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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1141 OF 2016

STATE OF BIHAR .....APPELLANT(S)

VERSUS

RAJBALLAV PRASAD @ RAJBALLAV PD. YADAV @ RAJBALLABH YADAV .....RESPONDENT(S)

J U D G M E N T A.K. SIKRI, J.

Respondent herein is facing trial in Mahila Police Station Case No.

15  of  2016,  wherein  he  is  charged  for  committing  offences  under

Sections 376, 420/34, 366-A, 370, 370-A, 212, 120-B of the Indian Penal

Code, Sections 4,  6 and 8 of  the Protection of  Children from Sexual

Offences Act, 2012 (“POCSO Act” for short) as well as Sections 4, 5 and

6 of the Immoral Traffic Act, 1956.  He is one of the co-accused in the

said  trial.   FIR  in  this  behalf  was  registered  on  the  basis  of  written

complaint  of  the  prosecutrix  Preeti  Kumari  (minor)  on  09.02.2016.

During investigation, the respondent was identified as the main accused

having committed the rape on the said minor.  However, since at that

time, he was allegedly absconding, the trial court issued process under

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Section 82 of the Code of Criminal Procedure, 1973 (“Cr.P.C.” for short)

and thereafter on 27.07.2006 issued process under Section 83 against

the respondent.  At that stage, apprehending his imminent arrest,  the

respondent surrendered before the trial  court on 10.03.2016 and was

taken into custody.  After conclusion of the investigation, chargesheet in

the  case  was  filed  on  20.04.2016  and  the  charges  were  framed  on

06.08.2016.   

2) Pending trial,  the respondent  filed  bail  application before  the learned

Additional Sessions Judge which was heard and dismissed by the trial

court  vide  order  dated  30.05.2016.  Obviously,  dissatisfied  with  this

dismissal order, the respondent approached the High Court for grant of

bail which came up for hearing before the High Court on 27.07.2016.

However, permission was sought to withdraw the said bail application

and accepting this request, the bail petition was dismissed as withdrawn

on 27.07.2016.  Within three weeks thereafter i.e. on 19.08.2016, the

respondent preferred another bail petition before the High Court.  This

time  he  has  succeeded  in  his  attempt  as  the  High  Court  has,  vide

judgment dated 30.09.2016, directed release of the respondent on bail.

Certain conditions are also imposed while granting this bail.   It  is the

State which feels aggrieved by the impugned order granting bail to the

respondent and has challenged this order in the present proceedings.

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Notice was issued in the SLP on 07.10.2016 for actual returnable date

i.e. 17.10.2016.  Thereafter, the material date of hearing is 08.11.2016

when the following order was passed:  

“We have heard learned counsel for the parties for some time.

In the instant case, the High Court has granted bail to the respondent herein during the pendency of the trial against the respondent who is facing the charges under Sections 376, 420/34, 366-A, 370, 370-A, 212, 120-B of the Indian Penal Code as well as the charges under Section 4, 6 and 8 of  the  POCSO Act,  2012.   He is  also  facing  trial  for offences under Sections 4, 5 and 6 of the Immoral Traffic Act, 1956.  The case is pending in the Court of Additional Sessions  Judge-Ist-cum-Special  Judge,  Nalanda  at Biharsharif.  The deposition of the Prosecutrix is yet to be recorded.  Without making any observation at this stage, we  are  of  the  opinion  that  in  order  to  enable  the Prosecutrix  to  give her  statement  fearlessly  and without any  pressure,  it  would  be  necessary  that  she  deposes when the respondent is in custody.  For this reason, we suspend the  judgment  and order  dated 30th September, 2016  passed  by  the  High  Court  granting  bail  to  the respondent herein for a period of two weeks from the date the  respondent  is  taken  into  custody  to  enable  the Prosecutrix  to  give  her  evidence.   We  direct  that  the respondent shall surrender to the Trial Court tomorrow i.e. 09.11.2016 and would be taken into custody in the same manner he was facing incarceration before he was granted bail by the High Court, for a period of two weeks.

The Trial  Court is impressed upon to start recording the evidence of the Prosecutrix immediately and endeavour to complete the same within the said period of two weeks.

We also hope and expect that the respondent shall not try to  exert  any  pressure,  directly  or  indirectly,  upon  the Prosecutrix or other prosecution witnesses.   

