law that the accused is innocent, till proved guilty, the provisions of
Section 29 of POCSO Act have not been taken into consideration, which
reads follows:
“29. Presumption as to certain offence: Where a person
is prosecuted for committing or abetting or attempting to
commit any offence under sections 3, 5, 7 and section 9 of
this Act, the Special Court shall presume, that such person
has committed or abetted or attempted to commit the
offence, as the case may be unless the contrary is
proved.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1141 OF 2016
STATE OF BIHAR
V
RAJBALLAV PRASAD
Dated:NOVEMBER 24, 2016.
Citation:(2017)2 SCC 178
Respondent herein is facing trial in Mahila Police Station Case No.
15 of 2016, wherein he is charged for committing offences under
Sections 376, 420/34, 366-A, 370, 370-A, 212, 120-B of the Indian Penal
Code, Sections 4, 6 and 8 of the Protection of Children from Sexual
Offences Act, 2012 (“POCSO Act” for short) as well as Sections 4, 5 and
6 of the Immoral Traffic Act, 1956. He is one of the co-accused in the
said trial. FIR in this behalf was registered on the basis of written
complaint of the prosecutrix Preeti Kumari (minor) on 09.02.2016.
During investigation, the respondent was identified as the main accused
having committed the rape on the said minor. However, since at that
time, he was allegedly absconding, the trial court issued process under
Section 82 of the Code of Criminal Procedure, 1973 (“Cr.P.C.” for short)
and thereafter on 27.07.2006 issued process under Section 83 against
the respondent. At that stage, apprehending his imminent arrest, the
respondent surrendered before the trial court on 10.03.2016 and was
taken into custody. After conclusion of the investigation, chargesheet in
the case was filed on 20.04.2016 and the charges were framed on
06.08.2016.
2) Pending trial, the respondent filed bail application before the learned
Additional Sessions Judge which was heard and dismissed by the trial
court vide order dated 30.05.2016. Obviously, dissatisfied with this
dismissal order, the respondent approached the High Court for grant of
bail which came up for hearing before the High Court on 27.07.2016.
However, permission was sought to withdraw the said bail application
and accepting this request, the bail petition was dismissed as withdrawn
on 27.07.2016. Within three weeks thereafter i.e. on 19.08.2016, the
respondent preferred another bail petition before the High Court. This
time he has succeeded in his attempt as the High Court has, vide
judgment dated 30.09.2016, directed release of the respondent on bail.
Certain conditions are also imposed while granting this bail. It is the
State which feels aggrieved by the impugned order granting bail to the
respondent and has challenged this order in the present proceedings.Page 3
3
Notice was issued in the SLP on 07.10.2016 for actual returnable date
i.e. 17.10.2016. Thereafter, the material date of hearing is 08.11.2016
when the following order was passed:
“We have heard learned counsel for the parties for some
time.
In the instant case, the High Court has granted bail to the
respondent herein during the pendency of the trial against
the respondent who is facing the charges under Sections
376, 420/34, 366-A, 370, 370-A, 212, 120-B of the Indian
Penal Code as well as the charges under Section 4, 6 and
8 of the POCSO Act, 2012. He is also facing trial for
offences under Sections 4, 5 and 6 of the Immoral Traffic
Act, 1956. The case is pending in the Court of Additional
Sessions Judge-Ist-cum-Special Judge, Nalanda at
Biharsharif. The deposition of the Prosecutrix is yet to be
recorded. Without making any observation at this stage,
we are of the opinion that in order to enable the
Prosecutrix to give her statement fearlessly and without
any pressure, it would be necessary that she deposes
when the respondent is in custody. For this reason, we
suspend the judgment and order dated 30th September,
2016 passed by the High Court granting bail to the
respondent herein for a period of two weeks from the date
the respondent is taken into custody to enable the
Prosecutrix to give her evidence. We direct that the
respondent shall surrender to the Trial Court tomorrow i.e.
09.11.2016 and would be taken into custody in the same
manner he was facing incarceration before he was granted
bail by the High Court, for a period of two weeks.
The Trial Court is impressed upon to start recording the
evidence of the Prosecutrix immediately and endeavour to
complete the same within the said period of two weeks.
