TMI Blog2005 (9) TMI 659X X X X Extracts X X X X X X X X Extracts X X X X ..... stigation by creating false evidence of the marriage of Madhumita with Anuj Mishra with the help of Yagya Narain Dixit, a police officer, the 6th accused who died in an accident during the course of investigation. There are written complaints with the investigating agency showing that after his release on bail Amarmani Tripathi tried to threaten as well as win over Nidhi Shukla, sister of the deceased, and her mother by offering bribe. In our opinion, the High Court gravely erred in granting bail to Amarmani Tripathi in such circumstances. The High Court practically failed to consider/take into consideration the voluminous evidence which had been collected by the investigation agency and have been referred to by them in their statement of objections to the application for grant of bail. It is true that the position of Madhumani is somewhat different from the case of her husband. While her husband is a politician and ex-Minister, she is no doubt a house wife. While her husband has several criminal cases against him, she has no such record. While there is material to show attempts by her husband to tamper with the evidence and threaten witnesses, there is nothing to show that she mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d his wife Smt. Madhumani Tripathi, Nidhi Shukla lodged a Report in regard to the blind murder of her sister Madhumita Shukla on 9.5.2003 in the Mahanagar Police Station, Lucknow. The case was transferred to Crime Branch, CID on 17.5.2003. On a request made by the State on 17.6.2003, the CBI took over the investigation. 4. The case of the prosecution in brief is as follows: Amarmani Tripathi, a Minister in the U.P. Government, at the relevant time, was having an affair with deceased Madhumita Shukla, a young Poetess. This led to Madhumita's pregnancy thrice. On the first two occasions, the pregnancy was aborted at the instance of Amarmani. On the third occasion, inspite of pressure and persuasion by Amarmani, Madhumita refused to abort the pregnancy. The post-mortem revealed a six month old foetus in her womb. D.N.A. test of the foetus established the paternity of Amarmani. Madhumani Tripathi, wife of Amarmani, was upset when she learnt about the illicit intimacy between Amarmani and the deceased. She made several calls to the deceased and her family members to threaten and abuse them. During the end of March, 2003 Madhumani Tripathi informed one Rohit Chaturvedi (cousin of Ama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25.3.2004. 8. Amarmani made a second bail application under Section 439 Cr.P.C. in Crl. Misc. Case No.1402(B)/2004. The High Court by order dated 29.4.2004 granted bail to Amarmani on the following reasoning: a) The entire theory of Amarmani being part of the conspiracy to murder Madhumita was based on the confessional statement of the co- accused Rohit Chaturvedi (recorded on 17.11.2003 by Vikas Dhul, Metropolitan Magistrate, at New Delhi). Rohit had made his confession conditional of being treated as an approver. Rohit had subsequently retracted from the confession. The admissibility of the confession against a co-accused is doubtful. b) Normally, Courts should first examine the material, other than the confessional statement of a co-accused, to find out if there is any evidence of conspiracy/abetment. The confessional statement of a co-accused should be considered only as a supporting piece of evidence, and not as the substantive evidence against an accused. The confessional statement of a co-accused, more so, one that has been retracted, cannot be made the foundation for establishing the guilt of an accused. In this case, if the said confessional statement of Rohit is excluded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused, but only an alleged conspirator/abettor. Her husband, whom the Prosecution considers to be the main conspirator had already been granted bail and grounds on which he was granted bail are also available for granting bail to her. b) Madhumani is only a housewife without any criminal antecedents. She has not been named in the FIR or in the statements of Nidhi Shukla and Desraj (servant of the deceased) recorded under Section 161 Cr.P.C. Her name came to be linked with the murder for the first time in the confessional statement of Rohit made on 17.11.2003. The admissibility of such confessional statement, particularly, against a co-accused is doubtful and that question has to be considered at the time of trial. c) There is no allegation that Madhumani made any attempt to tamper with the evidence. She was available for interrogation on 4.8.2003 and 6.9.2003. When she moved an application on 24.9.2003 for surrender, the special Judicial Magistrate, CBI by order dated 6.10.2003, rejected the application for surrender on the ground that she was not wanted till that date. All circumstances show that Madhumani was