Vijendra Rana vs Central Bureau Of Investigation
2012 Latest Caselaw 3171 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+             Bail Application No.636 of 2010

                                            Decided on :   11th May, 2012

VIJENDRA RANA                                         ...... Petitioner
                             Through: Ms. Nitya Ramakrishnan &
                                     Mr. A. Trideep, Advocates.

                              Versus

CENTRAL BUREAU OF INVESTIGATION         ......     Respondent
                 Through: Mr. Dayan Krishnan, Special Public
                         Prosecutor for the CBI.

                             AND

+      Bail Application No.1353 of 2010

KULBHUSHAN PARASHAR                    ...... Petitioner
                Through: Mr. Ram Jethmalani, Sr. Advocate
                        with Mr. Siddharth Aggarwal, Adv.

                              Versus

CENTRAL BUREAU OF INVESTIGATION         ......     Respondent
                 Through: Mr. Dayan Krishnan, special Public
                         Prosecutor for the CBI.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. These two bail applications of accused Vijendra Rana and

Kulbhushan Parashar, bearing Nos.636 of 2012 and 1353 of

2010 respectively, have been filed under Section 439 of the

Code of Criminal Procedure seeking regular bail in respect of

F.I.R. registered by CBI vide RC No.2(A)/2006/CBI/ACU/IX,

under Sections 3 and 5 of the Official Secrets Act, 1923

(hereinafter referred to as 'the Act') read with Section 120-B

and 409 IPC.

2. The petitioner, Vijendra Rana (A-4), was arrested on

6.4.2006 and is in judicial custody since 19.4.2006. Similarly,

the petitioner, Kulbhushan Parashar (A-1), was arrested on

5.4.2006 and is also in judicial custody from the same date.

The repeated attempts by both the petitioners to get the bail,

both from the court of Chief Metropolitan Magistrate,

Additional Sessions Judge as well as from the High Court, have

not yielded any fruitful results. One significant order which

has been passed in this regard and which is quite elaborate

giving the alleged roles of each of the accused is passed by

Hon'ble Mr. Justice S. Muralidhar on 15.5.2009 in Bail

Application No.65 of 2009. In the said order of rejection of bail

of both the petitioners, this Court had observed as under:-

"23. This Court, however, finds merit in the submission that with three years having elapsed and no order on charge yet being passed, there is little prospect of the trial commencing and concluding at an early date. With the order passed today by this Court in Vinod Kumar Jha v. CBI (Criminal Revision Petition No.611/2008), the furnishing of documents to the accused should take place in a time bound manner and facilitate the early conclusion of arguments on charge. In the circumstances, while rejecting the prayer for released on bail, at this stage, this Court requests the trial court to expedite the hearing of the arguments on charge and pass an appropriate order thereon on or before 31st July, 2009. It will be open to the petitioner at the first instance to apply to the trial court for bail after the order on charge and the order framing charge, if any, is passed. The petitioner will also be at liberty to renew his bail application if the directions and the time limits set in the order passed by this Court today in Vinod Kumar Jha are unable for any reasons to be adhered to. In the event of the latter contingency, the delay in the progress of the trial could indeed be a strong factor which should weigh with the trial court while considering the question of grant of bail. Such bail application will be decided on its own merits by the trial court uninfluenced by the opinion expressed in the present order.

24. For the aforementioned reasons, this Court does not find merit in this application and it is dismissed as such."

3. The sum and substance of the aforesaid order was that

the concern expressed by the Court in delay in conclusion of

the arguments on the question of charge and consequently,

setting down the time limit of framing of charge by 31.7.2009

and in the event of that time limit not being adhered to,

permitting the petitioners to file a fresh application for grant of

bail before the trial court.

4. I have been informed by both the learned senior counsel

for the petitioners as well as learned standing counsel for the

CBI that as on date, charges against the petitioners are yet to

be framed and the subsequent bail applications filed by both

the accused persons were also rejected by the learned trial

judge which were filed in pursuance to the orders passed by

this court referred to hereinabove. It is these rejections orders

passed by the learned trial court on 25.10.2008, 3.2.2009 and

30.4.2010 that has necessitated filling of the fresh bail

applications by both the petitioners before this court which are

under consideration. Unfortunately, these two applications

have also been pending before this court for the last more

than two years for one reason or the other.

