REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2178 OF 2011
(Arising out of SLP (Crl.) No. 5650 of 2011)
Sanjay Chandra ………… Appellant
versus
CBI ………… Respondent
along with
CRIMINAL APPEAL NO.2179 OF 2011
(Arising out of SLP (Crl.) No. 5902 of 2011)
Vinod Goenka ………… Appellant
versus
Central Bureau of Investigation ………… Respondent
along with
CRIMINAL APPEAL NO.2180 OF 2011
(Arising out of SLP (Crl.) No. 6190 of 2011)
1Gautam Doshi ………… Appellant
versus
Central Bureau of Investigation ………… Respondent
along with
CRIMINAL APPEAL NO.2181 OF 2011
(Arising out of SLP (Crl.) No. 6288 of 2011)
Hari Nair ………… Appellant
versus
Central Bureau of Investigation ………… Respondent
along with
CRIMINAL APPEAL NO.2182 OF 2011
(Arising out of SLP (Crl.) No. 6315 of 2011)
Surendra Pipara ………… Appellant
versus
Central Bureau of Investigation ………… Respondent
J U D G M E N T
H.L. DATTU, J.
21) Leave granted in all the Special Leave
Petitions.
2) These appeals are directed against the common
Judgment and Order of the learned Single Judge
of the High Court of Delhi, dated 23rd May 2011
in Bail Application No. 508/2011, Bail
Application No. 509/2011 & Crl. M.A. 653/2011,
Bail Application No. 510/2011, Bail Application
No. 511/2011 and Bail Application No. 512/2011,
by which the learned Single Judge refused to
grant bail to the accused-appellants. These
cases were argued together and submitted for
decision as one case.
3) The offence alleged against each of the
accused, as noticed by the Ld. Special Judge,
CBI, New Delhi, who rejected bail applications
of the appellants, vide his order dated
20.4.2011, is extracted for easy reference :
Sanjay Chandra (A7) in Crl. Appeal No. 2178 of
2011 [arising out of SLP (Crl.)No.5650 of 2011]:
3“6. The allegations against
accused Sanjay Chandra are that he
entered into criminal conspiracy
with accused A. Raja, R.K.
Chandolia and other accused
persons during September 2009 to
get UAS licence for providing
telecom services to otherwise an
ineligible company to get UAS
licences. He, as Managing Director
of M/s Unitech Wireless (Tamil
Nadu) Limited, was looking after
the business of telecom through 8
group companies of Unitech
Limited. The first-come-firstserved procedure of allocation of
UAS Licences and spectrum was
manipulated by the accused persons
in order to benefit M/s Unitech
Group Companies. The cutoff date
of 25.09.2007 was decided by
accused public servants of DoT
primarily to allow consideration
of Unitech group applications for
UAS licences. The Unitech Group
Companies were in business of
realty and even the objects of
companies were not changed to
‘telecom’ and registered as
required before applying. The
companies were ineligible to get
the licences till the grant of UAS
licences. The Unitech Group was
almost last within the applicants
considered for allocation of UAS
licences and as per existing
policy of first-come-first-served,
no licence could be issued in as
many as 10 to 13 circles where
sufficient spectrum was not
4available. The Unitech companies
got benefit of spectrum in as many
as 10 circles over the other
eligible applicants. Accused
Sanjay Chandra, in conspiracy with
accused public servants, was aware
of the whole design of the
allocation of LOIs and on behalf
of the Unitech group companies was
ready with the drafts of Rs. 1658
crores as early as 10th October,
2007.”
Vinod Goenka (A5) in Crl. Appeal No. 2179 of
2011 [arising out of SLP(Crl)No.5902 of 2011] :
“5.The allegations against accused
Vinod Goenka are that he was one
of the directors of M/s Swan
Telecom (P) Limited in addition to
accused Shahid Usman Balwa w.e.f.
01.10.2007 and acquired majority
stake on 18.10.2007 in M/s Swan
Telecom (P) Limited (STPL) through
DB Infrastructure (P) Limited.
Accused Vinod Goenka carried
forward the fraudulent
applications of STPL dated
02.03.2007 submitted by previous
management despite knowing the
fact that STPL was ineligible
company to get UAS licences by
virtue of clause 8 of UASL
guidelines 2005. Accused Vinod
Goenka was an associate of accused
Shahid Usman Balwa to create false
documents including Board Minutes
of M/s Giraffe Consultancy (P)
5Limited fraudulently showing
transfer of its shares by the
companies of Reliance ADA Group
during February 2007 itself.
Accused/applicant in conspiracy
with accused Shahid Usman Balwa
concealed or furnished false
information to DoT regarding
shareholding pattern of STPL as on
the date of application thereby
making STPL an eligible company to
get licence on the date of
application, that is, 02.03.2007.
Accused/applicant was an overall
beneficiary with accused Shahid
Usman Balwa for getting licence
and spectrum in 13 telecom
circles.
12. Investigation has also
disclosed pursuant to TRAI
recommendations dated 28.08.2007
when M/s Reliance Communications
Ltd. got the GSM spectrum under
the Dual Technology policy,
accused Gautam Doshi, Hari Nair
and Surendra Pipara transferred
the control of M/s Swan Telecom
Pvt. Ltd., and said structure of
holding companies, to accused
Shahid Balwa and Vinod Goenka. In
this manner they transferred a
company which was otherwise
ineligible for grant of UAS
license on the date of
application, to the said two
accused persons belonging to
Dynamix Balwa (DB) group and
thereby facilitated them to cheat
the DoT by getting issued UAS
Licences despite the ineligibility
6on the date of application and
till 18.10.2007.
13. Investigation has disclosed
that accused Shahid Balwa and
Vinod Goenka joined M/s Swan
Telecom Pvt. Ltd. and M/s Tiger
Traders Pvt. Ltd. as directors on
01.10.2007 and DB group acquired
the majority stake in TTPL/ M/s
Swan Telecom Pvt. Ltd. (STPL) on
18.10.2007. On 18.10.2007 a fresh
equity of 49.90 lakh shares was
allotted to M/s DB Infrastructure
Pvt. Ltd. Therefore on 01.10.2007,
and thereafter, accused Shahid
Balwa and Vinod Goenka were incharge of, and were responsible
to, the company M/s Swan Telecom
Pvt. Ltd. for the conduct of
business. As such on this date,
majority shares of the company
were held by D.B. Group.”
Gautam Doshi (A9), Surendra Pipara (A10) and
Hari Nair (A 11) in Crl. Appeal Nos.2180,2182 &
2181 of 2011 [arising out of SLP (Crl) Nos.
6190,6315 & 6288 of 2011] :
“7. It is further alleged that in
January-February, 2007 accused
Gautam Doshi, Surendra Pipara and
Hari Nath in furtherance of their
common intention to cheat the
Department of Telecommunications,
structured/created net worth of
M/s Swan Telecom Pvt. Ltd., out of
funds arranged from M/s Reliance
Telecom Ltd. or its associates,
7for applying to DoT for UAS
Licences in 13 circles, where M/s
Reliance Telecom Ltd. had no GSM
spectrum, in a manner that its
associations with M/s Reliance
Telecom Ltd. may not be detected,
so that DOT could not reject its
application on the basis of clause
8 of the UASL Guidelines dated
14.12.2005.
8. In pursuance of the said common
intention of accused persons, they
structured the stake-holding of
M/s Swan Telecom Pvt. Ltd. in a
manner that only 9.9% equity was
held by M/s Reliance Telecom Ltd.
(RTL) and rest 90.1% was shown as
held by M/s Tiger Traders Pvt.
Ltd. (later known as M/s Tiger
Trustees Pvt. Ltd. – TTPL),
although the entire company was
held by the Reliance ADA Group of
companies through the funds
raised from M/s Reliance Telecom
Ltd. etc.
9. It was further alleged that M/s
Swan Telecom Pvt. Ltd. (STPL) was,
at the time of application dated
02.03.2007, an associate of M/s
Reliance ADA Group / M/s Reliance
Communications Limited / M/s
Reliance Telecom Limited, having
existing UAS Licences in all
telecom circles. Investigations
have also disclosed that M/s Tiger
Traders Pvt. Ltd., which held
majority stake (more than 90%) in
M/s Swan Telecom Pvt. Ltd. (STPL),
was also an associate company of
Reliance ADA Group. Both the
8companies has not business history
and were activated solely for the
purpose of applying for UAS
Licences in 13 telecom circles,
where M/s Reliance Telecom Ltd.
did not have GSM spectrum and M/s
Reliance Communications Ltd. had
already applied for dual
technology spectrum for these
circles. Investigation has
disclosed that the day to day
affairs of M/s Swan Telecom Pvt.
Ltd. and M/s Tiger Traders Pvt.
Ltd. were managed by the said
three accused persons either
themselves or through other
officers/consultants related to
the Reliance ADA group. Commercial
decisions of M/s Swan Telecom Pvt.
Ltd. and M/s Tiger Traders Pvt.
Ltd. were also taken by these
accused persons of Reliance ADA
group. Material inter-company
transactions (bank transactions)
of M/s Reliance Communications /
M/s Reliance Telecommunications
Ltd. and M/s Swan Telecom Pvt.
Ltd. (STPL) and M/s Tiger Traders
Pvt. Ltd. were carried out by same
group of persons as per the
instructions of said accused
Gautam Doshi and Hari Nair.
10. Investigations about the
holding structure of M/s Tiger
Traders Pvt. Ltd. has revealed
that the aforesaid accused persons
also structured two other
companies i.e. M/s Zebra
Consultancy Private Limited & M/s
Parrot Consultants Private
9Limited. Till April, 2007, by when
M/s Swan Telecom Pvt. Ltd. applied
for telecom licences, 50% shares
of M/s Zebra Consultancy Private
Limited & M/s Parrot Consultants
Private Limited, were purchased by
M/s Tiger Traders Pvt. Ltd.
Similarly, 50% of equity shares of
M/s Parrot Consultants Private
Limited & M/s Tiger Traders
Private Limited were purchased by
M/s Zebra Consultancy Private
Limited. Also, 50% of equity
shares of M/s Zebra Consultancy
Private Limited and M/s Tiger
Traders Private Limited were
purchased by M/s Parrot
Consultants Private Limited. These
3 companies were, therefore, cross
holding each other in an interlocking structure w.e.f. March
2006 till 4th April, 2007.
11. It is further alleged that
accused Gautam Doshi, Surendra
Pipara and Hari Nair instead of
withdrawing the fraudulent
applications preferred in the name
of M/s Swan Telecom (P) Limited,
which was not eligible at all,
allowed the transfer of control of
that company to the Dynamix Balwa
Group and thus, enabled
perpetuating and (sic.)
illegality. It is alleged that
TRAI in its recommendations dated
28.08.2007 recommended the use of
dual technology by UAS Licencees.
Due to this reason M/s Reliance
Communications Limited, holding
company of M/s Reliance Telecom
1Limited, became eligible to get
GSM spectrum in telecom circles
for which STPL had applied.
Consequently, having management
control of STPL was of no use for
the applicant/accused persons and
M/s Reliance Telecom Limited.
Moreover, the transfer of
management of STPL to DB Group and
sale of equity held by it to M/s
Delphi Investments (P) Limited,
Mauritius, M/s Reliance Telecom
Limited has earned a profit of
around Rs. 10 crores which
otherwise was not possible if they
had withdrawn the applications.
M/s Reliance Communications
Limited also entered into
agreement with M/s Swan Telecom
(P) Limited for sharing its
telecom infrastructure. It is
further alleged that the three
accused persons facilitated the
new management of M/s Swan Telecom
(P) Limited to get UAS licences on
the basis of applications filed by
the former management. It is
further alleged that M/s Swan
Telecom (P) Limited on the date of
application, that is, 02.03.2007
was an associate company of
Reliance ADA group, that is, M/s
Reliance Communications Limited/
M/s Reliance Telecom Limited and
therefore, ineligible for UAS
licences.
12. Investigation has also
disclosed pursuant to TRAI
recommendations dated 28.08.2007
when M/s Reliance Communications
1Ltd. got the GSM spectrum under
the Dual Technology policy,
accused Gautam Doshi, Hari Nair
and Surendra Pipara transferred
the control of M/s Swan Telecom
Pvt. Ltd., and said structure of
holding companies, to accused
Shahid Balwa and Vinod Goenka. In
this manner they transferred a
company which was otherwise
ineligible for grant of UAS
license on the date of
application, to the said two
accused persons belonging to
Dynamix Balwa (DB) group and
thereby facilitated them to cheat
the DoT by getting issued UAS
Licences despite the ineligibility
on the date of application and
till 18.10.2007.”
