Chandraswami And Anr. vs Central Bureau Of Investigation
1996 Latest Caselaw 723 Del

JUDGMENT

S.K. Mahajan, J.

(1) The petitioners are facing trial for their having allegedly committed an offence punishable under Sections 420/120(B) Indian Penal Code now pending in the Court of Mr. Ajit Bharioke, Additional Session Judge, Delhi. The charges were framed against the petitioners and the statement of the complainant Lakhubhai Pathak was recorded by the Trial Court on 5th, 6th and 8th July, 1996. .On the basis of the evidence, the Trial Court by order dated 9th July, 1996 added Mr. P.V. Narasimha Rao as an accused to the criminal conspiracy and he was summoned under Sections 120B/420 IPC. This order was challenged by Mr. P.V. Narasimha Rao in this Court. His petition for quashing the summons was dismissed on 30th July, 1996. Against the order of this Court dated 30th July, 1996, Mr. Rao preferred a Special Leave Petition in the Supreme Court of India. The Supreme Court granted exemption from personal appearance till the disposal of the Special Leave Petition. The Special Leave Petition of Mr. Rao was dismissed by the Supreme Court on 20th August, 1996. However, while dismissing the Special Leave Petition, the Supreme Court granted exemption to Mr. Rao from his personal appearance in the Trial Court and it was left open to him to agitate the point as to whether the summons could have been issued to him for an offence under Sections 120B/420 Indian Penal Code before the Trial Court. As exemption from personal appearance had been granted to Mr. Rao, the Trial Court did not record any further evidence and on 2nd August, 1996 the case was adjourned to 31st August, 1996 for awaiting the orders of the Supreme Court.

(2) The petitioners filed an application in the Trial Court for the grant of bail on the ground that the prosecution evidence had started on 3rd June, 1996 and as the trial of the petitioners has not concluded within a period of sixty days from the first date fixed for taking evidence, they are entitled to be released on bail. This application of the petitioners was dismissed by the Trial Court by the impugned order dated 3rd August, 1996. Aggrieved by the said order of dismissal of the bail application by the Trial Court, the petitioners have filed this petition challenging the order of the Chief Metropolitan Magistrate and for grant of bail.

(3) The contention of Mr. Rajender Singh, Sr.Advocate, appearing on behalf of the petitioners, is that the Trial Court has ignored the provisions of Section 437(6) of the Code of Criminal Procedure (in short referred to as the "Code") and has wrongly refused to release the petitioners on bail. Rejecting the bail application, the Chief Metropolitan Magistrate held that there was no material change since the last order declining bail to the accused persons on 10th July, 1996 and no case had been made out for the grant of bail. -It was also held by the Trial Court that by order dated 8th May, 1996 the High Court had clearly mentioned that there was a strong apprehension of the petitioners tampering with evidence and as such there was no case to admit the petitioners to bail. Commenting upon these observations of the Trial Court Mr. Rajender Singh submits that since the date of passing of the earlier order refusing to release the petitioners on bail, there has been significant change in as much as sixty days have expired from the first date for taking evidence in the case and as such the petitioners have a vested right to be released on bail. According to him, the word 'shall' appearing in Section 437(6) clearly gives a mandate to the Court that in case of non-compliance of the provisions of the said Section, it has no option but to release the petitioner on bail unless the reasons for not releasing them are so compelling that they are not entitled to the benefit of Section 437(6). It is also. his argument that till they are proved guilty, the petitioners are innocent and the basic rule in such cases is bail and not jail except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice and bail should not be withheld as means of punishment. He also submits that there is a legal error in the order when the Chief Metropolitan Magistrate holds that "very fact that anotheraccused has been added and the case will proceed for charge and witnesses re-heard goes to show that provisions of Section 437(6) of the Code cannot be invoked as the trial has to proceed as a whole." His contention is that the word trial in Section 437(6) is the trial of a person who is already accused of a non-bailable offence and it cannot be held that the trial will start denovo after the third person has been added as an accused. To appreciate the contentions of Mr. Rajender Singh, it will be useful to refer to the provisions of Section 437(6) .which reads asunder: "IF,in any case triable by a Magistrate, the trial of a person accused of any nonbailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs."