We also hope and expect that the respondent shall not try
to exert any pressure, directly or indirectly, upon the
Prosecutrix or other prosecution witnesses.
List the matter for further directions on 23.11.2016. Dasti,
in addition, is permitted.”
3) Pursuant to the aforesaid order, the respondent surrendered and periodPage 4
4
of two weeks expired yesterday i.e. on 23.11.2016 when this appeal was
also finally heard. During this period, statement of prosecutrix has been
recorded and she has been cross-examined as well.
4) Mr. Gopal Subramaniam, learned senior counsel appearing for the
appellant submitted that since other witnesses remained to be examined
are also material witnesses, it was necessary, in the interest of justice,
that respondent remains in jail during the period of trial. He, therefore,
impressed the Court to hear the appeal on merits as according to the
appellant, in the facts and circumstances of this case, bail order should
not have been passed by the High Court and it has committed grave
illegality in passing such an order. In view thereof, we heard the matter
finally and both the sides advanced detailed submissions.
5) It was argued by Mr. Subramaniam that the impugned judgment was
perverse as it did not take into consideration relevant factors which
needed to be kept in mind while deciding as to whether bail is to be
granted or not, even though such relevant factors were taken note of. It
was further submitted that the High Court started its discussion by
observing that presumption of innocence would continue to run in favour
of the accused (respondent herein) until the guilt is brought home.
Thereafter, it discussed the merits of the case. In the process, as per
the appellant, the Court failed to satisfactorily address the pivotal and
relevant considerations for grant/refusal of the bail, namely, whether the
respondent was likely to influence the witnesses or the trial in case he is
released on bail pending trial or whether the respondent was likely to
abscond and not available for trial. The learned senior counsel argued
that having regard to the background of this case, it could clearly be
discerned that there was reasonable apprehension that there was a
likelihood intimidating and coercing the witnesses by the respondent as
not only respondent was an influential person, being MLA of the area in
question, but had in fact, made such attempts in the past. Complaints
were made by the prosecutrix and family members. It was also pointed
out that the Court also failed to notice that on an earlier occasion, to
secure his attendance, process under Section 82 of Cr.P.C. had to be
initiated. Another submission of learned senior counsel was that when
the first bail application was dismissed by the High Court hardly three
weeks ago i.e. on 27.07.2016, there was no change in the
circumstances from that date till the filing of the second bail application
on 19.08.2016 in which the impugned order has been passed. Learned
senior counsel also pointed out that bail application of co-accused had
been refused by the High Court on 20.08.2016 and while doing so, High
Court had directed to conclude the trial in terms of POCSO Act without
unnecessary delay, on day to day basis. All these aspects, according to
the appellant, are conveniently bypassed by the High Court, thereby
making the order vulnerable to challenge. Few judgments were cited in
support of the proposition that in such a situation, this Court can
interdict with the order of grant of bail.
6) It may also be pointed out at this stage that in the special leave petition,
another ground taken to challenge the impugned order is that when
earlier application was dismissed by a particular Judge of the High Court
on 27.07.2016, as per the directives of this Court, second application
should also have to be listed before the same Judge. However, the
second application was taken by the Chief Justice himself wherein the
impugned order has been passed rather than assigning it to the Judge
who had passed the order on 27.07.2016. However, Mr. Subramaniam
did not press this ground too hard, except submitting that propriety
demanded that matter is posted before the same Judge who had passed
the order on 27.07.2016 before whom the first bail application had come
up for hearing.
7) Mr. Dushyant Dave, learned senior counsel appearing for the
respondent, made a passionate plea that this special leave petition is
required to be dismissed only on the ground that the appellant has taken
a false plea regarding assigning bail application by the said Court to
itself, rather than sending it to the same Judge who had heard first bail
application. He pointed out that in the impugned order itself, it has been
observed that since no decision on merit of the first bail application wasPage 7
7
taken which was dismissed as withdrawn by order dated 27.07.2016,
there was no legal impediment in proceedings with the second bail
application and more pertinently statement of Additional Advocate
General who appeared on behalf of the State in the High Court was
specifically recorded to the effect that he had no objection to the
consideration of the bail of the respondent by the said Court. It is only
after recording this that the bail application was taken up for hearing and
order was passed. It was, thus, submitted that the State, which was
supposed to act more responsibly than an individual person, had not
come to the Court with clean hands and tried to prejudice this Court by
suppressing the aforesaid fact while taking such a plea. Reference was
made to the judgment of this Court in Rajabhai Abdul Rehman Munshi
v. Vasudev Dhanjibhai Mody1
and it was pleaded that this conduct of
the appellant/State warranted that the petition be not entertained.
