STATE THROUGH DELHI ADMINISTRATION

l'.

SANJA Y GANDHI

May 5, 1978 [Y. V. CHANDRACHUD, C.J., S. MVRTAZA FAZAL Au AND B

P. N. SHINGHAL, JJ.]

l'onstitution of India, 1950, Art. 136-Appeal by special leave agt1ins1 on order rejecting an application for cancl'llarion of hail-Courl cannot pen11i1 ;, se of new nuiterial against accused.

Constitution of India. 1950, Art. 136-Appeal by ,\pecial lea1e agai11.1r an order rejecting an application for ca11cellation cf tlu~ hail-l11tcrferenct' with the findings of the HiRh Court 11.1 10 H'he1'1t'r the qccused ta111pen'C! with praw- cution lt'itnesses_. wlit'll justified.

Bail, cancellation of-Power lo 1 a11cel bail, 111ust ht' exercised with cart' ti.nd circ1anspection a11d in appropriate cases-Crl. P.C. (Act IT of 1974), 1973,

S. 439(2).

Bail cancellatio11 of-Gro11111/1 1n11st bear casuol co111u'ctiot1 with san1e t, Jrf or conduct of t1ccu.cd-Crl.P.C. {Act 2 of 1974).

1973. Ss. 439(2) r/11.· 437(5).

Burdell of proof. exte11t uf-111 a11 application for ca11cellatio11 of bail, r.J, f proof of the p!eri that ll'itnesst'.I' turned hostile because they were 1\'tJll over by the accused need not he heyond a rcnsonahlt' do11ht-Evide11ce A ct, 1872-Ss :;, 101-104 r/w Crl.P.C. S. 439(2).

The respondent who \Vas arraigned as accused No. 2 in a prosecution tor offences u/Ss. 120B r /w Ss. 409, 435 and 201 l.P.C. instituted by the Central Bureau of Investigation in the Court of the (]1ief Metropolitan l\fagistratc, Delhi was granted anticipatory bail, by the High Court of Delhi.

When the Committal Proceedings commenced in the Court of the Chief l\.fetropolitan Magistrate, Delhi on February 20, 1978 as per the time schedule fixed by this Court, the two. approvers in the case turned hostile, resiled from their statements made to the police u/s 161 of Crl. P.C .• and retracted the confessions made to the Chief Metropolitan Magistrate.

An application filed for cance11ation of the respondent's bnil was dismissed hy n le:irned single Judge of l~c Delhi High Court on 11-4-1978.

Allowing the apreal in part. the C, ourt

HELD: 1. Tn an appeal by special leave agains 1 <'•!l order rcit; cti~11.: ;., t\ application for cancl1<1tion of b .... :i. no new n1aterial which was not available to the High Court will normally be allowed to be relied upon by the State. Tt \'.'OUld be unfair to the respondent to make use of that material without giving him an adequate opportunity to meet it on the ground that the additional data came into existence after the High Court gave its judgn1ent. Though. in appropriate cases, the Court has the po¥.rcr to take additionnl evidence. th:it power has to be exercised sparingly. particularly in appeals brought unthT Article 136 of the Cor,._, titution.

[956 D-EJ

2. In an appeal by special leave against :in order rejecting an application for cancellation of the bail, the Iligh Court's findings are norn1ally treated t, y this Court as binding on issues like : \Vhether the prosecution has SlJCCeeded in proving its case that the respondent has tampered \vith its witnesses and that

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' I

DELHI STATE 1'. SAN.JAY

GANDHI 951

there is a reasonable apprehension that he viii continue to indu!ge in. that oourse of oonduct, if he is allowed to rcnuun at large. If two \11w~ of te .evidence are reasonably possible and the High Court has taken one view, this_

Court will be disinclineJ to intcrfercc therewith i~1 an appeal under Art. 136 of the c:onstitution.