available from the date of incident till 6.10.2003. Though she was sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vi) the consent of Amarmani for Killing Madhumita, as instructed by his wife without involving his name and assuring protection to the persons committing the murder. ii) That Amarmani was interfering with the investigation, by trying to side-track it and mislead the Police into a false trail, planting false stories in the media, creating false evidence and threatening witnesses either directly or by using the police. He even managed to get the Police Officers (including an officer of the Rank of SSP) who were not toeing his line, transferred. iii) That after release on bail in pursuance to the order of the High Court, Amarmani was attempting to threaten/coerce/buy over witnesses (Nidhi Shukla, sister, Shanti Kumari Shukla and Najib Khan). iv) That Madhumani had already absconded earlier. Only the rejection of bail application of her husband on that ground made her to surrender. There is every likelihood of her again fleeing, if she continuous to be on bail. Further, if Amarmani alone is denied bail, the threatening of witnesses will be taken over by Madhumani. 10. On the other hand Shri Rakesh Dwivedi, learned Senior Counsel appearing for Amarmani submitted that this is a case of b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) SCC 240). 13. They relied on the decision in Bihar Legal Support Society vs. Chief Justice of India [1986 (4) SCC 767] wherein a Constitution Bench of this Court observed as follows: The apex court must interfere only in the limited class of cases where there is a substantial question of law involved which needs to be finally laid at rest by the apex court for the entire country or where there is grave, blatant and atrocious miscarriage of justice. Sometimes, we judges feel that when a case comes before us and we find that injustice has been done, how can we shut our eyes to it. But the answer to this anguished query is that the judges of the apex court may not shut their eyes to injustice but they must equally not keep their eyes too wide open, otherwise the apex court would not be able to perform the high and noble role which it was intended to perform according to the faith of the Constitution makers. It is for this reason that the apex court has evolved, as a matter of self-discipline, certain norms to guide it in the exercise of its discretion in cases where special leave petitions are filed against orders granting or refusing bail or anticipatory bail...... We reiterate th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken note of. But they are not the only factors to be considered as in the case of applications for cancellation of bail. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of accused absconding or fleeing if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail (see Prahlad Singh Bhati vs. NCT, Delhi 2001 (4) SCC 280 and Gurcharan Singh vs. State (Delhi Administration) AIR 1978 SC 179). While a vague allegation that accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nan Mishra vs. Digambar Mishra, 2005 (3) SCC 143, this Court observed : 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 heinous crime..... 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. 18. Therefore, the general rule that this Court will not ordinarily interfere in matters relating to bail, is subject to exceptions where there are special circumstances and when the basic requirements for grant of bail are completely ignored by the High Court. (see Pawan vs. Ram Prakash Pandey 2002 (9) SCC 166; Ram Pratap Yadav vs. Mitra Sen Yadav 2003 (1) SCC 15 and Kalyan Chandra Sarkar vs. Rajesh Ranjan 2004 (7) SCC 528. 19. While a detailed examination of the evidence is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot to link him or his wife in regard to the murder. This was repeated during the second week of May 2003, by summoning the mother of the deceased to his house. ii) The statement of Mr. Anil Aggarwal, SSP, Lucknow shows that on the intervening night of 9th and 10th May, 2003 (at about 1.00 a.m), Amarmani called him on his mobile phone and made enquiries about the murder and informed him that he or his wife had nothing to do with the murder and that his wife was a very simple house wife and that he (Anil Aggarwal) should help him. iii) When Anil Aggarwal learnt that there was six month old foetus in the womb of the deceased and that without removing the foetus, the body had been handed over to the relatives of the deceased, he immediately instructed that the body should be brought back and the Doctor should remove the foetus and preserve it for purposes of investigation. In pursuance of it, action was taken to stop the vehicle in which the body was being taken to the native place. Amarmani again called the SSP (Anil Aggarwal) on the mobile phone and told him that he knew Madhumita and that she was a simple