4) The Special Judge, CBI, New Delhi, rejected Bail
Applications filed by the appellants by his
order dated 20.04.2011. The appellants moved
the High Court by filing applications under
Section 439 of the Code of Criminal Procedure
(in short, “Cr. P.C.”). The same came to be
rejected by the learned Single Judge by his
order dated 23.05.2011. Aggrieved by the same,
the appellants are before us in these appeals.
15) Shri. Ram Jethmalani, Shri. Mukul Rohatgi, Shri
Soli J. Sorabjee and Shri. Ashok H. Desai,
learned senior counsel appeared for the
appellants and Shri. Harin P. Raval, learned
Additional Solicitor General, appears for the
respondent-CBI.
6) Shri. Ram Jethmalani, learned senior counsel
appearing for the appellant Sanjay Chandra,
would urge that the impugned Judgment has not
appreciated the basic rule laid down by this
Court that grant of bail is the rule and its
denial is the exception. Shri. Jethmalani
submitted that if there is any apprehension of
the accused of absconding from trial or
tampering with the witnesses, then it is
justified for the Court to deny bail. The
learned senior counsel would submit that the
accused has cooperated with the investigation
throughout and that his behavior has been
exemplary. He would further submit that the
1appellant was not arrested during the
investigation, as there was no threat from him
of tampering with the witnesses. He would
submit that the personal liberty is at a very
high pedestal in our Constitutional system, and
the same cannot be meddled with in a causal
manner. He would assail the impugned Judgment
stating that the Ld. Judge did not apply his
mind, and give adequate reasons before rejecting
bail, as is required by the legal norms set down
by this Court. Shri. Jethmalani further
contends that it was only after the appellants
appeared in the Court in pursuance of summons
issued, they were made to apply for bail, and,
thereafter, denied bail and sent to custody.
The learned senior counsel states that the trial
Judge does not have the power to send a person,
who he has summoned in pursuance of Section 87
Cr.P.C to judicial custody. The only power that
the trial Judge had, he would contend, was to
1ask for a bond as provided for in Section 88
Cr.P.C. to ensure his appearance. Shri.
Jethmalani submits that when a person appeared
in pursuance of a bond, he was a free man, and
such a free man cannot be committed to prison by
making him to apply for bail and thereafter,
denying him the same. Shri. Jethmalani further
submits that if it was the intention of the
Legislature to make a person, who appears in
pursuance of summons to apply for bail, it would
have been so legislated in Section 88 Cr.P.C.
The learned senior counsel assailed the Judgment
of the Delhi High Court in the ‘Court on its own
motion v. CBI’, 2004 (I) JCC 308, by which the
High Court gave directions to Criminal Courts to
call upon the accused who is summoned to appear
to apply for bail, and then decide on the merits
of the bail application. He would state that
the High Court has ignored even the CBI Manual
before issuing these directions, which provided
1for bail to be granted to the accused, except in
the event of there being commission of heinous
crime. The learned senior counsel would also
argue that it was an error to have a “rolled up
charge”, as recognized by the Griffiths’ case (R
vs. Griffiths and Ors., (1966) 1 Q.B. 589).
Shri.Jethmalani submitted that there is not even
a prima facie case against the accused and would
make references to the charge sheet and the
statement of several witnesses. He would
emphatically submit that none of the ingredients
of the offences charged with were stated in the
charge sheet. He would further contend that even
if, there is a prima facie case, the rule is
still bail, and not jail, as per the dicta of
this Court in several cases.
7) Shri. Mukul Rohatgi, learned senior counsel
appearing for the appellant Vinod Goenka, while
adopting the arguments of Shri. Jethmalani,
would further supplement by arguing that the Ld.
1Trial Judge erred in making the persons, who
appeared in pursuance of the summons, apply for
bail and then denying the same, and ordering for
remand in judicial custody. Shri. Rohatgi would
further contend that the gravity of the offence
charged with, is to be determined by the maximum
sentence prescribed by the Statute and not by
any other standard or measure. In other words,
the learned senior counsel would submit that the
alleged amount involved in the so-called Scam is
not the determining factor of the gravity of the
offence, but the maximum punishment prescribed
for the offence. He would state that the only
bar for bail pending trial in Section 437 is for
those persons who are charged with offences
punishable with life or death, and there is no
such bar for those persons who were charged with
offences with maximum punishment of seven
years. Shri. Rohatgi also cited some case laws.
18) Shri. Ashok H. Desai, learned senior counsel
appearing for the appellants Hari Nair and
Surendra Pipara, adopted the principal arguments
of Shri.Jethmalani. In addition, Shri. Desai
would submit that a citizen of this country, who
is charged with a criminal offence, has the
right to be enlarged on bail. Unless there is a
clear necessity for deprivation of his liberty,
a person should not be remanded to judicial
custody. Shri. Desai would submit that the Court
should bear in mind that such custody is not
punitive in nature, but preventive, and must be
opted only when the charges are serious. Shri.
Desai would further submit that the power of the
High Court and this Court is not limited by the
operation of Section 437. He would further
contend that Surendra Pipara deserves to be
released on bail in view of his serious health
conditions.
19) Shri. Soli J. Sorabjee, learned senior counsel
appearing for Gautam Doshi, adopted the
principal arguments of Shri. Jethmalani. Shri.
Sorabjee would assail the finding of the Learned
Judge of the High Court in the impugned Judgment
that the mere fact that the accused were not
arrested during the investigation was proof of
their influence in the society, and hence, there
was a reasonable apprehension that they would
tamper with the evidence if enlarged on bail.
Shri. Sorabjee would submit that if this
reasoning is to be accepted, then bail is to be
denied in each and every criminal case that
comes before the Court. The learned senior
counsel also highlighted that the accused had no
criminal antecedents.
10) Shri. Haren P. Raval, the learned Additional
Solicitor General, in his reply, would submit
that the offences that are being charged, are of
the nature that the economic fabric of the
1country is brought at stake. Further, the
learned ASG would state that the quantum of
punishment could not be the only determinative
factor for the magnitude of an offence. He would
state that one of the relevant considerations
for the grant of bail is the interest of the
society at large as opposed to the personal
liberty of the accused, and that the Court must
not lose sight of the former. He would submit
that in the changing circumstances and scenario,
it was in the interest of the society for the
Court to decline bail to the appellants. Shri.
Raval would further urge that consistency is the
norm of this Court and that there was no reason
or change in circumstance as to why this Court
should take a different view from the order of
20th June 2011 in Sharad Kumar Etc. v. Central
Bureau of Investigation [in SLP (Crl) No. 4584-
4585 of 2011] rejecting bail to some of the coaccused in the same case. Shri. Raval would
2further state that the investigation in these
cases is monitored by this Court and the trial
is proceeding on a day-to-day basis and that
there is absolutely no delay on behalf of the
prosecuting agency in completing the trial.
Further, he would submit that the appellants,
having cooperated with the investigation, is no
ground for grant of bail, as they were expected
to cooperate with the investigation as provided
by the law. He would further submit that the
test to enlarge an accused on bail is whether
there is a reasonable apprehension of tampering
with the evidence, and that there is an
apprehension of threat to some of the witnesses.
The learned ASG would further submit that there
is more reason now for the accused not to be
enlarged on bail, as they now have the knowledge
of the identity of the witnesses, who are the
employees of the accused, and there is an
apprehension that the witnesses may be tampered
2with. The learned ASG would state that Section
437 of the Cr.P.C. uses the word “appears”, and,
therefore, that the argument of the learned
senior counsel for the appellants that the power
of the trial Judge with regard to a person
summoned under Section 87 is controlled by
Section 88 is incorrect. Shri. Raval also made
references to the United Nations Convention on
Corruption and the Report on the Reforms in the
Criminal Justice System by Justice Malimath,
which, we do not think, is necessary to go into.
The learned ASG also relied on a few decisions
of this Court, and the same will be dealt with
in the course of the judgment. On a query from
the Bench, the learned ASG would submit that in
his opinion, bail should be denied in all cases
of corruption which pose a threat to the
economic fabric of the country, and that the
balance should tilt in favour of the public
interest.
211) In his reply, Shri. Jethmalani would submit
that as the presumption of innocence is the
privilege of every accused, there is also a
presumption that the appellants would not tamper
with the witnesses if they are enlarged on bail,
especially in the facts of the case, where the
appellants have cooperated with the
investigation. In recapitulating his
submissions, the learned senior counsel
contended that there are two principles for the
grant of bail – firstly, if there is no prima
facie case, and secondly, even if there is a
prima facie case, if there is no reasonable
apprehension of tampering with the witnesses or
evidence or absconding from the trial, the
accused are entitled to grant of bail pending
trial. He would submit that since both the
conditions are satisfied in this case, the
appellants should be granted bail.
212) Let us first deal with a minor issue canvassed
by Mr. Raval, learned ASG. It is submitted that
this Court has refused to entertain the Special
Leave Petition filed by one of the co-accused
[Sharad Kumar Vs. CBI (supra)] and, therefore,
there is no reason or change in the circumstance
to take a different view in the case of the
appellants who are also charge- sheeted for the
same offence. We are not impressed by this
argument. In the aforesaid petition, the
petitioner was before this Court before framing
of charges by the Trial Court. Now the charges
are framed and the trial has commenced. We
cannot compare the earlier and the present
proceedings and conclude that there are no
changed circumstances and reject these
petitions.
13) The appellants are facing trial in respect of
the offences under Sections 420-B, 468, 471 and
109 of Indian Penal Code and Section 13(2) read
2with 13(i)(d) of Prevention of Corruption Act,
1988. Bail has been refused first by the
Special Judge, CBI, New Delhi and subsequently,
by the High Court. Both the courts have listed
the factors, on which they think, are relevant
for refusing the Bail applications filed by the
applicants as seriousness of the charge; the
nature of the evidence in support of the charge;
the likely sentence to be imposed upon
conviction; the possibility of interference with
witnesses; the objection of the prosecuting
authorities; possibility of absconding from
justice.
14) In bail applications, generally, it has been
laid down from the earliest times that the
object of bail is to secure the appearance of
the accused person at his trial by reasonable
amount of bail. The object of bail is neither
punitive nor preventative. Deprivation of
liberty must be considered a punishment, unless
2it can be required to ensure that an accused
person will stand his trial when called upon.
The courts owe more than verbal respect to the
principle that punishment begins after
conviction, and that every man is deemed to be
innocent until duly tried and duly found guilty.
From the earliest times, it was appreciated that
detention in custody pending completion of trial
could be a cause of great hardship. From time to
time, necessity demands that some un-convicted
persons should be held in custody pending trial
to secure their attendance at the trial but in
such cases, ‘necessity’ is the operative test.
In this country, it would be quite contrary to
the concept of personal liberty enshrined in the
Constitution that any person should be punished
in respect of any matter, upon which, he has not
been convicted or that in any circumstances, he
should be deprived of his liberty upon only the
belief that he will tamper with the witnesses if
2left at liberty, save in the most extraordinary
circumstances. Apart from the question of
prevention being the object of a refusal of
bail, one must not lose sight of the fact that
any imprisonment before conviction has a
substantial punitive content and it would be
improper for any Court to refuse bail as a mark
of disapproval of former conduct whether the
accused has been convicted for it or not or to
refuse bail to an un-convicted person for the
purpose of giving him a taste of imprisonment as
a lesson.
15) In the instant case, as we have already noticed
that the “pointing finger of accusation” against
the appellants is ‘the seriousness of the
charge’. The offences alleged are economic
offences which has resulted in loss to the State
exchequer. Though, they contend that there is
possibility of the appellants tampering
witnesses, they have not placed any material in
2support of the allegation. In our view,
seriousness of the charge is, no doubt, one of
the relevant considerations while considering
bail applications but that is not the only test
or the factor : The other factor that also
requires to be taken note of is the punishment
that could be imposed after trial and
conviction, both under the Indian Penal Code and
Prevention of Corruption Act. Otherwise, if the
former is the only test, we would not be
balancing the Constitutional Rights but rather
“recalibration of the scales of justice.” The
provisions of Cr.P.C. confer discretionary
jurisdiction on Criminal Courts to grant bail to
accused pending trial or in appeal against
convictions, since the jurisdiction is
discretionary, it has to be exercised with great
care and caution by balancing valuable right of
liberty of an individual and the interest of the
society in general. In our view, the reasoning
2adopted by the learned District Judge, which is
affirmed by the High Court, in our opinion, a
denial of the whole basis of our system of law
and normal rule of bail system. It transcends
respect for the requirement that a man shall be
considered innocent until he is found guilty.
If such power is recognized, then it may lead to
chaotic situation and would jeopardize the
personal liberty of an individual. This Court,
in Kalyan Chandra Sarkar Vs. Rajesh Ranjan-
(2005) 2 SCC 42, observed that “under the
criminal laws of this country, a person accused
of offences which are non-bailable, is liable to
be detained in custody during the pendency of
trial unless he is enlarged on bail in
accordance with law. Such detention cannot be
questioned as being violative of Article 21 of
the Constitution, since the same is authorized
by law. But even persons accused of nonbailable offences are entitled to bail if the
2Court concerned comes to the conclusion that the
prosecution has failed to establish a prima
facie case against him and/or if the Court is
satisfied by reasons to be recorded that in
spite of the existence of prima facie case,
there is need to release such accused on bail,
where fact situations require it to do so.”
