TMI Blog2011 (11) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... number of witnesses, which are to be examined by the prosecution, it will not be conducive to keep the accused persons incarcerated indefinitely during the period of trial, when there is no serious challenge to their fleeing from the processes of law or tampering with the evidence or not subjecting themselves to such orders as the Court may pass from time to time. It was also contended that the Supreme Court has reiterated the denial of bail to an accused has to be done as an exception and for cogent and sound reasons, as it affects his right to liberty guaranteed under Article 21 of the Constitution. In the light of the aforesaid facts and circumstances, Court allowed the bail applications of all the five accused persons and they are directed to be released on bail on their furnishing a personal bond in the sum of ₹ 5 lakhs each with two sureties for the like amount to the satisfaction of the learned trial Court, subject to the conditions. - Bail Appl. No. 1564, 1565, 1566, 1567 and 1568 /2011 - - - Dated:- 28-11-2011 - Mr. V.K. Shali, J. For Appellant/: Mr. Altaf Ahmed, Sr. Adv. and Mr. R. Shanmugasundara, Sr. Adv. with Mr. V.G. Pragasam, Mr. S. J. Aristotle and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, Kusegaon Fruits Vegetables Pvt. Ltd., Karim Morani (A-15) of M/s.Cineyug Media Entertainment Pvt. Ltd., Sharad Kumar (A-16), Director/Promoter of M/s.Kalaignar TV Pvt. Ltd. and Kanimozhi (A-17) Promoter/Stakeholder of M/s Kalaignar TV Pvt. Ltd. In addition to this, the charge sheet also named A-1, A-4 and A-5. 4. An attempt was made by A-16 and A-17 to get regular bail before the Court of Special Judge and the High Court, which proved to be unsuccessful, whereupon SLP(Crl.) Nos.4584-4585/2011 were filed by them before the Supreme Court in which order was passed on 20.06.2011, dismissing the SLPs but giving the liberty to the accused persons to renew the applications for bail after framing of the charges. Similar attempt had been made by some other accused persons but I am not referring to the same as nothing turns on it. The orders on the SLP's of A-16 and A-17 have been referred, by way of sequence of important events, which took place. 5. All the petitioners renewed their applications for grant of regular bail in terms of the liberty granted by the Supreme Court after framing of the charges on 22.10.2011, but these applications were also rejected by the learned S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sharad Kumar (A-16) Section 12 r/w Section 7 or in the alternative Section 11 of P.C. Act r/w 120B IPC (5 years) Section 193 r/w 120B IPC (7 years) Gautam Doshi (A-9) Section 109/420 r/w 120B IPC Hari Nair (A-10) Section 109/420 r/w 120B IPC Surendra Pipara (A-11) Section 109/420 r/w 120B IPC Charges Common to All 17 Accused Section 120B r/w 409/420/468/471 IPC and sec. 7 or in the alternative sec. 12 and 13(2) of the P.C. Act, 1988. 9. Based on the aforesaid comparative table, it was contended by Mr.Ahmed, learned senior counsel, that since the maximum sentence in respect of which the petitioners have been charged is only five years in comparison to the seven years of punishment which could be imposed on the accused Sanjay Chandra and others, who were granted bail, therefore, on the principle of parity, the petitioners deserve to be extended the benefit of grant of bail. 10. The sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ready been filed and charges have been framed and keeping in view the voluminous nature of documents and the number of witnesses, which are to be examined by the prosecution, it will not be conducive to keep the accused persons incarcerated indefinitely during the period of trial, when there is no serious challenge to their fleeing from the processes of law or tampering with the evidence or not subjecting themselves to such orders as the Court may pass from time to time. It was also contended that the Supreme Court has reiterated the denial of bail to an accused has to be done as an exception and for cogent and sound reasons, as it affects his right to liberty guaranteed under Article 21 of the Constitution. 13. While going through the order of the Supreme Court in Sanjay Chandra's case (Supra), it was pointed out by the learned senior counsel Mr.Ahmed that there was no mention of Section 409 IPC in para 13, which carries life imprisonment. It was said that it was an inadvertent omission. Similarly, in para 25 of the order also, the maximum punishment shown is seven years, while as Section 409 IPC simpliciter or conspiracy to commit the said offence under Section 409 IPC car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ni's case is concerned, Mr.Luthra, learned senior counsel has adopted the arguments urged by Mr.Ahmed, the learned senior counsel and added further that so far as Karim Morani (A-15) is concerned, he is also seeking bail on the medical grounds. He has contended that the applicant/Karim Morani (A-15) has a history of coronary disease and has stated to be suffering from a condition called Ecstasia. It is alleged to be a condition because of which the applicant is stated to have undergone three Angioplasties in the year 1993, 1997 and 1998 and an open heart surgery in the year 2007, wherein he has received 6 bypass grafts as well as re-boring of two major vessels. It has been further stated that his heart only pumps 45% to 50% of blood as compared to a healthy person. Apart from this, there are number of other diseases like Arthritis in knees, lumber spondylitis, cervical spondylitis etc., which, in my view, are not very serious and life threatening but the condition of the heart although presently is stable and is not an immediate cause of concern, however, it is certainly a condition which can get out of control because of stress and lack of proper medical care, if the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le, is that it has put a great deal of emphasis on the personal liberty of the under trial, while considering the