These two appeals are directed against the judgment and order of the Delhi High Court cancelling the orders of bail of each of the appellants passed by the Sessions Judge. They were all arrested in pursuance of the First Information Report lodged by CBI in June 1977 in what is now described as the “Sunder Murder Case”.
Sunder was said to be a notorious dacoit who was wanted in several cases of murder and dacoity alleged to have been committed by him in Delhi and elsewhere. It is stated- that by May, 1976 Sunder became a “security risk for Mr Sanjay Gandhi”. It appears Sunder was arrested at Jaipur on August 31, 1976 and was in police custody in Delhi between November 2, 1976 and November 26, 1976.
It is alleged that the appellants ranging from the Deputy Inspector General of Police and the Superintendent of Police at the top down to some police constables were a party to a criminal conspiracy to kill Sunder and caused his death by drowning him in the Yamuna in pursuance of the conspiracy. According to the prosecution, the alleged murder took place on the night of November 24, 1976.
The appellants were arrested in connection with the above case between June 10, 1977 and July 12, 1977 and the Magistrate declined to release them on bail. Thereafter, they approached the Sessions Judge under Section 439 (1) and secured release on bail of the four appellants on August 1, 1977 and of the eight other police personnel on August 11, 1977.
The Delhi Administration moved the High Court under Section 439(2) Cr. P.C. against the orders of the Sessions Judge for cancellation of the bail. On September 19, 1977 the High Court set aside the orders of the Sessions Judge.
On the allegations, this is principally a case of criminal conspiracy to murder a person in police custody be he a bandit. Police personnel from the Deputy Inspector General of Police to police constables are said to be involved as accused.
Before the FIR, there had been a preliminary inquiry conducted by the CBI. Fifty-three witnesses were examined in that inquiry and six of them were said to be eye-witnesses. These eye-witnesses were all police personnel. During this preliminary inquiry, all the six alleged eye-witnesses did not support the prosecution case, but gave statements in favour of the accused.
The FIR was lodged on June 10, 1977. During the course of investigation, seven witnesses including six persons already examined during the preliminary inquiry, gave statements implicating the appellants in support of the prosecution. The witnesses were also forwarded to the Magistrate for recording their statements under Section 164, Cr.P.C. All the seven witnesses, continued to support the prosecution case in their statements under Section 164. Six eye-witnesses who made such discrepant statements and had supported the defence version at one stage, explained that some of the accused, namely, D.S.P. R. K. Sharma and Inspector Harkesh had exercised pressure on them to make such statements in favour of the defence.
It is in the above background that the Delhi Administration moved the High Court for cancellation of the bail granted by the Sessions Judge, alleging that there was grave apprehension of the witnesses being tampered with by the accused persons on account of their position and influence which they wielded over the witnesses.
Under the Code an accused after being arrested is produced before the Court of a Magistrate. There is no provision in the Code whereby the accused is for the first time produced after initial arrest before the Court of Session or before the High Court. Section 437(1) Cr.P.C. takes care of the situation arising out of an accused being arrested by the police and produced before a Magistrate.
The Law of Bail
It is difficult to reach a conclusion that the Sessions Judge or the High Court need not even bear in mind the guidelines which the Magistrate has necessarily to follow in considering bail of an accused. It is not possible to hold that the Sessions Judge or the High Court, certainly enjoying wide powers, will be oblivious of considerations of likelihood of the accused being guilty of an offence punishable with death or imprisonment for life. Since the Sessions Judge or the High Court will be approached by an accused only after refusal of bail by the Magistrate, it is not possible to hold that the mandate of the law of bail under Section 437 Cr.P.C for the Magistrate will be ignored by the High Court or Sessions Judge.
Section 439 of the new Code confers special powers on High Court or Court of Session regarding bail. That is to say, even if a Magistrate refuses to grant bail to an accused person, the High Court or the Court of Session may order for grant of bail in appropriate cases. Similarly under Section 439(2) of the new Code, the High Court or the Court of Session may direct a person who has been released on bail to be arrested and committed to custody.
Under Section 439(2) of the new Code, a High Court may commit a person released on bail under Chapter XXXIII by any Court including the Court of Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court.
If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court.