(4) Though, it is true that in case the trial is not concluded within a period of sixty days, the person in custody may be entitled to be released on bail, however, . in case the Magistrate decides to refuse bail, is he to restrict himself to the reasoning germane to the cause of delay or whether the bail can be refused on the general grounds recognised as good for refusing the grant bail? Undoubtedly, the object of Section 437(6) of the Code is to eradicate delay in trial. As held in Robert Lendi v. Collector of Customs, 1987 Criminal Law Journal 55, the twin object of Section 437(6) namely to eradicate delay in trial and to achieve the ends of justice are necessarily to be harmonised. It is in that context that the Court has to find out as to whether the discretion exercised by the Magistrate in withholding bail after sixty days under Section 437(6) of the Code has been properly and juridically exercised. There is nothing in Section 437(6) to support the view that the reasons for declining bail should be restricted only to those reasons which are germane to the cause of delay. The bail can be refused for reasons which are generally invoked and understood as good in law for refusing bail. All that is required of the Magistrate is that if he declines to grant bail, he must record the reasons in writing. While passing the impugned order dated 3rd August, 1996, learned Chief Metropolitan Magistrate has held that "even if Section 437(6) can be invoked, the reasons given in the order of Hon'ble the High Court for refusing bail are germane. The said reasons still stand." Though, the Chief Metropolitan Magistrate has not in details given separately the reasons for refusing the bail, however, while he refers to the order of this Court giving reasons for refusing bail to the petitioners which reasons, according to him, are still germane for refusing bail, one has to look to the order of this Court to find out as to whether the reasons mentioned therein still hold good or not. This Court in its order dated 8th May, 1996 while refusing bail to the petitioners has held that on the basis of the documents placed on record it cannot be said that the petitioners were entitled as of right to get bail and since strong apprehensions had been expressed by the Cbi that petitioners may tamper with evidence if their liberty was not curtailed particularly keeping in view their political cloutatnational as well as at international level, it cannot be said that apprehensions of the Central Bureau of Investigation were unfounded or that they were incapable of doing so. The relevant observations of the Court while refusing to admit the petitioners to bail may be mentioned herein : "WEhave to consider whether any ground has been made out by the petitioners for the grant of bail. Mr. A.K. Dutta, Counsel for Cbi expressed in no uncertain terms that fresh materials have been collected by the CBI. The petitioners being influential persons, having influence almost all over the world, if they come to know the details of the material collected against them, they would surely try to tamper with the same either by destroying that evidence or by putting pressure on the witnesses. In view of this strong apprehension expressed by the prosecution, to my mind, it will not be safe to release the petitioners on bail particularly when it is stated that umpteen number of serious cases of cheating involving crores of rupees are pending against them. No doubt the investigation in this case has been completed and statement recorded, but what about the other involving charge of cheating of serious nature? There I was told still materials are to be collected. Hence, the apprehension as expressed by the prosecution cannot be brushed aside. Given chance, anybody what to talk of the petitioners would try to destroy the evidence. Then why given them that chance. At this stage, if the bail is granted, it would as Mr. A.K. Dutta stated would amount to putting a seal of appreciation on the acts of the petitioners. Admittedly, refusal to grant bail should not be with the intention to punish an accused but at the same time one cannot loose sight of the fact that no one should be allowed to tamper with evidence or influence the witnesses. If these are the reasons justifying these apprehensions then bail must not be granted. Mere filing of charge sheet was not the ground to refuse the bail. Refusal of bail in this case is based on the serious apprehensions expressed by prosecution. These apprehensions are not speculative in nature but in fact based on the fresh material discovered by the CBI."