8) No doubt, there may be some substance in the aforesaid plea of Mr.
Dave having regard to the fact that the Principal Additional Advocate
General had himself stated before the High Court that the State had no
objection for the consideration of the bail of the respondent by the
concerned Court. In this backdrop, the State is not justified in
challenging the order on the ground that the matter should not have
been dealt with by the Chief Justice but should have been marked to the
1 (1964) 3 SCR 480Page 8
8
Judge who passed order on 27.07.2016 in the first bail application. May
be, because of this reason, this ground of challenge is not pressed
seriously by Mr. Subramaniam. In any case, we are of the opinion that in
the facts and circumstances of the present case, we are not persuaded
by the argument of Mr. Dave that consequence thereof should be to
dismiss the special leave petition. There are at least two reasons for this
observation, which are as follows:
(i) Statement of Principal Additional Advocate General that the State
had no objection for the consideration of the bail application by the said
Court has been recorded in the beginning of the order itself and,
therefore, question of suppression thereof does not arise. This fact was
known to this Court when the SLP was entertained and notice was
issued. Therefore, the question of misleading the Court on this count
does not arise.
(ii) More importantly, the primary reason for issuing the notice in the
SLP was that this Court wanted to examine, on merits, as to whether
discretion exercised by the High Court under the given circumstances is
appropriately exercised and it was a fit case for grant of bail to the
respondent, who is an under trial. We are concerned with a criminal trial
and the foremost consideration in the mind of this Court is that the trial is
conducted fairly. These sentiments of the Court were expressed to Mr.
Dave at the time of hearing itself.Page 9
9
9) Mr. Dave, thus, argued the case on merits also with a fervent plea that
once the bail is granted by the High Court, this Court should not interfere
with the discretion exercised by the High Court. It was argued that the
respondent had valid reasons to file the second bail application
inasmuch as in the meantime charges were framed on 06.08.2016,
which is material change of circumstance.
10) Refuting the averments of Mr. Subramaniam, Mr. Dave further argued
that after the grant of bail, the respondent had not abused the same in
any manner whatsoever and there was no material that he has tried to
influence the witnesses or tried to temper with the records and the
observations of the High Court in this behalf in the impugned order were
perfectly justified. He further submitted that once it is found that High
Court had applied its mind by passing a detailed order and granted bail,
such an exercise of discretion should not be interfered with by this Court
in exercise of powers under Article 136 of the Constitution. In support of
this proposition, he referred to many judgments gist whereof is as under:
(i) State (Delhi Administration) v. Sanjay Gandhi2
“13. Rejection of bail when bail is applied for is one thing;
cancellation of bail already granted is quite another. It is
easier to reject a bail application in a non-bailable case
than to cancel a bail granted in such a case. Cancellation
of bail necessarily involves the review of a decision
already made and can by and large be permitted only if, by
reason of supervening circumstances, it would be no
longer conducive to a fair trial to allow the accused to
2 (1978) 2 SCC 411Page 10
10
retain his freedom during the trial. The fact that
prosecution witnesses have turned hostile cannot by itself
justify the inference that the accused has won them over...”
(ii) Bhagirathsinh v. State of Gujarat3
“7. In our opinion, the learned Judge appears to have
misdirected himself while examining the question of
directing cancellation of bail by interfering with a
discretionary order made by the learned Sessions Judge.
