Rajasthan High Court - Jodhpur
Paras Ram Vishnoi vs The Director, Cbi on 20 July, 2020
Author: Dinesh Mehta
Bench: Dinesh Mehta
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 10290/2019 Paras Ram Vishnoi S/o Lt. Sh. Ram Singh, Aged About 51 Years, Caste Vishnoi, R/o Bishnoi Farm House, Station Road, Bilara, Dist. Jodhpur (Petitioner Presently In Judicial Custody, Confined In Central Jail, Jodhpur)
----Petitioner Versus The Director, CBI, Lodhi Road, New Delhi.
----Respondent
For Petitioner(s) : Mr. Hemant Nahta with
Mr. Sanjay Bishnoi
For Respondent(s) : Mr. Panney Singh, Spl. PP
JUSTICE DINESH MEHTA
O RDER
Date of Order 20/07/2020
1. By way of the instant application under Section 439 of the Criminal Procedure Code, 1973 petitioner has knocked at the doors of this Court for seventh time, despite having failed in his six previous attempts, to get released on bail.
2. The petitioner was arrested in connection with FIR No.RC.7(S) 2011-SC.1/CBI/New Delhi for the offences under Sections 120B, 364, 302, and 201 IPC and Section 3(2)(v) of SC/ ST (Prevention of Atrocities) Act.
3. The case relates to abduction and murder of a lady Bhanwari Devi, for which, at first instance, a missing report was lodged by Amar Chand - her husband, in the Police Station, Bilara, Jodhpur. (Downloaded on 20/07/2020 at 08:20:31 PM)
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4. Later, said Amar Chand filed an FIR alleging that one sitting M.L.A. and a Cabinet Minister was the brain behind abduction of his wife, while apprehending that she has been murdered.
5. Looking to the accusation against the sitting Cabinet Minister and other influential persons, State Government handed over the investigation to the CBI.
6. Upon investigation, the CBI found that petitioner and other 16 co-accused had hatched a conspiracy of abducting and then killing Bhanwari Devi, for which charge-sheet came to be filed in competent Court.
7. The petitioner's earlier six bail applications prior to the application at hands were rejected by this Court, particulars whereof are given hereunder :-
(i) SB Criminal Misc. Bail Application No.5891/2012
(ii) SB Criminal Misc. II Bail Application No.6926/2014
(iii) SB Criminal Misc. III Bail Application No.4872/2016
(iv) SB Criminal Misc. IV Bail Application No.9456/2016
(v) SB Criminal Misc. V Bail Application No.6690/2017
(vi) SB Criminal Misc. VI Bail Application No.8800/2018
8. Before proceeding to delve upon the arguments advanced by the rival counsel, it would be apt to have a bird's eye view of what was contended in the previous bail applications and their corresponding adjudication by this Court:-
First Bail Application :-
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(3 of 16) [CRLMB-10290/2019] At the time of preferring the I Bail Application (SB Cr. Misc. Bail No. 5891/2012) it was argued that petitioner is not involved in the conspiracy; no incriminating evidence has come against the present petitioner and that he is behind bars for 9 months. However, looking at the severity of offence and possibility of evidence being tempered with, bail was rejected at such stage. Second Bail Application :-
In the II bail application (SB Cr. Misc. Bail No.6926/2014), it was argued that when charges were dropped against the petitioner, petitioner was granted bail. According to petitioner, since said order had not been cancelled till date, petitioner's re- arrest violated his right to liberty. Petitioner's such contention was rejected while observing that bail granted to the petitioner was with respect to bailable offence, as he stood discharged qua other non-bailable offences. Since he has again been charged with non-bailable offence, previous bail order does not come to the aid of the petitioner. Moreover, petitioner's case has already been considered on merits in his I bail application, wherein it was observed that prima facie case exists against the petitioner. Third Bail Application :-
Then came III Bail Application (SB Cr. Misc. Bail No.4872/2016) wherein a ground was raised that 100 witnesses have been examined and no incriminating evidence has been found against the petitioner. This application was also rejected without going into the veracity of the statements of the witnesses. Fourth Bail Application :-
Within a short span of 38 days, IV Bail Application (SB Cr.
Misc. Bail No.9456/2016) was filed on similar ground that 185
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witnesses have been examined and only 13 witnesses remain; nothing incriminating has come on record against the accused and more so, all the witnesses pointing towards petitioner's alleged involvement, have been examined. Application was again rejected on the ground that their is no change in circumstances since rejection of his last bail.
