Bombay High Court
The State Of Maharashtra vs Kriti V. Ambani And Another on 6 October, 1990
Equivalent citations: 1991(1)BOMCR32, 1992CRILJ1647
JUDGMENT
1. This criminal application dated 25-6-1990 is filed by the Prosecution for cancellation of bail order dated 11-8-1989 passed by the learned Metropolitan Magistrate, 23rd Court, Esplanade, Bombay.
2. Few facts which are relevant for the purpose of disposal of this application are as under :-
It is the case of the Prosecution that respondent No. 1 and respondent No. 2 entered into conspiracy along with the other accused persons for commission of murder of one Nusli Wadia. The prosecution alleged that the said conspiracy was hatched out somewhere in November, 1988 between respondent No. 1 and respondent No. 2 and in pursuance of the said conspiracy one Sequeria, who was styling himself as Shakil for some time, was contacted by respondent No. 2. The plan was to intercept the car of Shri Nusli Wadia when he returns from his office to his residence at Prabhadevi and commit his murder. Sequeira was shown the photograph of Shri Wadia and according to the prosecution, the respondents also agreed to pay huge sum for commission of the said act of murder. Thereafter there were certain meetings between respondent No. 1 and respondent No. 2 with the said Sequeria and also some other persons for accomplishment of the object of conspiracy. However, the object of conspiracy never materialised for some reason or the other. Somehow or the other when the police detected the said conspiracy, respondents Nos. 1 and 2 were arrested by the Bombay C.I.D. on 21st July, 1989. However, on 6th August, 1989 the investigation was taken over by the C.B.I. Against the order of taking over the said investigation by the C.B.I. some public interest litigation was field in the nature of a writ petition dated 7-8-1989 and, therefore, the investigation was stayed because of the order of the High Court of Bombay. However, the aforesaid order passed in the said writ petition was set aside by the Supreme Court on 16-8-1989 and the matter was sent back for further investigation by the C.B.I. with the help of the Bombay C.I.D. Thereafter both the C.B.I. as well as the Bombay C.I.D. carried on the investigation jointly and various statements were reached during the course of investigation. During the investigation it was also revealed that one Verma, a road-side mechanic residing nearby the house of respondent No. 2, was also hired to obstruct the car of Shri Nusli Wadia. It was also further revealed that one Jagothia was also hired in pursuance of the said conspiracy to accomplish the object of the said murder.
3. It was strongly contended by the learned Advocate-General Shri Bobade appearing on behalf of the State that though the earlier bail order was passed on 11th August, 1989 releasing respondents Nos. 1 and 2, still because of the litigation in the High Court and Supreme Court till the month of May, 1990 the papers concerning the investigation already carried on were not available to the investigating machinery. Somewhere in the month of May, 1990 when the documents pertaining to the investigation carried on already were available to the investigating machinery, certain facts were revealed due to which the prosecution has filed the present application for cancellation of bail under S. 439(2) of the Code of Criminal Procedure on 25th June, 1990.
4. The prosecution relied mainly on four circumstances to justify their claim for cancellation of bail. Firstly, according to the prosecution in the conversation between respondent No. 1 and respondent No. 2 taperecorded on 22nd July, 1989 and in the statement of Sequeira recorded on 3rd August, 1989 there is a reference in the conversation to "some Seth or some boss in the nature 'Mera Seth Naraj Hai'". From these statements, it is the case of the prosecution at page 4 para 7 of the present application that there appears to be some brains behind the alleged conspiracy and, therefore, in order to ascertain the said brains by further investigation the respondent-accused must be granted police custody for a period of one week by cancellation of the bail already granted.
5. Secondly it was further alleged by the prosecution that from the scrutiny of the accounts of the Reliance Company, wherein respondent No. 1 is serving, it appears that lot of cash is withdrawn and it was also found that respondent No. 2 has become richer by acquiring wealth during the relevant period of conspiracy. It was strongly contended by the learned Advocate-General that in order to establish the nexus between the said withdrawal and the conspiracy the prosecution intends to carry on further investigation and the same is only possible if the bail already granted in favour of respondents Nos. 1 and 2 is cancelled and they are given in the police custody.
