Telangana High Court
Yadati Sunil Yadav vs The Central Bureau Of ... on 15 September, 2023
Bench: K.Lakshman
THE HON'BLE SRI JUSTICE K.LAKSHMAN
I.A.No.1 OF 2023
in
CRIMINAL PETITION No.7937 OF 2023
and
CRIMINAL PETITION No.7937 of 2023
COMMON ORDER:
The Criminal Petition is filed under Sections - 437 and 439 of the
Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C.') by petitioner
herein /A.2 in S.C.No.1 of 2023 pending on the file of Principal Special
Judge for CBI Cases, Hyderabad to grant post arrest bail. The offences
alleged against him are punishable under sections 120-B read with
Sections 302 and 201 of the Indian Penal Code, 1860 (for short, 'the
IPC').
2. During the pendency of the present Criminal Petition, Dr.
Suneetha Narreddy, daughter of deceased filed I.A.No.1 of 2023 to
implead her as respondent No.2 in the present Criminal Petition on the
ground that she is the daughter of the deceased. Her father was brutally
murdered at his residence in Pulivendula on the intervening night of 14-
15.03.2019. The CBI filed charge sheet and supplementary charge sheets
against 8 accused for the offences under Sections 201, 506 and 120-B
read with 302 of IPC and the same were taken cognizance as S.C.No.1 of
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2023. The accused and their henchman were interfering with the effective
investigation and trial. She intends to bring actual facts before this Court.
The petitioner herein played a major role in the plot and execution of the
murder of her father, therefore, she seeks herself to be impleaded in the
present criminal petition.
3. The petitioner herein filed counter opposing the said application
contending that she is claiming herself as victim. Being the daughter of
the deceased, she is directly interfering with the case by personally
appearing in the court hall and also through her advocates at every stage
of the case proceedings in spite of CBI is doing investigation and
representing on behalf of the State and victim.
4. The implead petitioner filed several petitions for transfer of
investigation from A.P. State police to CBI. She is parallelly monitoring,
the investigation process, prosecution and judicial proceedings, causing
great prejudices to the accused which amounts to abuse of process of
court proceedings. The officials of CBI including Investigating Officer in
the subject crime for the reasons best known to them not raising any
objections or filing any counters opposing the said petitions filed by her.
The proposed 2nd respondent is having property disputes with the
deceased and she herself is having motive to kill her father as the
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deceased is going to give certain properties to his second wife. Therefore,
her participation in this bail application is impermissible. The Special
Public Prosecutors for CBI is coming from Delhi and two other Public
Prosecutors are assisting to him. With the said contentions, he sought to
dismiss this application.
5. As discussed supra, implead petitioner is the daughter of the
deceased. Her mother filed writ petition seeking entrustment of
investigation to CBI. She and her mother filed a writ petition vide
W.P.(Crl) No.169 of 2022 before the Hon'ble Apex Court seeking
transfer of the trial arising out of the said crime pending before the CBI
Special Court, Kadapa, Andhra Pradesh to CBI Special Court, Hyderabad
or CBI Special Court, New Delhi and also to direct the CBI to complete
investigation at the earliest. The Apex Court vide order dated 29.11.2022,
transferred the aforesaid crime to the CBI Special Court, Hyderabad.
Apex Court in Jagjeet Singh Vs. Ashish Mishra 1 and catena of
decisions categorically held that victim/interested person is entitled for
audience at every stage. 'Victim' means a person who has suffered loss or
injury caused by reason of the act or omission for which the accused
person has been charged and the expression victim includes his/her
1
AIR 2022 SC 1918
4
guardian or legal heir. In the light of the aforesaid discussion and
considering the principle laid down by the Apex Court, this application is
allowed. Registry is directed to carry out the necessary amendments.
6. Heard Sri T.L.Nayan Kumar, learned counsel for the petitioner,
Sri Anil Tenwar, learned Spl.Public Prosecutor for CBI and Sri B.Nalin
Kunar, learned Senior counsel representing Ms.Tekuru Swetcha, learned
counsel appearing for 2nd respondent.
7. The subject matter is commonly came to be known as
Y.S.Vivekananda Reddy murder case. It involves murder of said
Y.S.Vivekananda Reddy (hereinafter called as 'Deceased'), a former
Member of Legislative Assembly of erstwhile combined State of Andhra
Pradesh and also a former Member of Parliament. He is a brother of
Former Chief Minister of erstwhile combined State of Andhra Pradesh
i.e. late Dr.Y.S.Raja Sekhar Reddy, and he is paternal uncle of present
Chief Minister of Andhra Pradesh i.e. Mr.Y.S.Jagan Mohan Reddy.
8. On 15.03.2019 in the morning hours, the Deceased was lying in
a pool of blood at his house in Pulivendula, Kadapa Y.S.R.District. On
the same day, the First Information Report bearing No.84 of 2019 was
registered by Pulivendula Police Station under Section 174 of Cr.P.C. on
the report of Sri M.V.Krishna Reddy, Personal Assistant to the Deceased.
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After the inquest, the provision of law was altered to Section 302 of IPC.
The State Government constituted a Special Investigation Team (SIT) to
investigate the alleged murder of the Deceased.
9. Dissatisfied with the investigation conducted by the SIT, wife of
the Deceased approached the High Court of Andhra Pradesh at Amaravati
by way of filing a writ petition vide W.P.No.3944 of 2019 seeking
entrustment of investigation to CBI from SIT. Vide order dated
11.03.2020, the High Court of Andhra Pradesh, considering the
seriousness of the offences and the allegations made therein, allowed the
said writ petition and entrusted the investigation to CBI. High Court also
directed the CBI to conduct investigation into the allegations of larger
conspiracy and destruction of evidence and also directed the CBI, to
complete investigation as expeditiously as possible and file final report.
10. In compliance with the said order, the CBI registered a case
bearing RC-04(S)/2020/CBI/SC-III/New Delhi on 09.07.2020 and
launched investigation into the death of the Deceased. After conducting
investigation, CBI filed charge sheet dated 26.10.2021 against A.1 to A.4
i.e. Thumallapalli Gangi Reddy (A.1), Yadati Sunil Yadav (A.2), Gajjala
Uma Sankar Reddy (A.3) and Shaik Dasthagiri (A.4).