List the matter for further directions on 23.11.2016.  Dasti, in addition, is permitted.”

3) Pursuant to the aforesaid order, the respondent surrendered and period

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of two weeks expired yesterday i.e. on 23.11.2016 when this appeal was

also finally heard.  During this period, statement of prosecutrix has been

recorded and she has been cross-examined as well.   

4) Mr.  Gopal  Subramaniam,  learned  senior  counsel  appearing  for  the

appellant submitted that since other witnesses remained to be examined

are also material witnesses, it was necessary, in the interest of justice,

that respondent remains in jail during the period of trial.  He, therefore,

impressed the Court to hear the appeal on merits as according to the

appellant, in the facts and circumstances of this case, bail order should

not have been passed by the High Court and it  has committed grave

illegality in passing such an order.  In view thereof, we heard the matter

finally and both the sides advanced detailed submissions.   

5) It  was argued by Mr. Subramaniam that  the impugned judgment was

perverse as it  did not  take into consideration relevant  factors   which

needed to be kept in mind while deciding as to whether bail is to be

granted or not, even though such relevant factors were taken note of.  It

was  further  submitted  that  the  High  Court  started  its  discussion  by

observing that presumption of innocence would continue to run in favour

of  the  accused  (respondent  herein)  until  the  guilt  is  brought  home.

Thereafter, it discussed the merits of the case.  In the process, as per

the appellant, the Court failed to satisfactorily address the pivotal and

relevant considerations for grant/refusal of the bail, namely, whether the

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respondent was likely to influence the witnesses or the trial in case he is

released on bail pending trial or whether the respondent was likely to

abscond and not available for trial.  The learned senior counsel argued

that having regard to the background of this case, it  could clearly be

discerned  that  there  was  reasonable  apprehension  that  there  was  a

likelihood intimidating and coercing the witnesses by the respondent as

not only respondent was an influential person, being MLA of the area in

question, but had in fact, made such attempts in the past.  Complaints

were made by the prosecutrix and family members.  It was also pointed

out that the Court also failed to notice that on an earlier occasion, to

secure his attendance, process under Section 82 of Cr.P.C. had to be

initiated.  Another submission of learned senior counsel was that when

the first bail application was dismissed by the High Court hardly three

weeks  ago  i.e.  on  27.07.2016,  there  was  no  change  in  the

circumstances from that date till the filing of the second bail application

on 19.08.2016 in which the impugned order has been passed.  Learned

senior counsel also pointed out that bail application of co-accused had

been refused by the High Court on 20.08.2016 and while doing so, High

Court had directed to conclude the trial in terms of POCSO Act without

unnecessary delay, on day to day basis.  All these aspects, according to

the  appellant,  are  conveniently  bypassed by  the  High  Court,  thereby

making the order vulnerable to challenge.  Few judgments were cited in

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support  of  the  proposition  that  in  such  a  situation,  this   Court  can

interdict with the order of grant of bail.   

6) It may also be pointed out at this stage that in the special leave petition,

another  ground taken  to  challenge the  impugned order  is  that  when

earlier application was dismissed by a particular Judge of the High Court

on 27.07.2016, as per the directives of this Court,  second application

should also have to be listed before the same Judge.  However, the

second application was taken by the Chief Justice himself wherein the

impugned order has been passed rather than assigning it to the Judge

who had passed the order on 27.07.2016.  However, Mr. Subramaniam

did  not  press  this  ground  too  hard,  except  submitting  that  propriety

demanded that matter is posted before the same Judge who had passed

the order on 27.07.2016 before whom the first bail application had come

up for hearing.