Fifth Bail Application :-
Whereafter V Bail Application (SB Cr. Misc. Bail No.6690/2017) was filed, while claiming arrest of co-accused Indira Bishnoi as a change in circumstance and also iterating that all the witnesses have been examined. While holding that circumstances have not changed since rejection of last bail, Coordinate Bench of this Court dismissed the application. Sixth Bail Application :-
In the VI Bail Application (SB Cr. Misc. Bail No.8800/2018), a case was tried to be made out that the petitioner intends to contest the upcoming Legislative Assembly Elections, as such he be enlarged on bail. Such contention was rejected while observing that the same cannot be treated as change in circumstances.
9. It is in this backdrop, the instant bail application, registered as VII Bail Application, has been preferred by the petitioner interalia on various grounds including that the trial is proceeding at snail's pace. The petitioner has asserted in the bail application that it is a proven case of delay in concluding the trial, while arraigning CBI for unwarranted protraction. It is averred that firstly the CBI consumed lot of time in summoning/ calling one Ms. Amber B. Carr, the expert to depose about DNA report and then, took a U turn and came out with a plea that they are unable to (Downloaded on 20/07/2020 at 08:20:31 PM) (5 of 16) [CRLMB-10290/2019] produce said witness, as she has refused to come to Indian Court for want of bureaucratic sanction.
10. Having pointed out that the trial was stalled for about one and a half year awaiting Ms. Amber B. Carr for deposition, learned counsel apprised that a Criminal Misc. Petition No.4608/2019 came to be filed by some of the accused for passing appropriate order to clear the logjam in the proceedings. On revelation that the trial had practically came to screeching halt, this Court intervened in the matter and with the consent of CBI directed that the deposition of said Ms. Amber B. Carr be dropped and trial be proceeded in accordance with law.
11. Having laid the factual and contextual canvas, Mr. Hemant Nahta, learned counsel for the petitioner, firstly argued that the delay in conclusion of trial itself is a ground to grant bail to an accused, because it is a valuable fundamental right guaranteed under Article 21 of the Constitution of India.
12. In a bid to buttress his argument, learned counsel contended that in spite of series of orders passed by this Court and Hon'ble the Supreme Court, requiring the Trial Court to conduct the trial on day-to-day basis and conclude the same within a year, the Trial Court has failed to conclude the trial, for which, the petitioner, who is languishing behind the bars for a period of more than six years, is entitled to be enlarged on bail.
13. Various arguments relating to the principles governing bail application of an accused were sought to be advanced and judgments were zealously cited by learned counsel for the petitioner. But, in the facts and circumstances of the present case, (Downloaded on 20/07/2020 at 08:20:31 PM) (6 of 16) [CRLMB-10290/2019] since the petitioner's six bail applications have been dismissed by this Court, learned counsel was requested to confine his arguments to change in circumstances. Needless to note that all those principles have been time and again canvassed before this Court and duly dealt with and considered by the Coordinate Bench(es) of this Court.
14. Mr. Nahta, at the outset, submitted that as per the CBI, PW- 4 Indra Solanki; PW-187 Lakha Ram; PW-113 Rahul Trivedi; PW- 172 Pappu Ram; PW-211 Deva Ram; PW-223 Gordhan Ram; PW- 120 Kusum Bishnoi; and PW-106 Amri Devi were to give their testimonies in order to prove petitioner's involvement in the murder, out of whom, PW-211 Devaram, PW-113 Rahul Trivedi and PW-223 Gordhan Ram have been dropped by the CBI itself, whereas PW-120 Kusum and PW-106 Amri Devi have turned hostile. Even the remaining witnesses, namely, PW-4 Indra Solanki; PW-187 Lakha Ram; and PW-172 Pappu Ram have also not uttered anything, which can indicate, much less, prove petitioner's involvement in this politically motivated case.
15. Navigating the Court through the statements given by above referred witnesses (PW-4, PW-187 and PW-172), learned counsel argued that no Court can reach to a conclusion that the petitioner was in any manner concerned with the conspiracy, much less being guilty of abduction and murder of the deceased.
