Karnataka High Court
Rajesh S/O Raju Rudrapati vs The State Of Karnataka on 8 November, 2021
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
:1: Crl.P.No.101621/2021
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 8TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ
CRL.P.No.101621/2021
BETWEEN:
RAJESH S/O RAJU RUDRAPATI
AGE. 35 YEARS,
OCC. BUSINESS,
R/O. BAILPAR,
DANDELI (OLD TALUK JOIDA)
KARWAR AND ALSO 147 BAILPUR,
DANDELI, TQ. DANDELI,
DIST. UTTAR KANNADA,
(KARWAR) PIN CODE-581325 ...PETITIONER
(BY SRI. SANDESH CHOUTA, SENIOR ADV. FOR
SRI. VASANT.G.HOLEYANNAVAR)
AND
THE STATE OF KARNATAKA
R/BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA,
DHARWAD
THROUGH PSI DHARWAD
RURAL POLICE STATION,
DHARWAD, PIN CODE-580011 ...RESPONDENT
(BY SRI.V.S.KALASRUMATH, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C.,
SEEKING TO RELEASE OF THE PETITIONER/ACCUSED 3 ON BAIL
IN DHARWAD RURAL POLICE STATION CRIME NO.157/2019 I.E.,
NOW IN CC NO.3871/2019 NOW IN SESSIONS CASE NO.4/2021
FOR THE OFFENCE U/S 120(b), 302, 201 R/W 34 OF IPC AND U/S
27(3) OF INDIAN ARMS ACT 1959 WHICH IS NOW PENDING ON
:2: Crl.P.No.101621/2021
THE FILE OF IV ADDL. DISTRICT AND SESSIONS JUDGE,
DHARWAD AND TO PASS ANY OTHER APPROPRIATE ORDER AS
THIS HON BLE COURT DEEMS FIT TO GRANT IN THE
CIRCUMSTANCES OF THIS CASE.
THIS WRIT PETITION COMING ON FOR HEARING ON
INTERLOCUTORY APPLICATION, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the following relief:
"to release of the petitioner/accused 3 on bail in Dharwad Rural police station crime No.157/2019 i.e., now in CC No.3871/2019 now in sessions case No.4/2021 for the offence u/s 120(b), 302, 201 r/w 34 of IPC and u/s 27(3) of Indian Arms Act 1959 which is now pending on the file of IV Addl. District and Sessions Judge, Dharwad and to pass any other appropriate order as this Hon'ble Court deems fit to grant in the circumstances of this case"
2. The complaint has been registered on 25/9/2019 against the petitioner and certain others in Crime No.157/2019 for the offences punishable under Sections 201, 302, r/w 34 of IPC and Section 27(3) of Arms Act, 1959. Petitioner had earlier approached the Sessions Judge in Crime No.141/2020 which came to be rejected on :3: Crl.P.No.101621/2021 22/5/2020. Thereafter, the petitioner had approached this Court in Crl.P.No.102481/2019 which was withdrawn on 10/2/2020.
Subsequently, Crl.P.No.100610/2020 had been filed which came to be dismissed vide order dated 4/8/2020 on the ground that there was apprehension and the danger of the petitioner being an influential person would tamper with the evidence and witnesses. Subsequently, another Crl.P.No.101536/2020 had been filed which also came to be dismissed on 23/12/2020 on the ground that there are no changed circumstances which had been made out to material change the view taken in the order passed in Crl.P.No.101610/2020. This is the 4th petition filed seeking for enlargement of bail.
3. Sri. Sandesh Chouta, learned senior counsel instructed by Sri. Vasant G.Holeyannavar learned counsel for the petitioner once again reiterated the :4: Crl.P.No.101621/2021 submissions made in the above two bail petitions which were dismissed and that accused Nos.1,2 and 4 had already been enlarged on bail and it is on account of parity that petitioner who is accused No.3 should also be enlarged on bail. He submits that 3.1. the petitioner was arrested on 28/9/2019 and from that date, the petitioner is in custody.
Further more, the petitioner had been granted interim bail vide order dated 7/10/2021. The petitioner being enlarged on such interim bail has complied with all the conditions imposed by this Court and there is no violation committed by the petitioner.