1958 E-FJ

Jn the instant case :-(a) the High Court has rejected. incontrovertible evidence on hypertechn1cal cons1dc1 ations though 1t points. 1n one direction only, leaving no manner of doubt that the respondent has n1buse<l the facility afforded to hin1 by that Court by granting anticipatory bail to him. ( b) Even excluding the Jat incident in regard to Charan Singh which is really first in point of time and though it is corroborated by an entry in the General Diary, the o.thcr evidncc. viz., (i) Yad~~'s complint of. te ~4th. Feb.n1ary.

(ii) Khedkars complaint of even date, (111) Yadavs adm1ss1on in hts ev1d_ence that he did make the written complaint in spite of th'-! fact that he had turned hostile, (iv) the affidavits of Sat Pal Singh, Ganpat Singh and Di.i:tambar Da') in regard to tbe inc.ident of the 17th an, I (v) !he affidavit of Sarup Singh regarding the incident of February 28, furnish satisfactory proof that the respondent has abused his liberty by attempting to suborn the prosecution witllC')SCS.

He has therefore forfeited his right to remain free. [960 G-J.I, 96 J /\]

3. Section 439(2) of the Code of Crin1inal Procedure confers jurisdiction on the High Court or Court of Sessions to direct that any person who has been released on bail under Chapter XXXIlI be arrested and committed to custody.

The power to take back in custody an accused who has been enlarged on bail has to be exercised \Vith care and circumspection.

But the power, though of an extra-ordinary nature, is meant to be exercised in appropriate cases when, by a preponderance of probabilities. it is clear that the accused is interfering with the course of justice by tampering v.ith \Vitnesses.

Refusal to exercise that \Vholesomc power in soch cases, few though they 1nay be, will reduce it to a dead letter and will suffer the courts to be silent

spectators 10 the subversion of the judicial process. [961 AC]

Madhukar Funhotta111 Mondakal \'. Talab Haji Hussain 60, Bo111bay Law E Reporter 465 <>.nd Gurcharan Singh & Ors. v. State (Delhi Ad1n<oi.nratio11 l, 1978 Criminal Iaw Journal, 129, 137; Principles in, applied.

4. Rejection of bail \\.'hen bail is applied for is one thin1•; cancellation of _bail already. granted is quite another. lt. is easier to reject bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, F it \VOnld be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial.

The fact that prosecution witnesses have turned hostile cannot .bv itself justify the inference that the accused has v.on then1 r over.

The objective fact that witnesses have turned hostile must be shov; n /\ to bear a causal connection with the subjective involvement therein of the / respondent.

Without such proof. ::i bail once granted cnnnot be cancelled on the off chance o.r on the upposition th<>.t \Vitnesses have been won o\cr by the .<::' <ccused. lncons1stent testimony can no more be ascribed by itself to the 1nfiuencc of ffie accu<; ed than consisteo.1t testim•Jny, by itself. can be ascnbr.d G to the pressure of the prosecution.

Tt is therefore necessary for the proseution to show so_n1c act or conduct on the part of the respondent from '1.-'hich ; i 1//11" reasonable inference 1nay arise that the witnesses have gone back on their statc- 1;-]nts as a result of an intervention by or on behalf of the respondenf. f957 A

5 .. Tt is not necessary for the prosecution to prove by a inathematicnl ce~1nty or even beyond a reasonable doubt that the witnesses have turned

host1I~ because they. ar~ \VO~ ?Ver by the accused.

The issue of cancellation H ?f .bail can only a.nse in n1?1nal cases, but that does not mean that every

inc1.dentl matter fil a cnm1nal case must be proved beyond a reasonable doubt hke the guilt of the accused. Indeed, proof of facts by prcpondcr:1nce

952 SlJPREME COURT REPORTS

(1978] 3 S.C.R.

of probabilities as in a civil case is n_ot foreign to criminal jurisprudence because, in cases where the statute raises a presumption of guilt as, for example, the Prevention of Corruption Act, the accused is entitled to rebut that presumption by proving his defence by a balance of probabilities.

