337 : [2001(4) SCC 280] and Gurcharan Singh v. State (Delhi Admn.) [1978(1) SCC 118]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan, 2004(2) RCR (Criminal) 254 : 2004(2) Apex Criminal 553 (SC) : [(2004(7) SCC 528 pp. 535-36, para 11] :

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

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh, 2002(2) RCR (Criminal) 250 (SC) : 2002(3) SCC 598 and Puran v. Rambilas, 2001(2) RCR (Criminal) 801 (SC) : 2001(6) SCC 338).

"The condition laid down under Section 437(1)(i) is sine qua non for granting bail even under Section 439 of the Code. In the impugned order it is noticed that the High Court has given the period of incarceration already undergone by the accused and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of offences punishable with life imprisonment or even death penalty. In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitled the accused to be enlarged on bail, nor the fact that the trial is not likely to be concluded, in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail."

(emphasis supplied)

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

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

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

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

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

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

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

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

It is now beyond any controversy that such visits by a large number of persons inside the jail are in violation of the provisions of the Bihar Jail Manual and in particular Rules 623, 626-628 thereof. Even upon his election as a Member of Parliament from Madhepura Constituency he was not entitled to have such visitors having regard to the Special Rules for Division 1 Prisoners, Rule 1000 which permits interviews only once every fortnight and Rule 1001 which debars political matters being included in the conversation. These Rules also stand violated.

Thus the material recorded hereinabove shows that the respondent has absolutely no respect for rule of law nor is he in any manner afraid of the consequences of his unlawful acts. This is clear from the fact that some of the acts of the respondent recorded hereinabove have been committed even when his application for grant of bail is pending.

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

"Presumption of innocence is a human right. [See Narendra Singh v. State of M.P., 2004(3) RCR (Criminal) 613 : 2004(3) Apex Criminal 269 (SC) : (2004(10) SCC 699 para 31]. Article 21 in view of its expansive meaning not only protects life and liberty but also envisages a fair procedure. Liberty of a person should not ordinarily be interfered with unless there exists cogent grounds therefore. Sub-section (4) of Section 21 must be interpreted keeping in view the aforementioned salutary principles. Giving an opportunity to the Public Prosecutor to oppose an application for release of an accused appears to be reasonable restriction but clause (b) of sub-section (4) of Section 21 must be given a proper meaning."