Therefore, the petitioner has established his bonafides. On this ground, he submits that there is no danger of the petitioner influencing the witnesses or tampering with :5: Crl.P.No.101621/2021 any evidence and as such he submits that the petitioner ought to be enlarged on bail.
3.2. In this connection, he relies upon the decision of the Apex Court in Susheela Agarwal & Others Vs. State (NCT of Delhi) & Another, more particularly para 43, thereto which is reproduced hereunder for easy reference:-
"43. During the last couple of years this Court, while dealing with appeals against orders passed by various High Courts, has granted anticipatory bail to many a person by imposing conditions set out in Section 438(2) (i), (ii) and
(iii). The court has, in addition, directed in most of those cases that (a) the applicant should surrender himself to the police for a brief period if a discovery is to be made under Section 27 of the Evidence Act or that he should be deemed to have surrendered himself if such a discovery is to be made. In certain exceptional cases, the court has, in view of the material placed before it, directed that the order of anticipatory bail will remain in operation only for a week or so until after the filing of the FIR in respect of matters covered by the order. These orders, on the whole, have worked satisfactorily, causing the least inconvenience to the individuals concerned and least interference with the investigational rights of the police. The court has attempted through those orders to strike a balance between the individual's right to personal freedom and the investigational rights of the police. The appellants who were refused :6: Crl.P.No.101621/2021 anticipatory bail by various courts have long since been released by this Court under Section 438(1) of the Code." 7.4 The aforesaid decision of the Constitution Bench in the case of Gurbaksh Singh Sibbia (supra) holds the field for number of years and the same has been followed by all the Courts in the country. While granting anticipatory bail, normally following conditions are imposed by the court/courts which as such are in consonance with the decision of the Constitution Bench in the case of Gurbaksh Singh Sibbia (supra) and Section 438(2) read with Section 437(3) of the Cr.P.C:
3.3. Sri.P Chindambaram V.S. Central Bureau of Investigation, para 12, 26, 28 and 29, thereto which are reproduced hereunder for easy reference:-
12. Mr. Tushar Mehta, learned Solicitor General submitted that while considering the bail application, the court should look into the gravity of the offence and that the possibility of the accused apprehending his conviction fleeing the country and since many economic offenders have fled from the country and the nation is facing this problem of the "economic offenders fleeing the country". It was submitted that the second test is to find out whether the accused has wherewithal to flee the country and possessing resources and capacity to settle abroad. It was contended that the respondent-
CBI has definite material to show that the "witness was influenced" and in order to prevent further possibility of influence and the vulnerability of the witness, the identity and the statement of the said witness cannot be shared :7: Crl.P.No.101621/2021 with the accused. It was submitted that the statement of the said witness that he was being approached not to disclose any information regarding the appellant and his son, was produced before the High Court in a sealed cover and based upon the same, the High Court rightly refused to grant bail on the ground of "likelihood of influencing the witnesses". The learned Solicitor General submitted that "likelihood of influencing the witness" is not a mere apprehension but based upon material and there is serious danger of the witnesses being influenced and the mere presence of the accused-appellant would be sufficient to intimidate the witnesses.
26. As discussed earlier, insofar as the "flight risk" and "tampering with evidence" are concerned, the High Court held in favour of the appellant by holding that the appellant is not a "flight risk" i.e. "no possibility of his abscondence". The High Court rightly held that by issuing certain directions like "surrender of passport", "issuance of look out notice", "flight risk" can be secured. So far as "tampering with evidence" is concerned, the High Court rightly held that the documents relating to the case are in the custody of the prosecuting agency, Government of India and the Court and there is no chance of the appellant tampering with evidence.