He does not have to establish his case beyond a reasonable doubt. The same standard of proof as in a civil case npplies to proof of incidental i<; sues 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 bv the test of balance of probabilities that the accused has absued his Iibert)r or that there is a re<J.onabale apprehen'iion that he v.:ill interfere \\ith th;; ourse ot justice is all that i!'i necessary for the prosecution to do in order to succeed in

an applicaticn for cancellation of bail. [957 Ci-H, 958 :\-DJ

CRTMTNAL APPELLATE JuRrSDJCTTON : Criminal Appeal No. 18.8 of 1978.

Appeal by Special Leave from the Judgment and Order dated the 1 lth April, J 978 of the Delhi High Court in Criminal Misc. Application No. 130 of 1978.

Ram Jethmala11i, and R. N. Sachthey for the Appellant.

A. N. Malla, D. Mathur, B. R. Handa and D. Goburdhan for Respondent.

The Judgment of the Court was delivered by

CHANDRACHUD, C.J.-The respondent is arraigned as accused No. 2 in a prosecution instituted by the Central Bureau of Investigation in the Court of the learned Chief Metropolitan Magistrate Delhi. Omit- E ting details which arc not necessary for the present pur11ose, the case

of the prosecution is as follows :

One Shri Amrit Nahata had produced a film called 'Kissa Kursi Ka', which portrayed the story of the political doings of the respondent and his mother, Smt. Indira Gandhi, the former Prime Minister of India. The Board of Censors declined to' grant a certificate ior exhibition of the film whereupon, Shri Nahata filed a writ petition in this Court for a Writ of Mandamus.

On October 29, 1975, a direction was given by the Court that the film be screened on November 17 to enable the Judges to sec whether the censorship certificate was refused rightly.

In order to prevent this Court from exercising its constitutional jurisdiction and with a vie\V 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 Bro:fclcasting, 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 Statipn on November 10, 1975. The spools were then loaded in two tempo vehicles belonging to the .respondent or to his compai:y, Ms. Maruti Ltd., Gu:gaon, of. which respondent was the Managmg Dlfector.

The vehicles, which were driven by Ram Chander and Charan Singh were taken to Gurg; ion at

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DELJ!I STATE v. SANJAY GANDHI (Chandracltud. Cl.) 953

the premises of Maruti Limited where, under instructions given by A the resppndent, the spools were destroyed by setting fire to them some time prior to November 24, 1975.

A positive print of the film was lying in the Auditorium of the Ministry at Mahadev Road, New Delhi, which was taken charge of by one Ghose, a Deputy Secretary in the Ministry of Information and Broadcasting.

He loaded it in Shri Shukla's staff ear whereupon Shri Shukla himself delivered the print at No. 1, Safdarjang Road, where the respondent and his mother B used to live at the relevant time.

The Supreme Coilrt was informed that it was not possible to screen the film for evaluation by the Judges.

And the writ petition filed by Shri Nahata came to an abrupt end upon an affidavit being filed on March 22, 1976, by Ghose that the spools of the film had got mixed up with sp'me other films received by the Government in connection with the International Film Festival.

After the emergency was lifted and the present Janata Government came into power, a certain information was received in consequence of which a raid was effected on the Gurgaon premises of the Maruti Limited.

The raid yielded incriminating material to show that the 13 boxes which had been received from Bombay at the New Delhi Railway Station contained the spools of the film 'Kissa Kursi Ka' I) which were burnt and destroyed in the factory premises.

R. B.

Khedkar, a Security Officer of the Maruti Limited and his assistant, Kanwar Singh Yadav, who was the Security Supervisor of the company, were arrested on the very day of the raid.

Yadav made a statement on the ~11owing day stating bow the film was burnt in the premises of the factory.

Yadav's confessional statement was recorded by the Chief Metropolitan Magisl!rate on June 3 and Khedkar's on June 4.

They were granted pardon under section 306 of the Code of Criminal Procedure on July 14, 1977.