One could have appreciated the anxiety of the learned
Judge of the High Court that in the circumstances found by
him that the victim attacked was a social and political
worker and therefore the accused should not be granted
bail but we fail to appreciate how that circumstance should
be considered so overriding as to permit interference with
a discretionary order of the learned Sessions Judge
granting bail. The High Court completely overlooked the
fact that it was not for it to decide whether the bail should
be granted but the application before it was for
cancellation of the bail. Very cogent and overwhelming
circumstances are necessary for an order seeking
cancellation of the bail and the trend today is towards
granting bail because it is now well-settled by a catena of
decisions of this Court that the power to grant bail is not to
be exercised as if the punishment before trial is being
imposed. The only material considerations in such a
situation are whether the accused would be readily
available for his trial and whether he is likely to abuse the
discretion granted in his favour by tampering with
evidence. The order made by the High Court is
conspicuous by its silence on these two relevant
considerations. It is for these reasons that we consider in
the interest of justice a compelling necessity to interfere
with the order made by the High Court.”
(iii) Bihar Legal Support Society v. Chief Justice of India and
another4
“3. The question whether special leave petitions against
refusal of bail or anticipatory bail should be listed
immediately or not is a question within the administrative
jurisdiction of the Chief Justice and we cannot give any
3 (1984) 1 SCC 284
4 (1986) 4 SCC 767Page 11
11
direction in that behalf. But, we may point out that every
petitioner who files a special leave petition against
(sic refusal) of bail or anticipatory bail has an opportunity
of mentioning his case before the learned Chief Justice in
his administrative capacity for urgent listing and wherever
a case deserves urgent listing, the Chief Justice makes an
appropriate order for urgent listing. It may, however, be
pointed out that this Court was never intended to be a
regular court of appeal against orders made by the High
Court or the sessions court or the Magistrates. It was
created as an Apex Court for the purpose of laying down
the law for the entire country and extraordinary jurisdiction
for granting special leave was conferred upon it under
Article 136 of the Constitution so that it could interfere
whenever it found that law was not correctly enunciated by
the lower courts or tribunals and it was necessary to
pronounce the correct law on the subject. This
extraordinary jurisdiction could also be availed by the Apex
Court for the purpose of correcting grave miscarriage of
justice, but such cases would be exceptional by their very
nature...”.
11) We have given our earnest consideration to the submissions of the
counsel on either side.
12) We may observe at the outset that we are conscious of the limitations
which bind us while entertaining a plea against grant of bail by the lower
court, that too, which is a superior court like High Court. It is expected
that once the discretion is exercised by the High Court on relevant
considerations and bail is granted, this Court would normally not
interfere with such a discretion, unless it is found that the discretion itself
is exercised on extraneous considerations and/or the relevant factors
which need to be taken into account while exercising such a discretion
are ignored or bypassed. In the judgments relied upon by the learnedPage 12
12
counsel for the respondent, which have already been noticed above, this
Court mentioned the considerations which are to be kept in mind while
examining as to whether order of bail granted by the court below was
justified. There have to be very cogent and overwhelming
circumstances that are necessary to interfere with the discretion in
granting the bail. These material considerations are also spelled out in
the aforesaid judgments, viz. whether the accused would be readily
available for his trial and whether he is likely to abuse the discretion
granted in his favour by tampering with the evidence. We have kept
these very considerations in mind while examining the correctness of the
impugned order.
13) We may also, at this stage, refer to the judgment in the case of Puran v.
Rambilas & Anr.5
, wherein principles while dealing with application for
bail as well as petition for cancellation of bail were delineated and
elaborated. Insofar as entertainment of application for bail is concerned,
the Court pointed out that reasons must be recorded while granting the
bail, but without discussion of merits and demerits of evidence. It was
clarified that discussing evidence is totally different from giving reasons
for a decision. This Court also pointed out that where order granting bail
was passed by ignoring material evidence on record and without giving
reasons, it would be perverse and contrary to the principles of law. Such
5 (2001) 6 SCC 338Page 13
13
an order would itself provide a ground for moving an application for
cancellation of bail. This ground for cancellation, the Court held, is
different from the ground that the accused misconducted himself or
some new facts call for cancellation.
14) The present case falls in the former category as the appellant is not
seeking cancellation of bail on the ground that the respondent
misconducted himself after the grant of bail or new facts have emerged
which warrant cancellation of bail. That would be a case where conduct
or events based grant of bail are to be examined and considered. On
the other hand, when order of grant of bail is challenged on the ground
that grant of bail itself is given contrary to principles of law, while
undertaking the judicial review of such an order, it needs to be examined
as to whether there was arbitrary or wrong exercise of jurisdiction by the
Court granting bail. If that be so, this Court has power to correct the
same.
