Delhi High Court
Sajjan Kumar vs The State (Through C.B.I.) on 26 February, 2010
Author: A. K. Pathak
HIGH COURT OF DELHI: NEW DELHI
+ BAIL APPLICATION Nos. 306/2010, 311/2010,
312/2010 and 313/2010
%
SAJJAN KUMAR ......Petitioner
Through: Mr.I.U.Kahn, with Mr. Amit Anand
Tiwari, Mr. Vineet Malhotra, Mr.
S.A. Hashmi, Mr. Anil Kumar
Sharma, Mr. Vivek Singh, Mr. Anuj
Kr. Sharma, and Mr. Apoorava
Kumar Sharma, Mr. Vikas Yadav,
Advocates
Versus
THE STATE (THROUGH C.B.I.) .....Respondent
Through: Mr. R.S. Cheema, Sr. Adv. with Mr.
D.P. Singh, Mr. Vikas Pahwa,
Standing Counsel, Mr. K.S. Nalwa,
Mr. Saurabh Soni, Mr. Biswajit
Kumar Patra and Ms. Tarannum
Cheema, Advocates for CBI.
Mr. K.K. Sud, Sr. Advocate and Mr.
H.S. Phoolka Sr. Advocate with Ms
Kamna Vohra, Ms. Sunita Tiwari
and Mr. Kanwar Faisal, Advocates
for the complainants.
AND
BAIL APPLICATION No. 307/2010
MAHENDER YADAV & ORS. ......Petitioners
Bail Application No.306/2010 Page 1 of 25
Through: Mr.Amarendra Sharan,Sr.Adv.
with Mr.I.U.Khan,Mr.S.A.Hashmi &
Mr.Anil Kumar Sharma,Advs.
Versus
THE STATE (THROUGH C.B.I.) .....Respondent
Through: Mr. R.S. Cheema, Sr. Adv. with Mr.
D.P. Singh, Mr. Vikas Pahwa,
Standing Counsel, Mr. K.S. Nalwa,
Mr. Saurabh Soni, Mr. Biswajit
Kumar Patra and Ms. Tarannum
Cheema, Advocates for CBI.
Mr. K.K. Sud, Sr. Advocate and Mr.
H.S. Phoolka Sr. Advocate with Ms
Kamna Vohra, Ms. Sunita Tiwari
and Mr. Kanwar Faisal, Advocates
for the complainants.
AND
BAIL APPLICATION Nos. 308/2010,
309/2010 and 310/2010
BRAHMANAND GUPTA & ORS. ......Petitioners
Through: Mr.Amarendra Sharan,Sr.Adv.
withMr.Anil Kumar Sharma, Adv. &
Mr.Apporav Kumar Sharma, Adv.
Versus
THE STATE (THROUGH C.B.I.) .....Respondent
Through: Mr. R.S. Cheema, Sr. Adv. with Mr.
D.P. Singh, Mr. Vikas Pahwa,
Standing Counsel, Mr. K.S. Nalwa,
Mr. Saurabh Soni, Mr. Biswajit
Bail Application No.306/2010 Page 2 of 25
Kumar Patra and Ms. Tarannum
Cheema, Advocates for CBI.
Mr. K.K. Sud, Sr. Advocate and Mr.
H.S. Phoolka Sr. Advocate with Ms
Kamna Vohra, Ms. Sunita Tiwari
and Mr. Kanwar Faisal, Advocates
for the complainants.
Judgment reserved on: 22nd February, 2010
Judgment delivered on: 26th February, 2010
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK
1. Whether the Reporters of local papers
may be allowed to see the judgment? Not necessary
2. To be referred to Reporter or not? Not necessary
3. Whether the judgment should be
reported in the Digest? Not necessary
A.K. PATHAK, J.
1. All the above noted anticipatory bail applications are being
disposed of together as these involve similar facts and arise from
the same charge sheets.