5. It may be pertinent here to mention that the arguments

on the question of framing of charges are yet to be taken

place. The respondents are attributing the delay in hearing

the arguments on charge on the petitioner, Kulbhushan

Parashar (A-1), while as it is disputed by him. He has taken

the plea that he has been in custody for more than 70 months

and the question of delay is only an issue, which has arisen

during the past 15 months or so. It is further stated that so

far as this delay of 15 months is concerned, this is also

because of the change of Presiding Officer, who had heard the

arguments on the question of framing of charge. The SLP has

been preferred by the respondents themselves against the

order of the High Court, in one of the criminal revision, for

directing the respondents to supply documents, in respect of

which they were claiming privilege. It is against this order of

supply of documents that the SLP has been preferred by the

CBI, more of which will be dealt with later on.

6. The sum and substance of the allegations leveled by the

prosecution, no doubt against both the petitioners, are very

serious in nature. The brief facts of the prosecution case are

that in the month of May, 2005, co-accused Wing Commander

S.L. Surve (A-3) while working as Joint Director, Air Defence

(Operations), Indian Air Force was apprehended by the Air

Force Intelligence on strong suspicion of leaking vital

information, consequent to which, his house and office were

searched by the Air Force Intelligence on 21.5.2005 and during

this search, one Kingston make pen drive and one home

computer were seized. Thereafter, Air Force Authorities

constituted a Court of Inquiry, during which inquiry, another

pen drive was recovered. The forensic analysis of these two

pen drives, recovered from co-accused, S.L. Surve (A-3), was

got conducted and it was found that the deleted layers of the

first pen drive of Kingston make contained sensitive defence

information pertaining to the Navy also. The accused, S.L.

Surve (A-3), was from the Indian Air Force, but the said pen

drive contained information of Indian Navy also, consequently,

information was given to Navy Officials also, who along with a

clone of the seized pen drive sent it for examination and

necessary action at their hand. The Navy Authorities also

constituted a Board of Inquiry as per part II of Navy

Regulations. The forensic analysis of the clone of the said pen

drive of Kingston make was also got done and thereafter, a

detailed inquiry was conducted by the Navy also. On

12.07.2005, a raid was conducted at the residence of accused

Vijendra Rana (A-4), petitioner when one official computer of

Directorate of Naval Operations (DNO) was recovered which he

allegedly had brought from the office in connivance with co-

accused V.K. Jha (A-5). The said computer had been removed

by the present applicant, Vijendra Rana (A-4), from DNO,

which was protected by a password and contained sensitive

and classified information having vital bearing on National

Security, Sovereignty and Integrity and consequent alleged

leakage of the said information was considered to be

prejudicial to safety and the interest of the country. Based on

the findings of the Board of Inquiry, another co-accused, V.K.