During the course of investigation .. varif)us statements were recorded by the police including those of the two drivers of the tempo vehicles, Ram Chander and Charan Singh, a watchman called Om Prakash and several employees of the Store Department of the company.

After completion of the investigation, a chargesheet was filed by ,.-... the C.B.I. in the Court of the Chief Metropolitan Magistrate citing 138 :" witnesses for proving charges under section 120B read with sections

409, 435 and 201 of the Penal Code as also for substantive offences under the last mentioned three sections of the Penal Code.

ln cerlain proceedings for contempt and perjury which were filed in this Court against Shri Shukla, it was directed by the Court on January 2, 1978. that the Chief Metropolitan Magistrate shall commence the hearing of the case on February 15 and that the Sessions Court will commence the triaJ on March 20, 1978, and shall proceed with the hearing fqom 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 lI Chief Metropolitan Magistrate, Delhi, on February 20, 1978. Khedhr

who was examined on that day supported the procecution fully except

10-329 SCI/78

954 SUPREME tOURT REPORT~ i 1978) 3 's.C.R.

A that he admitted in his cross-examination that he had writkn two inland -letters, which may tend to throw a cloud on his evtdencie. On

February 21, the second approver Yadav was examined by the prosecutioft He resiled both from the statement which he made t, o the police under section 161 of the Code of Criminal Procedure as well as from his judicial confession.

The recording oi Yndav's evidence

~ was over on the 22nd. )' B

On February 27, 1978, an application was filed by the Deihl Administration, in the High Conrt elf Delhi for cancellation of the .. respondent's bail.

That application havirtg been dismissed by a lear-

' ned single Judge on April 11, 1978, the Administration has filed this -k appeal by special leave. c Before the High Court, the following submissions were madt on behalf of the appellant : •

(1) That the respondent was charged with offences amongst which "\' is the offence under section 409 of the Penal Code which is punishable < with imprisonment for life.

The respondent, having been accused

D of a non-bailable offence, it was wrong in the first instance to enlarge hiill on bail.

(2) Initially, 'the investigation was started in respect of the oonspiracy and theft of the film from the custody of the Government. The respondent had obtained an order of antidpatory bail from the Delhi High Court in respect of those offences.

It transpired during the course of investigation that a far more serious \Offence under section E 120B relld with sectio11 409 of the Penal Code was committed by the respondent and the co-accused. Even though prior to Jnly 14, 1977, on whith date the chargesheet was filed, the State was in poosession of infotmatipn showing that the respondent was trying to tamper with tl1e Witnesses, the State did not apply for cancellation of the anticipatory bail nor did it ask the Magistrate to issue a non-bailable warrant - because the very witnesses who were attempted to be tampered with F bad complained to the police that the respondent was trying to' win them over. Jn the larger interest of justice, the State did not adopt a vindictive attitude towards the respondent by asking that be shonld he taken into custody. "')-

( 3) It was the plain duty of the High Court to enforce the pre visions of section 43 7 of the Code of Criminal Procednre when it was •

-G brought to its notice that the respondent, being charged with an offence

under section 409 which is punishable with life imprisonment was illegally on bail, particularly when he had misused his liberty.

The obligation of the Court to enforce the provisions of section 437 of the Code of Criminal Procedure does n9t depend upon whether the State has acted with vigilance and promptitude.

. ( 4) The burden which rests on the State in an application for can- - H cellation of bail is of a limited nature.

All that is necessary for the State to show, in support of its plea that bail be cancelled, is that there is a reasonable apprehension that by tampering with witnesses,

DELIUSTATE v. SANJAY GANDHI (Chandrachud, CJ.) ~---955. ' ,· .

the accused is interfering with the course of justice.

It is neither

ncesary to prove the fact of tampering with mathematical certainty nor mdeed boycnd ;. reasonable doubt.