7) Mr.  Dushyant  Dave,  learned  senior  counsel  appearing  for  the

respondent, made a passionate plea that this special leave petition is

required to be dismissed only on the ground that the appellant has taken

a false plea regarding assigning bail  application by the said Court  to

itself, rather than sending it to the same Judge who had heard first bail

application.  He pointed out that in the impugned order itself, it has been

observed that since no decision on merit of the first bail application was

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taken which was dismissed as withdrawn by order dated 27.07.2016,

there  was  no  legal  impediment  in  proceedings  with  the  second  bail

application  and  more  pertinently  statement  of  Additional  Advocate

General  who appeared on behalf  of  the State in the High Court  was

specifically  recorded  to  the  effect  that  he  had  no  objection  to  the

consideration of the bail of the respondent by the said Court.  It is only

after recording this that the bail application was taken up for hearing and

order was passed.  It  was, thus, submitted that the State, which was

supposed to act  more responsibly than an individual  person, had not

come to the Court with clean hands and tried to prejudice this Court by

suppressing the aforesaid fact while taking such a plea.  Reference was

made to the judgment of this Court in Rajabhai Abdul Rehman Munshi

v. Vasudev Dhanjibhai Mody1 and it was pleaded that this conduct of

the appellant/State warranted that the petition be not entertained.   

8) No doubt, there may be some substance in the aforesaid plea of Mr.

Dave having regard to the fact  that  the Principal  Additional  Advocate

General had himself stated before the High Court that the State had no

objection  for  the  consideration  of  the  bail  of  the  respondent  by  the

concerned  Court.   In  this  backdrop,  the  State  is  not  justified  in

challenging the order  on the ground that  the matter  should not  have

been dealt with by the Chief Justice but should have been marked to the

1 (1964) 3 SCR 480

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Judge who passed order on 27.07.2016 in the first bail application.  May

be,  because  of  this  reason,  this  ground  of  challenge  is  not  pressed

seriously by Mr. Subramaniam.  In any case, we are of the opinion that in

the facts and circumstances of the present case, we are not persuaded

by the argument  of  Mr. Dave that  consequence thereof  should be to

dismiss the special leave petition.  There are at least two reasons for this

observation, which are as follows:

(i) Statement of Principal Additional Advocate General that the State

had no objection for the consideration of the bail application by the said

Court  has  been  recorded  in  the  beginning  of  the  order  itself  and,

therefore, question of suppression thereof does not arise.  This fact was

known to  this  Court  when  the  SLP was  entertained  and  notice  was

issued.  Therefore, the question of misleading the Court on this count

does not arise.   

(ii) More importantly, the primary reason for issuing the notice in the

SLP was that this Court wanted to examine, on merits, as to whether

discretion exercised by the High Court under the given circumstances is

appropriately  exercised and it  was  a  fit  case  for  grant  of  bail  to  the

respondent, who is an under trial.  We are concerned with a criminal trial

and the foremost consideration in the mind of this Court is that the trial is

conducted fairly.  These sentiments of the Court were expressed to Mr.

Dave at the time of hearing itself.

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9) Mr. Dave, thus, argued the case on merits also with a fervent plea that

once the bail is granted by the High Court, this Court should not interfere

with the discretion exercised by the High Court.  It was argued that the

respondent  had  valid  reasons  to  file  the  second  bail  application

inasmuch  as  in  the  meantime  charges  were  framed  on  06.08.2016,

which is material change of circumstance.   

10) Refuting the averments of Mr. Subramaniam, Mr. Dave further argued

that after the grant of bail, the respondent had not abused the same in

any manner whatsoever and there was no material that he has tried to

influence  the  witnesses  or  tried  to  temper  with  the  records  and  the

observations of the High Court in this behalf in the impugned order were

perfectly justified.  He further submitted that once it is found that High

Court had applied its mind by passing a detailed order and granted bail,

such an exercise of discretion should not be interfered with by this Court

in exercise of powers under Article 136 of the Constitution.  In support of

this proposition, he referred to many judgments gist whereof is as under:

(i) State (Delhi Administration) v. Sanjay Gandhi2

“13. Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject  a bail  application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of  bail  necessarily  involves  the  review  of  a  decision already made and can by and large be permitted only if, by reason  of  supervening  circumstances,  it  would  be  no longer  conducive  to  a  fair  trial  to  allow  the  accused  to

2 (1978) 2 SCC 411

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retain  his  freedom  during  the  trial.  The  fact  that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over...”