Jha (A-5), Commander Vijendra Rana (A-4), the present

petitioner, and Captain Kashyap Kumar were dismissed from

service on 28.10.2005, with the approval of the competent

authorities. Thereafter, Ministry of Defence sent a reference to

the CBI on 18.2.2006 intimating about the aforesaid Board of

Inquiry and inter alia mentioned that a Commission of Enquiry,

conducted by Air Headquarters had established that there has

been a leakage of information to unauthorized persons and

indicted three Naval Officers, namely, Captain Kashyap Kumar,

co-accused, Commander V.K. Jha (A-5) and Vijendra Rana (A-

4). According to the CBI, investigations were conducted and it

was found that there was a criminal conspiracy amongst the

aforesaid three accused persons with Kulbhushan Parashar (A-

1) and another co-accused Ravi Shankaran (A-2), proclaimed

offender, who indiscriminately used the non-official pen drives

and sent e-mails to unauthorized persons from the aforesaid

computer installed at his residence, and passed the classified

information. On the basis of these allegations, charge sheet

under Section 173 Cr.P.C. was filed by the CBI under Section 3

and 5 of the Official Secrets Act (hereinafter referred to as 'the

Act') read with Sections 120-B and 409 IPC. The three

accused persons, namely, Abhishek Verma (A-6), Director of

the Company, where accused Kulbhushan Parashar (A-1) was

employed and to whom the information was allegedly leaked

by him; V.K. Jha (A-5); and Commander S.L. Surve (A-3), an

official of the Navy, were sent for trial. The present two

accused persons, that is, Kulbhushan Parashar (A1) and

Vijendra Rana (A-4) are in custody approximately for the last

six years, without any substantial progress in the trial.

7. I have heard Mr. Ram Jethmalani, the learned senior

counsel on behalf of accused Kulbhushan Parashar (A-1) and

Ms. Nitya Ramakrishnan on behalf of accused Vijendra Rana

(A-4) on the question of grant of bail. The submissions by both

the learned senior counsel Mr. Jethmalani and Ms. Nitya

Ramakrishnan for enlargement of accused persons on bail are

almost the same. The first submission which has been made

by the learned senior counsel, Mr. Jethmalani, is that

according to the allegations contained in the charge sheet filed

by the CBI, admittedly, the petitioner Kulbhushan Parashar (A-

1) was an employee of a company known by the name of

'Atlas'. According to the charge sheet, in the year 2003,

Kulbhushan Parashar (A-1) met one Abhishek Verma (A-6)

through Ravi Shankaran (A-2). Co-accused Abhishek Verma

(A-6) had allegedly introduced Kulbhushan Parashar (A-1) to

Mr. Philip, M.D. in M/s. Atlas Telecom, a UK and Canada based

company of the Atlas Group of Companies, engaged mainly in

the supply of telecom equipments sometime in the year 2004.

The petitioner Kulbhushan Parashar (A-1) allegedly joined this

group of companies and was made the Vice-President

(Marketing) of M/s. Atlas Defence System. It is contended

that as a representative of this firm, he had obtained inquiries

from Army, Air Force, etc. and while in Delhi, accused

Kulbhushan Parashar (A-1) remained in constant touch with

Ravi Shankaran (A-2) and continued working for the joint

companies, as mentioned above. It is alleged by the counsel

that so far as this divulging of information by Kulbhushan

Parashar (A-1) to the said company, on the directions of

Abhishek Verma (A-6) was concerned, this was only mercantile

information in nature and secondly, the accused Abhishek

Verma (A-6) having already been granted bail by this Court

and which order has been upheld by the Supreme Court, the

accused deserves to be enlarged on bail on the ground of

parity itself. It was also contended by Mr. Jethmalani that as

far as the other co-accused persons, namely, S.L. Surve (A-3),

V.K. Jha (A-5) and Abhishek Verma (A-6) are concerned, they

have also been released on bail and, therefore,

notwithstanding that the petitioner is prima facie to face the

trial for allegations, which are quite serious in nature, still

having been in custody for a period of six years, the continued

denial of the bail to the petitioner does not have to be by way

of punishment. It has been further contended by

Mr. Jethmalani, the learned senior counsel that there is no

immediate prospect of the trial being concluded in immediate

near future more so, when the charges against the accused

persons are yet to be framed.

8. It is also contended that the petitioner has roots in the

society and is not going to flee from the processes of law. It is

also stated that there is no such apprehension expressed even

by the prosecution therefore, this parameter which is also

relevant for deciding the bail application of the petitioners also

goes in their favour. So far as the question of tampering with

evidence is concerned, the charge-sheet has already been filed

and therefore, most of the evidence being documentary or

electronic can be hardly accessed by the petitioners. In any

case, it was urged that conditions can be imposed by the

Court. It was also contended that the petitioners deserve the

benefit of parity as the other co-accused have been granted

bail. It is contended that there is no material change in the

allegations qua him also.