16. During the course of arguments, it has transpired that evidence of prosecution is over - all the witnesses of the prosecution have deposed and trial is at the stage of recording statements of accused (two have already given their statements). (Downloaded on 20/07/2020 at 08:20:31 PM)
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17. The Court therefore asked Mr. Nahta to show any judicial precedent to the effect that even at this stage, when the trial is at the fag end, the Court can enlarge an accused on bail. A query was also raised as to what is the substantial change, which has occurred after rejection of his last bail application (on 15.11.2018), so as to maintain present bail application.
18. In order to deal with Court's disinclination to grant bail to the petitioner in the last leg of the trial, learned counsel relied upon judgment of the Apex Court in the case of Gurbux Singh Sibbia Vs. State of Punjab [AIR 1980 SC 1632].
19. He fervently argued that the CBI's argument that trial is at the fag end is deceptive, as no one else, but the CBI itself is accountable for the inordinate delay in trial and that the trial will take at least a year, even if day to day hearing takes place.
20. Mr. Nahta urged that it cannot be accepted as an absolute rule that a bail application should not be and cannot be considered at the stage of recording of statements of accused.
21. Learned Counsel invited Court's attention towards the provisions of Section 437 (7) of Cr.P.C. and submitted that there is no impediment in granting bail to the accused merely on the basis of stage of trial. He contended that the expression used in sub- section (7) of Section 437 of Cr.P.C. confers upon a Court enough power to grant bail to an accused, at any stage of the trial and even after the conclusion of trial. According to him, since there is no statutory embargo on grant of bail on the basis of stage, the Court can grant bail at any stage, including the stage of recording of the statement under Section 313 Cr.P.C.
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22. In support of his arguments that bail can be granted at this stage, learned counsel relied upon the following judgments :
(i) Gurcharan Singh Vs. State (Delhi Admn.), (1978) 1 SCC 118;
(ii) N.Scmasekhar Vs. Stae of Karnatka, ILR 1992 KAR 754;
(iii) Sheru Khan Vs. State of Rajasthan (SB Criminal Misc. II Bail Application No.11297/2014, decided on 29.01.2015);
(iv) Binderjit Singh @ Ravinder Singh Vs. State of Punjab (Crl.
Misc. M-21471 of 2013 decided on 09.09.2013)
(v) Sandeep Tiwari @ Ponti Vs. The state of Madhya Pradesh (MCRC-3805-2015, decided on 14.07.2015)
(vi) Mukesh Sharma Vs. State of U.P. & Ors. (Application U/S 482 No.24545 of 2019, decided on 31.07.2019)
(vii) Romesh Sharma Vs. CBI (Bail Application No.651/2011, decided on 18.10.2011)
(viii) Haribhai Babubhai Bambhaniya Vs. State of Gujarat (Criminal Misc. Application (for regular Bail) No.20668 of 2013).
23. Learned counsel, then pointed out with a tinge of distress and pain that as many as 1048 questions have been posed by the learned trial court to the accused persons and none of these 1048 questions implicate the petitioner in the present case, even for the act of criminal conspiracy.
24. His argument was two fold: firstly, that the questions posed to the accused do not indicate petitioner's involvement in the offence and the stage of recording of statement under Section 313 (Downloaded on 20/07/2020 at 08:20:31 PM) (9 of 16) [CRLMB-10290/2019] of the Criminal Procedure Code is also likely to take substantial time, considering the number of accused and number of questions; secondly, as the petitioner is suffering incarceration for more than five years, he is entitled for bail as held by Hon'ble the Supreme Court and other High Courts in catena of decisions.
25. It was also argued that since prosecution evidence is over, the apprehension, rather reason for which courts generally reject a bail, that the petitioner may threaten or otherwise influence the witnesses is also non existent. He, thus implored that the petitioner be enlarged on bail, for which he is prepared to furnish sureties and undertaking to appear before the Court, as and when called upon/required.
26. Mr. Panney Singh, learned Special Public Prosecutor, appearing on behalf of CBI, submitted that the petitioner has been filing successive bail applications - one after another. Despite there being any change in the circumstances, petitioner has been filing successive bail applications, which is nothing short of abusing the process and wasting the precious time of the Court, emphatically retorted learned Public Prosecutor.
27. All the arguments which have been advanced by the petitioner, in the present bail application, have earlier been raised, dealt with and repelled by this Court and that petitioner cannot seek review of earlier orders passed by the Coordinate Benches in the guise of a fresh bail application, submitted Mr. Singh.
