Telangana High Court
Yadati Sunil Yadav vs The Central Bureau Of Investigation Cbi on 15 September, 2023
Author: K.Lakshman
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 2 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 3 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. 5 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. 7 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 9 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 10 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 11 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 12 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 13 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.15
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 18 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 6 . (2010) 14 SCC 496 7 . (2004) 7 SCC 528 19 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) 8 (2022) 8 SCC 559 20
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.21
(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 : - 22
"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 23 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 9 2023 (2) LS 109 SC 24 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 25 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. 26
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.
27
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.
10
2001 CrlLJ 1905 28
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 29 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 30 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 31 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 11 1989 Suppl. (2) SCC 605 32 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 12 2005 (8) SCC 21 13 (2004) 7 SCC 528 14 (2017) 5 SCC 406 33 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 34 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