9. Similar submissions were also made by Ms. Nitya

Ramakrishnan, the learned counsel appearing on behalf of

Vijendra Rana (A-4) contended that even if the allegations

against the said petitioner are taken on its face value, they, no

doubt, may be considered to be serious but the severity of

allegations itself is not the sole criteria for denying the benefit

of bail to the accused person inasmuch as there has to be a

balancing of interest of the accused in the society. It has been

further contended by the learned counsel that the said accused

has also been in custody for almost six years now, without

being any substantial progress in the case, therefore, he may

be enlarged on bail. It has also been contended that so far as

the petitioner, Vijendra Rana (A-4) is concerned, he is not at

all responsible for any delay, which might have occurred in the

holding of the trial, and three co-accused persons having been

already enlarged on bail, the petitioner also deserves to be

granted the benefit of bail. The learned counsel has also

drawn the attention of the court to the order passed by the

Hon'ble Mr. Justice S. Muralidhar in bail application No.65 of

2009 wherein the learned judge had, way back in the year

2009, observed that any delay in conclusion of framing of the

charge in itself would be entitling the petitioner to apply for

grant of bail. It is, accordingly, prayed that the petitioner be

extended the benefit of bail during the course of trial.

10. The second submission which has been made by learned

senior counsel Mr. Jethmalani and Ms. Nitya Ramakrishana is

that admittedly, there is no allegation leveled by the CBI that

the petitioners will flee from the processes of law or that they

do not have the roots in the society, therefore, this cannot be

a ground for denying the benefit of bail to the petitioners. So

far as the third condition of the release on bail is concerned, it

was contended that the court has to see as to whether the

release of the petitioners on bail will be a threat to holding of a

fair trial or, in other words, whether there is any possibility of

the petitioners trying to influence the witnesses or tamper with

the evidence. In this regard, both the learned counsel

contended that in the instant case, most of the evidence which

is sought to be established or proved by the CBI against the

petitioners, in order to bring home the guilt of the accused

persons, pertains to documentary or electronic evidence,

which is already in the possession of the CBI and thus, there is

hardly any occasion for the evidence being tampered with by

any of the accused persons. It is also contended that the

court may put such conditions in advance so as to prevent

accessibility of the petitioners in tampering evidence as it may

feel proper, in order to ensure that the release of the

petitioners does not threaten the holding of a fair trial.

11. So far as the CBI is concerned, Mr. Dayan Krishnan

opposed the applications for grant of bail to both the accused

persons. It was contended by him that so far as the accused

Kulbhushan Parashar (A-1) is concerned, he cannot take an

advantage of parity with the other co-accused persons. In this

regard, it was contended by him that Kulbhushan Parashar (A-

1) has been responsible himself for delay in conclusion of

arguments on the question of charge. The learned counsel has

drawn the attention of the court to the various orders passed

by the trial court where it is clearly reflected that the

petitioner, Kulbhushan Parashar (A-1) or his counsel have

been slightly reluctant to argue the matter on the question of

framing of charge and accordingly, it is denied that a

contingency in terms of the judgment of Hon'ble Mr. Justice S.

Muralidhar had arisen, giving rise to a question to move an

application for grant of bail in terms of the order of Hon'ble Mr.

Justice S. Muralidhar. It was contended by him that the

petitioner cannot be permitted to take advantage of his own

wrong, firstly, by delaying the disposal of the trial by one

reason or the other and later on taking the plea for release on

bail by contending that since there is a delay in the conclusion

of the trial, therefore, he be enlarged on bail. It has also been

contended by Mr. Dayan Krishnan that the Supreme Court has

passed an order in SLP on 24.8.2009 that the proceedings may

continue but no final judgment be passed. This order was

passed in the SLP, filed by the CBI, wherein the order of the

Delhi High Court directing supply of copies to the accused

persons, which are relied upon by the respondent, were

directed to be supplied. The order was that the trial may

continue but no final judgment be passed. Despite there being

no confusion about the word 'judgment', an ambiguity is

sought to be created in the order of the Apex Court by alleging

that the arguments on the charge could not be heard or that

there is a stay against the continuance of the trial inasmuch as

the word used by the Apex Court in the said order clearly

reflects passing of the final judgment and not an interim order

or an interlocutory order, after hearing arguments on the

question of charge. It is, accordingly, contended that this kind

of submission made by the learned counsel before the Apex

court and not arguing the matter before the learned trial court

on this specious ground that the Supreme Court has stayed

the proceedings of the trial, is unacceptable and he cannot be

permitted to take advantage of his own wrong.

