TMI Blog2005 (1) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court were set aside by this Court. As a matter of fact, this court in two earlier appeals had set aside the orders of the High Court dated 6-9-2000 and 23-5-2003 granting bail to the said respondent. The said orders of this Court are since reported in the case of Union of India Anr. vs. Rajesh Ranjan Alias Pappu Yadav 2004 7 SCC 539 (I) and in Kalyan Chandra Sarkar vs. Rajesh Ranjan Alias Pappu Yadav Anr. 2004 7 SCC 528 (II). It is also relevant to note that when his earlier applications were rejected by the High Court the appeals filed by the respondent were dismissed by this Court confirming the refusal of the bail. On 19-8-2000 charges were framed against the respondent and others under Sections 302 read with 34, 307 read with 34, 120-B, 302/307 IPC and Section 27 of the Arms Act which is not challenged. After rejection of four bail applications earlier, the respondent filed a 5th application Crl. Miscellaneous 24068 of 2002 which came to be allowed by the High Court on the sole ground that since the respondent accused was under detention for more than one year, he should be released on bail without going into any other aspect of the case. On 6th of September, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t are the fresh grounds which persuaded it to take a view different from the one taken in the earlier applications. This Court in that order also found fault with the High Court for not recording any fresh grounds while granting bail and for not taking into consideration the basis on which earlier bail applications were rejected. The court also emphasised in the said order that ignoring the earlier orders of this Court is violative of the principle of binding nature of the judgments of the superior court rendered in a lis between the same parties, and noted that such approach of the High Court in effect amounts to ignoring or over-ruling and thus rendering ineffective the principles enunciated in the earlier orders especially of the superior courts. On that basis, the appeal of the complainant challenging the grant of bail came to be allowed canceling the bail granted to the respondent. This order of this Court is since reported in the case of Kalyan Chandra Sarkar vs. Rajesh Ranjan Alias Pappu Yadav Anr. ( supra II). Barely 11 days after the said order of this Court in Kalyan Chandra Sarkar vs. Rajesh Ranjan Alia Pappu Yadav Anr. (II) (supra) i.e. on 23rd March, 2004 a fresh 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid Ajit Sarkar and pursuant to the said conspiracy, on 12-6-1998 the respondent herein held a meeting with the co-accused Harish Chaudhary and others in Siliguri. It is also alleged by the Investigating Agency that the respondent instructed some of the co- accused to falsify certain records to create an alibi for himself and Harish Chaudhary for their absence from the place and the time of proposed attack and the respondent left for New Delhi from Bagdogra. The prosecution also alleges that later on the respondent instructed the other co-accused Rajan Tiwari from Delhi over the phone to eliminate Ajit Sarkar by all means and he also assured the said Rajan Tiwari that he would provide the required firearms through co-accused Harish Chaudhary. It is pursuant to the said assurance, the prosecution alleges that on the date of the incident i.e. on 14-6-1998 at about 4.30 p.m. said Rajan Tiwari armed with an AK-47 rifle, Harish Choudhary with a .455 revolver and another accused armed with .38 revolver waylaid the car in which Ajit Sarkar was traveling at a place near Ankur Hotel in Subhash Nagar and attacked them, because of which three person including Ajit Sarkar died and his bodyguar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interfered with by the High Court in the impugned order. It was further argued that the question of admissibility of the retracted confession and its evidentiary value have also been taken note of by this Court in the second of the cases referred to hereinabove apart from the earlier orders of the High Court and having taken note of the same the High Court as well as this Court had felt there was sufficient material to come to the conclusion that there was a prima facie case against the respondent. The learned counsel appearing for the appellants have taken serious exception to the manner in which the High Court has chosen to ignore the findings of this Court while canceling the bail in the earlier case. The said learned counsel also pointed out the various activities of the accused during his incarceration as well as during the short periods when he was out on bail which showed that he was interfering with the course of investigation and was threatening witnesses and that this accused had no respect for law. On that basis, it was argued that he is not entitled for the grant of bail. Shri R.K. Jain, learned senior counsel appearing for the respondent-accused countered the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch were cited before the High Court in support of his arguments. Then placing reliance on the judgment of this Court in the case of Bhagirathsinh s/o Mahipat Singh Judeja vs. State of Gujarat 1984 1 SCC 284 the learned counsel submitted that existence of prima facie case is a sine-qua-non for refusal of bail and even if such a prima facie case is existing still it is well open to the accused persons to seek bail on other grounds but if there is no prima facie case made out from the prosecution material then the question of looking into the other grounds for grant of bail does not arise since lack of prima facie case by itself is sufficient to grant bail. He pointed out from the impugned judgment that the evidence of the other prosecution witnesses does not implicate the respondent-accused, therefore, the High Court was justified in granting the bail and this Court entertaining an appeal against the grant of bail should bear in mind that, ordinarily, this Court does not interfere with the orders either granting or refusing to grant bail under Article 136 of the Constitution. For this proposition also reliance is placed in the above cited judgment of Bhagirathsinh (supra). It is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Therefore, we are not in agreement with the argument of learned counsel for the accused that in view the guaranty conferred on a person under Article 21 of the Constitution of India, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by courts earlier including the Apex Court of the country. Next question in this case is: whether in the