 (ii) Bhagirathsinh v. State of Gujarat3

“7.   In  our  opinion,  the learned Judge appears  to  have misdirected  himself  while  examining  the  question  of directing  cancellation  of  bail  by  interfering  with  a discretionary order made by the learned Sessions Judge. One  could  have  appreciated  the  anxiety  of  the  learned Judge of the High Court that in the circumstances found by him  that  the  victim  attacked  was  a  social  and  political worker and therefore the accused should not be granted bail but we fail to appreciate how that circumstance should be considered so overriding as to permit interference with a  discretionary  order  of  the  learned  Sessions  Judge granting bail.  The High Court  completely  overlooked the fact that it was not for it to decide whether the bail should be  granted  but  the  application  before  it  was  for cancellation  of  the  bail.  Very  cogent  and  overwhelming circumstances  are  necessary  for  an  order  seeking cancellation  of  the  bail  and  the  trend  today  is  towards granting bail because it is now well-settled by a catena of decisions of this Court that the power to grant bail is not to be  exercised  as  if  the  punishment  before  trial  is  being imposed.  The  only  material  considerations  in  such  a situation  are  whether  the  accused  would  be  readily available for his trial and whether he is likely to abuse the discretion  granted  in  his  favour  by  tampering  with evidence.  The  order  made  by  the  High  Court  is conspicuous  by  its  silence  on  these  two  relevant considerations. It is for these reasons that we consider in the interest  of  justice a compelling necessity to interfere with the order made by the High Court.”

(iii) Bihar  Legal  Support  Society  v.  Chief  Justice  of  India  and

another4

“3.  The question whether special leave petitions against refusal  of  bail  or  anticipatory  bail  should  be  listed immediately or not is a question within the administrative jurisdiction of  the Chief  Justice and we cannot give any

3 (1984) 1 SCC 284 4 (1986) 4 SCC 767

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direction in that behalf. But, we may point out that every petitioner  who  files  a  special  leave  petition  against (sic refusal) of bail or anticipatory bail has an opportunity of mentioning his case before the learned Chief Justice in his administrative capacity for urgent listing and wherever a case deserves urgent listing, the Chief Justice makes an appropriate  order  for  urgent  listing.  It  may, however, be pointed out  that  this  Court  was  never  intended to  be a regular court of appeal against orders made by the High Court  or  the  sessions  court  or  the  Magistrates.  It  was created as an Apex Court for the purpose of laying down the law for the entire country and extraordinary jurisdiction for  granting  special  leave  was  conferred  upon  it  under Article  136  of  the  Constitution  so  that  it  could  interfere whenever it found that law was not correctly enunciated by the  lower  courts  or  tribunals  and  it  was  necessary  to pronounce  the  correct  law  on  the  subject.  This extraordinary jurisdiction could also be availed by the Apex Court  for the purpose of correcting grave miscarriage of justice, but such cases would be exceptional by their very nature...”.

11) We have  given  our  earnest  consideration  to  the  submissions  of  the

counsel on either side.

12) We may observe at the outset that we are conscious of the limitations

which bind us while entertaining a plea against grant of bail by the lower

court, that too, which is a superior court like High Court.  It is expected

that  once  the  discretion  is  exercised  by  the  High  Court  on  relevant

considerations  and  bail  is  granted,  this  Court  would  normally  not

interfere with such a discretion, unless it is found that the discretion itself

is  exercised on extraneous considerations and/or  the relevant  factors

which need to be taken into account while exercising such a discretion

are ignored or bypassed.  In the judgments relied upon by the learned

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counsel for the respondent, which have already been noticed above, this

Court mentioned the considerations which are to be kept in mind while

examining as to whether order of bail granted by the court below was

justified.   There  have  to  be  very  cogent  and  overwhelming

circumstances  that  are  necessary  to  interfere  with  the  discretion  in

granting the bail.  These material considerations are also spelled out in

the  aforesaid  judgments,  viz.  whether  the  accused  would  be  readily

available for  his trial  and whether he is likely to abuse the discretion

granted in his favour by tampering with the evidence.  We have kept

these very considerations in mind while examining the correctness of the

impugned order.   

13) We may also, at this stage, refer to the judgment in the case of Puran v.

Rambilas & Anr.5, wherein principles while dealing with application for

bail  as  well  as  petition  for  cancellation  of  bail  were  delineated  and

elaborated.  Insofar as entertainment of application for bail is concerned,

the Court pointed out that reasons must be recorded while granting the

bail, but without discussion of merits and demerits of evidence.  It was

clarified that discussing evidence is totally different from giving reasons

for a decision.  This Court also pointed out that where order granting bail

was passed by ignoring material evidence on record and without giving

reasons, it would be perverse and contrary to the principles of law.  Such

5 (2001) 6 SCC 338

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an order  would  itself  provide  a  ground for  moving  an  application  for

cancellation  of  bail.   This  ground for  cancellation,  the  Court  held,  is

different  from  the  ground  that  the  accused  misconducted  himself  or

some new facts call for cancellation.   