6. The third circumstances alleged by the prosecution was that one Verma, who was hired in the course of conspiracy to obstruct Shri Nusli Wadia's car, made a statement before the investigating officer that respondent No. 2 had approached him and directed the said Verma to inform respondent No. 2 about the development in the present case. It is contended in para 9 of the present application that by contracting the said Verma respondent No. 2 has misused the liberty granted to him and, therefore, the prosecution is entitled to and justified in seeking the order of cancellation of bail against the respondents.
7. Fourthly it was alleged that two employees of Reliance Company working under respondent No. 1 viz., Dipti Damani and Rajeshree Nair in their statements dated 4th January, 1990 failed to identify the voice of respondent No. 1 in the tape-recorded conversation dated 24th July, 1989 and 30th July, 1989, though from the expert evidence, according to the prosecution, the said voice is that of respondent No. 1, According to the prosecution the failure on the part of the said witnesses to identify the voice of respondent No. 1 appears to be deliberate attempt on the part of the witnesses as a result of tampering at the behest of respondent No. 1. Therefore, the prosecution contends that they are justified in demanding cancellation of bail already granted, for the purpose of fair trial.
8. It is on the basis of the aforesaid four circumstances, the prosecution filed the present application for cancellation of bail of the respondents. The learned Advocates appearing on behalf of the respondents denied the contentions made by the prosecution and further contended that the said false allegations are made with ulterior motive to harass the respondents.
9. The Supreme Court has given several guidelines for cancellation of bail already granted, under S. 439(2) of the Code of Criminal Procedure. These principles are enunciated in various cases decided by the Supreme Court from the year 1958 to 1987. The said cases I will refer to while scanning the evidence. However, I will like to place the guidelines given by the Supreme Court to decide the issue of cancellation of bail before scanning the evidence. According to the Supreme Court for cancellation of bail already granted, the prosecution must lead cogent and overwhelming evidence and the Court, while exercising the power under S. 439(2) must exercise the power with the due care and circumspection. From the cogent and overwhelming evidence led by the prosecution by applying the test of pre-ponderance of probabilities, the Court must come to a clear conclusion that the accused is interfering with the course of justice by tampering with the witnesses by abusing his liberty to suborn the witnesses. Further it was also observed by the Supreme Court in these guidelines that the order of cancellation of earlier bail involves review of the decision and the same is permitted only by reason of supervening circumstances due to which it would be longer conducive to a fair trial to retain the accused's freedom during the trial.
10. According to me the aforesaid guidelines given by the Supreme Court have to be kept in mind before deciding the application for cancellation of bail and, therefore, in the fitness of the things it is desirable to see the aforesaid circumstances as alleged by the prosecution and scan the evidence relied upon by the prosecution to come to a conclusion as to whether the prosecution is entitled for cancellation of bail order granted on 11th August, 1989 after efflux of time of about thirteen months.
11. Out of the four circumstances relied upon by the prosecution the first two circumstances are relied upon by the prosecution to show that for further investigation they want to have the presence of the respondents-accused in the police custody, while the last two circumstances are relied upon by the prosecution for cancellation of bail to show that respondents Nos. 1 and 2 are tampering with the witnesses.
12. To justify the claim that they require the presence of respondents Nos. 1 and 2 for further investigation to find out who is the brain behind the conspiracy, the prosecution is relying on the words used such as "Seth" or "boss" in the tape-recorded conversation dated 22nd July, 1989 and the statement of Sequeira recorded under S. 164. The learned Advocate-General contended that with this reference with further revelation of the accounts of Reliance Company that lot of cash was withdrawn at the relevant time and respondent No. 2 has become richer during the relevant time, the prosecution is justified in seeking the presence of respondents Nos. 1 and 2 in their custody for further investigation to see as to who is the brain behind this conspiracy. I have heard the arguments made by the learned Advocate-General on behalf of the State and also gone through the relevant record including the present petition before me. According to me there is no justification on the part of the State in seeking cancellation of bail of respondents Nos. 1 and 2 on these two particular grounds.