16) This Court, time and again, has stated that bail
is the rule and committal to jail an exception.
It is also observed that refusal of bail is a
restriction on the personal liberty of the
individual guaranteed under Article 21 of the
Constitution. In the case of State of Rajasthan
v. Balchand, (1977) 4 SCC 308, this Court
opined:
“2. The basic rule may perhaps be
tersely put as bail, not jail,
except where there are
circumstances suggestive of
fleeing from justice or thwarting
the course of justice or creating
other troubles in the shape of
repeating offences or intimidating
witnesses and the like, by the
petitioner who seeks enlargement
3on bail from the Court. We do not
intend to be exhaustive but only
illustrative.
3. It is true that the gravity of
the offence involved is likely to
induce the petitioner to avoid the
course of justice and must weigh
with us when considering the
question of jail. So also the
heinousness of the crime. Even so,
the record of the petitioner in
this case is that, while he has
been on bail throughout in the
trial court and he was released
after the judgment of the High
Court, there is nothing to suggest
that he has abused the trust
placed in him by the court; his
social circumstances also are not
so unfavourable in the sense of
his being a desperate character or
unsocial element who is likely to
betray the confidence that the
court may place in him to turn up
to take justice at the hands of
the court. He is stated to be a
young man of 27 years with a
family to maintain. The
circumstances and the social
milieu do not militate against the
petitioner being granted bail at
this stage. At the same time any
possibility of the absconsion or
evasion or other abuse can be
taken care of by a direction that
the petitioner will report himself
before the police station at Baren
once every fortnight.”
3(17) In the case of Gudikanti Narasimhulu v. Public
Prosecutor, (1978) 1 SCC 240, V.R. Krishna Iyer,
J., sitting as Chamber Judge, enunciated the
principles of bail thus:
“3. What, then, is “judicial
discretion” in this bail context?
In the elegant words of Benjamin
Cardozo:
“The Judge, even when he is free,
is still not wholly free. He is not
to innovate at pleasure. He is not
a knight-errant roaming at will in
pursuit of his own ideal of beauty
or of goodness. He is to draw his
inspiration from consecrated
principles. He is not to yield to
spasmodic sentiment, to vague and
unregulated benevolence. He is to
exercise a discretion informed by
tradition, methodized by analogy,
disciplined by system, and
subordinated to “the primordial
necessity of order in the social
life”. Wide enough in all
conscience is the field of
discretion that remains.”
Even so it is useful to notice the
tart terms of Lord Camden that
“the discretion of a Judge is the
law of tyrants: it is always
unknown, it is different in
different men; it is casual, and
depends upon constitution, temper
and passion. In the best, it is
oftentimes caprice; in the worst,
3it is every vice, folly and passion
to which human nature is
liable....”
Perhaps, this is an overly
simplistic statement and we must
remember the constitutional focus
in Articles 21 and 19 before
following diffuse observations and
practices in the English system.
Even in England there is a growing
awareness that the working of the
bail system requires a second look
from the point of view of correct
legal criteria and sound
principles, as has been pointed out
by Dr Bottomley.
6. Let us have a glance at the pros
and cons and the true principle
around which other relevant factors
must revolve. When the case is
finally disposed of and a person is
sentenced to incarceration, things
stand on a different footing. We
are concerned with the penultimate
stage and the principal rule to
guide release on bail should be to
secure the presence of the
applicant who seeks to be
liberated, to take judgment and
serve sentence in the event of the
Court punishing him with
imprisonment. In this perspective,
relevance of considerations is
regulated by their nexus with the
likely absence of the applicant for
fear of a severe sentence, if such
be plausible in the case. As Erle.
J. indicated, when the crime
charged (of which a conviction has
been sustained) is of the highest
3magnitude and the punishment of it
assigned by law is of extreme
severity, the Court may reasonably
presume, some evidence warranting,
that no amount of bail would secure
the presence of the convict at the
stage of judgment, should he be
enlarged. Lord Campbell, C.J.
concurred in this approach in that
case and Coleridge J. set down the
order of priorities as follows:
“I do not think that an accused
party is detained in custody
because of his guilt, but because
there are sufficient probable
grounds for the charge against him
as to make it proper that he should
be tried, and because the detention
is necessary to ensure his
appearance at trial .... It is a
very important element in
considering whether the party, if
admitted to bail, would appear to
take his trial; and I think that in
coming to a determination on that
point three elements will generally
be found the most important: the
charge, the nature of the evidence
by which it is supported, and the
punishment to which the party would
be liable if convicted.
In the present case, the charge is
that of wilful murder; the evidence
contains an admission by the
prisoners of the truth of the
charge, and the punishment of the
offence is, by law, death.”
7. It is thus obvious that the
nature of the charge is the vital
3factor and the nature of the
evidence also is pertinent. The
punishment to which the party may
be liable, if convicted or
conviction is confirmed, also bears
upon the issue.
8. Another relevant factor is as to
whether the course of justice would
be thwarted by him who seeks the
benignant jurisdiction of the Court
to be freed for the time being.
9. Thus the legal principles and
practice validate the Court
considering the likelihood of the
applicant interfering with
witnesses for the prosecution or
otherwise polluting the process of
justice. It is not only traditional
but rational, in this context, to
enquire into the antecedents of a
man who is applying for bail to
find whether he has a bad record –
particularly a record which
suggests that he is likely to
commit serious offences while on
bail. In regard to habituals, it is
part of criminological history that
a thoughtless bail order has
enabled the bailee to exploit the
opportunity to inflict further
crimes on the members of society.
Bail discretion, on the basis of
evidence about the criminal record
of a defendant is therefore not an
exercise in irrelevance.
13. Viewed from this perspective,
we gain a better insight into the
rules of the game. When a person,
charged with a grave offence, has
3been acquitted at a stage, has the
intermediate acquittal pertinence
to a bail plea when the appeal
before this Court pends? Yes, it
has. The panic which might prompt
the accused to jump the gauntlet of
justice is less, having enjoyed the
confidence of the Court's verdict
once. Concurrent holdings of guilt
have the opposite effect. Again,
the ground for denial of
provisional release becomes weaker
when the fact stares us in the face
that a fair finding — if that be so
— of innocence has been recorded by
one Court. It may not be
conclusive, for the judgment of
acquittal may be ex facie wrong,
the likelihood of desperate
reprisal, if enlarged, may be a
deterrent and his own safety may be
more in prison than in the vengeful
village where feuds have provoked
the violent offence. It depends.
Antecedents of the man and sociogeographical circumstances have a
bearing only from this angle.
Police exaggerations of prospective
misconduct of the accused, if
enlarged, must be soberly sized up
lest danger of excesses and
injustice creep subtly into the
discretionary curial technique. Bad
record and police prediction of
criminal prospects to invalidate
the bail plea are admissible in
principle but shall not stampede
the Court into a complacent
refusal.”
3(18) In Gurcharan Singh v. State (Delhi Admn.),
(1978) 1 SCC 118, this Court took the view:
“22. In other non-bailable cases
the Court will exercise its
judicial discretion in favour of
granting bail subject to subsection (3) of Section 437 CrPC if
it deems necessary to act under
it. Unless exceptional
circumstances are brought to the
notice of the Court which may
defeat proper investigation and a
fair trial, the Court will not
decline to grant bail to a person
who is not accused of an offence
punishable with death or
imprisonment for life. It is also
clear that when an accused is
brought before the Court of a
Magistrate with the allegation
against him of an offence
punishable with death or
imprisonment for life, he has
ordinarily no option in the matter
but to refuse bail subject,
however, to the first proviso to
Section 437(1) CrPC and in a case
where the Magistrate entertains a
reasonable belief on the materials
that the accused has not been
guilty of such an offence. This
will, however, be an extraordinary
occasion since there will be some
materials at the stage of initial
arrest, for the accusation or for
strong suspicion of commission by
the person of such an offence.
324. Section 439(1) CrPC of the new
Code, on the other hand, confers
special powers on the High Court
or the Court of Session in respect
of bail. Unlike under Section
437(1) there is no ban imposed
under Section 439(1), CrPC against
granting of bail by the High Court
or the Court of Session to persons
accused of an offence punishable
with death or imprisonment for
life. It is, however, legitimate
to suppose that the High Court or
the Court of Session will be
approached by an accused only
after he has failed before the
Magistrate and after the
investigation has progressed
throwing light on the evidence and
circumstances implicating the
accused. Even so, the High Court
or the Court of Session will have
to exercise its judicial
discretion in considering the
question of granting of bail under
Section 439(1) CrPC of the new
Code. The overriding
considerations in granting bail to
which we adverted to earlier and
which are common both in the case
of Section 437(1) and Section
439(1) CrPC of the new Code are
the nature and gravity of the
circumstances in which the offence
is committed; the position and the
status of the accused with
reference to the victim and the
witnesses; the likelihood, of the
accused fleeing from justice; of
repeating the offence; of
3jeopardising his own life being
faced with a grim prospect of
possible conviction in the case;
of tampering with witnesses; the
history of the case as well as of
its investigation and other
relevant grounds which, in view of
so many valuable factors, cannot
be exhaustively set out.”
19) In Babu Singh v. State of U.P., (1978) 1 SCC
579, this Court opined:
“8. The Code is cryptic on this
topic and the Court prefers to be
tacit, be the order custodial or
not. And yet, the issue is one of
liberty, justice, public safety
and burden on the public treasury,
all of which insist that a
developed jurisprudence of bail is
integral to a socially sensitized
judicial process. As Chamber Judge
in this summit Court I had to deal
with this uncanalised case-flow,
ad hoc response to the docket
being the flickering candle light.
So it is desirable that the
subject is disposed of on basic
principle, not improvised brevity
draped as discretion. Personal
liberty, deprived when bail is
refused, is too precious a value
of our constitutional system
recognised under Article 21 that
the curial power to negate it is a
great trust exercisable, not
casually but judicially, with
3lively concern for the cost to the
individual and the community. To
glamorise 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.
…
16. Thus the legal principle and
practice validate the Court
considering the likelihood of the
applicant interfering with
witnesses for the prosecution or
otherwise polluting the process of
justice. It is not only
traditional but rational, in this
context, to enquire into the
antecedents of a man who is
applying for bail to find whether
he has a bad record—particularly a
record which suggests that he is
likely to commit serious offences
while on bail. In regard to
habituals, it is part of
criminological history that a
thoughtless bail order has enabled
the bailee to exploit the
opportunity to inflict further
crimes on the members of society.
Bail discretion, on the basis of
evidence about the criminal record
of a defendant, is therefore not
an exercise in irrelevance.
417. The significance and sweep of
Article 21 make the deprivation of
liberty a matter of grave concern
and permissible only when the law
authorising it is reasonable,
even-handed and geared to the
goals of community good and State
necessity spelt out in Article 19.
Indeed, the considerations I have
set out as criteria are germane to
the constitutional proposition I
have deduced. Reasonableness
postulates intelligent care and
predicates that deprivation of
freedom by refusal of bail is not
for punitive purpose but for the
bi-focal interests of justice—to
the individual involved and
society affected.
18. We must weigh the contrary
factors to answer the test of
reasonableness, subject to the
need for securing the presence of
the bail applicant. It makes sense
to assume that a man on bail has a
better chance to prepare or
present his case than one remanded
in custody. And if public justice
is to be promoted, mechanical
detention should be demoted. In
the United States, which has a
constitutional perspective close
to ours, the function of bail is
limited, “community roots” of the
applicant are stressed and, after
the Vera Foundation's Manhattan
Bail Project, monetary suretyship
is losing ground. The considerable
public expense in keeping in
custody where no danger of
4disappearance or disturbance can
arise, is not a negligible
consideration. Equally important
is the deplorable condition,
verging on the inhuman, of our
sub-jails, that the unrewarding
cruelty and expensive custody of
avoidable incarceration makes
refusal of bail unreasonable and a
policy favouring release justly
sensible.
20. Viewed from this perspective,
we gain a better insight into the
rules of the game. When a person,
charged with a grave offence, has
been acquitted at a stage, has the
intermediate acquittal pertinence
to a bail plea when the appeal
before this Court pends? Yes, it
has. The panic which might prompt
the accused to jump the gauntlet
of justice is less, having enjoyed
the confidence of the Court's
verdict once. Concurrent holdings
of guilt have the opposite effect.