14) The present case falls in the former category as the appellant  is not

seeking  cancellation  of  bail  on  the  ground  that  the  respondent

misconducted himself after the grant of bail or new facts have emerged

which warrant cancellation of bail.  That would be a case where conduct

or events based grant of bail are to be examined and considered.  On

the other hand, when order of grant of bail is challenged on the ground

that  grant  of  bail  itself  is  given  contrary  to  principles  of  law,  while

undertaking the judicial review of such an order, it needs to be examined

as to whether there was arbitrary or wrong exercise of jurisdiction by the

Court granting bail.  If that be so, this Court has power to correct the

same.

15) Keeping in view the aforesaid consideration, we proceed to discuss this

matter.

16) It  is  a  matter  of  record  that  when  FIR  was  registered  against  the

respondent  and  on  the  basis  of  investigation  he  was  sought  to  be

arrested, the respondent had avoided the said arrest.  So much so, the

prosecution was compelled to file  an application under  Section 82 of

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Cr.P.C. before the trial court and the trial court even initiated the process

under  Section  83  of  Cr.P.C.   At  that  stage  only  that  the  respondent

surrendered before the trial court and was arrested.

17) The respondent's application was dismissed by the Additional Sessions

Judge  vide  orders  dated  30.05.2016.   While  passing  this  order  of

rejection,  the  trial  court  was  persuaded  by  the  submission  of  the

Prosecutor that direct and specific allegations had been levelled against

the respondent of committing rape upon the victim minor girl and he was

identified by the victim during the course of investigation while he was

walking in  the P.O.  House.   It  was also noted that  prayer  for  bail  of

co-accused Sandeep Suman @ Pushpanjay had already been rejected

and the case of the respondent was on graver footing and also that the

respondent had a long criminal diary, as would be evident from the Case

Diary produced before the Court.

18) It has also come on record that the prosecutrix had her family members

made representations claiming that  the respondent  is  threatening the

family  members  of  the  prosecutrix.   So  much  so,  having  regard  to

several complaints of intimidation of witnesses made on behalf of the

prosecutrix  and  her  family  members,  the  State  administration  has

deputed a force of 1+4 for the safety and security of the prosecutrix and

her family.

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19) In spite of the aforesaid material on record, the High Court has made

casual and cryptic remarks that there is no material  showing that the

accused had interfered with the trial  by tampering evidence.   On the

other hand, it has discussed the merits of the case/evidence which was

not called for at this stage. No doubt, in a particular case if it appears to

the court that the case foisted against the accused is totally false, that

may become a  relevant  factor  while  considering  the  bail  application.

However, it can be said at this stage that the present case falls in this

category.  That would be a matter of trial.   Therefore, the paramount

consideration should have been as is pointed out above, whether there

are  any  chances  of  the  accused  person  fleeing  from  justice  or

reasonable apprehension that the accused person would tamper with the

evidence/trial if released on bail.  These aspects are not dealt with by the

High Court appropriately and with the seriousness they deserved. This

constitutes  a  sufficient  reason  for  interfering  with  the  exercise  of

discretion by the High Court.

20) The High Court also ignored another vital aspect, namely, while rejecting

the  bail  application  of  co-accused,  the  High  Court  had  ordered

expeditious, nay, day-to-day trial to ensure that the trial comes to an end

most expeditiously.  When order had already been passed to fast-track

the trial, and the application for bail by co-accused Sandeep Suman @

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Pushpanjay was also rejected, the High Court, while considering the bail

application of the respondent, was supposed to take into consideration

this material fact as well.  Further, while making a general statement of

law that  the  accused  is  innocent,  till  proved  guilty,  the  provisions  of

Section 29 of POCSO Act have not been taken into consideration, which

reads follows:

“29. Presumption as to certain offence: Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has  committed  or  abetted  or  attempted  to  commit  the offence,  as  the  case  may  be  unless  the  contrary  is proved.”