12. I have carefully considered this submission made on

behalf of the CBI. No doubt, a party cannot be permitted to

take advantage of his own wrong. There is also no dispute

that the Apex court in its interim order dated 24.8.2009 has

used the words 'final judgment shall not be passed'. There is

no ambiguity in the word 'judgment' as it means that the Apex

Court, at the time of passing an interim order, only wanted

that the order which finally determines the guilt of the

accused, either by conviction or acquittal, may not be passed

and obviously arguments on the question of hearing of the

charge ought to have continued. Despite this, the petitioner,

Kulbhushan Parashar (A-1) and his counsel have repeatedly

taken dates. There is no denial of the fact that the accused

seems to harbor a feeling that more the delay in the trial,

greater are the chances of acquittal and therefore, an accused

tries to delay the disposal of the trial but that does not mean

that this attempt by a party or by an accused, who wants to

delay the trial, cannot be cut short by the prosecution agency.

It was equally the responsibility of the CBI that in case, an

ambiguity was sought to be raised or read with regard to the

interim order passed by the Apex Court, the CBI could have

got the said order clarified by filing an application before the

Apex Court. I was informed that the CBI had filed an

application for clarification of the interim order dated

24.8.2009 but that was rejected sometime in February, 2011.

13. There has been a delay in the conclusion of arguments

regarding framing of charge. But I feel, the petitioner,

Kulbhushan Parashar (A-1) cannot be held solely responsible

for the same for the following reasons. Firstly, before the

stage of framing of charge itself, the High Court had directed

supply of copies of documents to the petitioners in pursuance

to Section 207, in respect of which the respondents were

either claiming privilege or ready to give only inspection. It is

this order of supply of documents, which has been assailed by

the CBI before the Apex Court wherein it has been ordered

that the trial may continue but no final judgment be passed.

No doubt, the word 'judgment' refers to final judgment and,

thus, there is apparently no impediment in hearing and

deciding the question of framing of charge. But if it is

considered coolely and dispassionately, if today the charges

are framed without supply of documents, as ordered by the

High Court, then practically, by circumstances, the order of the

High Court is made otiose. It is well possible that the accused

persons may be able to show to the trial court, on the basis of

the said documents, that the framing of the charge is not

warranted. The question of framing of charge has arisen only

after the order dated 15.5.2009 while as on that date also, the

petitioners were in custody for a period well over three years.

Therefore, in my view when the trial court record has been

summoned by the Supreme Court and the arguments on

charge are either not being advanced or inconclusive

everything cannot be attributed to the petitioner, Kulbhushan

Parashar (A-1), so as to deny him the bail which is the rule

and not an exception. Further, the fact remains that the

accused have been in custody for the last six years; if at this

pace, the trial continues, then it is likely to take another

decade or so before the trial comes to an end. I feel in such a

situation, the accused, even though charges against him are

very serious, being under Section 3 of the Act, which entails

life imprisonment. But an accused cannot be continued in

custody for an indefinite period. Accordingly, I feel that

notwithstanding the fact that the allegations against the

petitioners are under Section 3 of the Act, which are very

serious offences especially the one under Section 3 sub-Clause

2, which entails life imprisonment, the petitioners having

already been in judicial custody for nearly six years, cannot be

denied the benefit of bail.