Again, the ground for denial of
provisional release becomes weaker
when the fact stares us in the
face that a fair finding — if that
be so — of innocence has been
recorded by one Court. It may be
conclusive, for the judgment of
acquittal may be ex facie wrong,
the likelihood of desperate
reprisal, it enlarged, may be a
deterrent and his own safety may
be more in prison than in the
vengeful village where feuds have
provoked the violent offence. It
depends. Antecedents of the man
4and socio-geographical
circumstances have a bearing only
from this angle. Police
exaggerations of prospective
misconduct of the accused, if
enlarged, must be soberly sized up
lest danger of excesses and
injustice creep subtly into the
discretionary curial technique.
Bad record and police prediction
of criminal prospects to
invalidate the bail plea are
admissible in principle but shall
not stampede the Court into a
complacent refusal.”
20) In Moti Ram v. State of M.P., (1978) 4 SCC 47,
this Court, while discussing pre-trial
detention, held:
“14. The consequences of pre-trial
detention are grave. Defendants
presumed innocent arc subjected to
the psychological and physical
deprivations of jail life, usually
under more onerous conditions than
are imposed on convicted
defendants. The jailed defendant
loses his job if he has one and is
prevented from contributing to the
preparation of his defence.
Equally important, the burden of
his detention frequently falls
heavily on the innocent members of
his family.”
421) The concept and philosophy of bail was
discussed by this Court in Vaman Narain Ghiya
v. State of Rajasthan, (2009) 2 SCC 281, thus:
“6. “Bail” remains an undefined
term in CrPC. Nowhere else has the
term been statutorily defined.
Conceptually, it continues to be
understood as a right for
assertion of freedom against the
State imposing restraints. Since
the UN Declaration of Human Rights
of 1948, to which India is a
signatory, the concept of bail has
found a place within the scope of
human rights. The dictionary
meaning of the expression “bail”
denotes a security for appearance
of a prisoner for his release.
Etymologically, the word is
derived from an old French verb
“bailer” which means to “give” or
“to deliver”, although another
view is that its derivation is
from the Latin term “baiulare”,
meaning “to bear a burden”. Bail
is a conditional liberty. Stroud's
Judicial Dictionary (4th Edn.,
1971) spells out certain other
details. It states:
“… when a man is taken or arrested
for felony, suspicion of felony,
indicted of felony, or any such
case, so that he is restrained of
his liberty. And, being by law
bailable, offereth surety to those
4which have authority to bail him,
which sureties are bound for him
to the King's use in a certain
sums of money, or body for body,
that he shall appear before the
justices of goal delivery at the
next sessions, etc. Then upon the
bonds of these sureties, as is
aforesaid, he is bailed—that is to
say, set at liberty until the day
appointed for his appearance.”
Bail may thus be regarded as a
mechanism whereby the State
devolutes upon the community the
function of securing the presence
of the prisoners, and at the same
time involves participation of the
community in administration of
justice.
7. Personal liberty is fundamental
and can be circumscribed only by
some process sanctioned by law.
Liberty of a citizen is
undoubtedly important but this is
to balance with the security of
the community. A balance is
required to be maintained between
the personal liberty of the
accused and the investigational
right of the police. It must
result in minimum interference
with the personal liberty of the
accused and the right of the
police to investigate the case. It
has to dovetail two conflicting
demands, namely, on the one hand
the requirements of the society
for being shielded from the
hazards of being exposed to the
misadventures of a person alleged
4to have committed a crime; and on
the other, the fundamental canon
of criminal jurisprudence viz. the
presumption of innocence of an
accused till he is found guilty.
Liberty exists in proportion to
wholesome restraint, the more
restraint on others to keep off
from us, the more liberty we have.
(See A.K. Gopalan v. State of
Madras)
8. The law of bail, like any other
branch of law, has its own
philosophy, and occupies an
important place in the
administration of justice and the
concept of bail emerges from the
conflict between the police power
to restrict liberty of a man who
is alleged to have committed a
crime, and presumption of
innocence in favour of the alleged
criminal. An accused is not
detained in custody with the
object of punishing him on the
assumption of his guilt.”
22) More recently, in the case of Siddharam
Satlingappa Mhetre v. State of Maharashtra,
(2011) 1 SCC 694, this Court observed that
“(j)ust as liberty is precious to an individual,
so is the society’s interest in maintenance of
4peace, law and order. Both are equally
important.” This Court further observed :
“116. Personal liberty is a very
precious fundamental right and it
should be curtailed only when it
becomes imperative according to
the peculiar facts and
circumstances of the case.”
This Court has taken the view that when
there is a delay in the trial, bail should be
granted to the accused [See Babba v. State of
Maharashtra, (2005) 11 SCC 569, Vivek Kumar v.
State of U.P., (2000) 9 SCC 443, Mahesh Kumar
Bhawsinghka v. State of Delhi, (2000) 9 SCC
383].
23) The principles, which the Court must consider
while granting or declining bail, have been
culled out by this Court in the case of Prahlad
Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280,
thus:
4“The jurisdiction to grant bail
has to be exercised on the basis
of well-settled principles having
regard to the circumstances of
each case and not in an arbitrary
manner. While granting the bail,
the court has to keep in mind the
nature of accusations, the nature
of the 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, reasonable
possibility of securing the
presence of the accused at the
trial, reasonable apprehension of
the witnesses being tampered with,
the larger interests of the public
or State and similar other
considerations. It has also to be
kept in mind that for the purposes
of granting the bail the
legislature has used the words
“reasonable grounds for believing”
instead of “the evidence” which
means the court dealing with the
grant of bail can only satisfy it
(sic itself) as to whether there
is a genuine case against the
accused and that the prosecution
will be able to produce prima
facie evidence in support of the
charge. It is not expected, at
this stage, to have the evidence
establishing the guilt of the
accused beyond reasonable doubt.”
424) In State of U.P. v. Amarmani Tripathi, (2005) 8
SCC 21, this Court held as under:
“18. It is well settled that the
matters to be considered in an
application for bail are (i)
whether there is any prima facie or
reasonable ground to believe that
the accused had committed the
offence; (ii) nature and gravity of
the charge; (iii) severity of the
punishment in the event of
conviction; (iv) danger of the
accused absconding or fleeing, if
released on bail; (v) character,
behaviour, means, position and
standing of the accused; (vi)
likelihood of the offence being
repeated; (vii) reasonable
apprehension of the witnesses being
tampered with; and (viii) danger,
of course, of justice being
thwarted by grant of bail [see
Prahlad Singh Bhati v. NCT, Delhi
and Gurcharan Singh v. State (Delhi
Admn.)]. 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
4Kalyan Chandra Sarkar v. Rajesh
Ranjan: (SCC pp. 535-36, para 11)
“11. 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 v.
Sudarshan Singh and Puran v.
Rambilas.)”
522. While a detailed examination of
the evidence is to be avoided while
considering the question of bail,
to ensure that there is no
prejudging and no prejudice, a
brief examination to be satisfied
about the existence or otherwise of
a prima facie case is necessary.”
25) Coming back to the facts of the present case,
both the Courts have refused the request for
grant of bail on two grounds :- The primary
ground is that offence alleged against the
accused persons is very serious involving deep
rooted planning in which, huge financial loss is
caused to the State exchequer ; the secondary
ground is that the possibility of the accused
persons tempering with the witnesses. In the
present case, the charge is that of cheating and
dishonestly inducing delivery of property,
forgery for the purpose of cheating using as
genuine a forged document. The punishment of the
offence is punishment for a term which may extend
to seven years. It is, no doubt, true that the
nature of the charge may be relevant, but at the
5same time, the punishment to which the party may
be liable, if convicted, also bears upon the
issue. Therefore, in determining whether to
grant bail, both the seriousness of the charge
and the severity of the punishment should be
taken into consideration. The grant or refusal
to grant bail lies within the discretion of the
Court. The grant or denial is regulated, to a
large extent, by the facts and circumstances of
each particular case. But at the same time,
right to bail is not to be denied merely because
of the sentiments of the community against the
accused. The primary purposes of bail in a
criminal case are to relieve the accused of
imprisonment, to relieve the State of the burden
of keeping him, pending the trial, and at the
same time, to keep the accused constructively in
the custody of the Court, whether before or after
conviction, to assure that he will submit to the
jurisdiction of the Court and be in attendance
5thereon whenever his presence is required. This
Court in Gurcharan Singh and Ors. Vs. State AIR
1978 SC 179 observed that two paramount
considerations, while considering petition for
grant of bail in non-bailable offence, apart from
the seriousness of the offence, are the
likelihood of the accused fleeing from justice
and his tampering with the prosecution witnesses.
Both of them relate to ensure of the fair trial
of the case. Though, this aspect is dealt by the
High Court in its impugned order, in our view,
the same is not convincing.
26) When the undertrial prisoners are detained in
jail custody to an indefinite period, Article 21
of the Constitution is violated. Every person,
detained or arrested, is entitled to speedy
trial, the question is : whether the same is
possible in the present case. There are
seventeen accused persons. Statement of the
witnesses runs to several hundred pages and the
5documents on which reliance is placed by the
prosecution, is voluminous. The trial may take
considerable time and it looks to us that the
appellants, who are in jail, have to remain in
jail longer than the period of detention, had
they been convicted. It is not in the interest
of justice that accused should be in jail for an
indefinite period. No doubt, the offence alleged
against the appellants is a serious one in terms
of alleged huge loss to the State exchequer,
that, by itself, should not deter us from
enlarging the appellants on bail when there is no
serious contention of the respondent that the
accused, if released on bail, would interfere
with the trial or tamper with evidence. We do
not see any good reason to detain the accused in
custody, that too, after the completion of the
investigation and filing of the charge-sheet.
This Court, in the case of State of Kerala Vs.
Raneef (2011) 1 SCC 784, has stated :-
5“15. In deciding bail applications
an important factor which should
certainly be taken into
consideration by the court is the
delay in concluding the trial.
Often this takes several years,
and if the accused is denied bail
but is ultimately acquitted, who
will restore so many years of his
life spent in custody? Is Article
21 of the Constitution, which is
the most basic of all the
fundamental rights in our
Constitution, not violated in such
a case? Of course this is not the
only factor, but it is certainly
one of the important factors in
deciding whether to grant bail. In
the present case the respondent
has already spent 66 days in
custody (as stated in Para 2 of
his counter-affidavit), and we see
no reason why he should be denied
bail. A doctor incarcerated for a
long period may end up like Dr.
Manette in Charles Dicken's novel
A Tale of Two Cities, who forgot
his profession and even his name
in the Bastille.”
27) In ‘Bihar Fodder Scam’, this Court, taking into
consideration the seriousness of the charges
alleged and the maximum sentence of imprisonment
that could be imposed including the fact that the
5appellants were in jail for a period more than
six months as on the date of passing of the
order, was of the view that the further detention
of the appellants as pre-trial prisoners would
not serve any purpose.
28) We are conscious of the fact that the accused
are charged with economic offences of huge
magnitude. We are also conscious of the fact
that the offences alleged, if proved, may
jeopardize the economy of the country. At the
same time, we cannot lose sight of the fact that
the investigating agency has already completed
investigation and the charge sheet is already
filed before the Special Judge, CBI, New Delhi.
Therefore, their presence in the custody may not
be necessary for further investigation. We are
of the view that the appellants are entitled to
the grant of bail pending trial on stringent
conditions in order to ally the apprehension
expressed by CBI.
529) In the view we have taken, it may not be
necessary to refer and discuss other issues
canvassed by the learned counsel for the parties
and the case laws relied on in support of their
respective contentions. We clarify that we have
not expressed any opinion regarding the other
legal issues canvassed by learned counsel for the
parties.
30) In the result, we order that the appellants be
released on bail on their executing a bond with
two solvent sureties, each in a sum of `5
lakhs to the satisfaction of the Special Judge,
CBI, New Delhi on the following conditions :-
a.The appellants shall not directly or
indirectly make any inducement, threat or
promise to any person acquainted with the
facts or the case so as to dissuade him to
disclose such facts to the Court or to any
other authority.
5b. They shall remain present before the
Court on the dates fixed for hearing of
the case. If they want to remain absent,
then they shall take prior permission of
the court and in case of unavoidable
circumstances for remaining absent, they
shall immediately give intimation to the
appropriate court and also to the
Superintendent, CBI and request that they
may be permitted to be present through the
counsel.
c.They will not dispute their identity as
the accused in the case.
d.They shall surrender their passport, if
any (if not already surrendered), and in
case, they are not a holder of the same,
they shall swear to an affidavit. If they
have already surrendered before the Ld.
Special Judge, CBI, that fact should also
be supported by an affidavit.
5e.We reserve liberty to the CBI to make an
appropriate application for
modification/recalling the order passed by
us, if for any reason, the appellants
violate any of the conditions imposed by
this Court.
31) The appeals are disposed of accordingly.
..................J.
[ G. S. SINGHVI ]
..................J.