The test to be adopted in .such matters is one c.•f 'reasonable apprehension'. - ·· . ·

(5) On Februari 13 and i~,· 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 bis 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 bad 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 Limited and Satpal Singh, a constable of the Haryana Armed Police.

There was no justification or Jisbelie\ing the affidavits of these three persons. ·

(7) As far back as July 1977, the respondent had attempted to tamper with two witnesses, Charan Singh and A. K. Dangwal. Both <if these witnesses had given written applications to the police comi>-

laining of attempts made by the respondent to win them over.

The entries made by the police in the General Diary corroborated the

complaints made by these witnesses.

The two complaints, though not acted upon promptly. by the police by asking for the cancellation of respondent's bail, render it highly probable that during the later stages of the trial several witnesses turned hostile on account of the pressure and influence which the respondent exercised on th<m.

(8) It was through Ram Chander that approver Yadav was approached and tampered with. On February 21, 1978, Ram Chander was sitting in the Court though his presence was not necessary and indeed, he entered the court-room along with a group of respondent's partisans for whom the respondent had obtained the Magistrate's permission by seeing him in his chamber .

. (9) These very contentions have been repeated before us by Shri Ram Jethamalani who also relied upon some additional data in sup- . G port of the application for cancellation of the respondent's bail.

The new material on which counsel relies bas come into existence after the High Court delivered its judgment on April 11 and in the very nature

of things, the High Court has had no opportunity to consider .its weight

nd relevance on the question in issue . .

Shri A. N. Mu11a who appears on behalf of the respondent controverted each and every allegation made by the appellant.

He contends that the prosecution has been launched out of political vendetta, that ordinary offences triable by a Magistrate have been magnified beyond

SUPREME COURT REPORTS [1978) 1 S.C.lt.

all proportion, that pardon was tendered to the so-called approvers though no charge could have been levelled against them, for the sole purpose of attracting the application of section 306 ( 5) of the Criminal Procedure Code so as to drag the accused to the Sessions Court, that the police with their unlimited resources have left no stone unturned iu order somehow to implicate the accused and that evideuce in regard t1o tampering of witnesses is manufactured with a view to explaining 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-mongering by building the super-structure of a Sessions trial on a slippery foun- oafion and having been disillusioned by the performance of its star f' witnesses, it has resored to the expe_dient of asking _f?r cancellation_ of the respondent's bail m order to give prop to a failmg case 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 bef, ore 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 whi.ch it did.

We are not dispfYSed 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 an adequate opportunity to meet it.

That will entail a fairly long adjournment which may frustrate the very object .or the proceedings initiated by the State.

Besides, though in appropriate cases the court has the power to take additional evidence, that power has to be exercised sparingly, particularly in appeals brought under article 136 of the Constitution.

The High Court, while dismissing the State's application for cancellation of bail, has reserved to it the liberty to approach it "if, at any time in future, the respondent abuses his liberty".

The new developments could, if the prosecution is so advised, be brought to the High Court's attention for obtaining suitable relief.

We cannot spend our time in scanning affidavits and sifting , material for the first time for ourselves. for determining whether the.,,..

new material can justify cancellation of bail.

We propose, therefore, to limit ourselves to the facts and incidents which were beore the High ' Court and on which it has pronounced. ,

We ought not to forget, while dealing with the rival contenti.o'ns, that the trial is still pending in the Sessions Court and any observation made by us in this incidental proceeding may unwiWngly influence the course of trial.

We will take care to ·; ee that nothing is said on the merits of the matter, no comment mad.e on the veracity of witnesses and no subtle guidance offered to unravel why the witnesses have turned hostile.

These matters, at this moment, are within the exclusive domain of the Sessions Court and we cannot, by employing an artifice. withdraw the decision of these questions to ourselves.

It is the privilege of the Sessions Court, not of the Supreme Court. to try the -

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DELHI STATE v. SANJAY GANDHI (Chandrachud, CJ.) 957

accused.

We must therefore make it clear that nothing said by ns A in our judgment shall influence the decision of the case and the Ses sions Judge is free to assess and evaluate the evidence, unhampered by any observations we may have happened to make. ·

Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another.