21) Keeping in view all the aforesaid considerations in mind, we are of the

opinion that it was not a fit case for grant of bail to the respondent at this

stage and grave error is committed by the High Court in this behalf.  We

would like to reproduce following discussion from the judgment in the

case of Kanwar Singh Meena v. State of Rajasthan & Anr.6:

“10...While  cancelling  bail  under Section  439(2) of the Code,  the  primary  considerations  which  weigh  with  the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel  bail  even in  cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well recognized principles

6 (2012) 12 SCC 180

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underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence  of  supervening  circumstances  such  as  the propensity of the accused to tamper with the evidence, to flee  from  justice,  etc.  would  not  deter  the  court  from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing accused involved in heinous crimes because  they  ultimately  result  in  weakening  the prosecution case and have adverse impact on the society. Needless to say that though the powers of this court are much  wider,  this  court  is  equally  guided  by  the  above principles in the matter of grant or cancellation of bail.

xx xx xx

18.  Taking an overall  view of the matter, we are of the opinion that in the interest of justice, the impugned order granting bail to the accused deserves to be quashed and a direction  needs  to  be  given  to  the  police  to  take  the accused in custody...”

22) As indicated by us in the beginning, prime consideration before us is to

protect the fair trial and ensure that justice is done.  This may happen

only if the witnesses are able to depose without fear, freely and truthfully

and this Court is convinced that in the present case, that can be ensured

only if the respondent is not enlarged on bail.  This importance of fair trial

was emphasised in  Panchanan Mishra  v.  Digambar Mishra & Ors.7

while  setting  aside  the  order  of  the  High  Court  granting  bail  in  the

following terms:

“13.  We have given our careful consideration to the rival submissions  made  by  the  counsel  appearing  on  either side.  The object  underlying the cancellation of  bail  is  to protect the fair trial and secure justice being done to the society by preventing the accused who is set at liberty by the  bail  order  from tampering  with  the  evidence  in  the

7 (2005) 3 SCC 143

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heinous crime and if  there is  delay  in  such a  case the underlying object of cancellation of bail practically loses all its purpose and significance to the greatest prejudice and the  interest  of  the  prosecution.  It  hardly  requires  to  be stated that once a person is released on bail  in serious criminal cases where the punishment is quite stringent and deterrent,  the  accused  in  order  to  get  away  from  the clutches  of  the  same  indulge  in  various  activities  like tampering with the prosecution witnesses, threatening the family  members of  the deceased victim and also create problems of law and order situation.”

23) Such sentiments were expressed much earlier as well by the Court in

Talab Haji Hussain v. Madhukar Purshottam Mondkar & Ors.8 in the

following manner:

“6...There can be no more important  requirement  of  the ends of  justice than the uninterrupted progress of  a fair trial; and it is for the continuance of such a fair trial that the inherent  powers  of  the  High  Courts  are  sought  to  be invoked by the prosecution in cases where it is alleged that accused  persons,  either  by  suborning  or  intimidating witnesses, are obstructing the smooth progress of a fair trial.  Similarly, if  an accused person who is released on bail jumps bail and attempts to run to a foreign country to escape the trial,  that  again  would be a case where the exercise of the inherent power would be justified in order to compel the accused to submit to a fair trial and not to escape its consequences by taking advantage of the fact that he has been released on bail and by absconding to another  country.  In  other  words,  if  the  conduct  of  the accused person subsequent to his release on bail puts in jeopardy the progress of a fair trial itself and if there is no other remedy which can be effectively  used against  the accused person, in such a case the inherent power of the High Court can be legitimately invoked...”