2. Petitioners are seeking anticipatory bail in the cases arising
from FIRs registered by the Central Bureau of Investigation (CBI),
details whereof are as follows:-
A. FIR No.RC SI 1 2005 S 0024 dated 22.11.2005
under Section 109 read with 147/148/149/153-
A/295/302/396/427/436/449/505 and 201 IPC.
B. FIR No.RC-7 (S)/05/SCB-II/DLI 2005 dated
17.11.2005 under Sections
147/148/149/395/396 and188 IPC.
C. FIR No.RC-8 (S)/05/SCB-II/DLI 2005 dated
28.11.2005 under Sections
147/148/149/436/427 and 395 IPC
D. FIR No.RC-25 (S)/05/SCU-I/SCR-I/DLI 2005
dated 22.1.2005 under Sections
147/149/302/201/395 and 436
3. Brief facts, which lead to registration of aforesaid FIRs, are
that on 31st October, 1984 the then Prime Minister Smt. Indira
Gandhi was assassinated by her personal security guards,
belonging to Sikh Community. As a backlash to this unfortunate
incident, large number of anti social elements indulged in looting,
arson and killing of innocent persons belonging to Sikh Community
throughout the country. Such like incidents also took place all over
Delhi.
4. This case pertains to the incidents which took place in
Sultanpuri and Delhi Cantt. area wherein several persons belonging
to Sikh community were slaughtered in a brutal, ruthless and cold
blooded manner. With regard to such incidents FIRs were
registered by the Delhi Police from time to time. Two FIRs were
registered immediately. Later on some other FIRs were registered
on the basis of reports of enquiry Commissions/Committees.
5. FIR No.250/1984 under Sections147/148/149/395/396/188
IPC was registered at the police station Sultanpuri on 1st November,
1984 against unknown persons.
6. FIR No.416/1984 under Sections 147/148/149/302/427/436
IPC was registered at police station Delhi Cantt. on 4th November,
1984 against the unknown persons on the complaint of one Baljeet
Kaur. During investigation of this case by the Delhi Police some
more complaints were received and the same were clubbed with this
FIR.
7. FIR No. 347/1991 under Section 147/148/ 149/302/
201/395/436 IPC was registered on 13th December, 1991 on the
basis of affidavit filed by one Joginder Singh before the Jain-
Banerjee Committee on 23rd July, 1987.
8. FIR No.307/1994 under Section 147/148/149/436/427/395
IPC was registered at police station Sultanpuri, Delhi on 14th June,
1994 on the basis of affidavit dated 9th September, 1985 filed by one
Anek Kaur before the Rangnath Mishra Commision.
9. After investigation, Delhi police filed closure reports in FIR
No.347/1991 and FIR No.307/1994, which were duly accepted by
the concerned court, after recording the statement of complainants.
10. So far as FIR No.250/1984 registered at police station
Sultanpuri is concerned, after investigation, four charge sheets and
one supplementary charge sheet was filed against 25 accused which
included some of the petitioners as well. After full-fledged trial all
the 25 accused were acquitted.
11. So far as FIR No.416/1984 registered at police station Delhi
Cantt. is concerned, after investigation, Delhi Police filed seven
charge sheets against several accused including some of the
petitioners. After a full-fledged trial, accused were acquitted.
However, one charge sheet remained pending in view of subsequent
FIR registered by the CBI.
12. Jain-Banerjee Committee headed by Hon'ble Mr. Justice
M.L.Jain and Poti-Rosha Committee headed by Hon'ble Mr.Justice
P.S.Poti, on the basis of affidavit of Smt.Anwar Kaur, wherein it was
alleged that Sajjan Kumar had instigated the mob by giving
provocative speeches and thereafter, led the said mob in the area of
Sultanpuri where the members of unlawful assembly set the
properties belonging to Sikh community on fire and killed the male
members including her husband, recommended appropriate action.