[ H. L. DATTU ]
New Delhi,
November 23, 2011
5
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2178 OF 2011
(Arising out of SLP (Crl.) No. 5650 of 2011)
Sanjay Chandra ………… Appellant
versus
CBI ………… Respondent
along with
CRIMINAL APPEAL NO.2179 OF 2011
(Arising out of SLP (Crl.) No. 5902 of 2011)
Vinod Goenka ………… Appellant
versus
Central Bureau of Investigation ………… Respondent
along with
CRIMINAL APPEAL NO.2180 OF 2011
(Arising out of SLP (Crl.) No. 6190 of 2011)
1Gautam Doshi ………… Appellant
versus
Central Bureau of Investigation ………… Respondent
along with
CRIMINAL APPEAL NO.2181 OF 2011
(Arising out of SLP (Crl.) No. 6288 of 2011)
Hari Nair ………… Appellant
versus
Central Bureau of Investigation ………… Respondent
along with
CRIMINAL APPEAL NO.2182 OF 2011
(Arising out of SLP (Crl.) No. 6315 of 2011)
Surendra Pipara ………… Appellant
versus
Central Bureau of Investigation ………… Respondent
J U D G M E N T
H.L. DATTU, J.
21) Leave granted in all the Special Leave
Petitions.
2) These appeals are directed against the common
Judgment and Order of the learned Single Judge
of the High Court of Delhi, dated 23rd May 2011
in Bail Application No. 508/2011, Bail
Application No. 509/2011 & Crl. M.A. 653/2011,
Bail Application No. 510/2011, Bail Application
No. 511/2011 and Bail Application No. 512/2011,
by which the learned Single Judge refused to
grant bail to the accused-appellants. These
cases were argued together and submitted for
decision as one case.
3) The offence alleged against each of the
accused, as noticed by the Ld. Special Judge,
CBI, New Delhi, who rejected bail applications
of the appellants, vide his order dated
20.4.2011, is extracted for easy reference :
Sanjay Chandra (A7) in Crl. Appeal No. 2178 of
2011 [arising out of SLP (Crl.)No.5650 of 2011]:
3“6. The allegations against
accused Sanjay Chandra are that he
entered into criminal conspiracy
with accused A. Raja, R.K.
Chandolia and other accused
persons during September 2009 to
get UAS licence for providing
telecom services to otherwise an
ineligible company to get UAS
licences. He, as Managing Director
of M/s Unitech Wireless (Tamil
Nadu) Limited, was looking after
the business of telecom through 8
group companies of Unitech
Limited. The first-come-firstserved procedure of allocation of
UAS Licences and spectrum was
manipulated by the accused persons
in order to benefit M/s Unitech
Group Companies. The cutoff date
of 25.09.2007 was decided by
accused public servants of DoT
primarily to allow consideration
of Unitech group applications for
UAS licences. The Unitech Group
Companies were in business of
realty and even the objects of
companies were not changed to
‘telecom’ and registered as
required before applying. The
companies were ineligible to get
the licences till the grant of UAS
licences. The Unitech Group was
almost last within the applicants
considered for allocation of UAS
licences and as per existing
policy of first-come-first-served,
no licence could be issued in as
many as 10 to 13 circles where
sufficient spectrum was not
4available. The Unitech companies
got benefit of spectrum in as many
as 10 circles over the other
eligible applicants. Accused
Sanjay Chandra, in conspiracy with
accused public servants, was aware
of the whole design of the
allocation of LOIs and on behalf
of the Unitech group companies was
ready with the drafts of Rs. 1658
crores as early as 10th October,
2007.”
Vinod Goenka (A5) in Crl. Appeal No. 2179 of
2011 [arising out of SLP(Crl)No.5902 of 2011] :
“5.The allegations against accused
Vinod Goenka are that he was one
of the directors of M/s Swan
Telecom (P) Limited in addition to
accused Shahid Usman Balwa w.e.f.
01.10.2007 and acquired majority
stake on 18.10.2007 in M/s Swan
Telecom (P) Limited (STPL) through
DB Infrastructure (P) Limited.
Accused Vinod Goenka carried
forward the fraudulent
applications of STPL dated
02.03.2007 submitted by previous
management despite knowing the
fact that STPL was ineligible
company to get UAS licences by
virtue of clause 8 of UASL
guidelines 2005. Accused Vinod
Goenka was an associate of accused
Shahid Usman Balwa to create false
documents including Board Minutes
of M/s Giraffe Consultancy (P)
5Limited fraudulently showing
transfer of its shares by the
companies of Reliance ADA Group
during February 2007 itself.
Accused/applicant in conspiracy
with accused Shahid Usman Balwa
concealed or furnished false
information to DoT regarding
shareholding pattern of STPL as on
the date of application thereby
making STPL an eligible company to
get licence on the date of
application, that is, 02.03.2007.
Accused/applicant was an overall
beneficiary with accused Shahid
Usman Balwa for getting licence
and spectrum in 13 telecom
circles.
12. Investigation has also
disclosed pursuant to TRAI
recommendations dated 28.08.2007
when M/s Reliance Communications
Ltd. got the GSM spectrum under
the Dual Technology policy,
accused Gautam Doshi, Hari Nair
and Surendra Pipara transferred
the control of M/s Swan Telecom
Pvt. Ltd., and said structure of
holding companies, to accused
Shahid Balwa and Vinod Goenka. In
this manner they transferred a
company which was otherwise
ineligible for grant of UAS
license on the date of
application, to the said two
accused persons belonging to
Dynamix Balwa (DB) group and
thereby facilitated them to cheat
the DoT by getting issued UAS
Licences despite the ineligibility
6on the date of application and
till 18.10.2007.
13. Investigation has disclosed
that accused Shahid Balwa and
Vinod Goenka joined M/s Swan
Telecom Pvt. Ltd. and M/s Tiger
Traders Pvt. Ltd. as directors on
01.10.2007 and DB group acquired
the majority stake in TTPL/ M/s
Swan Telecom Pvt. Ltd. (STPL) on
18.10.2007. On 18.10.2007 a fresh
equity of 49.90 lakh shares was
allotted to M/s DB Infrastructure
Pvt. Ltd. Therefore on 01.10.2007,
and thereafter, accused Shahid
Balwa and Vinod Goenka were incharge of, and were responsible
to, the company M/s Swan Telecom
Pvt. Ltd. for the conduct of
business. As such on this date,
majority shares of the company
were held by D.B. Group.”
Gautam Doshi (A9), Surendra Pipara (A10) and
Hari Nair (A 11) in Crl. Appeal Nos.2180,2182 &
2181 of 2011 [arising out of SLP (Crl) Nos.
6190,6315 & 6288 of 2011] :
“7. It is further alleged that in
January-February, 2007 accused
Gautam Doshi, Surendra Pipara and
Hari Nath in furtherance of their
common intention to cheat the
Department of Telecommunications,
structured/created net worth of
M/s Swan Telecom Pvt. Ltd., out of
funds arranged from M/s Reliance
Telecom Ltd. or its associates,
7for applying to DoT for UAS
Licences in 13 circles, where M/s
Reliance Telecom Ltd. had no GSM
spectrum, in a manner that its
associations with M/s Reliance
Telecom Ltd. may not be detected,
so that DOT could not reject its
application on the basis of clause
8 of the UASL Guidelines dated
14.12.2005.
8. In pursuance of the said common
intention of accused persons, they
structured the stake-holding of
M/s Swan Telecom Pvt. Ltd. in a
manner that only 9.9% equity was
held by M/s Reliance Telecom Ltd.
(RTL) and rest 90.1% was shown as
held by M/s Tiger Traders Pvt.
Ltd. (later known as M/s Tiger
Trustees Pvt. Ltd. – TTPL),
although the entire company was
held by the Reliance ADA Group of
companies through the funds
raised from M/s Reliance Telecom
Ltd. etc.
9. It was further alleged that M/s
Swan Telecom Pvt. Ltd. (STPL) was,
at the time of application dated
02.03.2007, an associate of M/s
Reliance ADA Group / M/s Reliance
Communications Limited / M/s
Reliance Telecom Limited, having
existing UAS Licences in all
telecom circles. Investigations
have also disclosed that M/s Tiger
Traders Pvt. Ltd., which held
majority stake (more than 90%) in
M/s Swan Telecom Pvt. Ltd. (STPL),
was also an associate company of
Reliance ADA Group. Both the
8companies has not business history
and were activated solely for the
purpose of applying for UAS
Licences in 13 telecom circles,
where M/s Reliance Telecom Ltd.
did not have GSM spectrum and M/s
Reliance Communications Ltd. had
already applied for dual
technology spectrum for these
circles. Investigation has
disclosed that the day to day
affairs of M/s Swan Telecom Pvt.
Ltd. and M/s Tiger Traders Pvt.
Ltd. were managed by the said
three accused persons either
themselves or through other
officers/consultants related to
the Reliance ADA group. Commercial
decisions of M/s Swan Telecom Pvt.
Ltd. and M/s Tiger Traders Pvt.
Ltd. were also taken by these
accused persons of Reliance ADA
group. Material inter-company
transactions (bank transactions)
of M/s Reliance Communications /
M/s Reliance Telecommunications
Ltd. and M/s Swan Telecom Pvt.
Ltd. (STPL) and M/s Tiger Traders
Pvt. Ltd. were carried out by same
group of persons as per the
instructions of said accused
Gautam Doshi and Hari Nair.
10. Investigations about the
holding structure of M/s Tiger
Traders Pvt. Ltd. has revealed
that the aforesaid accused persons
also structured two other
companies i.e. M/s Zebra
Consultancy Private Limited & M/s
Parrot Consultants Private
9Limited. Till April, 2007, by when
M/s Swan Telecom Pvt. Ltd. applied
for telecom licences, 50% shares
of M/s Zebra Consultancy Private
Limited & M/s Parrot Consultants
Private Limited, were purchased by
M/s Tiger Traders Pvt. Ltd.
Similarly, 50% of equity shares of
M/s Parrot Consultants Private
Limited & M/s Tiger Traders
Private Limited were purchased by
M/s Zebra Consultancy Private
Limited. Also, 50% of equity
shares of M/s Zebra Consultancy
Private Limited and M/s Tiger
Traders Private Limited were
purchased by M/s Parrot
Consultants Private Limited. These
3 companies were, therefore, cross
holding each other in an interlocking structure w.e.f. March
2006 till 4th April, 2007.
11. It is further alleged that
accused Gautam Doshi, Surendra
Pipara and Hari Nair instead of
withdrawing the fraudulent
applications preferred in the name
of M/s Swan Telecom (P) Limited,
which was not eligible at all,
allowed the transfer of control of
that company to the Dynamix Balwa
Group and thus, enabled
perpetuating and (sic.)
illegality. It is alleged that
TRAI in its recommendations dated
28.08.2007 recommended the use of
dual technology by UAS Licencees.
Due to this reason M/s Reliance
Communications Limited, holding
company of M/s Reliance Telecom
1Limited, became eligible to get
GSM spectrum in telecom circles
for which STPL had applied.
Consequently, having management
control of STPL was of no use for
the applicant/accused persons and
M/s Reliance Telecom Limited.
Moreover, the transfer of
management of STPL to DB Group and
sale of equity held by it to M/s
Delphi Investments (P) Limited,
Mauritius, M/s Reliance Telecom
Limited has earned a profit of
around Rs. 10 crores which
otherwise was not possible if they
had withdrawn the applications.
M/s Reliance Communications
Limited also entered into
agreement with M/s Swan Telecom
(P) Limited for sharing its
telecom infrastructure. It is
further alleged that the three
accused persons facilitated the
new management of M/s Swan Telecom
(P) Limited to get UAS licences on
the basis of applications filed by
the former management. It is
further alleged that M/s Swan
Telecom (P) Limited on the date of
application, that is, 02.03.2007
was an associate company of
Reliance ADA group, that is, M/s
Reliance Communications Limited/
M/s Reliance Telecom Limited and
therefore, ineligible for UAS
licences.
12. Investigation has also
disclosed pursuant to TRAI
recommendations dated 28.08.2007
when M/s Reliance Communications
1Ltd. got the GSM spectrum under
the Dual Technology policy,
accused Gautam Doshi, Hari Nair
and Surendra Pipara transferred
the control of M/s Swan Telecom
Pvt. Ltd., and said structure of
holding companies, to accused
Shahid Balwa and Vinod Goenka. In
this manner they transferred a
company which was otherwise
ineligible for grant of UAS
license on the date of
application, to the said two
accused persons belonging to
Dynamix Balwa (DB) group and
thereby facilitated them to cheat
the DoT by getting issued UAS
Licences despite the ineligibility
on the date of application and
till 18.10.2007.”
