TMI Blog1977 (12) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... that by May, 1976, Sunder became a security risk for Mr. Sanjay Gandhi . It appears Sunder was arrested at Jaipur on 31-8-1976 and was in police custody in Delhi between 2nd of November 1976 and 26th of November 1976 under the orders of the Court of the Additional Chief Metropolitan Magistrate, Shahdara, Delhi, It is alleged that the appellants ranging from the Deputy Inspector General of Police and the Superintendent of Police at the top down to some police constables were a party to a criminal conspiracy to kill Sunder and caused his death by drowning him in the Yamuna in pursuance of the conspiracy. According to the prosecution, the alleged murder took place on the night of 24th of November 1976. The appellants were arrested in connection with the above case between June 10, 1977 and July 12, 1977 and the Magistrate declined to release them on bail. Thereafter, they approached the learned Sessions Judge under Section 439(2), Criminal Procedure Code, 1973 (briefly the new Code) and secured release on bail of the four appellants, namely, Gurcharan Singh (Supdt. of Police), P. S. Bhinder (D.I.G. of Police), Amarjit Singh (Inspector) and Constable Paras Ram on 1st August 1977 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in their statements on oath recorded under Section 164, Cr. P.C. Six eye witnesses who made such discrepant statements and had supported the defence version at one stage, explained that some the accused, namely, D.S.P. R. K. Sharma and Inspector Harkesh had exercised pressure on them to make such statements in favour of the defence. The seventh eye witness A.S.I. Gopal Das, who had not been examined earlier, made statements under Section 164, Cr. P.C. in favour of the prosecution. It is in the above background that the Delhi Administration moved the High Court for cancellation of the bail granted by the Sessions Judge alleging that there was grave apprehension of the witnesses thing tampered with by the accused persons on account of their position and influence which they wielded over the witnesses. The learned Sessions Judge adverting to this aspect had, while granting bail, observed as follows :- The argument of the learned Public Prosecutor that if released on bail, the petitioner will misuse their freedom to tamper with the witnesses is not quite convincing. After all, there is little to gain by tampering with the witnesses who, have, themselves, already tampered with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h regard to the granting of bail laid down under Section 497(1) to the effect that the accused shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life are not in the way of the High Court or the Court of Session in dealing with bail under Section 439 of the new Code. It is, however, difficult to appreciate how the change in the language under Section 437(1) affects the true legal position. Under the new as well as the old Code an accused after being arrested is produced before the Court of a Magistrate. There is no provision in the Code whereby the accused is for the first time produced after initial arrest before the Court of Session or before the High Court. Section 437(1), Cr. P.C., therefore, takes care of the situation arising out of an accused being arrested by the police and produced before a Magistrate. What has been the rule of production of accused person after arrest by the police under the old Code has been made explicitly clear in Section 437(1) of the new Code by excluding the High Court or the Court of Session. From the above change of language it is difficult ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court. If, however, a Court of Session had admitted an accused person to bail, the State has two options. it may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that leave copied up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-avis the High Court. It is significant to note that under section 397, Cr. P.C. of the new Code while the High Court and the Sessions Judge have the concurrent po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een exercised in that behalf. Section 437 Cr. P.C. deals, inter alia with two stages during the initial period of the investigation of a nonbailable offence. Even the officer incharge of the police station may, by recording his reasons in writing, release a person accused of or suspected of the commission of any nonbailable offence provided there are no reasonable grounds for believing that the accused has committed a non-bailable offence. Quick arrests by the police may be necessary when there are sufficient materials for the accusation or even for suspicion. When such an accused is produced before the court, the court has a discretion to grant bail in all nonbailable cases except those punishable with death or imprisonment for life, if there appear to be reasons to believe that he has been guilty of such offences. The Courts over-see the action of the police and exercise judicial discretion in granting bail always bearing in mind that the liberty of an individual is not unnecessarily and unduly abridged and at the same time the cause of justice does not suffer. After the court releases a person on bail under sub-s. 1 or sub-Sec. 2 of S. 437 Cr. P.C. it may direct him to be ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operate. During the initial investigation of a case in order to confine a person in detention, there should only appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. Whereas after submission of chargesheet or during trial for such an offence the court has an opportunity to form some-what clear opinion as to whether there are reasonable grounds for believing that the accused is not guilty of such an offence. At that stage the degree of certainty of opinion in that behalf is more after the trial is over and judgment is deferred than at a pre-trial stage even after the chargesheet. There is a noticeable trend in the above provisions of law that even in case of such non-bailable offences a person need not be detained in custody for any period more than it is absolutely necessary, if there are no reasonable grounds for believing that he is guilty of such an offence. There will be,, however, certain overriding considerations to which we shall refer hereafter. Whenever a person is arrested by the police for such an offence, there should be materials produced before the court to come to a conclusion as to the nature o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The position will naturally change as investigation progresses and more facts and circumstances come to light. Section 439(1), Cr. P.C. of the new Code on the other hand confers specialpowers on the High Court or the Court of Session in respect of bail. Unlike u/s. 437(1) there is no ban imposed u/s. 439(1), Cr. P.C. against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail u/s 439(1), Cr. P. C. of the new Code. The over-riding considerations in granting bail to which we adverted to earlier and which are common bote in the case of Section 437(1) and Section 439(1), Cr. P.C. of the new Code are the nature and gravity of the circumstances in which the offence is committed, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge from which it is seen that he did not take into proper account the grave apprehension of the prosecution that there was a likelihood of the appellants tampering with the prosecution witnesses. In the peculiar nature of the case revealed from the allegations and the position of the appellants in relation to the eye witnesses it was incumbent upon the Sessions Judge to give proper weight to the serious apprehension of the prosecution with regard to tampering with the eye witnesses, which was urged before him in resisting the- application for bail. The matter would have been different if there was absolutely no basis for the apprehension of the prosecution with regard to tampering of the witnesses and the allegation- rested only on a bald statement. The manner in which the above plea was disposed of by the Sessions Judge was very casual and even the language in the order is not clear enough to indicate what he meant by observing that the witnesses........ themselves already tampered with their evidence by making contradictory statements............ . The learned Sessions Judge was not alive to the legal position that there was no substantive evidence yet recorded against the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court in The State v. Captain Jagjit Singh, (supra) while setting aside the order of the High Court granting bail, made certain general observations with regard to the principles that should govern in granting bail in a non-bailable case as follows It (the High Court) should then have taken into account the various considerations, such as, nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the, State, and similar other considerations, which arise when a court is asked for bail in a nonbailable offence. It is true that under s. 498 of the Code of Criminal Procedure, the powers of the High Court in the matter of granting bail are very wide; even so where the offence is non-bailable, various considerations such as those indicated above have to be taken into account before bail is granted in a non-bailable offence. We are of the opinion that the above observations equally apply to a case under Section 439 of the new Code and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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