bail applications, which principle seem to have been obscured by the passage of time by Courts. To sum, these principles are reiterated as under:- (a) There is a presumption of innocence in favour of the accused till he is found to be guilty. (b) The bail is the rule and denial thereof is the exception. For the purpose of denial of the bail there must be extraordinary circumstances necessarily meaning that bail ought not to be denied to an accused only on the ground of general sentiments of the community as it impairs the right to liberty guaranteed to an accused. (c) While considering the grant of bail, both the factors, namely, the seriousness of charges and the severity of punishment which the offence carries must taken into consideration. (d) The bail ought to be granted in a case where there are no chances of the accused fleeing away from the processes of law or in other words, the accused, who is released on bail must be readily and willingly available to submit himself to the custody of the Court at any given point of time. (e) The grant of bail ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons in Sanjay Chandra's case (supra) where it carried 7 years. So in a way petitioners stand is on better footing, therefore, they ought not to be denied the benefit of bail. Moreover, the Supreme Court order, which is passed in Sanjay Chandra's case (supra) is binding on the High Court. The High Court cannot while considering the bail applications of the present accused persons do hair splitting of the order of the Supreme Court and make out a distinction when there is none so as to deny the benefit of said order to the petitioners by saying that the petitioners are charged for the offence of conspiracy under Section 120B IPC red with section 409 IPC which carries the life imprisonment. It will be also in my view would be violative of Article 141 of the Constitution, which lays down that the High Court being the subordinate to the Supreme court must show compliance and the respect to the orders of the Apex Court. In this regard, I am tempted to reproduce para 6 of the case titled Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. Ors., (1985) 1 SCC 260, wherein it has been stated as under:- ...............It will never be necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Anr., (2002) 4 SCC 638, Saganthi Suresh Kumar Vs. Jagdeeshan, (2002) 2 SCC 420 and Indian Airlines Vs. Union of India Ors., 128 (2006) DLT 505 (DB). 25. I do not consider it necessary to refer to these judgments though, I have gone through the relevant pages cited during the course of submissions on account of the fact that I have already taken a view hereinabove that this Court being subordinate to the Supreme Court is bound by the order passed by the Apex Court in the facts of this very case. It will not be proper for this Court to dissect the order minutely and then try to make a distinction, so far as the case of the petitioner is concerned, when on the face of it there is none. 26. Seen in the light of the observations passed by the Apex Court in the aforesaid cases, I feel that it is not open to this Court to differentiate in the facts of Sanjay Chandra's case (supra) and the present case by invoking Section 409 IPC or Section 120B IPC and say since the said offence carries life imprisonment, therefore, the benefit of the said judgment on the basis of parity cannot be extended to the petitioners. On the contrary, I feel that the case of the petitioners stands on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s supplied by each of the learned senior counsel. A perusal of the list of witnesses shows that these witnesses are generally proving the documents of banking transaction or otherwise to show the movement of money transactions from D.B.Reality/D.B.Dynamic to Kusegaon to Cineyug and finally to Kalaignar T.V. and the reverse. Meaning thereby that most of the evidence against the petitioners is documentary evidence and there is in my view no prima facie evidence or likelihood, which may persuade the Court to doubt that the petitioners have proclivities or reason to believe that they will create condition, which may not be conducive to hold the free and fare trial. Further, Mr. Mohan Parasaran, learned ASG appearing for the CBI has clearly taken the stand in the Court below, as well as before this Court that they have no objection in case the petitioners are released on bail as they do not apprehend that the petitioners will tamper with the evidence and that they have no objection to the grant of bail to the petitioners. There for on account of this consideration, bail cannot be denied to the petitioners. 30. So far as the Kanimozhi's case is concerned, she is entitled to invoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll take prior permission of the court and in case of unavoidable circumstances for remaining present, they shall immediately give intimation to the trial Court and also to the Superintendent, CBI and seek permission of the Court that they may be permitted to present through the counsel, and in such an event, they will not dispute their identity as the accused in the case; (c) They shall surrender their passport, if any (if not already surrendered), and in case, they are not a holder of the same, they shall swear an affidavit. If they have already surrendered before the learned Special Judge, CBI, that fact should also be supported by an affidavit; and (d) CBI will be at liberty to make an appropriate application for modification/recalling of the order passed by this Court, if for any reason, the petitioners violate any of the conditions imposed by this Court or creates any condition which is not conducive to the holding of a fair trial. 34. Expression of any opinion herein may not be treated as an expression on the merits of the case. 35. Copy of this order be sent to the trial Court. 36. Dasti under the signatures of the Court Master. V.K. SHALI, J. NOVEMBER 28, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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