It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case.

Cancellation of bail necessarily involves the review of a decision already made and can by .and large be permitted only if, by reason of supervening circumstances, it would be no longer aonducive ' to a fair trial to allow the accused to retain his freedom during the • trial.

The fact that prosecution witnesses have turned hostile cannot 1 - by itself justify the inference that the accused has won them over.

A brother, a sister or a parent who has seen the oommission of crime, may resile in the Court from a statement recorded during the course of investigation.

That happens instinciively, 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 thercWre 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 connect\dn with the subjective involvement therein. of the respondent.

Without such proof, a bail once granted cannot be cancelled on the off chance or on fhe supposition that witnesses have been won p'ver 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 right that enc has to countenance a reasonable possibility that the employees of Maruli like the approver Yadav might have, of their own volition, attempted to protect the respondent from involvement in criminal charges.

Their willingness now to oblige the respondent would <lepend upon f\o'w much the respondent has obliged them in the past. 1t is therefore necessary for the prosecution to show some act or conduct on the part of the respondent from which a reasonable inference may arise that the witnesses have gone back on their statements as a )<' result of an intervention by o'r on behalf of the respondent.

Befor~ we go to the facts of the case, it is necessary to consider what precisely is the nature of the burden which rests on the prosecution in an application for cancellation of bail.

Is it necessary for the prosecution to prove by a mathematical certainty or even beyond a reasonable doubt that the witnesses have turned hostile because the

arc won over by the accused? We think not The issue of cancellation of bail can only arise in criminal cases, but that does not mean that every incidental matter in a criminal case must be proved beyond a reasonable doubt like the guilt of the accused.

Whether an accused is absconding and therefore his property can he attached under section 83 of the Criminal Procedure Code, whether a search of person of premises was taken as required by the provisions of section 100 of the Code, whether a confession is recorded in strict a:curdance with

9.5S SUPR!lj\li COUl\l' l!.!W©l\'fS [l978] 3 S.C.R.

A the requirements of section 164 of tl)e Code and whether a fact was. discovered in consequence of information received from l\Il accused as required by section 27 of the Evidence Act are all matters which fall peculiarly within the ordinary sweep of criminal trials.

But though the guilt of the accused in cases which involve the assessment of these facts has to be established beyond a reasonable <'IDUht, these

B ''arious facts are not required to be proved by the same rigorous standard.

Indeed, proof of facts by preponderance of probabilities as. in a civil case is not foreign fio' criminal jurisprudence because, in cases where the statute raises a presumption of guilt as, for example, the Prevention of Corruption Act, the accused is entitled' to rebut that ,; presumption by proving his defence by a balance of probabilities. He ' does not have to establish his case beyond a reasonable doubt. The --f same standard of proof as in a civil case applies to proof of inciden- 4 c ta] issues involved in a criminal trial like the cancellation of bail of an accused.

The prosecution, therefore, can establish its case in an applicati1oi1 for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or has tame_ered

with its witnesses.

Proving by the rest of balance of probabilities • that the accused has abused his liberty or that there is a reasonable ~

a11prehension 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

E there is a resonable apprehension that he will continue to indulge in 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 hypertechnical considerations.

If two views of the evidence were reasonably possible and the High Court had taken one view, we would have been dis- - F incliDed to interfere therewith in this appeal under article 136 of the

Constitution.

But the evidence points in one direction only, leaving no manner of doubt that the respondent has misused the facility afforded to him by the High Court by granting anticipatory bail to him. ·

The sequence of evenl:s is too striking to fail to catch the watch- ' G ful eye.

But, we will not enter too minutely into the several incidents on which the appellant relies to prove its case.

We will confine ourselves to some of tbe outstandm, g instances and show how the prosecution is justified in its apprehension.

Kanwar Singh Yadav was working at the relevant time as . a Security Supervisor under

R. B.

Khedkar who wa' th~ Secunty II Officer of Maruti Ltd.