On the basis said report, CBI registered RC 1/90 SIV.II/SIC 1/New
Delhi and after investigation filed charge sheet in the court of
learned Additional Sessions Judge, New Delhi against the petitioner
Sajjan Kumar, Brahmanand Gupta, Perea Ram, Mahinder Singh
Yadav and eight more accused. After trial, learned Additional
Sessions Judge acquitted all the accused including the petitioners
on 23rd December, 2002. An appeal against this acquittal order is
pending in this court.
13. While CBI was investigating the aforesaid case petitioner
Sajjan Kumar, apprehending arrest, approached this court seeking
anticipatory bail which was granted to him vide judgment Sajjan
Kumar Vs. State reported in 43 (1991) DLT 88, wherein in
paragraphs 10 to 14 and 17 it was observed as under:-
(10) However, keeping in view the persistent
demand of the so called voluntary organization, the
Government of India on 26th April, 1985, appointed
Mr.Justice Ranganath Misra, sitting Judge of the
Supreme Court to thoroughly investigate the
happening after the death of Mrs.Indira Gandhi, and
to find out, as to whether there was any organized
mob violence at the behest of Congress workers and
if there was, then suggest ways and means to punish
the guilty. During the commission proceedings,
Justice Misra accorded recognition to the PUCL and
the Citizens Justice Committee. The members of the
said two committees personally went to places of
incidents, to the camps where the inmates had been
shifted and to various other places where many
inmates had taken refuge. They collected many
affidavits of the eye-witnesses and of the victims of
assault including the next door neighbours of Anwar
Kaur. On thorough examination of the affidavits,
and other material placed on record, the commission
came to the conclusion:-
"The news shows in clearest terms
that rioting in proper sense had
started in a very big way in several
parts of the city on 31st evening and
except for killing which came into
process from 1st November, 1984,
every other form of attack on Sikhs
had begun. The massive scale on
which the operation had started so
soon after the fact of death was
circulated is clearly indicative of the
fact that it was the spontaneous
reaction of the people at large. The
short span of time that intervened
would not have permitted scope for
any organizing to be done. The gloom
that had spread and affected the
Congressmen in particular would not
have permitted any such organization
to be handled. The reaction appears
to have come as a flutter and sparked
everywhere in a similar pattern."
(11) The Commission further concluded
that no responsible person in authority of
Congress-I hatched any conspiracy or organized
large scale rioting, looting, killing, etc. in
various parts of Delhi. In fact, the anti-social
elements had taken the lead. The commission
was further of the opinion that in spite of vast
publicity, many persons have not come forward
to depose about the actual happening between
1st and 7th November, 1984. The Commission
recommended new committee be appointed to go
through the individual cases of omission of non-
registration of cases by the local police.
(12) Pursuant to the report of the Justice
Ranganath Misra Commission, Delhi
Administration by notification of February 21,
1987 constituted a Committee comprising of
M.L.Jain former Judge of this court and Shri
A.K.Banerjee, a retired officer of the Indian Police
Service to examine inter alia, whether there were
cases of omission to register or properly
investigate offences committed in Delhi during
the period of riots from October 31 to November
7, 1984, and to recommend the registration of
cases where necessary, monitor the conduct of
investigation and follow-up of cases already
registered, suggest effect steps, including fresh
and further investigations, etc. The said
committee considered the affidavit of Shrimati
Anwar Kaur and was prima facie of the opinion
that the affidavit disclosed the Commission of
offences punishable under Sections 143, 147,
148, 149, 302, 436, 435, 455, 201, and 211 of
the Indian Penal Code. The committee
consequently by letter dated 14.10.1987, wrote
to the Delhi Administration proposing that the
FIR in this regard maybe registered and
investigated in accordance with law.
(13) That pursuant to the recommendation
of the Jain-Banerjee Committee, a co-accused of
the petitioner namely Shri B.N.Gupta filed a writ
petition being CWP No.3327/1987. While
issuing notice, the court restrained the
registration of cases upon the direction of the
Jain-Banerjee Committee. After hearing the
parties at length, this court vide judgment and
order dated October 4, 1989 allowed the writ
petition.