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11. CBI also filed 1st supplementary charge sheet on 31.01.2022
and also2nd supplementary charge sheet on 28.06.2023 on conducting of
further investigation.
12. In the charge sheets, CBI categorically stated that the
investigation conducted by the Investigating Officer revealed the role
played by petitioner/A.2 in commission of offence. He was associated
with deceased for the last nearly one and half years. He convinced the
deceased by assuring him of huge money through a fake story of sale of
some diamonds/precious stones in his possession. The Deceased
facilitated the petitioner herein by providing him an Innova car and other
facilities.
13. During the course of further investigation, A.4 was examined
under Section 161 of Cr.P.C. wherein he confessed the commission of
murder of the Deceased. He further stated the involvement of
petitioner/A.2 and other accused in commission of the offence. A.4 later
turned as an Approver and was granted pardon under Section 306 of
Cr.P.C.
14. It is stated by CBI that the deceased was a hindrance in the
coming election for A.8 as he was being proposed to contest as M.L.A.
candidate instead of M.P. from Kadapa Lok Sabha Constituency.
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Therefore, in order to thwart the plan of deceased, a criminal conspiracy
was hatched with the help of A.5, an associate of A.7 and A.8 besides
having criminal antecedents to get eliminated the deceased. According to
CBI, it is the motive for committing the offence.
15. It is further stated by the CBI that during the course of
investigation, it revealed that in furtherance of criminal conspiracy for
committing murder of the deceased, A.1 got convinced A.2 to participate
in their plan. He was associated with the deceased for some time before
the incident. He was an ambitious person and used to introduce himself as
the P.A. of the deceased. He had obtained money from several persons
using the name of the deceased and he tried to cheat the deceased. A.2
was not happy with the attitude of deceased and his son-in-law Sri
N.Rajasekhar Reddy, with regard to story of sale of diamond/precious
stones and therefore, he got annoyed with the deceased on being scolded
by his mother Mrs. Savitri who was suspecting that deceased had a bad
eye on her. Thus, A.2 was unhappy with the deceased. A.1 offered share
to A.2 in the promised amount of 40 Crores to commit the offence. The
said facts and motive is specifically mentioned in paragraph No.16.36 of
the supplementary charge sheet dated 28.06.2023.
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16. CBI specifically stated about the role played by the
petitioner/A.2 in preparation for execution of murder. In a meeting, it was
decided that A.2 and A.3 will kill the dog of the deceased which may
create a hindrance in execution of the plan.
17. To execute the plan of murder of the deceased, A.1 paid an
advance amount to other co-accused. A.4 (Approver) received an amount
of one crore in cash from A.2 as an advance for executing the murder of
the deceased. However, out of the said amount of one crore, A.2 kept
Rs.25 lakh with himself with a promise to give the same to A.4 after
some time. On enquiry by A.4, A.2 informed that A.5 paid the said
money. He took A.4 to the house of A.1 to confirm the said facts.
18, CBI further stated that the investigation further revealed that in
furtherance of criminal conspiracy to execute the murder, A.2 and A.3
killed the dog 'Jimmy', living at the house of the deceased by running
over it in 'Honda Amaze' car used by A.3. The said fact was stated by
watchman and househelp etc. Petitioner/A.2 and others have also
conducted a recce to enter the house of the deceased. As per forensic
expert opinion on google takeout record from mail ID of the
petitioner/A.2 revealed the location of his mobile phone was just outside
the house of A.7 and A.8 at 00.08 hours in the intervening night of
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13/14.03.2019. A.2 requested A.4 to arrange an axe and accordingly A.4
purchased an axe from Kadiri. During campaign, A.1 made two calls
from his phone number to A.2 at 18.22.14 hours on 14.03.2019. A.2 also
enquired from A.4 as to what time he will be reaching Pulivendula. A.4
reached Pulivendula at around 20.30 hours from Kadiri and met A.2. A.2
also visited the place of residence of A.7 and A.8 besides visiting other
places of relevance in the commission of the offence. The same was also
revealed from the Forensic expert opinion of CFSL dated 22.11.2022
based on the data extracted from the google takeout of A.2. The same was
specifically mentioned in a tabular form in paragraph No.16.50 of
supplementary charge sheet dated 28.06.2023.
19. It is further stated by CBI that A.2 was also in frequent contact
with A.1, A.3, A.4 over mobile and exchanged messages. In the evening
of 14.03.2019, A.3 and A.4 stayed at a place near house of the deceased
and were waiting for his arrival. A.2 brought liquor from one Gorla
Bharath Yadav which they consumed during the period in between
around 9.00 P.M. on 14.03.2019 to 01.30 A.M. on 15.03.2019. A.3 also
joined them. A.2 has been found available at the place of drinking as per
forensic expert opinion of CFSL, New Delhi. He has sent SMS to A.3. He
has also visited the house of A.7 and A.8. The timings of the same were
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specifically mentioned in paragraph No.16.53 of the supplementary
charge sheet dated 28.03.2023. A.2, A.3 and A.4 reached rear side road
of the deceased on the bike of A.3 at around 1.30 A.M. on 15.03.2019
while A.1 was inside the house of the deceased. They have entered in the
compound wall of the deceased after scaling the boundary wall. A.1
opened the side door and facilitated the entry of A.2, A.3 and A.4 inside
the house.
20. It is further stated that there was heated verbal exchange
between them and the deceased. A.2 abused and kicked the deceased due
to which he fell down. A.3 asked A.4 to bring the axe. A.4 handed over
the axe to A.3 who hit on the forehead of the deceased by the axe. A.2 hit
7 to 8 times on the chest of the deceased after abusing him. Thereafter, all
four of them tortured the deceased and forced him to write a false note
mentioning that his driver Prasad has beaten him badly and he should not
be spared. All of them lifted the deceased, took him into the bathroom in
order to kill him where A.3 again hit on the head of the deceased with axe
7 to 8 times in order to ensure his death. Thus, all of them including
petitioner/A.2 have committed murder of the deceased.