13. It is pertinent to note that though it is contended on behalf of the State that for the first time in the month of May, 1990 they got access to the investigation record after they received it from the Supreme Court and, therefore, after reading the said statements in the said investigation proceedings they started thinking in the direction of finding out the main culprit behind conspiracy, still it is very difficult to accept the said contention after one goes through the facts in the present case. Admittedly the tape-recorded conversation is dated 22nd July, 1989 and statement of Sequeira under S. 164 is dated 3-8-1989, which are much before the date on which respondents Nos. 1 and 2 were released on bail i.e. on 11th August, 1989. It may be that because of the litigation in the High Court and also further in the Supreme Court the investigation was stayed and the documents were called for in the higher Courts, but admittedly the officers investigating the case knew full well the reference made in the said conversation about 'Seth' or the boss. This being the position, if really the reference to the 'Seth' or boss had been important or such by which the investigating machinery in the month of May, 1990 felt some possibility of other persons involved in the conspiracy, the same would have reflected in the reply given by the Government at the time of argument when the learned Metropolitan Magistrate granted bail. Not only that, therefore, several remand applications were made for the extension of the bail. In none of these applications reference was made that there is some person other than respondents Nos. 1 and 2 and other accused persons involved by the prosecution in the case pending before the Magistrate. According to me in any case the investigating officers knew the reference made to 'Seth' or boss in the said conversation and in spite of that the bail application was granted. It cannot be said that this is a supervening circumstances. Further if the said reference would have been so important from the point of view of investigation, one fails to understand why the prosecution remained silent till 25th June, 1990 i.e. for a period of about thirteen months.
14. It is also pertinent to note that both respondents Nos. 1 and 2 regularly attended the investigation in the office of the C.B.I. in the presence of the officers of both the C.B.I. and the Bombay C.I.D. for 132 days till the filing of the affidavit and for 146 days till today. It is not contended on behalf of the State that these respondents or other witnesses are not co-operating in the investigation. It is not the case of the prosecution that the prosecution interviewed the employees in the Accounts Department of the Reliance Company and they refused to co-operative with the investigation. Therefore, from the accounts of Reliance Company large cash money was withdrawn cannot be used as a ground for cancellation of bail unless the prosecution leads some cogent evidence showing that there is an apprehension that the said amount was used for the purpose of conspiracy. Even the allegation of the prosecution that respondent No. 2 has become rich cannot be said to be relevant unless that richness is connected with some withdrawals made in the Company. Whatever is alleged in the application by the prosecution is in the nature of a conjecture which cannot be taken into consideration while coming to the conclusion that it is not possible for the investigating machinery to get the details about the 'Seth' or the boss or how the money was spent for the purpose of conspiracy, without the presence of respondents Nos. 1 and 2 in the custody of police. According to me there is no evidence on record to show that the prosecution made attempt to investigate on the aforesaid lines and they could not succeed in their investigation because of the freedom of the accused. This being the position, according to me, the prosecution is not entitled to seek cancellation of bail order on the basis of the aforesaid two circumstances.
15. At this stage it is pertinent to note that on the day on which the affidavit in reply was filed by the respondents, they were already made available to the police on 132 days. It is not the case of the prosecution that the respondents as well as other witnesses are not co-operating with them. It is not the case of the prosecution that during the investigation they sought information to see as to who is the boss of the conspiracy or to see that the money which respondent No. 2 brought was from respondent No. 1. If the prosecution has filed to take the steps up to this time, I do not understand as to on what basis the prosecution feels that only by taking respondents Nos. 1 and 2 in custody they will be in a position to investigate in this behalf. I may further point out that the learned counsel appearing on behalf of the respondents have also stated before me that the respondents are ready and willing to attend the office of the C.B.I. for the purpose of further investigation subject to their rights under Art. 20 of the Constitution of India.