It is significant to note that under Section 397, Cr.P.C, while the High Court and Sessions Judge have concurrent powers of revision, it is expressly provided under sub-section (3) that when an application under that section has been made by any person to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.
There is no provision in the new Code excluding jurisdiction of the High Court in dealing with an application under Section 439(2) Cr.P.C. to cancel bail after the Sessions Judge had been moved and an order had been passed by him granting bail. The High Court has undoubtedly jurisdiction to entertain the application under Section 439(2) Cr.P.C for cancellation of bail notwithstanding that the Sessions Judge had earlier admitted the appellants to bail.
Chapter XXXIII of the new Code contains provisions in respect of bail bonds. Section 436, Cr.P.C. with which this Chapter opens makes an invariable rule for bail in case of bailable offences subject to the specified exception under sub-section (2) of that section.
Section 437 Cr.P.C. provides as to when bail may be taken in case of non-bailable offences. Sub-section (1) of Section 437, makes a dichotomy in dealing with non-bailable offences. The first category relates to offences punishable with death or imprisonment for life and the rest are all other non-bailable offences.
With regard to the first category, Section 437(1) imposes a bar to grant of bail by the Court or the officer incharge of a police station to a person accused of or suspected of the commission of an offence punishable with death or imprisonment for life, if there appear reasonable grounds for believing that he has been so guilty. Naturally, therefore, at the stage of investigation unless there are some materials to justify an officer or the Court to believe that there are no reasonable grounds for believing that the person accused of or suspected of the commission of such an offence has been guilty of the same, there is a ban imposed under Section 437(1), Cr.P.C. against granting of bail.
In all other non-bailable cases judicial discretion will always be exercised by the Court in favour of granting bail subject to sub-section (3) of Section 437 with regard to imposition of conditions, if necessary. Under sub-section (4) an officer or a Court releasing any person on bail under sub-section (1) or sub-section (2) is required to record in writing his or its reasons for so doing. That is to say, law requires that in non-bailable offences punishable with death or imprisonment for life, reasons have to be recorded for releasing a person on bail, clearly disclosing how discretion has been exercised in that behalf.
Section 437 deals with two stages during the initial period of investigation of a non-bailable offence. Even the officer in-charge of the police station may, by recording his reasons in writing, release a person accused of or suspected of commission of any non-bailable offence provided there are no reasonable grounds for believing that the accused has committed a non-bailable offence punishable with death or imprisonment for life.
Quick arrests by the police may be necessary when there are sufficient materials for the accusation or even for suspicion. When such an accused is produced before the Court, the Court has a discretion to grant bail in all non-bailable cases except those punishable with death or imprisonment for life if there appear to be reasons to believe that he has been guilty of such offences. The Courts over-see the action of the police and exercise judicial discretion in granting bail, always bearing in mind that the liberty of an individual is not unnecessarily and unduly abridged and at the same time the cause of justice does not suffer. After the Court releases a person on bail under sub-section (1) or sub-section (2) of Section 437 it may direct him to be arrested again when it considers necessary so to do. This will be also in exercise of its judicial discretion on valid grounds.
Under the first proviso to Section 167(2) no Magistrate shall authorise detention of an accused in custody under that section for a total period exceeding 60 days on the expiry of which the accused shall be released on bail if he is prepared to furnish the same. This type of release under the proviso shall be deemed to be a release under the provisions of Chapter XXXIII relating to bail. This proviso is an innovation in the new Code and is intended to speed up investigation by the police so that a person does not have to languish unnecessarily in prison facing a trial.
There is a similar provision under sub-section (6) of Section 437. This provision is again intended to speed up trial without unnecessarily detaining a person as an undertrial prisoner, unless for reasons to be recorded in writing, the Magistrate otherwise directs. We may also notice in this connection sub-section (7) of Section 437 which provides that if at any time after the conclusion of a trial of any person accused of non-bailable offence and before the judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of such an offence, it shall release the accused, if he is in custody, on the execution of him of a bond without sureties for his appearance to hear the judgment.
The principle underlying Section 437 is therefore, towards granting of bail except in cases where there appear to be reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life and also when there are other valid reasons to justify the refusal of bail.