21. It is further stated that petitioner/A.2 and A.1, A.3 and A.4
have searched for some documents, tried to break open the almirah. After
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committing the murder of the deceased, A.2, A.3 and A.4 came out of the
house and escaped by scaling the back side compound wall. The said fact
was specifically mentioned in paragraph No.16.60 of the supplementary
charge sheet dated 28.06.2023. There is reference to statement of A.4
(Approver) recorded under Section 164 of CrPC. A.2 had thrown the
weapon of offence i.e. axe in a Nala near Vasavi Kalyanmantapam,
Pulivendula. However, despite making efforts, the same was not traced
out. There is specific mention about location of the petitioner inside the
house of the deceased at 08.12 hours on 15.03.2019 in paragraph
No.16.63. In paragraph No.16.64, there is mention about forensic analysis
carried out by CFSL, New Delhi, dated 22.11.2022 of the google takeout
of A.2 and that the petitioner was inside the house of A.7 and A.8 at
1.58.36 A.M. on 15.03.2019.
22. In paragraph No.16.74 of supplementary charge sheet dated
28.06.2023, there is specific mention about the role played by the
petitioner/A.2 in destruction of evidence. The call data record of A.2
confirming the said fact is also referred. There is also mention about
absconding of the petitioner/A.2 and his arrest at Goa. Thus, according to
CBI, the investigation conducted by the Investigating Officer in the
subject crime revealed the active role played by petitioner herein/A.2
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before commission of offence, while commission of offence and post
commission of offence and also for destruction of scene of offence.
23. Sri T.L.Nayan Kumar, learned counsel for the petitioner, would
submit that the State police did not name any person as accused much
less the petitioner name or his family members as suspects in connection
with the murder. A.P. State Police called several persons to police station
in the name of investigation including the petitioner and set free as no one
was suspected or identified as accused. The family members of the
Deceased filed writ petitions vide W.P.No 3944 of 2019 and WP No.
1639 of 2020 wherein they have not mentioned names of the petitioner or
his family members in suspects list. Notice dated 05.03.2021 was issued
to the petitioner under Section 160 of Cr.P.C. and he was appeared on
08.03.2021. They have interrogated him upto 30.04.2021. They have
tortured him. CBI also conducted lie detector test and taken signature of
the petitioner on blank papers. Therefore, he has filed a writ petition vide
W.P.No. 14257 of 2021 against CBI complaining about the said torture
and to declare the action of the CBI in insisting the petitioner, his father,
mother to attend before them as illegal. The said writ petition is pending.
CBI filed counter stating that petitioner was staying at the relative's
house in Delhi, regularly examined him etc. Therefore, petitioner herein
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is not an accused and he is only a witness. He has cooperated with the
investigating agency. He has also placed reliance on the statement of
Ms.Deepthi Vasista Programmer, System Division of CBI New Delhi.
24. CBI bore grudge over the petitioner in filing the aforesaid writ
petition. They have not followed the procedure laid down under CrPC in
conducting investigation. They have arrested the petitioner by showing
him as accused by leaving other highly influential persons who are main
culprits. CBI gave a paper publication dated 21.08.2021 announcing 5
lakhs award for tracing out the petitioner. However, they have arrested
the petitioner at Goa. CBI facilitated A.4 in obtaining anticipatory bail
and to file a petition under Section 306 of Cr.P.C. to tender pardon. The
JFCM, Pulivendula granted 10 days police custody from 06.08.2021 to
16.08.2021 of the petitioner. The bail applications filed by him vide
Crl.P.No.4906 of 2021, Crl.P.No.2523 of 2022 were dismissed by High
Court of A.P. and Crl.M.P.No.819 of 2021 was also dismissed.
Petitioner/A.2 is innocent, he has no criminal background, he is aged
about 27 years, an unemployee. He was arrested on 02.08.2021 and since
then, he is in jail. With the said submissions, he sought to grant bail to the
petitioner herein.
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25. Whereas, learned Special Public Prosecutor for CBI and
Sri B.Nalin Kumar, learned Senior Counsel, representing Ms. Tekuru
Swetcha, learned counsel for 2nd respondent would contend as follows:-
i. The allegations leveled against the petitioner are serious in nature
and the offences committed by him are grave in nature.
ii. There is every possibility of the petitioner interfering with the trial
in which event, conducting of fair trial in S.C.No.1 of 2023 is not
possible.
iii. The bail applications filed by the petitioner were dismissed by the
trial Court, High Court. Therefore, the petitioner herein is not
entitled for bail.
iv. High Court of A.P. vide order dated 11.03.2020 in W.P.No.3944 of
2019 entrusted the investigation to CBI for the purpose of
conducting investigation with regard to larger conspiracy and
destruction of evidence.
v. There are specific allegations against the petitioner herein with
regard to the murder. The petitioner herein in connivance with the
other accused conspired in the murder of the Deceased and he tried
to destruct the evidence.
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vi. The Investigating Officer recorded the statements of the witnesses,
obtained analyst report from CFSL and also call data etc. with
regard to Google take out, which is also one of the methods of
collecting evidence. Its reliability cannot be considered at the time
of considering the bail applications and it is for the trial Court to
consider the same
vii. Petitioner absconded at crime stage and with great difficulty
officials of the CBI arrested the petitioner at Goa. CD file discloses
the complicity and role of the petitioner in the said murder.
viii. In the event of petitioner enlarged on bail there is every possibility
of influencing the witnesses, interfering with the trial, in which
event conducting of trial in S.C.No.1 of2023 in a fair manner is not
possible.
ix. With the said submissions, they sought to dismiss the present
application.
CONSIDERATION OF THE COURT:-
26. Admittedly, the Investigating Officer completed investigation
and filed charge sheet on 26.10.2021, first supplementary charge sheet on
31.01.2022 and second supplementary charge sheet on 30.06.2023.
During the course of hearing, learned Spl. P.P. CBI informed this Court
16
that the investigation in the said crime was completed except obtaining
some report.