(14) On March 22, 1990, the Delhi
Administration appointed another Committee
comprising Mr.Justice P.S.Poti, former Chief
Justice of Gujarat High Court and Shri
P.A.Rosha, a retired officer of the Delhi Police
service for the same purpose. This Committee
on August 8, 1990, recommended to the
Administrator, Union Territory of Delhi that a
case be registered and investigated by the CBI in
relation to the omission to register a case and to
investigate the offences alleged to have been
committed in the affidavit of Smt.Anwar Kaur.
The Administrator after due consideration
accepted the recommendation and directed the
CBI vide his letter dated 5.9.1990, to take
further action in accordance with law. Upon the
receipt of the said letter, the CBI on September
7, 1990, registered the FIR in question against 6
accused persons, including the petitioner.
Immediately thereafter, the respondent-CBI
recorded the statements of three so-called eye-
witnesses of the occurrence and on 11th
September, 1990, organized a raiding party to
search the house of the petitioner and arrest
him.
(17) Thereafter, very respectable,
responsible and public Spirited members of the
PUCL and Citizens Justice Committee, including
Mr.Justice S.M.Sikri, a retired Chief Justice of
the Supreme Court, Mr.V.M.Tarkunde a former
Judge of the Bombay High Court, Mr.Soli
J.Sorabji, Sr.Advocate, Air Chief Martial Arjun
Singh (Retd.), now the Lt.Governor of Delhi and
Lt.Gen. J.S.Arora (Retd.) and many others, had
gone to the area and other placed, where the
affected persons have been settled to get hold of
their affidavits in regard to the incidents of
rioting which took place in the first week of
November, 1984. At that point of time Anwar
Kaur was admittedly living in the camp. Even
though the statements of neighbours of Anwar
Kaur, namely, Dhoan Kaur resident of A-4175,
Sultanpuri, Padmini Kaur, A-41164, Ram Kaur
of A-41162, and Sumer Singh resident of A-
4/129, were recorded but she did not come
forward to make any statement. For this lapse,
there is no explanation.
14. It appears that certain voluntary organizations having
remained dissatisfied with the action taken by the Government
with regard to the carnage which took place in the year 1984,
resulting in the killing of several innocent persons of Sikh
community, persisted the Government to further probe into the
matter, as a consequence whereof, "Nanavati Commission" was
constituted in the year 2000, vide notification No.441(E) dated 8th
May, 2000. Justice Nanavati submitted its report to the
Government on 9th February, 2005 wherein it was observed as
under:-
"The Commission is, therefore, inclined to take the
view that there is credible material against Shri Sajjan
Kumar and Shri Balwan Khokhar for recording a
finding that he and Shri Balwan Khokhar were
probably involved as alleged by the witnesses. The
DSGPC and CJC have also drawn the attention of the
Commission to some cases where Shri Sajjan Kumar
though named was not chargesheeted or they were
closed as untraced. No useful purpose can now be
served by directing registration of those cases where
the witnesses complaining about the same were
examined before the courts and yet the other
accused were acquitted by the Courts. The
Commission therefore recommends to the
Government to examine only those cases where the
witnesses have accused Shri Sajjan Kumar specifically
and yet no chargesheets were filed against him and
the cases were terminated as untraced and if there is
justification for the same take further action as is
permitted by law. Those cases which were closed as
untraced and which still deserve to be re-examined
are those which would arise from FIR Nos. 250/84,
307/94 and 347/91 of police station Sultanpuri, FIR
Nos. 325/93, 178/84 of police station Mangolpuri and
FIR No. 416/84 of police station Delhi Cantt".
15. In view of the findings of Nanavati Commission, Government of
India on 24th October, 2005 directed the CBI to reinvestigate the
cases concerning involvement of petitioner Sajjan Kumar and
others in FIR Nos.250/1984, 347/1991 and 307/1994 of police
station Sultanpuri and FIR No.416/1984 of police station Delhi
Cantt. Accordingly, CBI re-registered the cases as detailed in Para
2 hereinabove and investigated the same.