Section 437 is concerned only with the Court of Magistrate. It expressly excludes the High Court and the Court of Session. The language of Section 437(1) may be contrasted with Section 437(7). While under subsection (1) the words are: “If there appear to be reasonable grounds for believing that he has been guilty”, sub-section (7) says: “that there are reasonable grounds for believing that the accused is not guilty of such an offence”. This difference in language occurs on account of the stage at which the two sub-sections operate. During the initial investigation of a case in order to confine a person in detention, there should only appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. Whereas after submission of charge-sheet or during trial for such an offence the Court has an opportunity to form somewhat clear opinion as to whether there are reasonable grounds for believing that the accused is not guilty of such an offence.
Whenever a person is arrested by the police for such an offence, there should be materials produced before the Court to come to a conclusion as to the nature of the case he is involved in or he is suspected of. If at that stage from the materials available there appear reasonable grounds for believing that the person has been guilty of an offence punishable with death or imprisonment for life, the Court has no other option than to commit him to custody. At that stage, the Court is concerned with the existence of the materials against the accused and not as to whether those materials are credible or not on the merits.
In other non-bailable cases the Court will exercise its judicial discretion in favour of granting bail subject to sub-section (3) of Section 437, Cr.P.C 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) 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.
It is difficult to conceive how if a police officer arrests a person on a reasonable suspicion of commission of an offence punishable with death or imprisonment for life (Section 41 of the new Code) and forwards him to a Magistrate [Section 167(1) of the new Code] the Magistrate at that stage will have reasons to hold that there are no reasonable grounds for believing that he has not been guilty of such an offence. At that stage unless the Magistrate is able to act under the proviso to Section 437(1) bail appears to be out of question. The only limited inquiry may then relate to the materials for the suspicion. The position will naturally change as investigation progresses and more facts and circumstances come to light.
Section 439(1) 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) 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). The over-riding 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) 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 jeopardising 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.
The question of cancellation of bail under Section 439(2) is certainly different from admission to bail under Section 439(1). In considering the question of bail justice to both sides governs the judicious exercise of the Court’s judicial discretion.
Ordinarily the High Court will not exercise its discretion to interfere with an order of bail granted by the Sessions Judge in favour of an accused.
Application of the law on the facts of this case
In the peculiar nature of the case revealed from the allegations and the position of the appellants in relation to the eyewitnesses it was incumbent upon the Sessions Judge to give proper weight to the serious apprehension of the prosecution with regard to tampering with the eyewitnesses, which was urged before him in resisting the application for bail. The matter would have been different if there was absolutely no basis for the apprehension of the prosecution with regard to tampering of the witnesses and the allegation rested only on a bald statement.
The witnesses stated on oath under Section 164 that they had made the earlier statements due to pressurisation by some of the appellants. Where the truth lies will be determined at the trial. The only question which the Sessions Judge was required to consider at that stage was whether there was a prima facie case made out, as alleged, on the statements of the witnesses and on other materials. There appeared at least nothing at that stage against the statement of ASI Gopal Das who had made no earlier contradictory statement. Whether his evidence will ultimately be held to be trustworthy will be an issue at the stage of trial.
In considering the question of bail of an accused in a non-bailable offence punishable with death or imprisonment for life, it is necessary for the Court to consider whether the evidence discloses a prima facie case to warrant his detention in jail besides the other relevant factors referred to above. As a link in the chain of criminal conspiracy the prosecution is also relying on the conduct of some of the appellants in taking Sunder out of police lockup for making what is called a false discovery and it is but fair that the Panch witness in that behalf be not allowed to be got at.
We may repeat the two paramount considerations, viz. likelihood of the accused fleeing from justice and his tampering with prosecution evidence, relate to ensuring a fair trial of the case in a Court of Justice. It is essential that due and proper weight should be bestowed on these two factors apart from others.
We are satisfied that the High Court has correctly appreciated the entire position.
We find that the case is now before the committing Magistrate. The Magistrate will, therefore, without loss of further time pass an appropriate order under Section 209. The Court of Session will, thereafter, commence trial at an early date and examine all the eyewitnesses first and such other material witnesses thereafter as may be produced by the prosecution as early as possible. Trial should proceed de die in diem as far as practicable at least so far as the eyewitnesses and the above referred to Panch witness are concerned. After statements of the eye-witnesses and the said Panch witness have been recorded, it will be open to the accused to move the Sessions Judge for admitting them to bail, pending further hearing.
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