28. So far as the allegation of possibility of influencing the witnesses, the High Court referred to the arguments of the learned Solicitor General which is said to have been a part of a "sealed cover" that two material witnesses are alleged to have been approached not to disclose any information regarding the appellant and his son and the High Court observed that the possibility of influencing the witnesses by the appellant cannot be ruled out. The relevant portion of the impugned judgment of the High Court in para (72) reads as under:-
:8: Crl.P.No.101621/2021"72. As argued by learned Solicitor General, (which is part of 'Sealed Cover', two material witnesses (accused) have been approached for not to disclose any information regarding the petitioner and his son (co-accused). This court cannot dispute the fact that petitioner has been a strong Finance Minister and Home Minister and presently, Member of Indian Parliament. He is respectable member of the Bar Association of Supreme Court of India. He has long standing in BAR as a Senior Advocate. He has deep root in the Indian Society and may be some connection in abroad. But, the fact that he will not influence the witnesses directly or indirectly, cannot be ruled out in view of above facts. Moreover, the investigation is at advance stage, therefore, this Court is not inclined to grant bail."
29. FIR was registered by the CBI on 15.05.2017. The appellant was granted interim protection on 31.05.2018 till 20.08.2019. Till the date, there has been no allegation regarding influencing of any witness by the appellant or his men directly or indirectly. In the number of remand applications, there was no whisper that any material witness has been approached not to disclose information about the appellant and his son. It appears that only at the time of opposing the bail and in the counter affidavit filed by the CBI before the High Court, the averments were made that ".....the appellant is trying to influence the witnesses and if enlarged on bail, would further pressurize the witnesses.....". CBI has no direct evidence against the appellant regarding the allegation of appellant directly or indirectly influencing the witnesses. As rightly contended by the learned Senior counsel for the appellant, no material particulars were produced before the High Court as to when and how those two material witnesses were approached. There are no details as to the form of approach of those two :9: Crl.P.No.101621/2021 witnesses either SMS, e-mail, letter or telephonic calls and the persons who have approached the material witnesses. Details are also not available as to when, where and how those witnesses were approached.
3.4. 2020 SCC Online Kar 2192, Abdul Razak Sikandar Mulla Vs. State of Karnataka, para 3, 4 and 5 which are reproduced hereunder for easy reference:-
3. Learned counsel for the petitioner in his argument submitted that the accused is in judicial custody for nearly five years and is languishing in jail where no further recovery is required to be made at his instance, as such, the same has resulted in his pretrial punishment. He further submits that the petitioner has got no criminal antecedents and due to corona pandemic, the matter in the trial Court is also not showing progress and as such, by imposing any stringent conditions, the petitioner be enlarged on bail.
4. Learned HCGP has filed his statement of objections opposing the petition and submits in his arguments that, no change in the circumstance has been made by the petitioner.
The entire charge sheet material would clearly goes to show that the present petitioner has actively taken part in the alleged commission of the crime and also has shared the booty, as such, merely because he is in judicial custody for CRL.P.No.100234/2020 some time, the same cannot be a ground for allowing the petition.
: 10 : Crl.P.No.101621/20215. One of the main allegations against the present petitioner is of robbing a truck driver with due conspiracy involving the said truck driver and robbing a huge sum of money of not less than `19,50,000/-. According to prosecution, some quantum of amount is also said to have been recovered from the possession of the present petitioner. No doubt it is the third successive bail petition of the present petitioner, whose latest bail petition was rejected by this Court on 07.06.2018. However, now the changed circumstance is the longevity of his continuation in judicial custody by an additional two year six months from the rejection of his previous bail petition. As such, his total duration of languishing in the judicial custody is admittedly exceeded 4 years 6 months. Even according to the prosecution, it is only for the trial the matter is due, as such, continuation of the CRL.P.No.100234/2020 accused in judicial custody is only to face the trial. Even the prosecution at this stage concedes that there are no material available about the alleged criminal antecedents of the petitioner. The petitioner has also contended that, due to the corona pandemic, his entire family is languishing in great difficulty and starving, as such, the only bread earning member being in judicial custody, the family is suffering a lot.