15) Keeping in view the aforesaid consideration, we proceed to discuss this
matter.
16) It is a matter of record that when FIR was registered against the
respondent and on the basis of investigation he was sought to be
arrested, the respondent had avoided the said arrest. So much so, the
prosecution was compelled to file an application under Section 82 ofPage 14
14
Cr.P.C. before the trial court and the trial court even initiated the process
under Section 83 of Cr.P.C. At that stage only that the respondent
surrendered before the trial court and was arrested.
17) The respondent's application was dismissed by the Additional Sessions
Judge vide orders dated 30.05.2016. While passing this order of
rejection, the trial court was persuaded by the submission of the
Prosecutor that direct and specific allegations had been levelled against
the respondent of committing rape upon the victim minor girl and he was
identified by the victim during the course of investigation while he was
walking in the P.O. House. It was also noted that prayer for bail of
co-accused Sandeep Suman @ Pushpanjay had already been rejected
and the case of the respondent was on graver footing and also that the
respondent had a long criminal diary, as would be evident from the Case
Diary produced before the Court.
18) It has also come on record that the prosecutrix had her family members
made representations claiming that the respondent is threatening the
family members of the prosecutrix. So much so, having regard to
several complaints of intimidation of witnesses made on behalf of the
prosecutrix and her family members, the State administration has
deputed a force of 1+4 for the safety and security of the prosecutrix and
her family.Page 15
15
19) In spite of the aforesaid material on record, the High Court has made
casual and cryptic remarks that there is no material showing that the
accused had interfered with the trial by tampering evidence. On the
other hand, it has discussed the merits of the case/evidence which was
not called for at this stage. No doubt, in a particular case if it appears to
the court that the case foisted against the accused is totally false, that
may become a relevant factor while considering the bail application.
However, it can be said at this stage that the present case falls in this
category. That would be a matter of trial. Therefore, the paramount
consideration should have been as is pointed out above, whether there
are any chances of the accused person fleeing from justice or
reasonable apprehension that the accused person would tamper with the
evidence/trial if released on bail. These aspects are not dealt with by the
High Court appropriately and with the seriousness they deserved. This
constitutes a sufficient reason for interfering with the exercise of
discretion by the High Court.
20) The High Court also ignored another vital aspect, namely, while rejecting
the bail application of co-accused, the High Court had ordered
expeditious, nay, day-to-day trial to ensure that the trial comes to an end
most expeditiously. When order had already been passed to fast-track
the trial, and the application for bail by co-accused Sandeep Suman @
Pushpanjay was also rejected, the High Court, while considering the bail
application of the respondent, was supposed to take into consideration
this material fact as well. Further, while making a general statement of
law that the accused is innocent, till proved guilty, the provisions of
Section 29 of POCSO Act have not been taken into consideration, which
reads follows:
“29. Presumption as to certain offence: Where a person
is prosecuted for committing or abetting or attempting to
commit any offence under sections 3, 5, 7 and section 9 of
this Act, the Special Court shall presume, that such person
has committed or abetted or attempted to commit the
offence, as the case may be unless the contrary is
proved.”
21) Keeping in view all the aforesaid considerations in mind, we are of the
opinion that it was not a fit case for grant of bail to the respondent at this
stage and grave error is committed by the High Court in this behalf. We
would like to reproduce following discussion from the judgment in the
case of Kanwar Singh Meena v. State of Rajasthan & Anr.6
:
“10...While cancelling bail under Section 439(2) of the
Code, the primary considerations which weigh with the
court are whether the accused is likely to tamper with the
evidence or interfere or attempt to interfere with the due
course of justice or evade the due course of justice. But,
that is not all. The High Court or the Sessions Court can
cancel bail even in cases where the order granting bail
suffers from serious infirmities resulting in miscarriage of
justice. If the court granting bail ignores relevant materials
indicating prima facie involvement of the accused or takes
into account irrelevant material, which has no relevance to
the question of grant of bail to the accused, the High Court
or the Sessions Court would be justified in cancelling the
bail. Such orders are against the well recognized principles
6 (2012) 12 SCC 180Page 17
17
underlying the power to grant bail. Such orders are legally
infirm and vulnerable leading to miscarriage of justice and
absence of supervening circumstances such as the
propensity of the accused to tamper with the evidence, to
flee from justice, etc. would not deter the court from
cancelling the bail. The High Court or the Sessions Court
is bound to cancel such bail orders particularly when they
are passed releasing accused involved in heinous crimes
because they ultimately result in weakening the
prosecution case and have adverse impact on the society.