16. It was argued on behalf of the respondents by relying on the observations made in T. N. Jayadeesh Devidas v. State of Kerala, 1980 Cri LJ 906 and also on the observations in Smt. Nandini Satpathy v. P. L. Dani, that in the facts and circumstances of the present case if the police custody is given to the respondents, on the principle and ratio laid down in the aforesaid case laws the same will amount to violation of Art. 20(3) of the Constitution of India. Since I have already concluded that on the first two circumstances mentioned above the prosecution is not entitled to demand the police custody of the respondents by cancellation of bail, I am not expressing my opinion on the aforesaid argument.
17. Now I will deal with the third and fourth circumstances relied on by the prosecution to show that the respondents are tampering with the evidence. The third circumstance relied on by the prosecution is the statement of Verma before the investigating officer. In para 9 of the application it is alleged by the prosecution :-
"The C.B.I. recorded the statement of one Verma on 23-5-1990. The said witness is a mechanic, and resides near the residence of the respondent No. 2. The statement discloses the respondent No. 2 is known to Verma for a considerable period of time. The statement of Verma reveals that respondent No. 2 has approached the said Verma, and directed the said Verma to inform respondent No. 2 about the development in the present case. Respondent No. 2 contacted the prosecution witness and thereby misused the liberty granted to him."
After taking into consideration the aforesaid allegation made by the prosecution in para 9 as given above and giving liberal interpretation in favour of the prosecution, I fail to understand as to how by requesting the said Verma respondent No. 2 has misused the liberty granted to him. (At this stage I may point out that learned counsel Kum. Samant appearing on behalf of respondent No. 2 denied the allegation in the said para). The said contention itself reveals that Verma is already known to respondent No. 2 as his motor mechanic and that Verma is residing near the house of respondent No. 2. From whatever request made by respondent No. 2 to Verma, as alleged in the application, it does not appear that there is any attempt on the part of respondent No. 2 to tamper with the evidence. What was asked at the highest by respondent No. 2 to Verma was as to what is the development in the investigation. It is further pertinent to note that when this statement was made by Verma before the investigating officer respondent No. 2 had accompanied the said Verma to the C.B.I. office and was sitting outside in the office. From the manner in which respondent No. 2 accompanied Verma to the C.B.I. office where the investigation was carried on and the manner in which he was sitting outside in the said officer when this statement was made, it does not appear that respondent No. 2 had any oblique motive or intention to tamper with the evidence. I, therefore, come to the conclusion that there is no substance, from the aforesaid evidence, in the contention of the prosecution that respondent No. 2 was tampering with the evidence of the prosecution.
18. The fourth episode relied on by the prosecution was that two employees of Reliance Company working under respondent No. 1 viz., Dipti Damani and Rajeshree Nair, during the investigation on 15th December, 1989 identified the voice of respondent No. 1 in the tape-recorded conversation dated 22nd July, 1989. Thereafter they were further called on 4-1-1990. At that time two tape-recorded conversations dated 24th July, 1989 and 30th July, 1989 were heard by them but according to the prosecution they failed to identify the voice of respondent No. 1. From this it is alleged by the prosecution in para 9 of the application and also argued by the learned Advocate-General that these witnesses on 4th January, 1990 failed to identify the voice of respondent No. 1 because of the influence of respondent No. 1. According to me the fact that these two very witnesses have identified the voice of respondent No. 1 on the earlier occasion i.e. on 15-12-1989 itself is sufficient to negative the apprehension of the prosecution. If really respondent No. 1 intended to tamper with the evidence of these two witnesses who were working under him, then in the event these two witnesses would not have identified the voice of respondent No. 1 in the tape-recorded conversation dated 22nd July, 1989 on 15-12-1989. There might be several reasons for not identifying the voice of respondent No. 1 in the tape-recorded conversation dated 24th July, 1989 and 30th July, 1989 and unless the prosecution proves some deliberate overt act on the part of respondent No. 1 influencing the two witnesses not to identify his voice in the said two tape-recorded conversations, no inference can be drawn that respondent No. 1 was tampering with the witnesses. Further it is pertinent to note that even in the application filed before me it was stated by prosecution :-
"The said witnesses, Miss Dipti Damani and Rajeshree Nair's not identifying the voice of respondent No. 1, apparently appears to be deliberate attempt on the part of the witnesses, as they have been tampered with."
