Delhi High Court
P. Das Gupta vs State (Thru C.B.I.) on 13 November, 2002
Equivalent citations: 2003 CriLJ 1055, 101 (2002) DLT 193, 2003 (66) DRJ 129
Author: J Kapoor
Bench: J Kapoor
ORDER
J.D. Kapoor, J.
1. The apprehension of the petitioner is that the
moment he will appear in the court of learned Special
Judge, he will be taken into custody as the learned
Special Judge as a matter of practice is taking
everybody into custody against whom CBI files challan
by way of rejecting the bail application. An instance
cited is of co-accused Dr. Bhawna Doshi whose bail
application was dismissed on the date she appeared in
the court of learned Special Judge and was taken in
custody on the same day. Bail application of Dr. Bhawna
Doshi was rejected on the ground that there is
reasonable possibility of her trying to influence the
witnesses if she is enlarged on bail.
2. However, co-accused Dr. Bhawna Doshi was granted
bail by this court on 8.4.2002. The only allegation
against her was that she had arranged air tickets for
the petitioner and his family members. For this
offence, the learned Special Judge rejected her bail
application by a length order. It was only in view of
the nature of allegations that this court granted bail
to her vide order dated 8.4.2002.
3. The manner in which the learned Special Judge
dealt with the bail application of the co-accused shows
that evidence was documentary whereas he rejected the
bail by referring to cacophony of likelihood of
tampering of witnesses by her. This is highly
myopic and unwarranted approach while dealing with
liberty of a person.
4. Mr. Dinesh Mathur, learned senior counsel for the
petitioner states at the Bar that this particular
Special Judge has not granted bail to any of such
accused who has appeared at the time of filing of
challan by CBI in spite of the fact that CBI did not
take such accused into custody. If it is so, the
apprehension of the petitioner is not at all misplaced.
5. Overriding considerations in granting bail as
laid down by the Supreme Court in Gurcharan Singh and
Ors. v. State AIR 1978 SC 179 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 offences of jeopardising his own life
being faced with a grim prospect of possible conviction
in the case; of tampering with the witnesses; the
history of the case as well as of its investigation and
other relevant grounds.
6. It has observed by the Supreme Court that two
paramount considerations namely likelihood of the
accused fleeing from justice and his tampering with the
prosecution witnesses relate to ensure the fair trial
of the case and therefore it is essential that due and
proper weightage should be bestowed on these two
factors apart from others.
7. Down the lines and over the period, the Supreme
Court emphasised the value of personal liberty and its
deprivation by way of refusal of bail. The celebrated
judgment is Babu Singh and Ors. v. The State of
Uttar Pradesh . The observations of
the Supreme Court are pithy and quote worthy. These
are as under:-
"Personal liberty deprived when bail
is refused, is too precious a value of our
constitutional system recognised under
Article 21 that the crucial power to negate it
is a great trust exercisable, not casually
but judicially, with likely 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'. So deprivation of
personal freedom, ephemeral or enduring,
must be founded on the most serious
considerations, relevant to the welfare
objectives of society, specified in the
Constitution.
8. In Gudikanti Narasimhulu and Ors. v. Public
Prosecutor, High Court of Andhra Pradesh , the Supreme Court went to the extent that bail
should not be refused unless firstly if the crime
charged is of the higher magnitude and the punishment
of it assigned by law is of extreme severity, or when
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;
secondly if the course of justice would be thwarted by
the person who seeks the benignant jurisdiction of the
Court to be freed for the time being; thirdly if there
is likelihood of the applicant interfering with
witnesses for the production or otherwise polluting
the process of justice and lastly if the antecedents of
a man who is applying for bail show a bad record,
particularly a record which suggests that he is likely
to commit serious offences while on bail.
9. It is unfortunate that large number of bail
applications are pouring in this court where the
well established principles governing grant or refusal
of bail are being lost sight of by the subordinate
courts. Bails are being refused even in minor and less
serious offences. Order of the learned Special Judge
rejecting the bail of co-accused demonstrates the
phenomenon. The orders of learned Sessions Judges and
their approach towards dealing with bail applications
are guide to the Magistrates.
10. In the instant case, the bail application of the
co-accused Dr. Bhawna Joshi was rejected merely on the
ground that there is reasonable possibility of her
trying to influence the witnesses if she is enlarged on
bail without weighing the nature and gravity of offence
and without being mindful of the fact that offence
against her was mainly confined to documentary evidence
and it was for this reason that this court granted bail
to her.
11. Since the learned Special Judge is stated to be
not enjoying the powers of Session Judge, instant
petition was filed under Section 482 Cr.P.C. read with
Section 438 Cr.P.C. but in view of genuineness of the
apprehension of the petitioner that he would be taken
into custody the moment he puts appearance and applies
for bail, it is ordered that the petitioner shall on
appearance before the Learned Special Judge or in the
event of arrest, be released on furnishing a personal
bond in the sum of Rs. 20,000/- with one surety in the
like amount to the satisfaction of the learned Special
Judge or Arresting Officer and it is hoped that learned
Special Judge will also allay the apprehension of the
petitioner which has again be echoed that even the bail
bond may not be rejected on some ground or the other.
12. With this common order, all the three petitions
stand disposed of. Copy be placed on record of the
remaining petitions.
13. Copy of this order be sent to Sessions Judge/Addl.
Sessions Judge, Magistrates and all others
Judicial Officers.