Needless to say that though the powers of this court are
much wider, this court is equally guided by the above
principles in the matter of grant or cancellation of bail.
xx xx xx
18. Taking an overall view of the matter, we are of the
opinion that in the interest of justice, the impugned order
granting bail to the accused deserves to be quashed and a
direction needs to be given to the police to take the
accused in custody...”
22) As indicated by us in the beginning, prime consideration before us is to
protect the fair trial and ensure that justice is done. This may happen
only if the witnesses are able to depose without fear, freely and truthfully
and this Court is convinced that in the present case, that can be ensured
only if the respondent is not enlarged on bail. This importance of fair trial
was emphasised in Panchanan Mishra v. Digambar Mishra & Ors.7
while setting aside the order of the High Court granting bail in the
following terms:
“13. We have given our careful consideration to the rival
submissions made by the counsel appearing on either
side. The object underlying the cancellation of bail is to
protect the fair trial and secure justice being done to the
society by preventing the accused who is set at liberty by
the bail order from tampering with the evidence in the
7 (2005) 3 SCC 143Page 18
18
heinous crime and if there is delay in such a case the
underlying object of cancellation of bail practically loses all
its purpose and significance to the greatest prejudice and
the interest of the prosecution. It hardly requires to be
stated that once a person is released on bail in serious
criminal cases where the punishment is quite stringent and
deterrent, the accused in order to get away from the
clutches of the same indulge in various activities like
tampering with the prosecution witnesses, threatening the
family members of the deceased victim and also create
problems of law and order situation.”
23) Such sentiments were expressed much earlier as well by the Court in
Talab Haji Hussain v. Madhukar Purshottam Mondkar & Ors.8
in the
following manner:
“6...There can be no more important requirement of the
ends of justice than the uninterrupted progress of a fair
trial; and it is for the continuance of such a fair trial that the
inherent powers of the High Courts are sought to be
invoked by the prosecution in cases where it is alleged that
accused persons, either by suborning or intimidating
witnesses, are obstructing the smooth progress of a fair
trial. Similarly, if an accused person who is released on
bail jumps bail and attempts to run to a foreign country to
escape the trial, that again would be a case where the
exercise of the inherent power would be justified in order
to compel the accused to submit to a fair trial and not to
escape its consequences by taking advantage of the fact
that he has been released on bail and by absconding to
another country. In other words, if the conduct of the
accused person subsequent to his release on bail puts in
jeopardy the progress of a fair trial itself and if there is no
other remedy which can be effectively used against the
accused person, in such a case the inherent power of the
High Court can be legitimately invoked...”
24) We are conscious of the fact that the respondent is only an under-trial
and his liberty is also a relevant consideration. However, equally
8 1958 SCR 1226Page 19
19
important consideration is the interest of the society and fair trail of the
case. Thus, undoubtedly the courts have to adopt a liberal approach
while considering bail applications of accused persons. However, in a
given case, if it is found that there is a possibility of interdicting fair trial
by the accused if released on bail, this public interest of fair trial would
outweigh the personal interest of the accused while undertaking the task
of balancing the liberty of the accused on the one hand and interest of
the society to have a fair trial on the other hand. When the witnesses
are not able to depose correctly in the court of law, it results in low rate
of conviction and many times even hardened criminals escape the
conviction. It shakes public confidence in the criminal justice delivery
system. It is this need for larger public interest to ensure that criminal
justice delivery system works efficiently, smoothly and in a fair manner
that has to be given prime importance in such situations. After all, if there
is a threat to fair trial because of intimidation of witnesses etc., that
would happen because of wrongdoing of the accused himself, and the
consequences thereof, he has to suffer. This is so beautifully captured
by this Court in Masroor v. State of Uttar Pradesh & Anr.9
in the
following words:
“15. There is no denying the fact that the liberty of an
individual is precious and is to be zealously protected by
the courts. Nonetheless, such a protection cannot be
absolute in every situation. The valuable right of liberty of
an individual and the interest of the society in general has
to be balanced. Liberty of a person accused of an offence
9 (2009) 14 SCC 286Page 20
20
would depend upon the exigencies of the case. It is
possible that in a given situation, the collective interest of
the community may outweigh the right of personal liberty
of the individual concerned. In this context, the following
observations of this Court in Shahzad Hasan Khan v.