4) The Special Judge, CBI, New Delhi, rejected Bail
Applications filed by the appellants by his
order dated 20.04.2011. The appellants moved
the High Court by filing applications under
Section 439 of the Code of Criminal Procedure
(in short, “Cr. P.C.”). The same came to be
rejected by the learned Single Judge by his
order dated 23.05.2011. Aggrieved by the same,
the appellants are before us in these appeals.
15) Shri. Ram Jethmalani, Shri. Mukul Rohatgi, Shri
Soli J. Sorabjee and Shri. Ashok H. Desai,
learned senior counsel appeared for the
appellants and Shri. Harin P. Raval, learned
Additional Solicitor General, appears for the
respondent-CBI.
6) Shri. Ram Jethmalani, learned senior counsel
appearing for the appellant Sanjay Chandra,
would urge that the impugned Judgment has not
appreciated the basic rule laid down by this
Court that grant of bail is the rule and its
denial is the exception. Shri. Jethmalani
submitted that if there is any apprehension of
the accused of absconding from trial or
tampering with the witnesses, then it is
justified for the Court to deny bail. The
learned senior counsel would submit that the
accused has cooperated with the investigation
throughout and that his behavior has been
exemplary. He would further submit that the
1appellant was not arrested during the
investigation, as there was no threat from him
of tampering with the witnesses. He would
submit that the personal liberty is at a very
high pedestal in our Constitutional system, and
the same cannot be meddled with in a causal
manner. He would assail the impugned Judgment
stating that the Ld. Judge did not apply his
mind, and give adequate reasons before rejecting
bail, as is required by the legal norms set down
by this Court. Shri. Jethmalani further
contends that it was only after the appellants
appeared in the Court in pursuance of summons
issued, they were made to apply for bail, and,
thereafter, denied bail and sent to custody.
The learned senior counsel states that the trial
Judge does not have the power to send a person,
who he has summoned in pursuance of Section 87
Cr.P.C to judicial custody. The only power that
the trial Judge had, he would contend, was to
1ask for a bond as provided for in Section 88
Cr.P.C. to ensure his appearance. Shri.
Jethmalani submits that when a person appeared
in pursuance of a bond, he was a free man, and
such a free man cannot be committed to prison by
making him to apply for bail and thereafter,
denying him the same. Shri. Jethmalani further
submits that if it was the intention of the
Legislature to make a person, who appears in
pursuance of summons to apply for bail, it would
have been so legislated in Section 88 Cr.P.C.
The learned senior counsel assailed the Judgment
of the Delhi High Court in the ‘Court on its own
motion v. CBI’, 2004 (I) JCC 308, by which the
High Court gave directions to Criminal Courts to
call upon the accused who is summoned to appear
to apply for bail, and then decide on the merits
of the bail application. He would state that
the High Court has ignored even the CBI Manual
before issuing these directions, which provided
1for bail to be granted to the accused, except in
the event of there being commission of heinous
crime. The learned senior counsel would also
argue that it was an error to have a “rolled up
charge”, as recognized by the Griffiths’ case (R
vs. Griffiths and Ors., (1966) 1 Q.B. 589).
Shri.Jethmalani submitted that there is not even
a prima facie case against the accused and would
make references to the charge sheet and the
statement of several witnesses. He would
emphatically submit that none of the ingredients
of the offences charged with were stated in the
charge sheet. He would further contend that even
if, there is a prima facie case, the rule is
still bail, and not jail, as per the dicta of
this Court in several cases.
7) Shri. Mukul Rohatgi, learned senior counsel
appearing for the appellant Vinod Goenka, while
adopting the arguments of Shri. Jethmalani,
would further supplement by arguing that the Ld.
1Trial Judge erred in making the persons, who
appeared in pursuance of the summons, apply for
bail and then denying the same, and ordering for
remand in judicial custody. Shri. Rohatgi would
further contend that the gravity of the offence
charged with, is to be determined by the maximum
sentence prescribed by the Statute and not by
any other standard or measure. In other words,
the learned senior counsel would submit that the
alleged amount involved in the so-called Scam is
not the determining factor of the gravity of the
offence, but the maximum punishment prescribed
for the offence. He would state that the only
bar for bail pending trial in Section 437 is for
those persons who are charged with offences
punishable with life or death, and there is no
such bar for those persons who were charged with
offences with maximum punishment of seven
years. Shri. Rohatgi also cited some case laws.
18) Shri. Ashok H. Desai, learned senior counsel
appearing for the appellants Hari Nair and
Surendra Pipara, adopted the principal arguments
of Shri.Jethmalani. In addition, Shri. Desai
would submit that a citizen of this country, who
is charged with a criminal offence, has the
right to be enlarged on bail. Unless there is a
clear necessity for deprivation of his liberty,
a person should not be remanded to judicial
custody. Shri. Desai would submit that the Court
should bear in mind that such custody is not
punitive in nature, but preventive, and must be
opted only when the charges are serious. Shri.
Desai would further submit that the power of the
High Court and this Court is not limited by the
operation of Section 437. He would further
contend that Surendra Pipara deserves to be
released on bail in view of his serious health
conditions.
19) Shri. Soli J. Sorabjee, learned senior counsel
appearing for Gautam Doshi, adopted the
principal arguments of Shri. Jethmalani. Shri.
Sorabjee would assail the finding of the Learned
Judge of the High Court in the impugned Judgment
that the mere fact that the accused were not
arrested during the investigation was proof of
their influence in the society, and hence, there
was a reasonable apprehension that they would
tamper with the evidence if enlarged on bail.
Shri. Sorabjee would submit that if this
reasoning is to be accepted, then bail is to be
denied in each and every criminal case that
comes before the Court. The learned senior
counsel also highlighted that the accused had no
criminal antecedents.
10) Shri. Haren P. Raval, the learned Additional
Solicitor General, in his reply, would submit
that the offences that are being charged, are of
the nature that the economic fabric of the
1country is brought at stake. Further, the
learned ASG would state that the quantum of
punishment could not be the only determinative
factor for the magnitude of an offence. He would
state that one of the relevant considerations
for the grant of bail is the interest of the
society at large as opposed to the personal
liberty of the accused, and that the Court must
not lose sight of the former. He would submit
that in the changing circumstances and scenario,
it was in the interest of the society for the
Court to decline bail to the appellants. Shri.
Raval would further urge that consistency is the
norm of this Court and that there was no reason
or change in circumstance as to why this Court
should take a different view from the order of
20th June 2011 in Sharad Kumar Etc. v. Central
Bureau of Investigation [in SLP (Crl) No. 4584-
4585 of 2011] rejecting bail to some of the coaccused in the same case. Shri. Raval would
2further state that the investigation in these
cases is monitored by this Court and the trial
is proceeding on a day-to-day basis and that
there is absolutely no delay on behalf of the
prosecuting agency in completing the trial.
Further, he would submit that the appellants,
having cooperated with the investigation, is no
ground for grant of bail, as they were expected
to cooperate with the investigation as provided
by the law. He would further submit that the
test to enlarge an accused on bail is whether
there is a reasonable apprehension of tampering
with the evidence, and that there is an
apprehension of threat to some of the witnesses.
The learned ASG would further submit that there
is more reason now for the accused not to be
enlarged on bail, as they now have the knowledge
of the identity of the witnesses, who are the
employees of the accused, and there is an
apprehension that the witnesses may be tampered
2with. The learned ASG would state that Section
437 of the Cr.P.C. uses the word “appears”, and,
therefore, that the argument of the learned
senior counsel for the appellants that the power
of the trial Judge with regard to a person
summoned under Section 87 is controlled by
Section 88 is incorrect. Shri. Raval also made
references to the United Nations Convention on
Corruption and the Report on the Reforms in the
Criminal Justice System by Justice Malimath,
which, we do not think, is necessary to go into.
The learned ASG also relied on a few decisions
of this Court, and the same will be dealt with
in the course of the judgment. On a query from
the Bench, the learned ASG would submit that in
his opinion, bail should be denied in all cases
of corruption which pose a threat to the
economic fabric of the country, and that the
balance should tilt in favour of the public
interest.
211) In his reply, Shri. Jethmalani would submit
that as the presumption of innocence is the
privilege of every accused, there is also a
presumption that the appellants would not tamper
with the witnesses if they are enlarged on bail,
especially in the facts of the case, where the
appellants have cooperated with the
investigation. In recapitulating his
submissions, the learned senior counsel
contended that there are two principles for the
grant of bail – firstly, if there is no prima
facie case, and secondly, even if there is a
prima facie case, if there is no reasonable
apprehension of tampering with the witnesses or
evidence or absconding from the trial, the
accused are entitled to grant of bail pending
trial. He would submit that since both the
conditions are satisfied in this case, the
appellants should be granted bail.
212) Let us first deal with a minor issue canvassed
by Mr. Raval, learned ASG. It is submitted that
this Court has refused to entertain the Special
Leave Petition filed by one of the co-accused
[Sharad Kumar Vs. CBI (supra)] and, therefore,
there is no reason or change in the circumstance
to take a different view in the case of the
appellants who are also charge- sheeted for the
same offence. We are not impressed by this
argument. In the aforesaid petition, the
petitioner was before this Court before framing
of charges by the Trial Court. Now the charges
are framed and the trial has commenced. We
cannot compare the earlier and the present
proceedings and conclude that there are no
changed circumstances and reject these
petitions.
13) The appellants are facing trial in respect of
the offences under Sections 420-B, 468, 471 and
109 of Indian Penal Code and Section 13(2) read
2with 13(i)(d) of Prevention of Corruption Act,
1988. Bail has been refused first by the
Special Judge, CBI, New Delhi and subsequently,
by the High Court. Both the courts have listed
the factors, on which they think, are relevant
for refusing the Bail applications filed by the
applicants as seriousness of the charge; the
nature of the evidence in support of the charge;
the likely sentence to be imposed upon
conviction; the possibility of interference with
witnesses; the objection of the prosecuting
authorities; possibility of absconding from
justice.
14) In bail applications, generally, it has been
laid down from the earliest times that the
object of bail is to secure the appearance of
the accused person at his trial by reasonable
amount of bail. The object of bail is neither
punitive nor preventative. Deprivation of
liberty must be considered a punishment, unless
2it can be required to ensure that an accused
person will stand his trial when called upon.
The courts owe more than verbal respect to the
principle that punishment begins after
conviction, and that every man is deemed to be
innocent until duly tried and duly found guilty.
From the earliest times, it was appreciated that
detention in custody pending completion of trial
could be a cause of great hardship. From time to
time, necessity demands that some un-convicted
persons should be held in custody pending trial
to secure their attendance at the trial but in
such cases, ‘necessity’ is the operative test.
In this country, it would be quite contrary to
the concept of personal liberty enshrined in the
Constitution that any person should be punished
in respect of any matter, upon which, he has not
been convicted or that in any circumstances, he
should be deprived of his liberty upon only the
belief that he will tamper with the witnesses if
2left at liberty, save in the most extraordinary
circumstances. Apart from the question of
prevention being the object of a refusal of
bail, one must not lose sight of the fact that
any imprisonment before conviction has a
substantial punitive content and it would be
improper for any Court to refuse bail as a mark
of disapproval of former conduct whether the
accused has been convicted for it or not or to
refuse bail to an un-convicted person for the
purpose of giving him a taste of imprisonment as
a lesson.
15) In the instant case, as we have already noticed
that the “pointing finger of accusation” against
the appellants is ‘the seriousness of the
charge’. The offences alleged are economic
offences which has resulted in loss to the State
exchequer. Though, they contend that there is
possibility of the appellants tampering
witnesses, they have not placed any material in
2support of the allegation. In our view,
seriousness of the charge is, no doubt, one of
the relevant considerations while considering
bail applications but that is not the only test
or the factor : The other factor that also
requires to be taken note of is the punishment
that could be imposed after trial and
conviction, both under the Indian Penal Code and
Prevention of Corruption Act. Otherwise, if the
former is the only test, we would not be
balancing the Constitutional Rights but rather
“recalibration of the scales of justice.” The
provisions of Cr.P.C. confer discretionary
jurisdiction on Criminal Courts to grant bail to
accused pending trial or in appeal against
convictions, since the jurisdiction is
discretionary, it has to be exercised with great
care and caution by balancing valuable right of
liberty of an individual and the interest of the
society in general. In our view, the reasoning
2adopted by the learned District Judge, which is
affirmed by the High Court, in our opinion, a
denial of the whole basis of our system of law
and normal rule of bail system. It transcends
respect for the requirement that a man shall be
considered innocent until he is found guilty.
If such power is recognized, then it may lead to
chaotic situation and would jeopardize the
personal liberty of an individual. This Court,
in Kalyan Chandra Sarkar Vs. Rajesh Ranjan-
(2005) 2 SCC 42, observed that “under the
criminal laws of this country, a person accused
of offences which are non-bailable, is liable to
be detained in custody during the pendency of
trial unless he is enlarged on bail in
accordance with law. Such detention cannot be
questioned as being violative of Article 21 of
the Constitution, since the same is authorized
by law. But even persons accused of nonbailable offences are entitled to bail if the
2Court concerned comes to the conclusion that the
prosecution has failed to establish a prima
facie case against him and/or if the Court is
satisfied by reasons to be recorded that in
spite of the existence of prima facie case,
there is need to release such accused on bail,
where fact situations require it to do so.”
