Facts of the case
One Shri Amrit Nahata had produced a film called ‘Kissa Kursi Ka’, which portrayed the story of the political doings of the respondent and his mother, Smt. Indira Gandhi. The Board of Censors declined to grant a certificate for exhibition of the film whereupon Shri Nahata filed a writ petition in this Court for a Writ of mandamus. On October 29, 1975, a direction was given by the Court that the film be screened on November 17 to enable the Judges to see whether the censorship certificate was refused rightly.
In order to prevent this Court from exercising its constitutional jurisdiction and with a view to preventing the film from being publicly exhibited, the respondent and his co-accused Shri Vidya Charan Shukla, who was then the Minister for Information and Broadcasting, entered into a conspiracy to take possession of the film and to destroy it. The Supreme Court was informed that it was not possible to screen the film for evaluation by the Judges as spools of the film had got mixed up with some other films received by Government in connection with the International Film Festival.
After the emergency was lifted, information was received in consequence of which a raid was effected on the Gurgaon premises of Maruti Limited. The raid yielded incriminating material to show that the 13 boxes which had been received from Bombay at the New Delhi Railway Station containing spools of the film ‘Kissa Kursi Ka’ were burnt and destroyed in the factory premises. R. B. Khedkar, a Security Officer of the Maruti Limited and his assistant, Kanwar Singh Yadav, were arrested on the very day of the raid. Yadav made a statement on the following day stating how the film was burnt in the premises of the factory. Yadav’s confessional statement was recorded by the Chief Metropolitan Magistrate on June 3 and Khedkar’s on June 4. They were granted pardon under Section 306 of the Code of Criminal Procedure on July 14, 1977.
After completion of investigation, a charge-sheet was filed by the C.B.I. under Section 120B read with Sections 409, 435 and 201 of the Penal Code.
The committal proceedings commenced in the court of Chief Metropolitan Magistrate, Delhi on February 20, 1978. Khedkar who was examined on that day supported the prosecution. On February 21, the second approver Yadav was examined by the prosecution. He resiled both from the statement which he made to the police under Section 161 of the Code of Criminal Procedure as well as from his judicial confession.
On February 27, 1978, an application was filed by Delhi Administration, in the High Court of Delhi for cancellation of the respondent’s bail. That application was dismissed.
Law on cancellation of bail
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 review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial.
The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over. A brother, a sister or a parent who has seen the commission of crime, may resile in the Court from a statement recorded during the course of investigation. That happens instinctively, out of natural love and affection, not out of persuasion by the accused. The witness has a stake in the innocence of the accused and tries therefore to save him from the guilt. Likewise, an employee may, out of a sense of gratitude, oblige the employer by uttering an untruth without pressure or persuasion. In other words, the objective fact that witnesses have turned hostile must be shown to bear a causal connection with the subjective involvement therein of the respondent.
Without such proof, a bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won over by the accused. Inconsistent testimony can no more be ascribed by itself to the influence of the accused than consistent testimony, by itself, can be ascribed to the pressure of the prosecution.
Therefore, one has to countenance a reasonable possibility that the employees of Maruti like the approver Yadav might have, of their own volition, attempted to protect the respondent from involvement in criminal charges. Their willingness now to oblige the respondent would depend upon how much the respondent has obliged them in the past. It is therefore necessary for the prosecution to show some act or conduct on the part of the respondent from which a reasonable inference may arise that the witnesses have gone back on their statements as a result of an intervention by or on behalf of the respondent.
Nature of burden
Before we go to the facts of the case, it is necessary to consider what precisely is the nature of burden which rests on the prosecution in an application for cancellation of bail. Is it necessary for the prosecution to prove by a mathematical certainty or even beyond a reasonable doubt that the witnesses have turned hostile because they are won over by the accused? We think not.
The issue of cancellation of bail can only arise in criminal cases, but that does not mean that every incidental matter in a criminal case must be proved beyond a reasonable doubt like the guilt of the accused. Whether an accused is absconding and therefore his property can be attached under Section 83 of the Criminal Procedure Code, whether a search of person or premises was taken as required by the provisions of Section 100 of the Code, whether a confession is recorded in strict accordance with the requirements of Section 164 of the Code and whether a fact was discovered in consequence of information received from an accused as required by Section 27 of the Evidence Act are all matters which fall particularly within the ordinary sweep of criminal trials. But though the guilt of the accused in cases which involve the assessment of these facts has to be established beyond a reasonable doubt, these various facts are not required to be proved by the same rigorous standard.