14. The petitioners have also placed on record a table of

cases, under the Act, of the recent past and observed that

even in those cases, the accused persons were charged for an

offence under Section 3 of the Act and though, they were held

guilty but they were not sentenced to more than the period of

six years or so for which period, the petitioners have already

been in custody. However, I do not consider that the

sentencing trend, in the cases of the Act, in the recent past,

can be made as the basis for consideration of bail. The

question of punishment or sentence arises only after conviction

while as what will be relevant, at this stage, would be what is

the sentence the offence carries.

15. The second ground for grant of bail is parity. Admittedly,

five accused persons have been sent on trial by the CBI; out of

which, three persons except accused V.K. Jha (A-5), who has

been charged only for conspiracy for an offence under Section

5 of the Act read with Section 120-B IPC; the other two co-

accused persons, namely, Abhishek Verma (A-6) and S.L.

Surve (A-3) are facing trial for the offences under Sections 3

as well as Section 5 of the Act read with Section 120-B and

409 IPC. Therefore, so far as the allegations of commission of

offence qua these accused persons are concerned, they are at

the same level at which the allegations have been made

against the present petitioners and in case, they have been

granted the benefit of bail, the said bail cannot be denied to

the petitioners. I am cognizant of the fact that in the earlier

rejection order of bail of the petitioners, this Court has sought

to create a distinction between the case in hand and the case

of the persons who have been released on bail on the ground

that the present petitioners were responsible for transmission

of the secret information while as, the others were not. But

this distinction becomes meaningless, once everybody is

charged for conspiracy then all of them are responsible for the

illegal act although their individual role may be relevant for

punishment only/sentence.

16. Further, I find the submissions made by the learned

standing counsel for the CBI illogical merely because there is

an allegation and a strong suspicion against the present

petitioners in communicating or transmitting sensitive

information, which is prejudicial to the national security, which

is at best only an allegation that cannot be permitted to be the

ground for denial of bail to the accused persons after all it

remains an allegation only and till the time the accused is

proved guilty, he is presumed to be innocent notwithstanding

the fact that there may be statutory presumption against the

petitioners.

17. So far as the next consideration of grant of bail is

concerned, that is, that the petitioners should submit to the

processes of law, in this regard, both the learned standing

counsel for the CBI as well as the learned counsel for the

petitioners have not expressed any apprehension that the

petitioners are going to flee from the processes of law. As a

matter of fact, both the petitioners have roots in the society.

No doubt, the allegations against the petitioners are very

serious in nature, which is of betrayal of the trust reposed in

them with regard to national security and confidentiality of the

information but, that in itself cannot be a ground for denial of

the bail when they are prepared to submit to the processes of

law. In any case, so far as the submission to the processes of

law is concerned, that can be ensured by putting various

conditions against both the petitioners. In this regard, the co-

accused persons have also been granted bail on a condition

that they shall surrender their passport. Similar conditions can

be put in the case of the present petitioners also. Apart from

this, the amount of surety bond and the number of sureties

can be increased. Necessary orders in this regard will be

passed hereinafter.

18. The other important condition with regard to the grant of

bail is that the petitioners shall not tamper with the evidence.

Admittedly, in the instance case, most of the evidence is

electronic or documentary in nature, which has already been

seized by the respondents. Therefore, in my considered

opinion, the evidence being already in possession of the CBI,

there is hardly any occasion or opportunity to the petitioners

to tamper with the said documentary or electronic evidence.

So far as the oral evidence is concerned, the petitioners will be

restrained from approaching or tampering with the oral

evidence and if at all, the petitioners do not adhere to the said

restriction, the CBI shall be at liberty to move an appropriate

application for cancellation of their bail on credible information

or prima facie proof being produced that any attempt is being

made to influence the aforesaid trial. The petitioners in that

event would be doing so at their own peril.

19. Mr. Dayan Krishnan, during the course of his

submissions, has referred to two judgments in order to

support his contention of denying the bail to the petitioners.

These were State vs. Captain Jagjit Singh; 1962 (3) SCR

622 and State vs. Jaspal Singh Gill; 1984 (3) SCC 555. I

have gone through both these judgments. No doubt, bail has

been denied in these cases but, the facts of these two cases

are totally different from the facts of the present case. In the

present case, the accused persons have already been in

custody for more than six years and this is certainly not a

small period especially, when the charges are yet to be

framed.

