P. Das Gupta Petitioner v. State (Thru C.B.I)

J.D Kapoor, J.:— The apprehension of the petitioner is that the moment he will appear in the Court of learned Single Judge, he will be taken into custody as the learned Special Judge as a matter of practice is taking everybody into custody against whom CBI files challan by way of rejecting the bail application. An instance cited is of co-accused. Dr. Bhawna Doshi whose bail application was dismissed on the date she appeared in the Court of learned Special Judge and was taken in custody on the same day. Bail application of Dr. Bhawna Doshi was rejected on the ground that there is reasonably possibility of her trying to influence the witnesses if she is enlarged on bail.

2. However, co-accused Dr. Bhawna was granted bail by this Court on 8.4.2002 The only allegation against her was that she had arranged air tickets for the petitioner and his family members. For this offence, the learned Special Judge rejected her bail application by a lengthy order. It as only in view of the nature of allegations that this Court granted bail to her vide order dated 8.4.2002

3. The manner in which the learned Special Judge deal with the bail application of the co-accused shows that evidence was documentary whereas he rejected the bail by referring to cacophony of likelihood of tampering of witnesses by her. This is highly myopic and unwarranted approach while dealing with liberty of a person.

4. Mr. Dinesh Mathur, learned Senior Counsel for the petitioner states at the Bar that this particular Special Judge has not granted bail to any of such accused who has appeared at the time of filing of challan by CBI in spite of the fact that CBI did not take such accused into custody. If it is so, the apprehension of the petitioner is not at all misplaced.

5. Overriding considerations in granting bail as laid down by the Supreme Court in Gurcharan Singh and Others v. State, AIR 1978 SC 179, are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood of the accused fleeing from justice; of repeating the offences of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with the witnesses; the history of the case as well as of its investigation and other relevant grounds.

6. It was observed by the Supreme Court that two paramount considerations namely likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses relate to ensure the fair trial of the case and therefore it is essential that due and proper weightage should be bestowed on these two factors apart from others.

7. Down the lines and over the period, the Supreme Court emphasised the value of personal liberty and its deprivation by way of refusal of bail. The celebrated judgment in Babu Singh and Others v. The State of Uttar Pradesh, AIR 1978 SC 527. The observations of the Supreme Court are pithy and quote-worthy. These are as under:

“Personal liberty deprived when bail is refused, is too precious a value of out constitutional system recognised under Article 21 that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of ‘procedure established by law’. So depreviation of personal freedom, ephemeral or enduring, must be founded on the most serious considerations, relevant to the welfare objectives of society, specified in the Constitution.”

8. In Gudikanti Narasimhulu and Others v. Public Prosecutor, High Court of Andhra Pradesh, AIR 1978 SC 429, the Supreme Court went to the extent that bail should not be refused unless firstly if the crime charged is of the highest magnitude and the punishment of its assigned by law is of extreme severity, or when the Court may reasonably presume, some evidence warranting that no amount of bail would secure the presence of the convict at the stage of judgment; secondly if the course of justice would be thwarted by the person who seeks the benignant jurisdiction of the Court to be freed for the time being; thirdly if there is likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice and lastly if the antecedents of a man who is applying for bail show a bad record, particularly a record which suggests that he is likely to commit serious offences while on bail.

9. It is unfortunate that large number of bail applications are pouring in, in this Court where the well established principles governing grant or refusal of bail are being lost sight of by the subordinate Courts. Bails are being refused even in minor and less serious offences. Order of the learned Special Judge rejecting the bail of co-accused demonstrates the phenomenon. The orders of learned Sessions Judge and their approach towards dealing with bail applications are guide to the Magistrates.

10. In the instant case, the bail application of the co-accused Dr. Bhawna Doshi was rejected merely on the ground that there is reasonable possibility of her trying to influence the witnesses if she is enlarged on bail without weighing the nature and gravity of offence and without being mindful of the fact that offence against her was mainly confined to documentary evidence and it was for this reason that this Court granted bail to her.

11. Since the learned Special Judge is stated to be not enjoying the powers of Sessions Judge, instant petition was filed under Section 482, Cr.P.C read with Section 438, Cr.P.C but in view of genuineness of the apprehension of the petitioner that he would be taken into custody the moment he puts appearance and applies for bail, it is ordered that the petitioner shall on appearance before the learned Special Judge or in the event of arrest, be released on furnishing a personal bond in the sum of Rs. 20,000/- with one surety in the like amount to the satisfaction of the learned Special Judge or Arresting Officer and it is hoped that learned Special Judge will also allay the apprehension of the petitioner which has again be echoed that even the bail bond may not be rejected on some ground or the other.

12. With this common order, all the three petitions stand disposed of. Copy be placed on record of the remaining petitions.

13. Copy of this order be sent to Sessions Judge/Additional Sessions Judges, Magistrates and all others Judicial Officers.