3.5. Crl.A.No.2178/2011, Sanjay Chandra Vinod Goenka Gautam Doshi Vs. CBI, paras 6, 7, 8, 16, 20 which is reproduced hereunder for easy reference:-
: 11 : Crl.P.No.101621/20216) Shri. Ram Jethmalani, learned senior counsel appearing for the appellant Sanjay Chandra, would urge that the impugned Judgment has not appreciated the basic rule laid down by this Court that grant of bail is the rule and its denial is the exception. Shri. Jethmalani submitted that if there is any apprehension of the accused of absconding from trial or tampering with the witnesses, then it is justified for the Court to deny bail. The learned senior counsel would submit that the accused has cooperated with the investigation throughout and that his behavior has been exemplary. He would further submit that the appellant was not arrested during the investigation, as there was no threat from him of tampering with the witnesses. He would submit that the personal liberty is at a very high pedestal in our Constitutional system, and the same cannot be meddled with in a causal manner. He would assail the impugned Judgment stating that the Ld. Judge did not apply his mind, and give adequate reasons before rejecting bail, as is required by the legal norms set down by this Court. Shri. Jethmalani further contends that it was only after the appellants appeared in the Court in pursuance of summons issued, they were made to apply for bail, and, thereafter, denied bail and sent to custody. The learned senior counsel states that the trial Judge does not have the power to send a person, who he has summoned in pursuance of Section 87 Cr.P.C to judicial custody. The only power that the trial Judge had, he would contend, was to ask for a bond as provided for in Section 88 Cr.P.C. to ensure his appearance. Shri. Jethmalani submits that when a person appeared in pursuance of a bond, he was a free man, and such a free man cannot be committed to prison by making him to apply for bail and thereafter, denying him the same. Shri. Jethmalani further submits that if it was the intention of the Legislature to make a person, who appears in pursuance of summons to apply for bail, it would have been so legislated in Section 88 Cr.P.C. The learned senior counsel assailed the Judgment of the Delhi High Court in : 12 : Crl.P.No.101621/2021 the `Court on its own motion v. CBI', 2004 (I) JCC 308, by which the High Court gave directions to Criminal Courts to call upon the accused who is summoned to appear to apply for bail, and then decide on the merits of the bail application. He would state that the High Court has ignored even the CBI Manual before issuing these directions, which provided for bail to be granted to the accused, except in the event of there being commission of heinous crime. The learned senior counsel would also argue that it was an error to have a "rolled up charge", as recognized by the Griffiths' case (R vs. Griffiths and Ors., (1966) 1 Q.B. 589). Shri.Jethmalani submitted that there is not even a prima facie case against the accused and would make references to the charge sheet and the statement of several witnesses. He would emphatically submit that none of the ingredients of the offences charged with were stated in the charge sheet. He would further contend that even if, there is a prima facie case, the rule is still bail, and not jail, as per the dicta of this Court in several cases.
7) Shri. Mukul Rohatgi, learned senior counsel appearing for the appellant Vinod Goenka, while adopting the arguments of Shri. Jethmalani, would further supplement by arguing that the Ld. Trial Judge erred in making the persons, who appeared in pursuance of the summons, apply for bail and then denying the same, and ordering for remand in judicial custody. Shri. Rohatgi would further contend that the gravity of the offence charged with, is to be determined by the maximum sentence prescribed by the Statute and not by any other standard or measure. In other words, the learned senior counsel would submit that the alleged amount involved in the so-called Scam is not the determining factor of the gravity of the offence, but the maximum punishment prescribed for the offence. He would state that the only bar for bail pending trial in Section 437 is for those persons who are charged with offences punishable with life or death, and there is no such bar for those persons who were charged with : 13 : Crl.P.No.101621/2021 offences with maximum punishment of seven years. Shri. Rohatgi also cited some case laws.
8) Shri. Ashok H. Desai, learned senior counsel appearing for the appellants Hari Nair and Surendra Pipara, adopted the principal arguments of Shri.Jethmalani. In addition, Shri. Desai would submit that a citizen of this country, who is charged with a criminal offence, has the right to be enlarged on bail. Unless there is a clear necessity for deprivation of his liberty, a person should not be remanded to judicial custody. Shri. Desai would submit that the Court should bear in mind that such custody is not punitive in nature, but preventive, and must be opted only when the charges are serious. Shri. Desai would further submit that the power of the High Court and this Court is not limited by the operation of Section
437. He would further contend that Surendra Pipara deserves to be released on bail in view of his serious health conditions.