Both of them were arrested on the very day of the raid that is, on May 25, 1977.

On the 26th, the police reorded Yadav's. statemen~ and on the 2.8t!l, he mct.e a petition to the- Chief Mctropohtal) Magistrate, expressmg flls w1lltr1g11ess to confessc

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. - •• DELiu STATE v. SANJAY GANDHI (Chandrachud, Cl.) 959

The confessional statemeDt vas recorded on June 3 and Yadav was granted pardon on J.1ly 1~, ·".:!er section 306 of the Code of Criminal Procedure. Khe<liwr maJ.: :· , oafession on June 4 and was gcirit-- ed pardon on July 14, 1977. The C.B.I. filed the chargesheet on 14th July itself.

The conumttal proceedings were fixed by this Court by an order dated. January 2, 1978 to begin peremptorily on February 15, 1978- The respondent obtained a modification of that order, by virtue of which the proceedings began on February 20.

One day before the proceedings were originally scheduled to begin, that is on 14th February, the two approvers Yadav and Khedkar appeared at the C.B.I. office and filed written complaints dated the 13th that the respondent was making repeated attempts to call Yadav to meet him by sending the car with Ram Chander, the driver of the respondenL One of these complaints is signed by Yadav and the other by Khedkar.

Yadav turned hostile when he was examined on the 21st February before the Committing Magistrate.

He went back on his police statement, resiled from his confession and risked his pardon.

But he admitted in his cross-examination to the Public Prosecutor that he had given the complaint to the C.B.I.

He explained it away by offering a series of excuses but we will onTy characterise that attempt as Jame 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 Judg(l 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 complainL

I 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 !Iary-ana Armed Constabulary who was on duty at the Factory, Ganpat Singh, a Postal Peon and Digambar Das; an Assistant Despatch' Ocrk iii Maruti. It is undisputed that the respondent had gone for official work to the factory on the 17th. The High Court object~ the iitcident firstly because it fa not mentioned in the petition for cancellation of the respondent's bail. The affidavit of Ved Prakash, Inspector of Police, C.B.I., shows that information of the incident was received on the 24tll .. whereas the. petition was drafted o_n the 22nd February.

That apart, we carmot understand the High Court to say that the affidavits of the three witnesses could not be. accepted . because the verification clause of the, affidavitS was . "most defect(ve". as it could not be said "what part of the affidavit is true to the knowledge of the deponent and what part thereof is true to the belief of the deponent".

This reasm1 has been cited by the. learned Judge for rejecting many a11 incident but then it was open to him to ask for better particulars of

SUPREME COURT REPORTS

[1978] 3 S.C.R.

/I verification.

The witnesses claim to have seen with their own eyes that Yadav drove away with the respondent.

The incident consisted of one single event and there was no possibility of the witnesses' knowledge being mixed up with their belief.

We find it impossible to endorse this part of the High Court's reasoning and are inclined to the view that the respondent ultimately succeeded in establishing contact with Yadav.

Whether the respondent succeeded in achieving B his ultimate object is beyond us to say except that Yadav turned hostile in the Committing Magistrate's conrt on February 21.

The High Conrt has also rejected the affidavit of Sarup Singh that on February 28, 1978, while he was doing duty as an armed constable at the factory, he saw the respondent coming to the factory and heard him assuring Yadav that be need not worry.

The verification clause of the allidavit was again thought to be 'defective". We are unabfe to agree with this part of the learned Judge's judgment for reasons already indicated.