28. While maintaining that petitioner's request for bail cannot be considered at the fag end of the trial, learned Public Prosecutor (Downloaded on 20/07/2020 at 08:20:31 PM) (10 of 16) [CRLMB-10290/2019] argued that there is not even an iota of change in the circumstances, warranting a fresh look.
29. While taking the Court through all the orders rejecting petitioner's earlier bail applications, learned Public Prosecutor invited Court's attention towards paras Nos.25 and 26 of the order dated 24.11.2017, passed in petitioner's Vth bail application and argued that it has been found and recorded as a fact that no such evidence has come on record to show that the petitioner is not involved in the case. He submitted that in the teeth of the finding recorded in the order dated 24.11.2017, petitioner's contention cannot be considered and no appraisal of evidence can again be made.
30. While opposing the bail learned Public Prosecutor apprehended that if the present petitioner is enlarged on bail, other co-accused would also claim parity and would press for their release on bail.
31. Learned Public Prosecutor argued that the petitioner's contention that none of the witnesses have deposed anything against the petitioner, is untenable, because conviction of an accused is not solely dependent upon the oral submission of the witnesses who are supposed to depose against him. The Court while finally deciding the case will take cumulative effect of the depositions made by all the witnesses and documentary and other evidence such as call details etc. He asserted that there is enough documentary evidence evincing that the petitioner was in direct and continuous contact with co-accused at the relevant time.
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(11 of 16) [CRLMB-10290/2019] 32. Heard.
33. As the petitioner has filed the present VII Bail Application at a stage when the statement of accused under Section 313 of the Code of Criminal Procedure are being recorded, it is imperative to firstly ponder or examine as to whether a request for release on bail can be considered at this juncture?
34. The judgment of the Apex Court in the case of Gurbux Singh Sibbia (supra) hardly throws any light on the issue, for which it was cited that the bail can be granted even at the last stage of the trial.
35. So far as the judgments cited by Mr. Nahta in relation to grant of bail at an advanced stage of trial are concerned, suffice it to observe that each case has to be examined on the basis of the facts involved therein. In most of the cases, the Courts have dealt with the stage of the trial and the fact that whether the delay in trial was on account of negligence or lapse on the part of the prosecution before enlarging an accused on bail.
36. The judgment of Hon'ble the Supreme Court rendered in the case of Shaheen Welfare Association Vs. Union of India & Ors. (1996 SCC (2) 616) was pressed into service by Mr. Nahta to buttress his submissions that as the petitioner has suffered about seven years of incarceration, he should be released on bail. A perusal of the judgment in Shaheen Welfare Association (supra) reveals that Hon'ble the Apex Court has held that if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It was observed by the Supreme Court that in case the accused person has suffered half (Downloaded on 20/07/2020 at 08:20:31 PM) (12 of 16) [CRLMB-10290/2019] of the imprisonment of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of fundamental rights.
37. In the instant case, the petitioner is indicted of offences under Section 120-B, 364, 302 and 201 IPC. It is not possible, at this stage, to foretell or anticipate exactly under which provision accused would be convicted, so as to determine the maximum sentence provided under the Code.
38. In this view of the matter, in the opinion of this Court, the petitioner cannot be enlarged on bail, merely because he has suffered about seven years' imprisonment.
39. According to this Court, barring exceptional circumstances, when the trial has substantially progressed and reached at the stage of near completion, the higher Court should deter or refrain from entertaining a request of releasing an accused on bail. The Courts should be more loath in cases, when such accused has taken one or more chances by filing bail application(s) on prior occasion, claiming himself to be immune of the charges framed against him. Bail applications should also not be entertained, in cases where on the basis of depositions made by the prosecution witnesses, the accused has approached High Court claiming that no case is made out against him and such claim has been rejected.
40. It is true, that for one reason or the other, the trial could not be concluded within the period allowed by this Court and Hon'ble the Supreme Court. But, in the facts of the instant case, neither (Downloaded on 20/07/2020 at 08:20:31 PM) (13 of 16) [CRLMB-10290/2019] the Trial Court nor the CBI can be accused of or held responsible for the protraction of the proceedings. As already observed, the CBI had already dropped about 100 witnesses out of total 296 witnesses - it shows their bonafides so far as co-operation in ensuring speedy trial is concerned. Nothing substantial has been pointed out by the petitioner in support of his allegation of procrastination by the prosecution. Hence, there is no reason for this Court to hold the CBI accountable for lingering or dragging the trial.