9) Shri. Soli J. Sorabjee, learned senior counsel appearing for Gautam Doshi, adopted the principal arguments of Shri. Jethmalani. Shri. Sorabjee would assail the finding of the Learned Judge of the High Court in the impugned Judgment that the mere fact that the accused were not arrested during the investigation was proof of their influence in the society, and hence, there was a reasonable apprehension that they would tamper with the evidence if enlarged on bail.
9) Shri. Sorabjee would submit that if this reasoning is to be accepted, then bail is to be denied in each and every criminal case that comes before the Court. The learned senior counsel also highlighted that the accused had no criminal antecedents.
16) Thus the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in : 14 : Crl.P.No.101621/2021 this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record - particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant is therefore not an exercise in irrelevance.
20) Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before this Court pends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the Court's verdict once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding -- if that be so -- of innocence has been recorded by one Court. It may be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, it enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man and socio-geographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the Court into a complacent refusal."
: 15 : Crl.P.No.101621/20213.6. (1978) 1 SCC 579, Babu Singh & Others Vs. State of U.P. paras 4, 9, 10, 12 & 16, which is reproduced hereunder for easy reference:-
4. All the petitioners were charged with an offence of murder under s.302 I.P.C. but all of them were acquitted by the, Sessions Court as early as November 4, 1972. The, State successfully appealed against the acquittal and the High Court, reversing the, findings of the, Sessions Court, held all the petitioners guilty and sentenced them all to life imprisonment. This judgment was pronounced on May 20, 1977, after an unfortunately tragic sojourn of five years 'for an appeal in a murder case. Our justice, system, even in grave cases, suffers from slow motion syndrome which is lethal to "fair trial"., whatever the ultimate decision' Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finaly punished within a reasonable and the innocent being absolved from the incordinate ordeal of criminal proceedings. This is, (1) [1978] 2 S.C.R.371 by the way, although it is important that judicial business management by engineering, not tinkering, so as to produce efficient expedition, is in urgent, high-priority item on the agenda of court reform, to be adically undertaken none to soon.
9.The doctrine of Police, Power,, constitutionally validates punitive processes for the maintenance of public order, security of the State, national integrity and the interest of the public generally. Even so, having regard to the solemn issue involved, deprivation of personal freedom, ephemeral or enduring, must be founded on the most serious : 16 : Crl.P.No.101621/2021 considerations relevant to the welfare objectives of society, specified in the Constitution.
10. What then, is 'judicial discretion' in this bail context? In the elegant words of Benjamin Cardozo.
"The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in the social life'. Wide enough in all conscience is the field of discretion that remains."
Even so it is useful to notice the tart terms of Lord Camdon that "the discretion of a judge is the law of tyrants: it is always unknown, it is different in different men; it is casual, and depends upon constitution temper and passion. In the best, it is often times caprice; in the worst, it is every vice, folly and passion to which human nature is liable.
11. Some jurists have regarded the term 'judicial discretion' as a misnomer. Nevertheless, the vesting of 'discretion is the unspoken but inescapable, silent command of our judicial system, and those who exercise it will remember that discretion, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by,humour, it must not be arbitrary, vague and fanciful but legal and regular.
"An appeal, to a judge's discretion is an appeal to his judicial conscience. The discretion must be exercised, not in opposition to, but in accordance with, established principles of law.": 17 : Crl.P.No.101621/2021
12. Having grasped the core concept of Judicial discretion, (ibid) p. 33 Having grasped the core concept of judicial discretion and the constitutional perspective in which the 'Court must operate public policy by a restraint on liberty, we have to proceed to see what are the relevant criteria for granty or refusal of bail in the case of a person who has either been convicted and has appealed or one whose conviction has been set aside but leave has been granted by this Court to appeal against the acquittal. "What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J. said "I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy of the country that bail is not to be withhold as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial."
This theme was developed by Lord Russel of killowen C. J., when he charged the grand jury at Salisbury Assizes, 1899 "
....it was the duty of magistrates to admit accused persons to bail, wherever practicable, unless there were strong grounds for supposing that such persons would not appear to take their trial. It was not the poorer classes who did not appear, for their circumstances were such as to tie them to the place where, they carried on their work. They had not the golden wings with which to fly from justice."
In Archbold it is stated that "The proper test of whether bail should be granted or refused is whether it is probable that the defendant will appear to take his trial ....