27. It is relevant to note that this Court referred the principles and
factors to be considered while granting or rejecting bail application as
emphasized by the Apex Court in Mahipal v. Rajesh Kumar @ Polia 2,
in Kancherla Sri Haribabu @ K.Babji Vs. State of Telangana 3. The
relevant paragraphs are extracted below:-
19. In Mahipal v. Rajesh Kumar @ Polia 4, a Two-Judge Bench of the Hon'ble
Apex Court, Dr. D.Y. Chandrachud J., speaking for the Court, discussed with
regard to the power of granting bail under Section 439 of Cr.P.C. and held that the
power to grant bail under Section 439 of Cr.P.C. is of a wide amplitude. Though
the grant of bail involves the exercise of discretionary power of the Court, it has to
be exercised in a judicious manner and not as a matter of course. In the said case,
the guiding factors for exercise of power to grant bail as held in Ram Govind
Upadhyay v. Sudarshan Singh 5, were referred, which are as follows:
"3. Grant of bail though being a discretionary order - but, however, calls
for exercise of such a discretion in a judicious manner and not as a matter
of course. Order for bail bereft of any cogent reason cannot be sustained.
Needless to record, however, that the grant of bail is dependent upon the
contextual facts of the matter being dealt with by the court and facts,
however, do always vary from case to case...The nature of the offence is
one of the basic considerations for the grant of bail - more heinous is the
crime, the greater is the chance of rejection of the bail, though, however,
dependent on the factual matrix of the matter.
2
. (2020) 2 SCC 118
3
(2021) 1 ALT Crl.73
4
. (2020) 2 SCC 118
5
. (2002) 3 SCC 598
17
4. Apart from the above, certain other which may be attributed to be
relevant considerations may also be noticed at this juncture, though
however, the same are only illustrative and not exhaustive, neither there
can be any. The considerations being:
(a) While granting bail the court has to keep in mind not only the nature
of the accusations, but the severity of the punishment, if the accusation
entails a conviction and the nature of evidence in support of the
accusations.
(b) Reasonable apprehensions of the witnesses being tampered with or
the apprehension of there being a threat for the complainant should also
weigh with the court in the matter of grant of bail.
(c) While it is not expected to have the entire evidence establishing the
guilt of the Accused beyond reasonable doubt but there ought always to
be a prima facie satisfaction of the court in support of the charge.
(d) Frivolity in prosecution should always be considered and it is only
the element of genuineness that shall have to be (2002) 3 SCC 598
considered in the matter of grant of bail, and in the event of there being
some doubt as to the genuineness of the prosecution, in the normal
course of events, the Accused is entitled to an order of bail."
20. It was further held in the very same judgment that the determination of
whether a case is fit for the grant of bail involves the balancing of numerous
factors, among which the nature of the offence, the severity of the punishment and
a prima facie view of the involvement of the Accused are important. No straight
jacket formula exists for courts to assess an application for the grant or rejection of
bail. At the stage of assessing whether a case is fit for the grant of bail, the court is
not required to enter into a detailed analysis of the evidence on record to establish
beyond reasonable doubt the commission of the crime by the Accused. That is a
matter for trial. However, the Court is required to examine whether there is a
prima facie or reasonable ground to believe that the Accused had committed the
offence and on a balance of the considerations involved, the continued custody of
the Accused sub-serves the purpose of the criminal justice system. Where bail has
been granted by a lower court, an appellate court must be slow to interfere and
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ought to be guided by the principles set out for the exercise of the power to set
aside bail.
21. The Hon'ble Apex Court referred to the factors to be borne in mind
while considering an application for bail in Prasanta Kumar Sarkar v Ashis
Chatterjee 6, and the said factors are as follows:
"(i) whether there is any prima facie or reasonable ground to believe that the
Accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the Accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the Accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
...
12. It is manifest that if the High Court does not advert to these relevant
considerations and mechanically grants bail, the said order would suffer from the
vice of non-application of mind, rendering it to be illegal..."
22. The Hon'ble Apex Court has also referred to the principles laid down by
it in Kalyan Chandra Sarkar v. Rajesh Ranjan 7, wherein it was held that the
Court granting bail should exercise its discretion in a judicious manner and not as
a matter of course. Though at the stage of granting bail, a detailed examination of
evidence and elaborate documentation of the merit of the case need not be
undertaken, there is a need to indicate in such orders reasons for prima facie
concluding why bail was being granted particularly where the Accused is charged
of having committed a serious offence. Any order devoid of such reasons would
suffer from non-application of mind.
23. By referring to the above said judgments, the Hon'ble Apex Court held
that it is a fundamental premise of open justice, to which our judicial system is
. (2010) 14 SCC 496
. (2004) 7 SCC 528
committed, that factors which have weighed in the mind of the judge in the
rejection or the grant of bail are recorded in the order passed. Open justice is
premised on the notion that justice should not only be done, but should manifestly
and undoubtedly be seen to be done. The duty of the Judges to give reasoned
decisions lies at the heart of this commitment. Questions of the grant of bail
concern both liberty of individuals undergoing criminal prosecution as well as the
interest of criminal justice system in ensuring that those who commit crimes are
not afforded the opportunity to obstruct justice. Judges are duty bound to explain
the basis on which they have arrived at a conclusion.
28. In Deepak Yadav Vs. State of UP 8 a three Judges Bench of
Apex Court summarized the principles for grant or denial of bail.
Paragraph Nos.22 to 30 are relevant and the same are extracted below:-
22. As reiterated by the two-Judge Bench of this Court in Prasanta Kumar Sarkar
Vs. Ashish Chatterjee And Another, it is well-settled that the factors to be borne in
mind while considering an application for bail are:
(i) whether there is any prima facie or reasonable ground to believe that
the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
23. The decision in Prasanta (supra) (2010) 14 SCC 496) has been consistently
followed by this Court in Ash Mohammad Vs. Shiv Raj Singh alias Lalla
Babu(2012) 9 SCC 446), Ranjit Singh Vs. State of Madhya Pradesh (2013) 16
SCC 797), Neeru Yadav Vs. State of Uttar Pradesh (2014) 16 SCC 797),
Virupakshappa Gouda Vs. State of Karnataka(2017) 5 SCC 406), State of Orissa
Vs. Mahimananda Mishra (2018) 10 SCC 516)
(2022) 8 SCC 559
24. In a recent pronouncement of this Court in the case of 'Y' Vs. State of
Rajasthan(2022) 9 SCC 269), authored by one of us (Hon'ble N.V. Ramana, CJI),
it has been observed as under :-
"24. The impugned order passed by the High Court is cryptic, and does not
suggest any application of mind. There is a recent trend of passing such orders
granting or refusing to grant bail, where the Courts make a general observation
that "the facts and the circumstances" have been considered. No specific
reasons are indicated which precipitated the passing of the order by the Court.