16. During the investigation CBI recorded statements of relatives
of the victims which also included the witnesses, whose statements
had already been recorded in earlier cases. Besides this, as per the
CBI some new witnesses had also come forward having witnessed
the incident of arson and killing. On the basis of material collected
during the investigation, CBI was of the view that a case was made
out against the petitioners for having committed offences as
mentioned in the abovesaid FIRs. Consequently, one composite
charge sheet was filed in respect of three FIRs pertaining to the
incidents which took place within the jurisdiction of police station
Sultanpuri and one separate charge sheet was filed in respect of
the incidents which took place within the jurisdiction of police
station Delhi Cantt.
17. As per the respondent, anticipatory bail application under
Section 438 Cr.P.C. is not maintainable as not only the charge
sheets have been filed but cognizance against the petitioners for the
offences, inter alia, under section 302 IPC had also been taken by
the learned ACMM. Per contra, learned senior counsel for the
petitioners argued that the anticipatory bail cannot be denied
merely on the ground that the challan had been presented.
Reliance has been placed on Ravinder Saxena vs. State of
Rajasthan reported in (2010) 1 SCC 684 and Bharat Chaudhary &
Anr. vs. State of Bihar & Ors. reported in (2003) 8 SCC 77.
18. In Ravinder Saxena's case (supra), Supreme Court held that
denial of anticipatory bail on the ground that the challan had been
presented would not satisfy the requirements of Sections 438
Cr.P.C.
19. Similar view has been taken in Bharat Chaudhary's case
(supra) wherein it was held that the fact that a court has either
taken cognizance of the compliant or the investigating agency has
filed a charge sheet, would not by itself, prevent the courts
concerned from granting anticipatory bail in appropriate cases.
20. There is yet another angle in this case making the anticipatory
bail application maintainable, that under Section 437 (1)(i) Cr.P.C.
learned Metropolitan Magistrate is not empowered to grant bail in
the cases where offences punishable with life imprisonment or
death, as the case may be, are involved. In such a scenario, if
petitioners appear before the learned A.C.M.M., they are bound to
be detained in judicial custody, which, by itself, negate the concept
of anticipatory bail as envisaged in Section 438 Cr.P.C.
Accordingly, in my view present anticipatory bail applications are
maintainable.
21. Mr. Amarendra Sharan, learned senior counsel for the
petitioners, has contended that admittedly, present FIRs have been
re-registered by the CBI pursuant to the report of Nanavati
Commission in respect of the incidents which were already the
subject matter of the earlier FIR's registered and investigated by
the Delhi Police. In the cases arising from FIR No.250/1984
Police Station Sultanpuri and FIR No.416/1984 Police Station
Delhi Cantt., all the accused including the petitioners were
acquitted after a full-fledged trial. So far as FIR No.347/1991 and
FIR No.307/1994 are concerned, closure reports were filed after
investigation and duly accepted by the Metropolitan Magistrate. In
respect of same incidents CBI could not have registered fresh cases
merely on the basis of Nanavati Commission report. Earlier FIRs
could not have been re-registered or re-opened by the CBI in
respect of the incidents which were duly investigated and wherein
for lack of evidence petitioners were acquitted. After registration of
a FIR and commencement of investigation therein, registration of
second FIR in respect of same incident and making fresh
investigations pursuant thereof was hit by Section 300 of Cr.P.C.,
which provides that a person once convicted or acquitted by a
competent court cannot be tried again for the same offence arising
out of the same set of facts. According to learned senior counsel,
charge sheets filed by the CBI are vitiated in law and liable to be
quashed. Reliance has been placed on T.T.Antony vs. State of
Kerala & Ors. reported in (2001) 6 Supreme Court Cases 181.