Indeed, proof of facts by preponderance of probabilities as in a civil case is not foreign to criminal jurisprudence because, in cases where the statute raises a presumption of guilt as, for example, the Prevention of Corruption Act, the accused is entitled to rebut that presumption by proving his defence by a balance of probabilities. He does not have to establish his case beyond a reasonable doubt. The same standard of proof as in a civil case applies to proof of incidental issues involved in a criminal trial like the cancellation of bail of an accused.
The prosecution, therefore, can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses. Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail.
Our task therefore is to determine whether, by the application of the test of probabilities, the prosecution has succeeded in proving its case that the respondent has tampered with its witnesses and that there is a reasonable apprehension that he will continue to indulge in that course of conduct if he is allowed to remain at large.
Application of this law on the facts of this case
Kanwar Singh Yadav was working at the relevant time as a Security Supervisor under R. B. Khedkar. Both of them were arrested on the very day of the raid, that is, on May 25, 1977. On the 26th, the police recorded Yadav’s statement and on the 28th, he made a petition to the Chief Metropolitan Magistrate, expressing his willingness to confess.
On 14th February, the two approvers, Yadav and Khedkar, appeared at the C.B.I. office and filed written complaints dated the 13th that the respondent was making repeated attempts to call Yadav to meet him by sending the car with Ram Chander, driver of the respondent. One of these complaints is signed by Yadav and the other by Khedkar. Yadav turned hostile when he was examined on the 21st February before the Committing Magistrate. He went back on his police statement, resiled from his confession and risked his pardon. But he admitted in his cross-examination to the Public Prosecutor that he had given the complaint to the C.B.I. He explained it away by offering a series of excuses but we will only characterise that attempt as lame and unconvincing.
There is more than satisfactory proof of the respondent having attempted to suborn Yadav. Whether Yadav succumbed to the persuasion is not for us to say. The Sessions Judge shall have to decide that question uninfluenced by anything appearing herein. We are concerned with the respondent’s conduct, not with Yadav’s reaction or his motives. Khedkar stuck to the complaint.
That is in regard to the event of the 14th February. On the 17th Yadav and the respondent were seen together, the former leaving, the Maruti factory with the respondent in his car. This is supported by the affidavits of Sat Pal Singh, a constable of the Haryana Armed Constabulary who was on duty at the Factory, Ganpat Singh, a Postal Peon and Digambar Das, an Assistant Despatch Clerk in Maruti. It is undisputed that the respondent had gone for official work to the factory on the 17th.
We are inclined to the view that the respondent ultimately succeeded in establishing contact with Yadav. Whether the respondent succeeded in achieving his ultimate object is beyond us to say except that Yadav turned hostile in the Committing Magistrate’s court on February 21.
It cannot be overlooked that Charan Singh did turn hostile. The respondent knows that the witness turned hostile and significantly, though the witness refused to support the prosecution, he made an important admission that he had submitted a written application or complaint to Inspector Ved Prakash on July 12, 1977 and that “whatever is mentioned in that application is correct”. That application, which is really a complaint, contains the most flagrant allegation of attempted tampering with the witness by the respondent, through his driver Chattar Singh.
Even excluding the last incident in regard to Charan Singh which is really first in point of time and though it is corroborated by an entry in the General Diary, we are of the opinion that (i) Yadav’s complaint of the 14th February, (ii) Khedkar’s complaint of even date (iii) Yadav’s admission in his evidence that he did make the written complaint inspite of the fact that he had turned hostile (iv) affidavits of Sat Pal Singh, Ganpat Singh and Digambar Das in regard to the incident of the 17th furnish satisfactory proof that the respondent has abused his liberty by attempting to suborn the prosecution witnesses. He has therefore forfeited his right to remain free.
Section 439(2) of the Code of Criminal Procedure confers jurisdiction on the High Court or Court of Session to direct that any person who has been released on bail under Chapter XXXIII be arrested and committed to custody. The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extraordinary nature, is meant to be exercised in appropriate cases when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses.
But avoidance of undue hardship or harassment is the quintessence of judicial process. Justice, at all times and in all situations, has to be tempered by mercy, even as against persons who attempt to tamper with its processes. The apprehension of the prosecution is that ‘Maruti witnesses’ are likely to be won over. The instances discussed by us are also confined to the attempted tampering of Maruti witnesses like Yadav and Charan Singh, though we have excluded Charan Singh’s complaint from our consideration.
Since the appellant’s counsel has assured us that the prosecution will examine the Maruti witnesses immediately and that their evidence will occupy no more than a month, it will be enough to limit the cancellation of respondent’s bail to that period.
In the result, we allow the appeal partly, set aside the judgment of the High Court dated April 11, cancel the respondent’s bail for a period of one month from today and direct that he be taken into custody. Respondent will, in the normal course, be entitled to be released on fresh bail on the expiry of the aforesaid period.