25. Such a situation continues despite various judgments of this Court
wherein this Court has disapproved of such a practice. In the case of Mahipal
(Supra), this Court observed as follows:-
25. Merely recording "having perused the record" and "on the facts and
circumstances of the case" does not subserve the purpose of a reasoned
judicial order. It is a fundamental premise of open justice, to which our
judicial system is committed, that factors which have weighed in the mind of
the Judge in the rejection or the grant of bail are recorded in the order passed.
Open justice is premised on the notion that justice should not only be done,
but should manifestly and undoubtedly be seen to be done. The duty of
Judges to give reasoned decisions lies at the heart of this commitment.
Questions of the grant of bail concern both liberty of individuals undergoing
criminal prosecution as well as the interests of the criminal justice system in
ensuring that those who commit crimes are not afforded the opportunity to
obstruct justice. Judges are duty-bound to explain the basis on which they
have arrived at a conclusion." (emphasis supplied)
25. For grant or denial of bail, the "nature of crime" has a huge relevancy.
The key consideration which govern the grant of bail were elucidated in the
judgment of this Court in Ram Govind Upadhyay Vs. Sudarshan Singh14,
wherein it has been observed as under(SCCp.602,para4): -
"4. Apart from the above, certain other which may be attributed to be
relevant considerations may also be noticed at this juncture, though however,
the same are only illustrative and not exhaustive, neither there can be any. The
considerations being:
(a) While granting bail the court has to keep in mind not only the nature of
the accusations, but the severity of the punishment, if the accusation entails a
conviction and the nature of evidence in support of the accusations.
(b) Reasonable apprehensions of the witnesses being tampered with or the
apprehension of there being a threat for the complainant should also weigh
with the court in the matter of grant of bail.
(c) While it is not expected to have the entire evidence establishing the guilt
of the accused beyond reasonable doubt but there ought always to be a prima
facie satisfaction of the court in support of the charge.
(d) Frivolity in prosecution should always be considered and it is only the
element of genuineness that shall have to be considered in the matter of grant
of bail, and in the event of there being some doubt as to the genuineness of
the prosecution, in the normal course of events, the accused is entitled to an
order of bail."
26. Similarly, the parameters to be taken into consideration for grant of bail
by the courts has been described in Kalyan Chandra Sarkar Vs. Rajesh Ranjan
alias Pappu Yadav ((2004) 7 SCC 528 as under : -
"11. The law in regard to grant or refusal of bail is very well-settled. The Court
granting bail should exercise its discretion in a judicious manner and not as a
matter of course. Though at the stage of granting bail a detailed examination of
evidence and elaborate documentation of the merit of the case need not be
undertaken, there is a need to indicate in such orders reasons for prima facie
concluding why bail was being granted particularly where the accused is
charged of having committed a serious offence. Any order devoid of such
reasons would suffer from non-application of mind. It is also necessary for the
court granting bail to consider among other circumstances, the following factors
also before granting bail; they are:
(a) the nature of accusation and the severity of punishment in case of
conviction and the nature of supporting evidence.
(b) reasonable apprehension of tampering with the witness or apprehension
of threat to the complainant.
(c) prima facie satisfaction of the court in support of the charge."
B. Recording of reasons for grant of bail by the High Court of the Sessions
Court
27. The importance of assigning reasoning for grant or denial of bail can
never be undermined. There is prima facie need to indicate reasons particularly in
cases of grant or denial of bail where the accused is charged with a serious
offence. The sound reasoning in a particular case is a reassurance that discretion
has been exercised by the decision maker after considering all the relevant
grounds and by disregarding extraneous considerations.
28. A two-Judge Bench of this Court in Ramesh Bhavan Rathod (Supra)
held that the duty to record reasons is a significant safeguard which ensures that
the discretion which is entrusted to the court, is exercised in a judicious manner.
The operative portion of the judgment reads as under : -
"38. We disapprove of the observations of the High Court in a succession of
orders in the present case recording that the Counsel for the parties "do not
press for a further reasoned order". The grant of bail is a matter which
implicates the liberty of the accused, the interest of the State and the victims
of crime in the proper administration of criminal justice. It is a well-settled
principle that in determining as to whether bail should be granted, the High
Court, or for that matter, the Sessions Court deciding an application
under Section 439 of Cr.P.C would not launch upon a detailed evaluation of
the facts on merits since a criminal trial is still to take place. These
observations while adjudicating upon bail would also not be binding on the
outcome of the trial. But the Court granting bail cannot obviate its duty to
apply a judicial mind and to record reasons, brief as they may be, for the
purpose of deciding whether or not to grant bail. The consent of parties
cannot obviate the duty of the High Court to indicate its reasons why it has
either granted or refused bail. This is for the reason that the outcome of the
application has a significant bearing on the liberty of the accused on one hand
as well as the public interest in the due enforcement of criminal justice on the
other. The rights of the victims and their families are at stake as well. These
are not matters involving the private rights of two individual parties, as in a
civil proceeding. The proper enforcement of criminal law is a matter of public
interest. We must, therefore, disapprove of the manner in which a succession
of orders in the present batch of cases has recorded that counsel for the
"respective parties do not press for further reasoned order". If this is a
euphemism for not recording adequate reasons, this kind of a formula cannot
shield the order from judicial scrutiny.
36. Grant of bail under Section 439 of the Cr.P.C is a matter involving the
exercise of judicial discretion. Judicial discretion in granting or refusing bail
- as in the case of any other discretion which is vested in a court as a judicial
institution - is not unstructured. The duty to record reasons is a significant
safeguard which ensures that the discretion which is entrusted to the court is
exercised in a judicious manner. The recording of reasons in a judicial order
ensures that the thought process underlying the order is subject to scrutiny
and that it meets objective standards of reason and justice." (emphasis
supplied)
29. Similarly, this Court in Ram Govind Upadhyay (Supra), observed that :-
"3. Grant of bail though being a discretionary order but, however, calls for
exercise of such a discretion in a judicious manner and not as a matter of course.