16) This Court, time and again, has stated that bail
is the rule and committal to jail an exception.
It is also observed that refusal of bail is a
restriction on the personal liberty of the
individual guaranteed under Article 21 of the
Constitution. In the case of State of Rajasthan
v. Balchand, (1977) 4 SCC 308, this Court
opined:
“2. The basic rule may perhaps be
tersely put as bail, not jail,
except where there are
circumstances suggestive of
fleeing from justice or thwarting
the course of justice or creating
other troubles in the shape of
repeating offences or intimidating
witnesses and the like, by the
petitioner who seeks enlargement
3on bail from the Court. We do not
intend to be exhaustive but only
illustrative.
3. It is true that the gravity of
the offence involved is likely to
induce the petitioner to avoid the
course of justice and must weigh
with us when considering the
question of jail. So also the
heinousness of the crime. Even so,
the record of the petitioner in
this case is that, while he has
been on bail throughout in the
trial court and he was released
after the judgment of the High
Court, there is nothing to suggest
that he has abused the trust
placed in him by the court; his
social circumstances also are not
so unfavourable in the sense of
his being a desperate character or
unsocial element who is likely to
betray the confidence that the
court may place in him to turn up
to take justice at the hands of
the court. He is stated to be a
young man of 27 years with a
family to maintain. The
circumstances and the social
milieu do not militate against the
petitioner being granted bail at
this stage. At the same time any
possibility of the absconsion or
evasion or other abuse can be
taken care of by a direction that
the petitioner will report himself
before the police station at Baren
once every fortnight.”
3(17) In the case of Gudikanti Narasimhulu v. Public
Prosecutor, (1978) 1 SCC 240, V.R. Krishna Iyer,
J., sitting as Chamber Judge, enunciated the
principles of bail thus:
“3. What, then, is “judicial
discretion” in this bail context?
In the elegant words of Benjamin
Cardozo:
“The Judge, even when he is free,
is still not wholly free. He is not
to innovate at pleasure. He is not
a knight-errant roaming at will in
pursuit of his own ideal of beauty
or of goodness. He is to draw his
inspiration from consecrated
principles. He is not to yield to
spasmodic sentiment, to vague and
unregulated benevolence. He is to
exercise a discretion informed by
tradition, methodized by analogy,
disciplined by system, and
subordinated to “the primordial
necessity of order in the social
life”. Wide enough in all
conscience is the field of
discretion that remains.”
Even so it is useful to notice the
tart terms of Lord Camden that
“the discretion of a Judge is the
law of tyrants: it is always
unknown, it is different in
different men; it is casual, and
depends upon constitution, temper
and passion. In the best, it is
oftentimes caprice; in the worst,
3it is every vice, folly and passion
to which human nature is
liable....”
Perhaps, this is an overly
simplistic statement and we must
remember the constitutional focus
in Articles 21 and 19 before
following diffuse observations and
practices in the English system.
Even in England there is a growing
awareness that the working of the
bail system requires a second look
from the point of view of correct
legal criteria and sound
principles, as has been pointed out
by Dr Bottomley.
6. Let us have a glance at the pros
and cons and the true principle
around which other relevant factors
must revolve. When the case is
finally disposed of and a person is
sentenced to incarceration, things
stand on a different footing. We
are concerned with the penultimate
stage and the principal rule to
guide release on bail should be to
secure the presence of the
applicant who seeks to be
liberated, to take judgment and
serve sentence in the event of the
Court punishing him with
imprisonment. In this perspective,
relevance of considerations is
regulated by their nexus with the
likely absence of the applicant for
fear of a severe sentence, if such
be plausible in the case. As Erle.
J. indicated, when the crime
charged (of which a conviction has
been sustained) is of the highest
3magnitude and the punishment of it
assigned by law is of extreme
severity, the Court may reasonably
presume, some evidence warranting,
that no amount of bail would secure
the presence of the convict at the
stage of judgment, should he be
enlarged. Lord Campbell, C.J.
concurred in this approach in that
case and Coleridge J. set down the
order of priorities as follows:
“I do not think that an accused
party is detained in custody
because of his guilt, but because
there are sufficient probable
grounds for the charge against him
as to make it proper that he should
be tried, and because the detention
is necessary to ensure his
appearance at trial .... It is a
very important element in
considering whether the party, if
admitted to bail, would appear to
take his trial; and I think that in
coming to a determination on that
point three elements will generally
be found the most important: the
charge, the nature of the evidence
by which it is supported, and the
punishment to which the party would
be liable if convicted.
In the present case, the charge is
that of wilful murder; the evidence
contains an admission by the
prisoners of the truth of the
charge, and the punishment of the
offence is, by law, death.”
7. It is thus obvious that the
nature of the charge is the vital
3factor and the nature of the
evidence also is pertinent. The
punishment to which the party may
be liable, if convicted or
conviction is confirmed, also bears
upon the issue.
8. Another relevant factor is as to
whether the course of justice would
be thwarted by him who seeks the
benignant jurisdiction of the Court
to be freed for the time being.
9. Thus the legal principles and
practice validate the Court
considering the likelihood of the
applicant interfering with
witnesses for the prosecution or
otherwise polluting the process of
justice. It is not only traditional
but rational, in this context, to
enquire into the antecedents of a
man who is applying for bail to
find whether he has a bad record –
particularly a record which
suggests that he is likely to
commit serious offences while on
bail. In regard to habituals, it is
part of criminological history that
a thoughtless bail order has
enabled the bailee to exploit the
opportunity to inflict further
crimes on the members of society.
Bail discretion, on the basis of
evidence about the criminal record
of a defendant is therefore not an
exercise in irrelevance.
13. Viewed from this perspective,
we gain a better insight into the
rules of the game. When a person,
charged with a grave offence, has
3been acquitted at a stage, has the
intermediate acquittal pertinence
to a bail plea when the appeal
before this Court pends? Yes, it
has. The panic which might prompt
the accused to jump the gauntlet of
justice is less, having enjoyed the
confidence of the Court's verdict
once. Concurrent holdings of guilt
have the opposite effect. Again,
the ground for denial of
provisional release becomes weaker
when the fact stares us in the face
that a fair finding — if that be so
— of innocence has been recorded by
one Court. It may not be
conclusive, for the judgment of
acquittal may be ex facie wrong,
the likelihood of desperate
reprisal, if enlarged, may be a
deterrent and his own safety may be
more in prison than in the vengeful
village where feuds have provoked
the violent offence. It depends.
Antecedents of the man and sociogeographical circumstances have a
bearing only from this angle.
Police exaggerations of prospective
misconduct of the accused, if
enlarged, must be soberly sized up
lest danger of excesses and
injustice creep subtly into the
discretionary curial technique. Bad
record and police prediction of
criminal prospects to invalidate
the bail plea are admissible in
principle but shall not stampede
the Court into a complacent
refusal.”
3(18) In Gurcharan Singh v. State (Delhi Admn.),
(1978) 1 SCC 118, this Court took the view:
“22. In other non-bailable cases
the Court will exercise its
judicial discretion in favour of
granting bail subject to subsection (3) of Section 437 CrPC if
it deems necessary to act under
it. Unless exceptional
circumstances are brought to the
notice of the Court which may
defeat proper investigation and a
fair trial, the Court will not
decline to grant bail to a person
who is not accused of an offence
punishable with death or
imprisonment for life. It is also
clear that when an accused is
brought before the Court of a
Magistrate with the allegation
against him of an offence
punishable with death or
imprisonment for life, he has
ordinarily no option in the matter
but to refuse bail subject,
however, to the first proviso to
Section 437(1) CrPC and in a case
where the Magistrate entertains a
reasonable belief on the materials
that the accused has not been
guilty of such an offence. This
will, however, be an extraordinary
occasion since there will be some
materials at the stage of initial
arrest, for the accusation or for
strong suspicion of commission by
the person of such an offence.
324. Section 439(1) CrPC of the new
Code, on the other hand, confers
special powers on the High Court
or the Court of Session in respect
of bail. Unlike under Section
437(1) there is no ban imposed
under Section 439(1), CrPC against
granting of bail by the High Court
or the Court of Session to persons
accused of an offence punishable
with death or imprisonment for
life. It is, however, legitimate
to suppose that the High Court or
the Court of Session will be
approached by an accused only
after he has failed before the
Magistrate and after the
investigation has progressed
throwing light on the evidence and
circumstances implicating the
accused. Even so, the High Court
or the Court of Session will have
to exercise its judicial
discretion in considering the
question of granting of bail under
Section 439(1) CrPC of the new
Code. The overriding
considerations in granting bail to
which we adverted to earlier and
which are common both in the case
of Section 437(1) and Section
439(1) CrPC of the new Code are
the nature and gravity of the
circumstances in which the offence
is committed; the position and the
status of the accused with
reference to the victim and the
witnesses; the likelihood, of the
accused fleeing from justice; of
repeating the offence; of
3jeopardising his own life being
faced with a grim prospect of
possible conviction in the case;
of tampering with witnesses; the
history of the case as well as of
its investigation and other
relevant grounds which, in view of
so many valuable factors, cannot
be exhaustively set out.”
19) In Babu Singh v. State of U.P., (1978) 1 SCC
579, this Court opined:
“8. The Code is cryptic on this
topic and the Court prefers to be
tacit, be the order custodial or
not. And yet, the issue is one of
liberty, justice, public safety
and burden on the public treasury,
all of which insist that a
developed jurisprudence of bail is
integral to a socially sensitized
judicial process. As Chamber Judge
in this summit Court I had to deal
with this uncanalised case-flow,
ad hoc response to the docket
being the flickering candle light.
So it is desirable that the
subject is disposed of on basic
principle, not improvised brevity
draped as discretion. Personal
liberty, deprived when bail is
refused, is too precious a value
of our constitutional system
recognised under Article 21 that
the curial power to negate it is a
great trust exercisable, not
casually but judicially, with
3lively concern for the cost to the
individual and the community. To
glamorise 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.
…
16. Thus the legal principle and
practice validate the Court
considering the likelihood of the
applicant interfering with
witnesses for the prosecution or
otherwise polluting the process of
justice. It is not only
traditional but rational, in this
context, to enquire into the
antecedents of a man who is
applying for bail to find whether
he has a bad record—particularly a
record which suggests that he is
likely to commit serious offences
while on bail. In regard to
habituals, it is part of
criminological history that a
thoughtless bail order has enabled
the bailee to exploit the
opportunity to inflict further
crimes on the members of society.
Bail discretion, on the basis of
evidence about the criminal record
of a defendant, is therefore not
an exercise in irrelevance.
417. The significance and sweep of
Article 21 make the deprivation of
liberty a matter of grave concern
and permissible only when the law
authorising it is reasonable,
even-handed and geared to the
goals of community good and State
necessity spelt out in Article 19.
Indeed, the considerations I have
set out as criteria are germane to
the constitutional proposition I
have deduced. Reasonableness
postulates intelligent care and
predicates that deprivation of
freedom by refusal of bail is not
for punitive purpose but for the
bi-focal interests of justice—to
the individual involved and
society affected.
18. We must weigh the contrary
factors to answer the test of
reasonableness, subject to the
need for securing the presence of
the bail applicant. It makes sense
to assume that a man on bail has a
better chance to prepare or
present his case than one remanded
in custody. And if public justice
is to be promoted, mechanical
detention should be demoted. In
the United States, which has a
constitutional perspective close
to ours, the function of bail is
limited, “community roots” of the
applicant are stressed and, after
the Vera Foundation's Manhattan
Bail Project, monetary suretyship
is losing ground. The considerable
public expense in keeping in
custody where no danger of
4disappearance or disturbance can
arise, is not a negligible
consideration. Equally important
is the deplorable condition,
verging on the inhuman, of our
sub-jails, that the unrewarding
cruelty and expensive custody of
avoidable incarceration makes
refusal of bail unreasonable and a
policy favouring release justly
sensible.
20. Viewed from this perspective,
we gain a better insight into the
rules of the game. When a person,
charged with a grave offence, has
been acquitted at a stage, has the
intermediate acquittal pertinence
to a bail plea when the appeal
before this Court pends? Yes, it
has. The panic which might prompt
the accused to jump the gauntlet
of justice is less, having enjoyed
the confidence of the Court's
verdict once. Concurrent holdings
of guilt have the opposite effect.