(5) In my opinion, there has not been any change in the circumstances since the time of passing the order dated 8th May, 1996 and the reasons given by this Court while passing the said order still hold good and bail to the petitioners can be refused on the same ground as mentioned in the said order. Merely because the trial has not concluded within a period of sixty days from the date when the evidence was fixed for the first time, cannot, therefore, be a ground to enlarge the petitioners on bail.

(6) The petitioners have been making application after application even by filing false documents so as to persuade the Court to admit them to bail. While the period of sixty days was not over, an application was made by the petitioners for being admitted to bail on the same ground of the trial having not been concluded within a period of sixty days. This application came up for hearing before Mr. Y.S. Jonwal, Additional Chief Metropolitan Magistrate and by order dated 6th June, 1996 the same was dismissed. The next day another application of petitioner No, 1 came up for hearing before Mr. Dinesh Dayal, Special Judge, Delhi which was not the Court where such applications should have been filed and a new Counsel was engaged to argue the case. This application was also on the ground that the period of sixty days had expired and the petitioner was, therefore, entitled to be admitted to bail. This application was also dismissed by the Court by order dated 7th June, 1996. Still another application was filed before the Chief Metropolitan Magistrate which was dismissed by him by order dated 10th July, 1996. Immediately after the bail application of the petitioners was dismissed by this Court by order dated 8th May, 1996, the petitioner No. I filed an application before the Metropolitan Magistrate for being admitted to bail on medical ground. This application was dismissed by the Chief Metropolitan Magistrate by order dated 15th May, 1996. Along with this application, a medical certificate of the jail hospital was annexed with a view to show that he required to be treated outside the jail. This certificate was found to be false. While dismissing the application, it was observed by the Chief Metropolitan Magistrate that the petitioner No. I had attempted to be admitted to bail on the ground of his being medically unfit on the basis of a report which appeared to had been obtained by fixing the jail doctors to procure from him the desired medical report to make the said petitioner medically unfit as the ground to come out of jail and obstruct the smooth progress of the trial. Thereafter, the Chief Metropolitan Magistrate also issued notices to the doctors to show cause as to why they should not be held guilty of Contempt of Court. Though, I am not, at this stage, making any observation as to whether the doctors made an attempt or not to give false certificate to help petitioner to come out of jail as the same is sub-judice but I feel it is a circumstance to be considered at the time of deciding the application of the petitioners as to whether they are entitled to the grant of bail. If petitioners sitting in jail can make attempts to obtain false medical reports, the possibility of their tampering with evidence, once they are out of jail on bail, cannot be ruled out.

(7) Though, it is the argument of the petitioners that discriminatory treatment cannot be meted out to the accused who are similarly placed inasmuch as exemption has been granted to Mr. P.V. Narasimha Rao by the Supreme Court which implies that he is on bail, the petitioners are being denied the right to freedom and are not being admitted to bail. In my opinion, the argument has no force. The application of the petitioners is being dismissed from time to time for various reasons including the possibility of the petitioners tampering with evidence and influencing the witnesses. The grant of exemption to Mr. Rao by the Supreme Court, therefore, cannot be made a ground to enlarge the petitioners on bail. It is not disputed that bail should not be refused with the intention to punish an accused but when there are strong apprehensions, which prima-facie do not appear to be unfounded, of the petitioners tampering with evidence and influencing the witnesses, the accused will not be entitled to be admitted to bail.

(8) For the foregoing reasons and taking into consideration the fact that the statement of Mr. Lakhubhai Pathak, who is the main witness in the case, is yet to be completed, I do not see any ground to admit the petitioners to bail. As I have already held that petitioners are not entitled to be admitted to bail merely on the ground of delay, I express no opinion on the point whether the trial, as mentioned in Section 437(6) will start afresh after Mr. P.V. Narasimha Rao has been added as an accused.

(9) There are no merits in the petition and the same is, accordingly, dismissed.

(10) Any observation made in this order will not have any bearing on the merits of the case.