The test should be applied by reference to the following considerations (1) The nature of the accusation (2) The nature of the, evidence in support of the accusation : 18 : Crl.P.No.101621/2021 (3) The severity of the Punishment which conviction will entail....
(4) Whether the sureties are independent, OF indemnified by the accused person ...."
Perhaps, this is an overly simplistic statement and we must remember the constitutional focus in Art. 21 and 19 before following diffuse observations and practices in the English system. Even in England there is a growing awareness that the working of the bail system requires a second look from the point of view of correct legal criteria and sound principles, has been pointed out by Pr. Bottomley.
16. Thus the legal principle and practice validate the court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is a lying for bail to find whether he has a bad record-particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals it is part of criminological history that a thoughtless bail order has enabled the bailee to expoit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis- of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.
4. (2021) 3 SCC 73, Union of India Vs. K.A. Najeeb paras 4, 14, 15, 17 & 18, which is reproduced hereunder for easy reference:-
4. The respondent could be arrested on 10.04.2015 only and a chargesheet was re-filed by the National Investigation Agency against him, pursuant to which the respondent is now facing trial. The respondent approached the Special Court and the High Court for bail as many as six times between 2015 and 2019, seeking leniency on grounds of his limited role in the offence and claiming parity with other co-accused who had been enlarged on bail or acquitted. Save for the impugned order, bail was declined to the : 19 : Crl.P.No.101621/2021 respondent, observing that prima facie he had prior knowledge of the offence, had assisted and facilitated the attack, arranged vehicle and SIM cards, himself waited near the place of occurrence, transported the perpetrators, sheltered, and medically assisted them afterwards. The Courts were, therefore, of the view that the bar against grant of bail under Section 43-D (5) of the UAPA was attracted.
14. The facts of the instant case are more egregious than these two abovecited instances.
Not only has the respondent been in jail for much more than five years, but there are 276 witnesses left to be examined. Charges have been framed only on 27.11.2020. Still further, two opportunities were given to the appellant-NIA who has shown no inclination to screen its endless list of witnesses. It also deserves mention that of the thirteen co-accused who have been convicted, none have been given a sentence of more than eight years' rigorous imprisonment. It can therefore be legitimately expected that if found guilty, the respondent too would receive a sentence within the same ballpark. Given that two-third of such incarceration is already complete, it appears that the respondent has already paid heavily for his acts of fleeing from justice.
15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India12, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at : 20 : Crl.P.No.101621/2021 large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail.
17. It is thus clear to us that the presence of statutory restrictions like Section 43-D (5) of UAPA per-se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of Page | 11 the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.
18. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the appellant's right to lead : 21 : Crl.P.No.101621/2021 evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent's rights guaranteed under Part III of our Constitution have been well protected.
4.1. Relying upon the aforesaid decisions, he submits that proceedings before the trial Court now being posted for hearing before charge on several earlier occasions and no further progress being made therein and there being no possibility of any substantial progress being made in the said matter in the near future the petitioner ought to be enlarged on bail.
4.2. He submits that the petitioner would comply with the any condition that may be imposed on the said petitioner.
5. Per contra, the learned counsel Sri.V.S.Kalasurmath, learned HCGP would submit that : 22 : Crl.P.No.101621/2021 5.1. it is on account of the Covid lockdown and the SOP prescribed, proceedings before the trial Court could not progress.
5.2. If a time frame is fixed by this Court for the trial Court to dispose of the proceedings before it, the State would endover to prosecute the matter in right earnest.
5.3. He further submits that the original complainant has challenged the order of bail for the 4th respondent before the Apex Court and if the Apex Court were to cancel the bail granted, on which bases first and second accused have also been granted bail, then there would be no issue of parity which would apply. Therefore, he submits that till the orders of the Apex Court are passed, no further orders would be requires to be passed in this matter.
: 23 : Crl.P.No.101621/20215.4. He again reiterates that there is possibility of the petitioner influencing the witnesses or tampering with the evidence. Therefore, petition ought to be dismissed.
6. Heard Sri. Sandesh Chouta, learned senior counsel for the petitioner and Sri.V.S.Kalasurmath, learned HCGP for respondent Nos.1 to 4. Perused the papers.
