TMI Blog1978 (5) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... iven by the Court that the film be screened on November 17 to enable the Judges to see whether the censorship certificate was refused rightly. In order to prevent this Court from exercising its constitutional jurisdiction and with a view to preventing the film from being publicly exhibited, the respondent and his co-accused Shri Vidya Charan Shukla, who was then the Minister for Information and Broadcasting, entered into a conspiracy to take possession of the film and to destroy it. In pursuance of that conspiracy, 13 steel trunks containing 150 spools of the film were brought under special escort from Bombay to Delhi at the behest of Shri. Shukla. The consignment reached the New Delhi Railway Station on November 10, 1975. The spools were then loaded in two tempo vehicles belonging to the res- pondent or to his company, M/s. Maruti Ltd., Gurgaon, of which respondent was the Managing Director. The vehicles, which were driven by Ram Chander and Charan Singh were taken to Gurgaon at the premises of Maruti Limited where, under instructions given by the respondent, the spools were destroyed by setting fire to them some time prior to November 24, 1975. A positive print of the film was ly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Shukla, it was directed by the Court on January 2, 1978, that the Chief Metropolitan 'Magistfate shall commence the hearing of the case on February 15 and that the Sessions Court will co the trial on March 20, 1978, and shall proceed with the hearingfrom day to day. By an order dated February/March 14, the Court extended the time limit by four days in each case. The committal proceedings commenced in the Court of the learned Chief Metropolitan Magistrate, Delhi on February 20, 1978. Khedkar who was examined on that day supported the procecution fully except 10 329 SCI/178 that he admitted in his cross-examination that he had written two inland letters, which may tend to throw a cloud on his evidence. On February 21, the second approver Yadav was examined by the prosecution. He resiled both from the statement which he made to the police under section 161 of the Code of Criminal Procedure as well as from his judicial confession. The recording of Yadav's evidence was over on the 22nd. On February 27, 1978, an application was filed by the Delhi Administration, in the High Court of Delhi for cancellation of the respondent's bail. That application having been dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary to prove the fact of tampering with mathematical certainty nor indeed beyond a reasonable doubt. The test to be adopted in such matters is one of 'reasonable apprehension'. (5)On February 13 and 14, 1978, approver Yadav, first through Khedkar and then by an application written and signed by himself, complained to the C.B.I. Officers that the respondent was trying to tamper with his evidence through Ram Chander, the driver of the tempo. Within a week thereafter, that is on February 21, 1978, Yadav turned hostile by going back upon the statement which he had made before the police under section 161 of the Code of Criminal Procedure and on his confessional statement recorded by the Magistrate on the basis of which he had secured pardon a few days earlier. This incident by itself was sufficient to justify the State's plea that there was a reasonable apprehension in the mind of the prosecution that the respondent was tampering with their witnesses. , (6)The fact that the respondent had contacted Yadav on February 17 and was seen in Yadav's company on that date was supported by the evidence of Ganpat Singh, a Postal Peon, Digamber Das, an employee of the Maruti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng away the tell-tale circumstance that the key witnesses, including one of the approvers, have refused to support the prosecution. The prosecution, according to counsel, ventured into sensation-mongenng by building the super-structure of a Sessions trial on a slip foundation and having been disillusioned by the performance of its star witnesses, it has resorted to the expedient of asking for cancellation of the respondent's bail in order to give prop to a failing can based on trumped-up charges. Strong objection was taken by the learned counsel to the attempt made by the appellant to cite new and additional material before us. This, according to him is impermissible in an appeal filed by leave under article 136 of the Constitution, since the only question that is open to us to consider is whether, on the, material before it, the High Court is right in coming to the conclusion to which it did- We are not disposed to allow the State to rely on any new material which was not available to the High Court. true, that the additional data came into existence after the High Court gave its judgment but it would be unfair to the respondent to make use of that material without giving him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he accused to 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. brother, a sister or a parent who has seen 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 causal 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 won over by the accused. Inconsistent testimony can no more be ascribed by itself to the influence of the accused than consistent testimony, by itself, can be ascribed to the pressure of the prosecution. Therefore, Mr. Mulla is rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of proof as in a civil case applies to proof of incidental issues involved in a criminal trial like the cancellation of bail of an accused. The prosecution, therefore, can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses. Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail. Our task therefore is to determine whether, by the application of the test of probabilities, the prosecution has succeeded in proving its case that the respondent has tampered with its witnesses and that there is a reasonable apprehension that he will continue to indulge irk that course of conduct if he is allowed to remain at large. Normally, the High Court's findings are treated by this Court as binding on such issues, but, regretfully, we have to depart from that rule since the High Court has rejected incontrovertible evidence on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing a series of excuses but we will only characterise that attempt as lame and unconvincing. A deeper probe into the matter and its critical analysis is likely to exceed the legitimate bounds of this proceeding and therefore we will stop with the observation that there is more than satisfactory proof of the respondent having attempted to suborn Yadav. Whether Yadav succumbed to the persuasion is not for us to say. The Sessions Judge shall have to decide that question uninfluenced by anything appearing herein. We are concerned with the respondent's conduct, not with Yadav's reaction or his motives. Khedkar stuck to the complaint. That is in regard to the event of the 14th February. On the 17th ' Yadav and the respondent were seen together, the former leaving,, the Maruti factory with the respondent in his car. This is supported by the affidavits of Sat Pal Singh, a constable of the Haryana Armed Constabulary who was on duty at the Factory, Ganpat Singh, a Postal Peon and Digambar Das, an Assistant Despatch Clerk in Maruti. It is undisputed that the respondent had gone for official work to the factory on the 17th. The High Court objects the incident firstly because it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the witnesses. Concessions of benevolence cannot readily be made in favour of the prosecution. But it cannot be overlooked that Charan Singh did turn hostile, though that happened after the, High Court gave its judgment on April 1 1. The respondent knows that the witness turned hostile and significantly, though the witness refused to support the prosecution he made an important admission that he bad submitted a written application or complaint to Inspector Ved Prakash on July 12, 1977 and that whatever is mentioned in that application is correct . That application which is really a complaint, contains the most flagrant allegation of attempted tampering with the witness by the respondent, through his driver Chattar Singh. Reference to this incident is not in the nature of Additional evidence properly so called because the witness was examined in the Sessions Court in the presence of the respondent and his advocates. They know what the witness stated in his open evidence and what explanation he gave for making. the complaint on July 12, 1977. The Sessions Court will no doubt assess its value but for our limited purpose, the episode is difficult to dismiss as irrelevant. Even ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail of the accused, this Court observed that the only question which the Court had to consider at that stage was whether there was prima facie case made out, as alleged, on the statements of the witnesses and on other materials , that there was a likelihood of the appellants tampering with the prosecution witnesses . It is by the application of this test that we have come to the conclusion that the respondent's bail ought to be cancelled. But avoidance of undue hardship or harassment is the quint- essence of judicial process. Justice, at all time and in all situations, has to be tempered by mercy, even as against persons who attempt to tamper with its processes. The apprehension of the prosecution is that 'Maruti witnesses' are likely to be won over. The instances discussed by us are also confined to the attempted tampering of Maruti witnesses like Yadav and Charan Singh, though we have excluded Charan Singh's complaint from our consideration. Since the appellant's counsel has assured us that the prosecution will examine the Maruti witnesses immediately and that their evidence will occupy no more than a month, it will be enough to limit the cancellation of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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