20. Having regard to the aforesaid facts, I feel that the

following considerations have weighed with the court in

granting the bail to both the accused persons :-

(i) That both the accused persons have been in custody for

the last more than six years, notwithstanding the fact that the

allegations against the petitioners are serious in nature

inasmuch as it pertains to transmission/communication of

confidential and secret information pertaining to the security

and sovereignty of the Navy and Air Force by the petitioners,

with the allegations of personal gain but that severity of the

charge itself will not be the only ground for denial of bail,

when the accused persons have been languishing in custody

for the last six years, without their being any substantial

progress in the trial. Further, the denial of bail does not have

to be merely by way of punishment. Till the time the charges

against the accused persons are proved, they are presumed to

be innocent. This is also notwithstanding the fact that there

may be a statutory presumption available against the

petitioners.

(ii) So far as Vijendra Rana (A-4) is concerned, the learned

standing counsel for the CBI did not make any allegation of

delay in the conclusion of trial and, therefore, he was not

averse to release the said accused persons on bail, subject to

such conditions which have been put on the other co-accused

persons. In addition to this, the learned standing counsel for

the CBI had also contended that such restrictions may be put

on the accused persons that they should not try to influence

the extradition proceedings of accused Ravi Shankaran (A-2),

which is under way, or try to produce documents which will

unnecessarily create hurdle in his extradition. But so far as

the allegations of delay in conclusion of arguments by

Kulbhushan Parashar (A-1) is concerned, that ground in itself

cannot be solely responsible for denial of bail to even

Kulbhushan Parashar (A-1). No doubt, Kulbhushan Parashar

(A-1) has been shown not to be fair and sincere in making

submissions before the learned trial court in pursuance to the

order passed by this court on 15.5.2009 in concluding the

arguments on the question of charge by taking adjournments

but at the same time, he cannot be solely responsible for the

delay in the progress of the trial, the reasons for which have

already been given hereinabove.

(iii) There are no allegations that the petitioners will not be

submitting to processes of law or that they will flee from the

processes of law. Therefore, this cannot be a ground for

denial of bail to the petitioners.

(iv) The evidence which is sought to be produced by the CBI

against the petitioners is mostly documentary or electronic in

nature, which is already in its possession so there is hardly

any opportunity or an occasion on the part of the petitioners to

tamper with the same. So far as the oral evidence is

concerned, with regard to this, a condition can be put on the

petitioners that they should not do, directly or indirectly, any

act which will create any hurdle in the holding of a fair trial by

the court. This condition has already been imposed by the

court in the case of other co-accused persons.

21. In the light of the aforesaid reasons, I feel that both the

petitioners deserve to be enlarged on bail. Accordingly, I

direct the release of the petitioners on bail on each of them

furnishing a personal bond in the sum of `2 lac with two

sureties each of the like amount to the satisfaction of the trial

court and this shall be subject to the following conditions :-

(i) that the petitioners shall surrender their passports, if not

already seized by the CBI. In case, the petitioners do not

have the passport, they shall file an affidavit in this regard in

the court that they do not have any passport;

(ii) that they shall not leave the national capital region of

Delhi without the permission of the trial court;

(iii) that they shall not tamper with the evidence or influence

the witnesses or create any conditions which may not be

conducive to the holding of a fair trial;

(iv) that they shall attend the court on each and every date

of hearing and shall not take any adjournment so as to delay

the trial; and

(v) that they shall not create any hurdle in the extradition of

Ravi Shankaran (A-2) or that they shall not communicate with

Ravi Shankaran (A-2) either directly or indirectly till the time

decision on his extradition proceedings is taken by the British

Court.

22. With the aforesaid conditions, both the bail applications

are allowed.

23. Expression of any opinion hereinabove may not be

treated as an expression on the merits of the case.

24. Dasti on payment of usual court fee.

V.K. SHALI, J.

MAY 11, 2012 'AA'