7. The sole reason why the earlier bail applications of the petitioner had been dismissed was on account of serious apprehension expressed by the State that the petitioner may influence the witnesses or tamper with the evidence.
8. Though there are no changed circumstances as such in existence today made out by the petitioner, this Court cannot also loose sight of the fact that the petitioner has been in custody since : 24 : Crl.P.No.101621/2021 28/9/2019, i.e. for a period of nearly more than two years two months. Apart from the charge sheet being laid, no other progress has happened before the trial Court.
9. Though the learned HCGP has sought to contend that this is so on account of the Covid pandemic and SOP issued, that cannot be a reason for such a delay.
10. It is for the state in all criminal matters where the accused is in custody and where there is apprehension exhibited by the State that the accused or the person seeking bail is likely to influence the witnesses and therefore requests for the accused to be retained in custody to see to it that the trial is commenced at the earliest and the witnesses are examined at the earliest, so that the said apprehension does not exist.
: 25 : Crl.P.No.101621/202111. This being so, also for the reason that if there is long time-gap between arrest of the accused and the examination of the witnesses, the life and liberty of the accused who is yet to be tried is curtailed, thereby resulting in violation of the right to life and liberty, under Article 21 of the constitution of India.
12. Other reason also being that the excess time taken in examination of the witnesses could also result in several other issues, including witnesses turning hostile or their memory failing/fading.
13. In the aforesaid circumstances, it would be in interest of both the prosecution and the accused that the trial is commenced at the earliest more so when accused is in custody so that issue of the accused influencing the witnesses and tampering with the evidence can be well avoided even if there is apprehension in that regard.
: 26 : Crl.P.No.101621/202114. In the aforesaid circumstances and in the peculiar facts of this case the petitioner having been in custody from 28/9/2010 and no progress having occurred in the matter, in my considered opinion it is unlikely that the trial is commenced and completed in the near future, hence the petition is allowed.
15. Liberty is however reserved to the Sate to move this Court for cancellation of bail in the event of petitioner trying to influence any witnesses or tamper with the evidence. Liberty is further reserved to the State to move for cancellation of bail in the event of the Hon'ble Apex Court canceling the bail of accused No.4 which is under challenge before the Apex Court.
16. Petitioner is enlarged on bail upon the following conditions:-
: 27 : Crl.P.No.101621/202116.1. The petitioner shall furnish a personal bond of Rs.5,00,000/- with a recent self attested photograph and solvent surety of the like amount to the satisfaction of the trial court.
16.2. The petitioner shall remain present before the concerned police station every Monday at 11.00 a.m. till the completion of trial 16.3. The petitioner shall be present before the Station House officer on any other date as may be indicated by the Station house officer for any further enquiry if so required.
16.4. The petitioner shall not directly or indirectly make any inducement, threat or promise to any witnesses acquainted with the facts of the case so as to influence him or her and prevailing upon him or her to not disclose such fact to the Court during the course of evidence.: 28 : Crl.P.No.101621/2021
16.5. The petitioner shall not directly or indirectly tamper with any evidence which has been gathered or is to be gathered by the Investigation Officer.
16.6. The petitioner shall not leave the territory of Karwar district till the trial is completed except to attend the trial in the trial court which is situated in Dharwad District.
16.7. The petitioner shall maintain law and order and shall not involve himself in any other offences relating to the above offences or other wise.
16.8. The petitioner shall furnish details of the immovable properties owned by the petitioner along with photocopy of sale deed and other documents relating to the said properties to the Station House officer.: 29 : Crl.P.No.101621/2021
16.9. The petitioner shall remain present on all the dates of hearing before the trial Court and cooperate with the trial Court for the completion of the trial at the earliest. In the event the petitioner being unable to be present before the trial Court on any particular date and on an application being filed seeking exemption in that regard, same shall be considered by the trial Court and give cogent reason for allowing or disallowing such an application.
16.10. The State would be at liberty to move this court for cancellation of the bail in the event of violation of any of the above conditions as also in the event of bail granted in favour of accused No.4 being cancelled by the Apex Court.
Sd/-
JUDGE Vmb