Ishtiaq Hasan Khan [(1987) 2 SCC 684] are quite
apposite: (SCC p. 691, para 6)
“6… Liberty is to be secured through process of law,
which is administered keeping in mind the interests of
the accused, the near and dear of the victim who lost
his life and who feel helpless and believe that there is
no justice in the world as also the collective interest of
the community so that parties do not lose faith in the
institution and indulge in private retribution.””
25) This very aspect of balancing of two interests has again been discussed
lucidly in Neeru Yadav v. State of Uttar Pradesh & Anr.10 in the
following words:
“16. The issue that is presented before us is whether this
Court can annul the order passed by the High Court and
curtail the liberty of the second respondent? We are not
oblivious of the fact that liberty is a priceless treasure for a
human being. It is founded on the bedrock of the
constitutional right and accentuated further on the human
rights principle. It is basically a natural right. In fact, some
regard it as the grammar of life. No one would like to lose
his liberty or barter it for all the wealth of the world. People
from centuries have fought for liberty, for absence of liberty
causes sense of emptiness. The sanctity of liberty is the
fulcrum of any civilised society. It is a cardinal value on
which the civilisation rests. It cannot be allowed to be
paralysed and immobilised. Deprivation of liberty of a
person has enormous impact on his mind as well as body.
A democratic body polity which is wedded to the rule of
law, anxiously guards liberty. But, a pregnant and
significant one, the liberty of an individual is not absolute.
Society by its collective wisdom through process of law
can withdraw the liberty that it has sanctioned to an
individual when an individual becomes a danger to the
collective and to the societal order. Accent on individual
liberty cannot be pyramided to that extent which would
10 (2014) 16 SCC 508Page 21
21
bring chaos and anarchy to a society. A society expects
responsibility and accountability from its members, and it
desires that the citizens should obey the law, respecting it
as a cherished social norm. No individual can make an
attempt to create a concavity in the stem of social stream.
It is impermissible. Therefore, when an individual behaves
in a disharmonious manner ushering in disorderly things
which the society disapproves, the legal consequences are
bound to follow. At that stage, the court has a duty. It
cannot abandon its sacrosanct obligation and pass an
order at its own whim or caprice. It has to be guided by the
established parameters of law.
17. Coming to the case at hand, it is found that when a
stand was taken that the second respondent was a
history-sheeter, it was imperative on the part of the High
Court to scrutinise every aspect and not capriciously
record that the second respondent is entitled to be
admitted to bail on the ground of parity. It can be stated
with absolute certitude that it was not a case of parity and,
therefore, the impugned order [Mitthan Yadav v. State of
U.P., Criminal Misc. Bail Application No. 31078 of 2014,
decided on 22-9-2014 (All)] clearly exposes the
non-application of mind. That apart, as a matter of fact it
has been brought on record that the second respondent
has been charge-sheeted in respect of number of other
heinous offences. The High Court has failed to take note of
the same. Therefore, the order has to pave the path of
extinction, for its approval by this Court would tantamount
to travesty of justice, and accordingly we set it aside.”
26) In Ramesh & Ors. v. State of Haryana11, which was decided only two
days ago i.e. on 22.11.2016, this Court discussed the problem of
witnesses turning hostile, and if that is for wrong reasons, observed that
it affects the very fabric of criminal justice delivery system. We would
like to reproduce following passages therefrom:
“40. On the analysis of various cases, following reasons
can be discerned which make witnesses retracting their
statements before the Court and turning hostile:
“(i) Threat/intimidation.