41. Having derived a prima-facie satisfaction that there is no willful attempt on the part of the CBI to thwart the progress of the trial, I am of the view that none of the judgments cited by leraned counsel for the petitioner can be pressed into service for grant of bail, as in all the judgments common thread of reasoning is that an accused cannot be kept in deprivation of liberty, for unreasonably long period, if the prosecution is guilty of prolonging the trial.
42. Conviction of an accused is primarily based on oral or ocular evidence led by prosecution witnesses. If bail application of an accused is entertained at this stage and then granted or accepted, it would emit unwarranted indication or impression to the Trial Court about this court's perspective or view point about the depositions so far made. Grant of bail is likely to influence the mind or thinking process of the Trial Court to assume that the accused is not guilty; whereas in case of rejection of the bail - as a natural corollary, the Trial Court may gather an impression that as per the High Court, the accused is guilty. Hence, acceptance or (Downloaded on 20/07/2020 at 08:20:31 PM) (14 of 16) [CRLMB-10290/2019] rejection of bail at this stage, pronouncing upon or on appreciation of prosecution evidence/witnesses should be avoided, else it is likely to have a lasting impact on the final verdict.
43. That apart, there is no change in circumstances, since rejection of petitioner's Vth Bail Application. So far as VI bail application filed by the petitioner is concerned, as noticed, the same was filed with a view to enable the petitioner to contest Assembly Election. The Co-ordinate Bench was not much impressed with such plea and rejected the bail application vide order dated 15.11.2018. As such, the change in circumstances is required to be reckoned from rejection of Vth bail application, i. e., order dated 24.11.2017.
44. A perusal of the order dated 24.11.2017, rejecting petitioner's Vth bail application reveals that the arguments with respect to depositions made by the prosecution witnesses were advanced. Though the Court had not elaborately dealt with petitioner's arguments in relation to each of the witnesses, but, suffice it to note that in para No.25 of the order aforesaid, the Co- ordinate Bench has clearly noted that the evidence, which has come on record subsequent to passing of the earlier order, does not vary the position of the accused petitioner. It will be apposite to reproduce relevant extract of the order dated 24.11.2017, which runs thus:-
"Admittedly, the evidence which has come on record subsequent to passing of the earlier order, does not vary the position of the accused petitioner. No such evidence has come on record to show that he is not involved in the case. The only new change of circumstances is of having included one other co- (Downloaded on 20/07/2020 at 08:20:31 PM)
(15 of 16) [CRLMB-10290/2019] accused namely; Indira Bishnoi who is real sister of the accused-petitioner. Be that as it may, it would not affect case of the petitioner at all and the same will have to be examined on the basis of the evidence which has come on record. However, from the introduction or inclusion of Indira Bishnoi as an accused, it cannot be said a new circumstance for which bail can be granted to the petitioner."
45. It is to be noted that by the time petitioner's Vth Bail Application was rejected (24.11.2017), the statements of the relevant witnesses were already recorded as indicated hereinfra :-
(1) Pappu Ram : 01.02.2017 (2) Lakha Ram : 24.05.2017 (3) Amri : 10.06.2016 (4) Kusum : 22.01.2016 (5) Indira Solanki : 27.06.2014
Since all the depositions were made prior to rejection of petitioner's Vth Bail Application, argument of Mr. Nahta that none of the witnesses has deposed against the petitioner cannot be gone into by this Court, as the same already stands considered and rejected by this Court.
46. In considered opinion of this Court, it would not be appropriate to record a finding about petitioner's involvement or guilt solely on the basis of the testimony of PW-172 Pappu Ram, PW-187 Lakha Ram and PW-4 Indra Solanki, considering the contention of learned Public Prosecutor that there is ample documentary evidence against the present petitioner, in the form of call details which show his constant touch with the co-accused at the relevant time.
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47. As an upshot of the discussion aforesaid, this Court is of the considered view that the petitioner's bail application deserves to be dismissed, which is hereby dismissed.
48. Needless to observe that any fact noticed or finding recorded herein is nothing more than a prima-facie observation of this Court. The same will, therefore, be not binding upon the trial Court in any manner.
(DINESH MEHTA),J 1-skm-arun/-
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