Again, the ground for denial of
provisional release becomes weaker
when the fact stares us in the
face that a fair finding — if that
be so — of innocence has been
recorded by one Court. It may be
conclusive, for the judgment of
acquittal may be ex facie wrong,
the likelihood of desperate
reprisal, it enlarged, may be a
deterrent and his own safety may
be more in prison than in the
vengeful village where feuds have
provoked the violent offence. It
depends. Antecedents of the man
4and socio-geographical
circumstances have a bearing only
from this angle. Police
exaggerations of prospective
misconduct of the accused, if
enlarged, must be soberly sized up
lest danger of excesses and
injustice creep subtly into the
discretionary curial technique.
Bad record and police prediction
of criminal prospects to
invalidate the bail plea are
admissible in principle but shall
not stampede the Court into a
complacent refusal.”
20) In Moti Ram v. State of M.P., (1978) 4 SCC 47,
this Court, while discussing pre-trial
detention, held:
“14. The consequences of pre-trial
detention are grave. Defendants
presumed innocent arc subjected to
the psychological and physical
deprivations of jail life, usually
under more onerous conditions than
are imposed on convicted
defendants. The jailed defendant
loses his job if he has one and is
prevented from contributing to the
preparation of his defence.
Equally important, the burden of
his detention frequently falls
heavily on the innocent members of
his family.”
421) The concept and philosophy of bail was
discussed by this Court in Vaman Narain Ghiya
v. State of Rajasthan, (2009) 2 SCC 281, thus:
“6. “Bail” remains an undefined
term in CrPC. Nowhere else has the
term been statutorily defined.
Conceptually, it continues to be
understood as a right for
assertion of freedom against the
State imposing restraints. Since
the UN Declaration of Human Rights
of 1948, to which India is a
signatory, the concept of bail has
found a place within the scope of
human rights. The dictionary
meaning of the expression “bail”
denotes a security for appearance
of a prisoner for his release.
Etymologically, the word is
derived from an old French verb
“bailer” which means to “give” or
“to deliver”, although another
view is that its derivation is
from the Latin term “baiulare”,
meaning “to bear a burden”. Bail
is a conditional liberty. Stroud's
Judicial Dictionary (4th Edn.,
1971) spells out certain other
details. It states:
“… when a man is taken or arrested
for felony, suspicion of felony,
indicted of felony, or any such
case, so that he is restrained of
his liberty. And, being by law
bailable, offereth surety to those
4which have authority to bail him,
which sureties are bound for him
to the King's use in a certain
sums of money, or body for body,
that he shall appear before the
justices of goal delivery at the
next sessions, etc. Then upon the
bonds of these sureties, as is
aforesaid, he is bailed—that is to
say, set at liberty until the day
appointed for his appearance.”
Bail may thus be regarded as a
mechanism whereby the State
devolutes upon the community the
function of securing the presence
of the prisoners, and at the same
time involves participation of the
community in administration of
justice.
7. Personal liberty is fundamental
and can be circumscribed only by
some process sanctioned by law.
Liberty of a citizen is
undoubtedly important but this is
to balance with the security of
the community. A balance is
required to be maintained between
the personal liberty of the
accused and the investigational
right of the police. It must
result in minimum interference
with the personal liberty of the
accused and the right of the
police to investigate the case. It
has to dovetail two conflicting
demands, namely, on the one hand
the requirements of the society
for being shielded from the
hazards of being exposed to the
misadventures of a person alleged
4to have committed a crime; and on
the other, the fundamental canon
of criminal jurisprudence viz. the
presumption of innocence of an
accused till he is found guilty.
Liberty exists in proportion to
wholesome restraint, the more
restraint on others to keep off
from us, the more liberty we have.
(See A.K. Gopalan v. State of
Madras)
8. The law of bail, like any other
branch of law, has its own
philosophy, and occupies an
important place in the
administration of justice and the
concept of bail emerges from the
conflict between the police power
to restrict liberty of a man who
is alleged to have committed a
crime, and presumption of
innocence in favour of the alleged
criminal. An accused is not
detained in custody with the
object of punishing him on the
assumption of his guilt.”
22) More recently, in the case of Siddharam
Satlingappa Mhetre v. State of Maharashtra,
(2011) 1 SCC 694, this Court observed that
“(j)ust as liberty is precious to an individual,
so is the society’s interest in maintenance of
4peace, law and order. Both are equally
important.” This Court further observed :
“116. Personal liberty is a very
precious fundamental right and it
should be curtailed only when it
becomes imperative according to
the peculiar facts and
circumstances of the case.”
This Court has taken the view that when
there is a delay in the trial, bail should be
granted to the accused [See Babba v. State of
Maharashtra, (2005) 11 SCC 569, Vivek Kumar v.
State of U.P., (2000) 9 SCC 443, Mahesh Kumar
Bhawsinghka v. State of Delhi, (2000) 9 SCC
383].
23) The principles, which the Court must consider
while granting or declining bail, have been
culled out by this Court in the case of Prahlad
Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280,
thus:
4“The jurisdiction to grant bail
has to be exercised on the basis
of well-settled principles having
regard to the circumstances of
each case and not in an arbitrary
manner. While granting the bail,
the court has to keep in mind the
nature of accusations, the nature
of the 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, reasonable
possibility of securing the
presence of the accused at the
trial, reasonable apprehension of
the witnesses being tampered with,
the larger interests of the public
or State and similar other
considerations. It has also to be
kept in mind that for the purposes
of granting the bail the
legislature has used the words
“reasonable grounds for believing”
instead of “the evidence” which
means the court dealing with the
grant of bail can only satisfy it
(sic itself) as to whether there
is a genuine case against the
accused and that the prosecution
will be able to produce prima
facie evidence in support of the
charge. It is not expected, at
this stage, to have the evidence
establishing the guilt of the
accused beyond reasonable doubt.”
424) In State of U.P. v. Amarmani Tripathi, (2005) 8
SCC 21, this Court held as under:
“18. It is well settled that the
matters to be considered in an
application for bail are (i)
whether there is any prima facie or
reasonable ground to believe that
the accused had committed the
offence; (ii) nature and gravity of
the charge; (iii) severity of the
punishment in the event of
conviction; (iv) danger of the
accused absconding or fleeing, if
released on bail; (v) character,
behaviour, means, position and
standing of the accused; (vi)
likelihood of the offence being
repeated; (vii) reasonable
apprehension of the witnesses being
tampered with; and (viii) danger,
of course, of justice being
thwarted by grant of bail [see
Prahlad Singh Bhati v. NCT, Delhi
and Gurcharan Singh v. State (Delhi
Admn.)]. 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
4Kalyan Chandra Sarkar v. Rajesh
Ranjan: (SCC pp. 535-36, para 11)
“11. 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 v.
Sudarshan Singh and Puran v.
Rambilas.)”
522. While a detailed examination of
the evidence is to be avoided while
considering the question of bail,
to ensure that there is no
prejudging and no prejudice, a
brief examination to be satisfied
about the existence or otherwise of
a prima facie case is necessary.”
25) Coming back to the facts of the present case,
both the Courts have refused the request for
grant of bail on two grounds :- The primary
ground is that offence alleged against the
accused persons is very serious involving deep
rooted planning in which, huge financial loss is
caused to the State exchequer ; the secondary
ground is that the possibility of the accused
persons tempering with the witnesses. In the
present case, the charge is that of cheating and
dishonestly inducing delivery of property,
forgery for the purpose of cheating using as
genuine a forged document. The punishment of the
offence is punishment for a term which may extend
to seven years. It is, no doubt, true that the
nature of the charge may be relevant, but at the
5same time, the punishment to which the party may
be liable, if convicted, also bears upon the
issue. Therefore, in determining whether to
grant bail, both the seriousness of the charge
and the severity of the punishment should be
taken into consideration. The grant or refusal
to grant bail lies within the discretion of the
Court. The grant or denial is regulated, to a
large extent, by the facts and circumstances of
each particular case. But at the same time,
right to bail is not to be denied merely because
of the sentiments of the community against the
accused. The primary purposes of bail in a
criminal case are to relieve the accused of
imprisonment, to relieve the State of the burden
of keeping him, pending the trial, and at the
same time, to keep the accused constructively in
the custody of the Court, whether before or after
conviction, to assure that he will submit to the
jurisdiction of the Court and be in attendance
5thereon whenever his presence is required. This
Court in Gurcharan Singh and Ors. Vs. State AIR
1978 SC 179 observed that two paramount
considerations, while considering petition for
grant of bail in non-bailable offence, apart from
the seriousness of the offence, are the
likelihood of the accused fleeing from justice
and his tampering with the prosecution witnesses.
Both of them relate to ensure of the fair trial
of the case. Though, this aspect is dealt by the
High Court in its impugned order, in our view,
the same is not convincing.
26) When the undertrial prisoners are detained in
jail custody to an indefinite period, Article 21
of the Constitution is violated. Every person,
detained or arrested, is entitled to speedy
trial, the question is : whether the same is
possible in the present case. There are
seventeen accused persons. Statement of the
witnesses runs to several hundred pages and the
5documents on which reliance is placed by the
prosecution, is voluminous. The trial may take
considerable time and it looks to us that the
appellants, who are in jail, have to remain in
jail longer than the period of detention, had
they been convicted. It is not in the interest
of justice that accused should be in jail for an
indefinite period. No doubt, the offence alleged
against the appellants is a serious one in terms
of alleged huge loss to the State exchequer,
that, by itself, should not deter us from
enlarging the appellants on bail when there is no
serious contention of the respondent that the
accused, if released on bail, would interfere
with the trial or tamper with evidence. We do
not see any good reason to detain the accused in
custody, that too, after the completion of the
investigation and filing of the charge-sheet.
This Court, in the case of State of Kerala Vs.
Raneef (2011) 1 SCC 784, has stated :-
5“15. In deciding bail applications
an important factor which should
certainly be taken into
consideration by the court is the
delay in concluding the trial.
Often this takes several years,
and if the accused is denied bail
but is ultimately acquitted, who
will restore so many years of his
life spent in custody? Is Article
21 of the Constitution, which is
the most basic of all the
fundamental rights in our
Constitution, not violated in such
a case? Of course this is not the
only factor, but it is certainly
one of the important factors in
deciding whether to grant bail. In
the present case the respondent
has already spent 66 days in
custody (as stated in Para 2 of
his counter-affidavit), and we see
no reason why he should be denied
bail. A doctor incarcerated for a
long period may end up like Dr.
Manette in Charles Dicken's novel
A Tale of Two Cities, who forgot
his profession and even his name
in the Bastille.”
27) In ‘Bihar Fodder Scam’, this Court, taking into
consideration the seriousness of the charges
alleged and the maximum sentence of imprisonment
that could be imposed including the fact that the
5appellants were in jail for a period more than
six months as on the date of passing of the
order, was of the view that the further detention
of the appellants as pre-trial prisoners would
not serve any purpose.
28) We are conscious of the fact that the accused
are charged with economic offences of huge
magnitude. We are also conscious of the fact
that the offences alleged, if proved, may
jeopardize the economy of the country. At the
same time, we cannot lose sight of the fact that
the investigating agency has already completed
investigation and the charge sheet is already
filed before the Special Judge, CBI, New Delhi.
Therefore, their presence in the custody may not
be necessary for further investigation. We are
of the view that the appellants are entitled to
the grant of bail pending trial on stringent
conditions in order to ally the apprehension
expressed by CBI.
529) In the view we have taken, it may not be
necessary to refer and discuss other issues
canvassed by the learned counsel for the parties
and the case laws relied on in support of their
respective contentions. We clarify that we have
not expressed any opinion regarding the other
legal issues canvassed by learned counsel for the
parties.
30) In the result, we order that the appellants be
released on bail on their executing a bond with
two solvent sureties, each in a sum of `5
lakhs to the satisfaction of the Special Judge,
CBI, New Delhi on the following conditions :-
a.The appellants shall not directly or
indirectly make any inducement, threat or
promise to any person acquainted with the
facts or the case so as to dissuade him to
disclose such facts to the Court or to any
other authority.
5b. They shall remain present before the
Court on the dates fixed for hearing of
the case. If they want to remain absent,
then they shall take prior permission of
the court and in case of unavoidable
circumstances for remaining absent, they
shall immediately give intimation to the
appropriate court and also to the
Superintendent, CBI and request that they
may be permitted to be present through the
counsel.
c.They will not dispute their identity as
the accused in the case.
d.They shall surrender their passport, if
any (if not already surrendered), and in
case, they are not a holder of the same,
they shall swear to an affidavit. If they
have already surrendered before the Ld.
Special Judge, CBI, that fact should also
be supported by an affidavit.
5e.We reserve liberty to the CBI to make an
appropriate application for
modification/recalling the order passed by
us, if for any reason, the appellants
violate any of the conditions imposed by
this Court.
31) The appeals are disposed of accordingly.
..................J.
[ G. S. SINGHVI ]
..................J.
[ H. L. DATTU ]
New Delhi,
November 23, 2011
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