24) We are conscious of the fact that the respondent is only an under-trial

and  his  liberty  is  also  a  relevant  consideration.  However,  equally

8 1958 SCR 1226

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important consideration is the interest of the society and fair trail of the

case.  Thus, undoubtedly the courts have to adopt a liberal approach

while considering bail applications of accused persons.  However, in a

given case, if it is found that there is a possibility of interdicting fair trial

by the accused if released on bail, this public interest of fair trial would

outweigh the personal interest of the accused while undertaking the task

of balancing the liberty of the accused on the one hand and interest of

the society to have a fair trial on the other hand.   When the witnesses

are not able to depose correctly in the court of law, it results in low rate

of  conviction  and  many  times  even  hardened  criminals  escape  the

conviction.  It  shakes public confidence in the criminal justice delivery

system.   It is this need for larger public interest to ensure that criminal

justice delivery system works efficiently, smoothly and in a fair manner

that has to be given prime importance in such situations. After all, if there

is  a  threat  to  fair  trial  because of  intimidation of  witnesses etc.,  that

would happen because of wrongdoing of the accused himself, and the

consequences thereof, he has to suffer.    This is so beautifully captured

by  this  Court  in  Masroor  v.  State  of  Uttar  Pradesh  & Anr.9 in  the

following words:

“15.  There is no denying the fact  that  the liberty  of  an individual is precious and is to be zealously protected by the  courts.  Nonetheless,  such  a  protection  cannot  be absolute in every situation. The valuable right of liberty of an individual and the interest of the society in general has to be balanced. Liberty of a person accused of an offence

9 (2009) 14 SCC 286

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would  depend  upon  the  exigencies  of  the  case.  It  is possible that in a given situation, the collective interest of the community may outweigh the right of personal liberty of the individual concerned. In this context, the following observations  of  this  Court  in  Shahzad  Hasan  Khan  v. Ishtiaq  Hasan  Khan  [(1987)  2  SCC  684]  are  quite apposite: (SCC p. 691, para 6)

“6… Liberty is to be secured through process of law, which is administered keeping in mind the interests of the accused, the near and dear of the victim who lost his life and who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution.””

25) This very aspect of balancing of two interests has again been discussed

lucidly  in  Neeru  Yadav  v.  State  of  Uttar  Pradesh  &  Anr.10 in  the

following words:

“16. The issue that is presented before us is whether this Court can annul the order passed by the High Court and curtail  the liberty of the second respondent? We are not oblivious of the fact that liberty is a priceless treasure for a human  being.  It  is  founded  on  the  bedrock  of  the constitutional right and accentuated further on the human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilised society. It  is  a cardinal  value on which  the  civilisation  rests.  It  cannot  be  allowed  to  be paralysed  and  immobilised.  Deprivation  of  liberty  of  a person has enormous impact on his mind as well as body. A democratic body polity which is wedded to the rule of law,  anxiously  guards  liberty.  But,  a  pregnant  and significant one, the liberty of an individual is not absolute. Society  by  its  collective wisdom through process of  law can  withdraw  the  liberty  that  it  has  sanctioned  to  an individual  when  an  individual  becomes  a  danger  to  the collective and to the societal  order. Accent on individual liberty  cannot  be  pyramided  to  that  extent  which  would

10 (2014) 16 SCC 508

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bring chaos and anarchy to a society. A society expects responsibility and accountability from its members, and it desires that the citizens should obey the law, respecting it as a cherished social  norm. No individual  can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, when an individual behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the legal consequences are bound  to  follow. At  that  stage,  the  court  has  a  duty.  It cannot  abandon  its  sacrosanct  obligation  and  pass  an order at its own whim or caprice. It has to be guided by the established parameters of law.

17. Coming to the case at hand, it is found that when a stand  was  taken  that  the  second  respondent  was  a history-sheeter, it was imperative on the part of the High Court  to  scrutinise  every  aspect  and  not  capriciously record  that  the  second  respondent  is  entitled  to  be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order [Mitthan Yadav  v.  State of U.P.,  Criminal  Misc.  Bail  Application No. 31078 of  2014, decided  on  22-9-2014  (All)]  clearly  exposes  the non-application of mind. That apart, as a matter of fact it has been brought on record that the second respondent has been charge-sheeted in respect  of  number of  other heinous offences. The High Court has failed to take note of the same. Therefore,  the order has to pave the path of extinction, for its approval by this Court would tantamount to travesty of justice, and accordingly we set it aside.”

26) In  Ramesh & Ors.  v. State of Haryana11, which was decided only two

days  ago  i.e.  on  22.11.2016,  this  Court  discussed  the  problem  of

witnesses turning hostile, and if that is for wrong reasons, observed that

it affects the very fabric of criminal justice delivery system.  We would

like to reproduce following passages therefrom:

“40.  On the analysis of various cases, following reasons can be discerned which make witnesses retracting their statements before the Court and turning hostile:

“(i)  Threat/intimidation. 11 Criminal Appeal No. 2526 of 2014 decided on November 22, 2016

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(ii)  Inducement by various means.