Order for Bail bereft of any cogent reason cannot be sustained. Needless to
record, however, that the grant of bail is dependent upon the contextual facts of
the matter being dealt with by the Court and facts however do always vary from
case to case. While placement of the accused in the society, though may be
considered but that by itself cannot be a guiding factor in the matter of grant of
bail and the same should and ought always be coupled with other circumstances
warranting the grant of bail. The nature of the offence is one of the basic
consideration for the grant of bail more heinous is a crime, the greater is the
chance of rejection of the bail, though, however, dependent on the factual
matrix of the matter."
30. A two-Judge Bench of this Court in Mahipal Vs. Rajesh Kumar (2020) 2 SCC 188
observed :-
"14. The provision for an accused to be released on bail touches upon the liberty
of an individual. It is for this reason that this Court does not ordinarily interfere
with an order of the High Court granting bail. However, where the discretion of
the High Court to grant bail has been exercised without the due application of
mind or in contravention of the directions of this Court, such an order granting
bail is liable to be set aside. The Court is required to factor, amongst other
things, a prima facie view that the accused had committed the offence, the
nature and gravity of the offence and the likelihood of the accused obstructing
16 (2020) 2 SCC 118 the proceedings of the trial in any manner or evading the
course of justice. The provision for being released on bail draws an appropriate
balance between public interest in the administration of justice and the
protection of individual liberty pending adjudication of the case. However, the
grant of bail is to be secured within the bounds of the law and in compliance
with the conditions laid down by this Court. It is for this reason that a court
must balance numerous factors that guide the exercise of the discretionary
power to grant bail on a case by case basis. Inherent in this determination is
whether, on an analysis of the record, it appears that there is a prima facie or
reasonable cause to believe that the accused had committed the crime. It is not
relevant at this stage for the court to examine in detail the evidence on record to
come to a conclusive finding."
29. In a recent judgment in Rohit Bishnoi Vs.State of Rajasthan 9,
the Apex Court held that it is not necessary for the Court to assign
elaborate reasons regarding the prosecution case while granting or
rejecting bail. Paragraph Nos.18 to 23 are relevant and the same are
extracted below:-
18. This Court has, on several occasions discussed the factors to be
considered by a Court while deciding a bail application. The primary
considerations which must be placed at balance while deciding the grant of
2023 (2) LS 109 SC
bail are: (i) The seriousness of the offence; (ii) The likelihood of the accused
fleeing from justice; (iii) The impact of release of the accused on the
prosecution witnesses; (iv) Likelihood of the accused tampering with
evidence. While such a list is not exhaustive, it may be stated that if a Court
takes into account such factors in deciding a bail application, it could be
concluded that the decision has resulted from a judicious exercise of its
discretion, vide Gudikanti Narasimhulu vs. Public Prosecutor, High Court of
Andhra Pradesh- [(1978) 1 SCC 240] ; Prahlad Singh Bhati vs. NCT, Delhi-
[(2001) 4 SCC 280] ; Anil Kumar Yadav vs. State (NCT of Delhi) - [(2018)
12 SCC 129].
19. This Court has also ruled that an order granting bail in a mechanical
manner, without recording reasons, would suffer from the vice of non-
application of mind, rendering it illegal, vide Ram Govind Upadhyay vs.
Sudarshan Singh- [(2002) 3 SCC 598]; Prasanta Kumar Sarkar vs. Ashis
Chaterjee - [(2010) 14 SCC 496]; Ramesh Bhavan Rathod vs. Vishanbhai
Hirabhai Makwana (Koli)- [(2021) 6 SCC 230] ; Brijmani Devi vs. Pappu
Kumar (supra).
20. Reference may also be made to recent decisions of this Court in Manoj
Kumar Khokhar vs. State of Rajasthan- [2022 SCC OnLine SC 30] and
Jaibunisha vs. Meharban- [(2022) 5 SCC 465], wherein, on engaging in an
elaborate discussion of the case law cited supra and after duly
acknowledging that liberty of individual is an invaluable right, it has been
held that an order granting bail to an accused, if passed in a casual and
cryptic manner, de hors reasoning which would validate the grant of bail, is
liable to be set aside by this Court while exercising power under Article
136 of the Constitution of India.
21. The Latin maxim "cessante ratione legis cessat ipsa lex" meaning
"reason is the soul of the law, and when the reason of any particular law
ceases, so does the law itself," is also apposite.
22. While we are conscious of the fact that liberty of an individual is an
invaluable right, at the same time while considering an application for bail,
courts cannot lose sight of the serious nature of the accusations against an
accused and the facts that have a bearing on the case, particularly, when the
accusations may not be false, frivolous or vexatious in nature but are
supported by adequate material brought on record so as to enable a Court to
arrive at a prima facie conclusion. While considering an application for grant
of bail, a prima-facie conclusion must be supported by reasons and must be
arrived at after having regard to the vital facts of the case brought on record.
Due consideration must be given to facts suggestive of the nature of crime,
the criminal antecedents of the accused, if any, and the nature of punishment
that would follow a conviction vis-à-vis the offence/s alleged against an
accused.
23. We have extracted the relevant portions of the impugned order above. At
the outset, we observe that the extracted portions are the only portions
forming part of the "reasoning" of the High Court while granting bail. As
noted from the afore-cited judgments, it is not necessary for a Court to assign
elaborate reasons or engage in a roving inquiry as to the merits of the
prosecution's case while granting bail, particularly, when the trial is at the
initial stages and the allegations against the accused would not have been
crystallized as such. Elaborate details cannot be recorded so as to give an
impression that the case is one that would result in a conviction or, by
contrast, in an acquittal while passing an Order on an application for grant of
bail. However, the Court deciding a bail application cannot completely
divorce its decision from material aspects of the case such as the allegations
made against the accused; severity of the punishment if the allegations are
proved beyond reasonable doubt and would result in a conviction; reasonable
apprehension of the witnesses being influenced by the accused; tampering
with the evidence; criminal antecedents of the accused; and a prima-facie
satisfaction of the Court in support of the charge against the accused.