22. He has further contended that after petitioners had already
been acquitted with regard to the occurrence of same incidents on
the basis of evidence adduced by the prosecution, CBI could not
have launched another prosecution on the same facts in respect of
the same incidents merely because one or the other person
surfaces from time to time and claims himself to be an eye witness
to such an incident, even though they had failed to participate in
the earlier investigation. If this practice is permitted then it will
result in harassment of an accused who has secured an acquittal
after trial as he may have to face trial after trial in respect of same
incident only because one or the other person, for mala fide
reasons, surfaces claiming himself to be an eyewitness. He has
further contended that whole case is politically motivated in order
to gain political mileage. Petitioners after having faced trial and
securing an acquittal, if put to trial again, the same will result in
their persecution and not prosecution.
23. Learned counsel for the CBI has contended that merely
because earlier investigation was conducted in respect of the same
incidents and the challans had been filed wherein petitioners
secured acquittal and in two FIRs closure reports were accepted,
by itself, would not debar the CBI to re-register the cases in respect
of the same incidents and to re-investigate the matter. Second
FIRs are legal as Delhi Police had not investigated the matter
regarding the role played by petitioner Sajjan Kumar, in having
instigated the mob by giving provocative speeches which led to the
rampage being committed by the mob by looting and burning the
properties and killing the members of Sikh community. In nutshell
it is contended that second investigation in respect of same
incident was permissible as the same was on a larger canvas and
broader aspect of conspiracy. Reliance has been placed on Nirmal
Singh Kahlon vs. State of Pubjab & Ors. Reported in (2009) 1
Supreme Court Cases 441.
24. I need not delve upon the above contentions of the learned
counsel regarding the competence of registration of second FIR, its
legality and validity, while deciding the present anticipatory bail
applications. Whether second FIRs are liable to be quashed or not,
is not a question involved in these applications. However, this fact
may weigh as one of the factor for deciding as to whether
petitioners are entitled to anticipatory bail or not.
25. Learned counsel for the petitioner Sajjan Kumar has
contended that incident took place in the year 1984 and in the
earlier FIRs registered by Delhi Police, none of the witnesses
examined therein had named the petitioner as being the one who
had instigated the mob to burn the properties, loot and kill the
persons of Sikh community. His name, for the first time, surfaced
during Jain-Banerjee Committee which recommended registration
of case and pursuant whereof case vide RC 1/90 was registered by
the CBI, which culminated in trial before the learned Additional
Sessions Judge and subsequent acquittal of the petitioner since
witnesses were not found trustworthy and reliable. Some of the
witnesses, who had earlier not named the petitioner, have now
implicated him, which, itself shows that they have improved their
version for obvious reasons and at the behest of someone. New
witnesses, who have now surfaced, after lapse of more than twenty
five years cannot be believed. Petitioner, all along cooperated in
the investigation conducted by CBI during the last 5 years. No
material is there to show that petitioner influenced or threatened
the witnesses. Delay in making the statements is required to be
explained during trial and the veracity of these witnesses have to
be tested when they enter the witness box. Investigation is over
and that the presence of petitioner is not required therein. After
lapse of 25 years from the date of the incidents, petitioner, if
detained during the trial, will result in great injustice to him.
26. As against this, Mr.R.S.Cheema, learned senior counsel for
respondent has contended that petitioners are involved in serious
offences of murder, arson and rioting. Petitioner Sajjan Kumar had
organized a mob and targeted the persons of Sikh community;
instigated the said mob to kill and burn the houses of members of
Sikh community. The incident of arson, looting, killing of male
members of Sikh community was perpetrated in a barbaric,
inhuman and cold blooded manner, as a consequence whereof
victims were isolated, felt insecure, threatened and at that time
had no courage to go before the investigating agency or the court to
make a statement against the culprits. Some of the close relatives
of the deceased persons had migrated to Punjab. They had no
courage to return to Delhi, so as to make a statement before the
court or the investigating agency. With the passage of time they
mustered up the courage and approached the Commission and
filed their affidavits. All these years the truth was not allowed to
come to surface which shows the pervading influence which the
local administration had over the whole matter, as petitioner Sajjan
Kumar was holding high political position. Accordingly, delay of 25
years in this case will be of no consequence.