earlier proceedings, Courts including this Court, had given a finding in regard to the existence of prima facie case against the respondent or not ?. If so, has the respondent brought on record any fresh material either factual or legal so as to empower the High Court to reconsider the earlier orders ? Whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ie case. The said learned counsel also argued that, at any rate, confession of co-accused not being a substantive piece of evidence, it can only be used in aid of other evidence and there being no such other evidence the confessional statement by itself cannot lead to conviction. The learned counsel for the respondent-accused in that proceedings had relied upon on number of judgments of this Court in support of his contention as could be seen from the said order of the High Court. Having noticed the said argument, the High Court recorded its findings as follows :- None of the abovesaid decisions, in my opinion, is of any help to the petitioner for the simple reason that all of them were rendered after trial. In the instant case the evidence is yet to see the light of the day. While the principles laid down in those cases about the nature of the confessional statement and the safeguards contained in section 164 Cr.P.C. are unexceptionable, for the purpose of section 437 (1)(i) of the Code what the court has to see is whether there are reasonable grounds to believe that the accused has been guilty of an offence punishable with death and imprisonment for life. Where circumstances exi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ias Pappu Yadav and Anr (II) had observed in regard to the existence of prima facie case as follows:- The next argument of the learned counsel for the respondent is that prima facie the prosecution has failed to produce any material to implicate the respondent in the crime of conspiracy. In this regard he submitted that most of the witnesses have already turned hostile. The only other evidence available to the prosecution to connect the respondent with the crime is an alleged confession of the co-accused which according to the learned counsel was inadmissible in evidence. Therefore, he contends that the High Court was justified in granting bail since the prosecution has failed to establish even a prima facie case against the respondent. From the High Court order we do not find this as a ground for granting bail. Be that as it may, we think that this argument is too premature for us to accept. The admissibility or otherwise of the confessional statement and the effect of the evidence already adduced by the prosecution and the merit of the evidence that may be adduced hereinafter including that of the witnesses sought to be recalled are all matters to be considered at the stage of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to existence nor has been pleaded by the respondent in the present application for bail before the High Court. A perusal of the impugned order clearly shows that the High Court proceeded to reconsider the very same two questions namely the existence of a prima facie case and the evidentiary value of retracted confession and by substituting its subjective satisfaction practically over ruled the findings of this Court as well as that of the High Court recorded in the earlier orders, without even discussing these findings and as if the case was being argued and considered by the Court for the first time even though the previous orders of this Court as well as that of the High Court were on record. This reconsideration and recording of a new finding was without there being any fresh factual or legal basis. In our opinion, as contended by the learned counsel for the appellants the approach of the High Court in the impugned order to say the least was irresponsible, contrary to records and law. Thus in our opinion the question of prima facie case and admissibility as well as the evidentiary value of retracted confession having already been considered by the High Court and this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apply in every case including the present one wherein the court is hearing the matter for the first time. It is probably based on the above observations of this Court in the case of Jayendra Saraswathi (supra) that the learned counsel was emboldened to submit that the court in Jayendra Saraswathi's case having stated so ought to have overruled the judgment in Kalyan Chandra Sarkar II (supra). Whether the judgment in Kalyan Chandra Sarkar II ought to have been overruled or not by the Bench which delivered Jayendra Saraswathi's judgment, we are not competent to say, but certainly we are competent to say what actually the court stated in the said judgment of Jayendra Saraswathi and what the court has done in that case. In the said case of Jayendra Saraswathi, the court only distinguished Kalyan Chandra Sarkar II (supra). While doing so they observed: The case of Kalyan Chandra Sardar (supra) was decided on its own peculiar facts where the accused had made 7 applications for bail before the High Court, all of which were rejected except the 5th one which order was also set aside in appeal before this Court. The 8th bail application of the accused was granted by the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inguished the case on facts. Therefore, in our opinion, that judgment is of no assistance to the respondent accused in this case. The learned counsel for the appellant had pointed out that there are nearly 44 more witness to be examined by the prosecution and the past conduct of the accused as found by courts below very clearly shows that if he is released on bail he would certainly threaten the witnesses and tamper with the evidence which according to the learned counsel is clear from the fact that a number of witnesses have already turned hostile, many of them during the period when the accused was let on bail. Therefore, releasing the respondent-accused would not be in the larger interests of justice. We agree with this argument. It is also pointed out that in addition to the retracted confession of the accused Rajan Tiwari the evidence already brought on record clearly shows that there has been a test identification parade of the assailants and also other materials have been brought on record to show that one of the assailants of Ajit Sarkar was closely known to the respondent and there have been telephonic conversation to and from the telephone registered in the name of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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