30. In the light of the aforesaid principles, coming to the facts of
the case on hand, as discussed supra, prima facie, there are serious
allegations against the petitioner herein. The role played by the petitioner
herein/A.2 before commission of offence, while commission of offence
and post commission of offence was specifically mentioned in the charge
sheet and supplementary charge sheets. The investigation conducted by
Investigating Officer in the subject crime including obtaining of Expert
opinion of CFSL, New Delhi, call data record, recording of statements
under Section 164 CrPC is also specifically mentioned. Motive for
commission of offence is also specifically mentioned.
31. It is relevant to note that as per CBI, the investigation revealed
that the petitioner/A.2 was an associate of the deceased before the
murder. There was dispute between the petitioner and deceased with
regard to sale of some diamonds/precious stones in his possession.
Petitioner/A.2 bore grudge on the deceased suspecting that the deceased
kept a bad eye on his mother. He has received money. His presence in
the house of A.7 and A.8 and deceased was specifically mentioned. He
along with other accused killed the dog living in the house of the
deceased. Petitioner/A.2 hit the deceased on his chest 7 to 8 times. He has
collected axe from A.4. Thus, there are specific overt acts against the
petitioner/A.2. Prima facie, he has actively participated in commission of
offence and tried to destruct the evidence. As rightly contended by Sri
B.Nalin Kumar, learned Senior Counsel, the petitioner/A.2 participated at
all three stages i.e. before commission of offence, in commission of
offence and after commission of offence for destruction of scene of
offence. The reliability of the statement of A.4 recorded under Section
164 of CrPC, 306 of Cr.P.C. and other statements cannot be considered
while deciding the bail application and it is for the trial Court to decide
the same during trial.
32. It is relevant to note that Hon'ble Apex Court considering
several aspects transferred the proceedings to CBI Court Hyderabad from
CBI Court Kadapa. Most of the witnesses are from the State of Andhra
Pradesh. A.8 is sitting Member of Parliament from Kadapa Lok Sabha
Constituency and A.7 is his father. They are very close relatives of the
present Chief Minister of Andhra Pradesh.
33. With regard to reliability of statements of Shaik Dasthagiri
(A.4), recorded under Sections 161, 164 and 306 of CrPC, it is relevant to
note that the order of grant of pardon to him was challenged by A.1 and
A.3 vide Crl.P.Nos.6976 and 6980 of 2021. Vide order dated 16.02.2022,
the High Court of Andhra Pradesh at Amaravati, dismissed the said
petitions. In the said order, the High Court considered the principle laid
down by the Apex Court in CBI Vs. Ashok Kumar Agarwal 10 and also
four grounds enumerated to interfere with the order on the ground of
pardon. The said order was challenged in the Apex Court and vide order
dated 10.10.2022, the Apex Court dismissed the SLP. Therefore, the
ground of pardon to the Approver i.e. Shaik Dasthagiri (A.4) attained
finality.
2001 CrlLJ 1905
34. As rightly contended by the learned Special Public Prosecutor
for CBI and also the learned Senior Counsel appearing for 2nd respondent,
this Court cannot conduct a roving enquiry regarding the prosecution case
while deciding bail petition and this Court cannot consider the reliability
of the statements of prosecution witnesses. The said principle was also
laid down by the Apex Court in Rohit Bishnoi supra.
35. As discussed supra, in Judgment dated 29.11.2022 in W.P.(Crl)
No.169 of 2022 filed by 2nd respondent and her mother, the Apex Court
considering the apprehension expressed by them, transferred the trial
from CBI Special Court, Kadapa to CBI Special Court, Hyderabad.
Paragraph Nos.10 to 14 are relevant and the same are extracted below:-
10. Even two key witnesses, namely, Shaik Dastagiri and Ranganna are already
given the police protection under the Witnesses Protection Scheme, 2018,
pursuant to the order passed by the learned Sessions Court, considering the life
threat perception. Even in the response to the present petition, learned counsel
appearing on behalf of the State has also produced the orders passed by the
competent authority granting police protection to two witnesses.
11. As observed hereinabove, one of the witnesses who was to record his
statement under Section 164 Cr.P.C. has not appeared for recording of his
statement, though initially he volunteered to give the statement under Section 164
Cr.P.C. The reason seems to be that thereafter his suspension order has been
revoked and he has been taken back on duty.
12. From the facts narrated hereinabove, it emerges that one of the key witnesses,
namely, K. Gangadhar Reddy, though initially he volunteered to give his
statement under Section 164 Cr.P.C. and the CBI submitted an application to
record his statement under Section 164 Cr.P.C., thereafter he did not turn up to get
his statement recorded and on the contrary he made a statement before the media
that he was being pressurized by the CBI. That thereafter he has died under
mysterious circumstances.
13. Considering the aforesaid facts and circumstances, it cannot be said that
apprehension on the part of the petitioners being daughter a wife of the Deceased
that there may not be a fair trial and that there may not be any independent and
fair investigation with respect to further investigation on larger conspiracy and
destruction of evidence at the scene of incident is imaginary and/or has no
substance at all. The petitioners being daughter and wife of the Deceased have a
fundamental right to get justice as victim and they have a legitimate expectation
that criminal trial is being conducted in a fair and impartial manner and
uninfluenced by any extraneous considerations. Under the circumstances, we are
of the opinion that this is a fit case to transfer the trial and further investigation on
larger conspiracy and destruction of evidence to the State other than the State of
Andhra Pradesh.
14. As per the settled position of law, justice is not to be done but the justice is
seen to have been done also. As per the settled position of law, free and fair trial is
sine qua non of Article 21 of the Constitution. If the criminal trial is not free and
fair and if it is biased, judicial fairness and the criminal justice system would be at
stake, shaking the confidence of the public in the system. However, at the same
time, looking to the large number of witnesses to be examined during the trial and
no hardship is caused to those witnesses, we are of the opinion that instead of
transferring the trial to New Delhi, it may be transferred to CB Special Court at
Hyderabad.