(iii) Use of muscle and money power by the accused.

(iv)  Use of Stock Witnesses.

(v)  Protracted Trials.

(vi)  Hassles  faced  by  the  witnesses  during investigation and trial.

(vii)  Non-existence  of  any  clear-cut  legislation  to check hostility of witness.”

41.  Threat  and  intimidation  has  been  one  of  the  major causes  for  the  hostility  of  witnesses.   Bentham  said: “witnesses are the eyes and ears of justice”.  When the witnesses are not able to depose correctly in the court of law, it  results  in  low rate  of  conviction and many times even hardened criminals escape the conviction.  It shakes public confidence in the criminal justice delivery system.  It is for this reason there has been a lot  of  discussion on witness protection and from various quarters demand is made for the State to play a definite role in coming out with witness protection programme, at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted  and  derailed  and  truth  becoming  a  casualty.  A stern and emphatic  message to this effect  was given in Zahira Habibullah's case as well.

42.   Justifying  the  measures  to  be  taken  for  witness protection to enable the witnesses to depose truthfully and without  fear,  Justice  Malimath  Committee  Report  on Reforms of Criminal Justice System, 2003 has remarked as under:

“11.3  Another  major  problem  is  about  safety  of witnesses and their family members who face danger at different stages. They are often threatened and the seriousness of  the threat depends upon the type of the case and the background of the accused and his family. Many times crucial witnesses are threatened or injured  prior  to  their  testifying  in  the  court.  If  the witness  is  still  not  amenable  he  may  even  be murdered. In such situations the witness will not come forward  to  give  evidence  unless  he  is  assured  of

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protection or is guaranteed anonymity of some form of physical  disguise…Time  has  come  for  a comprehensive  law  being  enacted  for  protection  of the witness and members of his family.”

43.  Almost to similar effect are the observations of Law Commission of India in its 198th Report (Report on 'witness identity  protection  and  witness  protection  programmes'), as can be seen from the following discussion therein:

“The reason is not far to seek. In the case of victims of terrorism and sexual offences against women and juveniles,  we  are  dealing  with  a  section  of  society consisting of very vulnerable people, be they victims or witnesses.   The victims and witnesses are under fear of or danger to their lives or lives of their relations or to their property. It is obvious that in the case of serious offences under the Indian Penal code, 1860 and  other  special  enactments,  some  of  which  we have  referred  to  above,  there  are  bound  to  be absolutely similar situations for victims and witnesses. While in  the case of  certain offences under special statutes such fear or danger to victims and witnesses may be more common and pronounced, in the case of victims  and  witnesses  involved  or  concerned  with some serious offences, fear may be no less important. Obviously, if the trial in the case of special offences is to  be  fair  both  to  the  accused  as  well  as  to  the victims/witnesses, then there is no reason as to why it should not be equally fair in the case of other general offences  of  serious  nature  falling  under  the  Indian Penal Code, 1860. It is the fear or danger or rather the likelihood thereof that is common to both cases. That is why several general statutes in other countries provide for victim and witness protection.”

27) No doubt, the prosecutrix has already been examined.  However, few

other material witnesses, including father and sister of the prosecutrix,

have yet to be examined.  As per the records, threats were extended to

the prosecutrix as well as her family members. Therefore, we feel that

the High Court should not have granted bail to the respondent ignoring

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all the material and substantial aspects pointed out by us, which were

the relevant considerations.

28) For the foregoing reasons, we allow this appeal thereby setting aside the

order of the High Court.  In case the respondent is already released, he

shall surrender and/or taken into custody forthwith. In case he is still in

jail, he will continue to remain in jail as a consequence of this judgment.

29) Before we part with, we make it clear that this Court has not expressed

any observations on the merits of the case.  Whether the respondent is

guilty or not, of the charges framed against him, will be decided by the

trial court on its own merits after analysing the evidence that surfaces on

record during the trial.

.............................................J. (A.K. SIKRI)

.............................................J. (ABHAY MANOHAR SAPRE)

NEW DELHI; NOVEMBER 24, 2016.