19. The prosecution has also relied on one more fact that one of the employees of Reliance Company Deepak Neogi declined to identify his own voice on the cassette though the persons working under Shri Neogi had testified the voice to be that of Neogi. I fail to understand as to how from a bald statement by the prosecution in the present application that the said Deepak Neogi declined to identify his own voice on cassette, inference can be drawn that he has done so because of the act of tampering on the part of respondent No. 1 Shri Desai, learned counsel appearing on behalf of respondent No. 1 relied on the observations made by the Supreme Court in the case of the State through the Delhi Administration v. Sanjay Gandhi, more particularly para 13, wherein the Supreme Court observed (at page 957 (of Cri LJ)) :-
"The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over. A brother, a sister or a parent who has been the commission of crime, may resile in the Court from a statement recorded during the course of investigation. That happens instinctively, out of natural love and affection, not out of persuasion by the accused. The witness has a stake in the innocence of the accused and tries therefore to save him from the guilt. Likewise, an employee may, out of a sense of gratitude, oblige the employer by uttering an untruth without pressure or persuasion. In other words, the objective fact that witnesses have turned hostile must be shown to bear a casual connection with the subjective involvement therein of the respondent. Without such proof, a bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been own over by the accused." According to Shri Desai, learned Counsel appearing on behalf of respondent No. 1, in the case before the Supreme Court it was a case of a hostile witness who has resiled from the statement given by him before the police during investigation. In the present case it may be that Shri Neogi genuinely felt that the voice in the tape-recorder may not be his own voice and, therefore, unless there is evidence to show the involvement of respondent No. 1 in Deepak Neogi's not identifying his voice, it cannot be said by any stretch of imagination that respondent No. 1 tried to tamper with the witness.
20. From the aforesaid discussion it is clear that the prosecution has failed to establish that respondents Nos. 1 and 2 are tampering with the investigation. It is pertinent to note that in several remand applications for extension of bail, the prosecution never made complaint against respondents Nos. 1 and 2. On the contrary, the prosecution on certain occasions on their own modified the timings of the visits of respondents Nos. 1 and 2 to the C.B.I. office from every day to twice in a week and subsequently once in a week. This itself shows that respondents Nos. 1 and 2 co-operated which the investigation of the prosecution and further that the prosecution no more requires the presence of respondent Nos. 1 and 2 for further investigation.
21. In view of the aforesaid facts, there is no substance in the contention made by the prosecution that respondents Nos. 1 and 2 are tampering with the evidence.
22. However, considering for a while that the prosecution is sincerely desirous of investigating this case further and for that purpose the prosecution requires the presence of the accused persons, according to me still the said purpose can be accomplished if I allow the prosecution to carry on their further investigation by directing respondents Nos. 1 and 2 to attend the office of the C.B.I. between 11 a.m. to 5 p.m. from 8th October 1990 till 12th October 1990, both days inclusive, in the company of their lawyers, if they so desire.
23. I, therefore, direct respondents Nos. 1 and 2 to attend the office of the C.B.I. between 11 a.m. and 5 p.m. from 8th October 1990, till 12th October 1990, both days inclusive, in the company of their lawyers, if they so desire.
24. With the aforesaid observations and directions the criminal application for cancellation of bail filed by the prosecution is dismissed.
25. Application dismissed.