36. It is also relevant to note that A.6 filed a complaint under
Section 200 Cr.P.C. against the then Investigating Officer i.e. Mr. Ram
Singh and the same was referred to the police by the learned Magistrate,
who in turn, registered a case in Cr.No.29 of 2022. Mr. Ram Singh, filed
a petition under Section 482 of Cr.P.C. vide Crl.P.No.1258 of 2022 on
High Court of Andhra Pradesh granted stay of all further proceedings.
37. It is apt to note that, prima facie, there is specific allegation
against the petitioner herein and other accused that the P.W.9, Sri
J.Shankaraiah, the then Circle Inspector has mentioned the role of the
petitioners and others in his statement given to CBI under Section 161 of
Cr.P.C. He also expressed his willingness to give his statement under
Section 164 of Cr.P.C. He was placed under suspension and the same was
revoked thereafter. He has addressed a letter to the Superintendent of
Police, Kadapa stating that the CBI pressurized him to turn as an
Approver. P.W. 243, Sri Kalluru Gangi Reddy, also gave statement under
Section 161 of Cr.P.C. stating that A.5 told him that he along with A.7
and A.8 planned the murder of the Deceased and got it executed through
some new persons. Though he agreed to give statement under Section
164 of Cr.P.C. subsequently he refused to give the statement. Two
witnesses died in suspicious circumstances.
38. It is relevant to note that CBI has filed a petition vide
Crl.M.P.No.496 of 2021 in RC-04(S)/2020/CBI/SC-III/New Delhi,
before the Judicial Magistrate of First Class, Pulivendula, stating that the
petitioner herein is involved in the present crime for the offences
punishable under Section 302 of IPC relating to the murder of the
deceased. During the course of investigation, sufficient oral and
documentary evidence have come on record establishing the role of the
petitioner herein/A.2 in the said murder. The statement of B.Ranganna
watchman in the house of the deceased, recorded under Section 161 and
164 of Cr.P.C. discloses role of the petitioner herein in the said murder.
The efforts were made to secure presence of the petitioner for
investigation being carried out but he was evading to cooperate with the
investigation deliberately despite of service of notice under Section 160
of Cr.P.C. and absconded.
39. It is also relevant to note that this is 5th bail application filed by
the petitioner/A.2. Other bail applications were dismissed by the High
Court of AP and this Court and also Court below. To file successive bail
applications, petitioner has to establish the substantial change of
circumstances. In State of Maharashtra Vs. Captain Buddikota Subba
Rao 11 Apex Court held that once application for bail was dismissed, there
is no question of granting a similar relief which will virtually overruling
the earlier decision without there being a change in a fact situation.
Change means a substantial change which has direct impact on the earlier
1989 Suppl. (2) SCC 605
decision and not merely cosmetic changes which are of little or no
consequence. In State of UP through CBI Vs. Amaramani Tripati 12,
Apex Court reiterated the principle laid down by it in Kalyan
Chandrasekhar Vs. Rajesh Ranjan 13 and paragraph No.19 of the said
Judgment is extracted below which is as follows:-
This Court also in specific terms held that:
"the condition laid down under section 437(1)(i) is sine qua non for
granting bail even under section 439 of the Code. In the impugned
order it is noticed that the High Court has given the period of
incarceration already undergone by the accused and the unlikelihood of
trial concluding in the near future as grounds sufficient to enlarge the
accused on bail, in spite of the fact that the accused stands charged of
offences punishable with life imprisonment or even death penalty. In
such cases, in our opinion, the mere fact that the accused has
undergone certain period of incarceration (three years in this case) by
itself would not entitle the accused to being enlarged on bail, nor the
fact that the trial is not likely to be concluded in the near future either
by itself or coupled with the period of incarceration would be sufficient
for enlarging the appellant on bail when the gravity of the offence
alleged is severe and there are allegations of tampering with the
witnesses by the accused during the period he was on bail."
40. In Virupaksha Gowda and another Vs. State of Karnataka
and another 14 Apex Court held that filing of charge sheet does not in any
manner lessen the allegations made by the prosecution. On the contrary,
filing of charge sheet establishes that after due investigation the
2005 (8) SCC 21
(2004) 7 SCC 528
(2017) 5 SCC 406
investigating agency, having found material, has placed the charge sheet
for the trial of the accused persons. Therefore, filing of charge sheet is not
a ground for granting bail to an accused.
41. It is apt to note that in the aforesaid charge sheets CBI
specifically stated that the investigation conducted by Investigating
Officer, obtaining of forensic analysis from CFSL, New Delhi,
examination of witnesses, re-examination of witnesses, investigation
with regard to source of money trail of Rs.40 Crores and as to the larger
conspiracy behind the commission of murder of Deceased and destruction
of evidence.
42. It is relevant to note that except A.4 - Approver, other accused
are in judicial custody. A.1 was released on default bail. This Court
cancelled the said default bail granted to A.1, he was sent to judicial
custody considering the contention of CBI that all the accused are
interfering with the investigation. This Court granted anticipatory bail to
A.8 and the same is under challenge before Hon'ble Apex Court. This
Court vide order dated 04.09.2023 in Crl.P.No.7545 and 7565 of 2023
dismissed bail applications filed by A.6 and A.7.
. 43. As discussed supra, there is prima facie, and reasonable
ground to believe that the petitioner herein/A.2 has committed the offence
which is serious and grave in nature. A.7 and A.8 are close relatives of
the present Chief Minister of the State of Andhra Pradesh. They are
highly influential persons. All the witnesses are from the State of Andhra
Pradesh and thus there is every possibility of the petitioner herein
threatening/influencing the witnesses in which event, it may not be
possible to the trial Court to conduct trial in a fair and transparent
manner. Therefore, protection of witnesses and fairness of the trial have
to be taken care of.
44. In the light of the aforesaid discussion, this Court is not
inclined to grant bail to the petitioner herein at this stage and the criminal
petition is liable to be dismissed.
53. In the result:-
i. I.A.No.1 of 2023 is allowed. Registry is directed to carry out the
necessary amendments.
ii. The Criminal Petition is dismissed.
Consequently, miscellaneous petitions, if any, pending, shall stand
closed.
________________________
JUSTICE K. LAKSHMAN
Date:15.09.2023
vvr