We are also unable to agree with the High Court that the complaint filed by Charan Singh on July 12 in regard to the incident of July 5, 1977 and the complaint filed by A. K. Dangwal on July 9 in regard D to the incident of July 7, 1977 are "irrelevant" since the prosecution did not even oppose the grant of bail to the respondent after the chargesheet was filed on July 14, 1977. It is true that it is not possible to accept Shri Jethmalani's explanation of the inactivity on the part of the prosecution even after receiving the two complaints showing that the respondent was trying to tamper with the witnesses. Concessions of benevolence cannot readily be made in favonr of the prose- E cution. But it cannot be overlooked that Charan Singh did tnrn hostile, though that happened after the High Conrt gave its judgment on April

11. The respondent k@ws that the witness turned hostile and sig.'1ificantly, though the witness refused to support the prosecution, he made an important admission that he had 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 applica- F tion, which is really a complaint, contains the most flagrant allegation of attempted tampering with the witness by the respondent, through bis 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 G July 12, 1977. The Sessions Court will no doubt assess its value but for our limited purpose, the episode is difficnlt to dismiss as irrelevant.

Even excluding the last incident in regard to Charan Singh which is really first in point of time and though it is corrobornted by an entry in the General Diary, we are of the opinion that (i) Yacfav's complaint of the 14th February, (ii) Khedkar's complaint of even date, (iii) Yadav's admission in his evidence that he did make the written complaint in spite of the fact that he had turned l\ostile (iv) tile affidavits of Sat Pal Singh, Ganpat Singh and Digambar Das in regard to the incident of the 17th and (v) the affidavit of Sarup Singh

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DELHI STATE v. SANJAY GANDHI (Chandrachud, CJ.) 961

regarding the incident of February 28, furnish satisfactory proof that the respondent has abused his liberty by attempting to suborn the A prosecution witnesses.

He has therefore forfeited his right to remain free.

Section 439 (2) of the Code of Criminal Procedure confers jurisdiction on the High Court or Court of Sessions to direct that any person who has been released on bail under Chapter XXXIII be arrested and committed to custody.

The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extra-ordinary natnre, is meant to be exercised in appropriate cases when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses.

Refusal to exercise that wholesome power in such cases, few though they may be, will reduce it to a dead letter and will suffer the Courts to be silent spectators to the subversion of the judicial process.

We might as well wind up the Courts and bolt their doors against all than permit a few to ensure that justice shall not be done .

The power to cancel bail was exercised by the Bombay High Court in Madhukar Purshottam .londkar v.

Talab Haji Hussain(') D where the accused was charged with a bailable offence.

The test adopted by that Court was whether the material placed before the Court was "such as to lead to the conclusion that there is a strong pnma facie case that if the accused were to be allowed to be at large he would tamper with the prosecution witnesses and impede the course of justice". An appeal preferred hy the accused against the judgment of the Bombay High Court was dismissed by this Court.

In E Gurcharan Singh and others v. State (Delhi Administration,(') while confirming the order of the High Court cancelling the bail of the accused, this Court observed that the only question which the Court had to consider at that stage was whether "there was prima facic case made out, as alleged, on the statements of the witnesses and on other materials'', that "there was a likelihood of the appellants tampcrin with the prosecution witnesses".

H is by the application of this F 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 quintessence 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 <\faruti witnesses immediately and that their evidence will occupy no

(!) 60 Jlombay Law Repnrter 465.

(2) 1978 Criminal Law Journal 129. 137.

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more than a rnDnth, it will be enough to limit the cancellation QJ; respondent's bail to that period.

We hope and trust that no unfair advantage will be taken of our order by stalling the proceeding, s or by asking for a stay on some pretext or the other. If that is done, the arms of law shall be long enough. Out of abundant caution, we reserve liberty to the State to apply to the High Court, if necessary, but only if strictly necessary. We are hopeful that the State too will take our order in its true spirit.

In the result, we allow the appeal partly, set aside the judgment of the High Court dated April 11, cancel the respondent's bail for a period

of one month from to-day and direct that he be taken into custody.

Respondent will, in the normal course, be entitled to be released on fresh bail on the expiry of the aforesaid perioa.

The learned S.essions Judge will be at liberty to fix the amount and conditions of bail. The order of anticipatory bail will stand modified to the extent indicated herein.

S.R.

Appeal allowed in part.

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