11 Criminal Appeal No. 2526 of 2014 decided on November 22, 2016Page 22
22
(ii) Inducement by various means.
(iii) Use of muscle and money power by the accused.
(iv) Use of Stock Witnesses.
(v) Protracted Trials.
(vi) Hassles faced by the witnesses during
investigation and trial.
(vii) Non-existence of any clear-cut legislation to
check hostility of witness.”
41. Threat and intimidation has been one of the major
causes for the hostility of witnesses. Bentham said:
“witnesses are the eyes and ears of justice”. When the
witnesses are not able to depose correctly in the court of
law, it results in low rate of conviction and many times
even hardened criminals escape the conviction. It shakes
public confidence in the criminal justice delivery system. It
is for this reason there has been a lot of discussion on
witness protection and from various quarters demand is
made for the State to play a definite role in coming out with
witness protection programme, at least in sensitive cases
involving those in power, who have political patronage and
could wield muscle and money power, to avert trial getting
tainted and derailed and truth becoming a casualty. A
stern and emphatic message to this effect was given in
Zahira Habibullah's case as well.
42. Justifying the measures to be taken for witness
protection to enable the witnesses to depose truthfully and
without fear, Justice Malimath Committee Report on
Reforms of Criminal Justice System, 2003 has remarked
as under:
“11.3 Another major problem is about safety of
witnesses and their family members who face danger
at different stages. They are often threatened and the
seriousness of the threat depends upon the type of
the case and the background of the accused and his
family. Many times crucial witnesses are threatened or
injured prior to their testifying in the court. If the
witness is still not amenable he may even be
murdered. In such situations the witness will not come
forward to give evidence unless he is assured ofPage 23
23
protection or is guaranteed anonymity of some form of
physical disguise…Time has come for a
comprehensive law being enacted for protection of
the witness and members of his family.”
43. Almost to similar effect are the observations of Law
Commission of India in its 198th Report (Report on 'witness
identity protection and witness protection programmes'),
as can be seen from the following discussion therein:
“The reason is not far to seek. In the case of victims
of terrorism and sexual offences against women and
juveniles, we are dealing with a section of society
consisting of very vulnerable people, be they victims
or witnesses. The victims and witnesses are under
fear of or danger to their lives or lives of their relations
or to their property. It is obvious that in the case of
serious offences under the Indian Penal code, 1860
and other special enactments, some of which we
have referred to above, there are bound to be
absolutely similar situations for victims and witnesses.
While in the case of certain offences under special
statutes such fear or danger to victims and witnesses
may be more common and pronounced, in the case of
victims and witnesses involved or concerned with
some serious offences, fear may be no less important.
Obviously, if the trial in the case of special offences is
to be fair both to the accused as well as to the
victims/witnesses, then there is no reason as to why it
should not be equally fair in the case of other general
offences of serious nature falling under the Indian
Penal Code, 1860. It is the fear or danger or rather
the likelihood thereof that is common to both cases.
That is why several general statutes in other countries
provide for victim and witness protection.”
27) No doubt, the prosecutrix has already been examined. However, few
other material witnesses, including father and sister of the prosecutrix,
have yet to be examined. As per the records, threats were extended to
the prosecutrix as well as her family members. Therefore, we feel that
the High Court should not have granted bail to the respondent ignoring
all the material and substantial aspects pointed out by us, which were
the relevant considerations.
28) For the foregoing reasons, we allow this appeal thereby setting aside the
order of the High Court. In case the respondent is already released, he
shall surrender and/or taken into custody forthwith. In case he is still in
jail, he will continue to remain in jail as a consequence of this judgment.
29) Before we part with, we make it clear that this Court has not expressed
any observations on the merits of the case. Whether the respondent is
guilty or not, of the charges framed against him, will be decided by the
trial court on its own merits after analysing the evidence that surfaces on
record during the trial.
.............................................J.
(A.K. SIKRI)
.............................................J.
(ABHAY MANOHAR SAPRE)
NEW DELHI;
NOVEMBER 24, 2016.
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