girl. That there was some mistake in the report that Madhumita was pregnant an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m that his private investigation showed that deceased had married Anuj Mishra. vi) Amarmani thereafter managed to ensure that his confidant Yagya Narain Dixit was deputed to threaten Rishi Khare, room mate of Anuj Mishra, to admit that there was a marriage between Anuj Mishra and Madhumita. The statement of Rishi Khare, the room mate of Anuj Misra at IIT Hostel, Kanpur showed that at the instance of Amarmani, Yagya Narain Dixit, SO of Manek Nagar suggested, threatened and coerced him to admit that he was a witness to the marriage of Madhumita with Anuj Mishra in spite of his repeatedly stating that he was not aware of any such marriage; and he even held out promises to Rishi Khare on behalf of Amarmani after repeatedly speaking to Amarmani Tripathi over the phone in his presence. vii) The statement of Rishi Khare shows that he and his father and his landlord were taken by Yagya Narain Dixit to meet Amarmani, who demanded that he should speak about the wedding of Anuj Mishra and deceased. In his presence Amarmani also informed Yagya Narain Dixit that if Rishi Khare refused to admit of being a witness to such marriage he should use tougher methods to make him admit the wedding betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that an attempt on his life was made on 7.9.2004 which, according to him, was at the instance of Amarmani. The said allegations are denied in the counter-affidavit filed on behalf of Amarmani by his brother/Pairokar. It is contended that these complaints must have been sent at the instance of the CBI itself. In so far as Brijesh Pathak is concerned, it is also alleged that he is a close confidant of Amarmani's political rival. However, in the view we have taken, it is unnecessary to examine this aspect. 24. The High Court has failed to deal with the vast material placed by the CBI which clearly indicated that the accused has, at all material times, tried to interfere with the course of investigation, tamper with witnesses, fabricate evidence, intimidate or create obstacles in the path of investigation officers and derail the case. 25. The statement of Anil Aggarwal, SSP Lucknow is revealing and in our opinion the High Court on this statement alone should have rejected the bail and, in any event, it is sufficient to allow the present appeal. A senior police officer has stated that the accused asked for his help against his implication in the case. The accused asked the offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... threatening the family members of the victim and also create problems of law and order. 27. In Prahlad Singh Bhati Vs. NCT, Delhi, 2001 (4) SCC 280, this Court reiterated that if a person was suspected of the crime of an offence punishable with death or imprisonment for life then there must exist grounds which specifically negate the existence of reasonable ground for believing that such an accused is guilty of an offence punishable with the sentence of death or imprisonment for life. The jurisdiction to grant bail must be exercised on the basis of well settled principles having regard to the circumstances of each case. While granting bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused and reasonable apprehension of witnesses being tempered with, In Kalyan Chandra Sarkar case (supra), this Court reiterated that while granting bail discretion must be exercised in a judicious manner and not as a matter of course. It may not be necessary to do detailed examination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onable ground for apprehension that if her husband alone is taken into custody, leaving her to remain outside, she may take over the task of tampering the evidence and manipulating/threatening witnesses. Therefore, interference is called for even in regard to the bail granted to Madhumani. 30. We are conscious of the fact that evidence in this case has yet not been led in the Court. Wherever we have referred to the word evidence in this order the same may be read as material collected by the prosecution. Reference to the material collected and the findings recorded herein are for the purposes of these appeals only. This may not be taken as an expression of opinion. The Court would be at liberty to decide the matter in the light of evidence which shall come on record after it is led de hors any finding recorded in this order. 31. For the reasons stated above, the orders dated 29th April, 2004 and 8th July, 2004 passed by the High Court are set aside. The bail bonds of the respondents in each of these cases are cancelled. Respondents are directed to surrender forthwith and in case they fail to do so, the State should take effective steps to take the respondents in custody. 32. The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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