27. Learned senior counsel has further contended that if
petitioners are granted bail witnesses will not be able to depose
freely; the confidence of people in the system will erode and a
fallacious message will go that these petitioners are above the law.
In case petitioners are granted bail it will hamper the fair trial,
inasmuch as, the witnesses may not come forward to depose in the
matter and/or they may be threatened or influenced by the
petitioner. In nutshell, it is contended that in the facts of this case,
bail cannot be granted.
28. From what has been stated hereinbefore, it is clear that in
respect of the same incident four FIRs were registered earlier and
the same were investigated by the Delhi police and statement of
witnesses were recorded. In two FIRs, closure reports were filed
which were duly accepted by the learned Metropolitan Magistrate
after recording statement of complainants. In two other FIRs as
many as ten charge sheets were filed in the court of learned
Additional Sessions Judge. After full fledged trial accused involved
therein, were acquitted, which included the petitioners as well. So
far as petitioner Sajjan Kumar is concerned, he was not sent up to
face trial in the FIRs registered by the Delhi Police. A separate case
was registered against him in the year 1990 by CBI pursuant to the
recommendation of abovereferred Committee, wherein role was
ascribed to him that he had instigated the mob by holding public
meeting in the Sultanpuri area and thereafter, he led the mob
which went on rampage and burnt the properties; looted the
belongings and killed several persons belonging to Sikh
community. However, after a full fledged trial this petitioner was
also acquitted in the said case. Several witnesses, whose
statements have been recorded by the CBI had also made
statements in earlier FIRs. Present FIRs are relating to the same
incidents which were involved in earlier cases. Some more
witnesses have come forward and made statements implicating the
petitioners. So far as other witnesses, who are common in earlier
FIRs as well as in the present FIRs, have again made statements
implicating the petitioners, however, their version had already been
tested in earlier cases sent for trial. The new witnesses have to
explain as to why they did not come forward earlier, during the
trial.
29. Be that as it may, the statement of such witnesses cannot be
brushed aside completely at this stage but at the same time, they
have to explain during trial as to why they had not deposed against
the petitioner on earlier occasions. 25 years have gone by and this
delay undoubtedly tilts the balance in favour of the petitioners, at
least for the purpose of grant of bail to them.
30. I do not find much force in the contentions of learned senior
counsel that in case petitioners are enlarged on bail it will hamper
fair trial and witnesses may not depose against the petitioners due
to the fear and threat. Admittedly all along for the last 25 years
petitioners have remained at large as they were not in custody.
CBI conducted investigation almost for about five years. During
this period, CBI did not deem it fit to arrest any of the petitioners.
In spite of petitioners being at large, witnesses came forward and
made statements before the CBI. There is no specific allegation
against the petitioners of having threatened or influenced any of
the witnesses, so as to refrain any of them from making statement
against them. Besides this, it is evident from the facts narrated
herein above that after the unfortunate and appalling incident the
relatives or the family members of victims were not left alone to
fend for themselves as members of various
Commission/Committees including eminent jurists had been
visiting the affected areas and even met the families of the victims
residing in camps and interacted, counselled, encouraged, offered
support to them right from the beginning.
31. Indeed, it is true, that offence with which petitioners have
been charged by the CBI is of grave nature and ordinarily in such
cases courts would be slow in admitting the accused on
anticipatory bail, in the face of statements of eye witnesses.
However, in the peculiar facts and circumstances of this case and
for the reasons as mentioned in the preceding paras hereinabove, I
am of the view that it would not be justifiable to detain the
petitioners in custody, after lapse of 25 years of incident.
32. Accordingly, it is ordered that in the event of their arrest,
petitioners shall be released on bail, subject to furnishing personal
bond in the sum of Rs.50,000/- each with one surety in the like
amount to the satisfaction of Investigating Officer/Arresting
Officer/SHO.
33. All the bail applications are disposed of in the above terms.
34. Any observation made in this order will have no bearing on the
merits of the case.
35. Dasti.
A.K. PATHAK, J
February 26, 2010
ps
