Supreme Court of India
SANJAY CHANDRAversusCBI
- Citation
- 2011 INSC 819
- Decided
- 23 November 2011
- Disposal
- Disposed off
- Bench
- G S SINGHVI
Holding
Bail is the rule and may be granted in serious economic offences where the investigation is complete and there is no material showing a real risk of tampering or absconding, provided the trial is likely to be protracted and continued detention would violate Article 21.
Summary
The Supreme Court considered appeals by Sanjay Chandra and 16 co‑accused who were denied bail by the Special CBI Judge and the Delhi High Court in a telecom‑licence fraud case involving alleged loss of billions to the State. The appellants argued that the investigation was complete, the charge‑sheet filed, and there was no material showing a likelihood of tampering with witnesses, while the prosecution contended that the seriousness of the economic offences and possible interference justified continued detention. The Court examined the principles of bail under Sections 437 and 439 of the CrPC, emphasizing that bail is the rule and detention an exception, and that Article 21 requires a speedy trial. It held that the seriousness of the charge alone cannot deny bail absent a real risk of interference, especially when the trial is expected to be lengthy. Consequently, the Court granted bail to all appellants on stringent conditions, disposing of the appeals.
Issues considered
- The applicability of Section 439 CrPC to grant bail in serious economic offences where the investigation is complete and a charge‑sheet is filed.
- Whether the seriousness of the alleged offence, without concrete evidence of witness tampering or flight risk, justifies denial of bail.
- Whether the delay in trial and the constitutional right to speedy trial under Article 21 mandate the grant of bail.
Legislation cited
- Code of Criminal Procedure, 1973s. 437, s. 439
- Constitution of Indias. Article 21
- Indian Penal Code, 1860s. 109, s. 120-B, s. 420, s. 468, s. 471
- Prevention of Corruption Act, 1988s. 13(1)(d), s. 13(2)
Subjects
bailArticle 21economic offencestelecom scampresumption of innocencepre‑trial detentionnecessity testSection 439 CrPCdelay in trialright to speedy trial
Judgment
[2011] 13 (ADDL.) S.C.R. 309
SANJAY CHANDRA A
v.
CBI
(Criminal Appeal No. 2178 of 2011)
NOVEMBER 23, 2011
B
[G.S. SINGHVI AND H.L. DATTU, JJ.]
CODE OF CRIMINAL PROCEUDRE, 1973:
s. 439 - Bail - Governing principles - Explained - C
Telecom scam - Applications for bail rejected by Special
Judge and High Court - Held: No doubt, the offence alleged
against the accused is a serious one in terms of alleged huge
loss to the State exchequer, that, by itself, should not deter
the Court from enlarging them on bail when there is no o
serious contention of the prosecution that the accused, if
released on bail, would interfere with the trial or tamper with
evidence - It is also significant that the investigation has
already been completed and the charge sheet has been filed
before the Special Judge and, as such, custody of the E
accused may not be necessary for further investigation -
Further, when the under trial prisoners are detained in jail
custody to an indefinite period, Article 21 of the Constitution
is violated - Every person, detained or arrested, is entitled to
speedy trial - In the instant case, there are seventeen F
accused persons - Statements of the witnesses run to several
hundred pages and the documents on which reliance is
· placed by the prosecution, is voluminous - The trial may take
considerable time and the appellants, who are in jail, have to
remain in jail longer than the period of detention, had they G
been convicted - It is not in the interest of justice that the
accused should be in jail for an indefinite period - Therefore,
the accused are entitled to the grant of bail pending trial on
stringent conditions in order to ally the apprehension
expressed by the prosecution - The accused are directed to
309 H
310 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A be released on bail on the conditions stipulated in the
judgment - Constitution of India, 1950 - Article 21 - Doctrine/
Principle - Test of necessity.
Prosecution was launched against the appellants for
B commission of offences punishable uls 120-B, 420, 468,
471 and 109 IPC and s. 13(2) read with s. 13(1) (d) of the
Prevention of Corruption Act,1988. Bail was refused to
them by the Special Judge CBI as well as by the Single
Judge of the High Court. In the Instant appeals, it was,
C inter alia, contended for the appellants that they were
cooperating with the investigation all through out, that
there was no threat from them of tempering with the
witnesses; that gravity of the offence would be
determined by the punishment and not by any other
standard or measure and, in the instant case, the
D offences alleged against the appellants are punishable
with a maximum sentence of 9 years; and that the charge
sheet in the case has been filed and the trial is likely to
take considerable time to be concluded. Therefore, it was
contended that the courts below should not have
E declined bail to the appellants. The stand of the
prosecution was that the Supreme Court had refused to
entertain the special leave petition against the order
rejecting the bail of the co-accused.
F Disposing of the appeals the Court
HELD: 1. In the earlier petition of the co-accused*, the
petitioner therein was before this Court before framing of
charges by the trial court. The earlier and the instant
proceedings cannot be compared and it cannot be
G concluded that there are no changed circumstances.
[para 12] [327-B-C]
•sharad Kumar etc. vs. Central Bureau of Investigation
2012 (1) sec 65 - distinguished.
H
SANJAY CHANDRA v. CBI 311
2.1 This Court, time and again, has stated that bail is A
the rule and committal to jail an exception. It is also
observed that refusal of bail is a restriction on the
personal liberty of the individual guaranteed under Article
21 of the Constitution. [para 16) [329-F-G]
B
State of Rajasthan v. Balchand, 1978 (1) SCR 535 =
(1977) 4 SCC 308, Gudikanti Narasimhulu v. Public
Prosecutor, 1978 (2) SCR 371 = (1978) 1 SCC 240,
Gurcharan Singh v. State (Delhi Admn.) 1978 (2) SCR 358 =
(1978) 1 sec 118, Babu Singh v. State of U.P., 1978 ( 2) c
SCR 777 = (1978) 1 sec 579, Moti Ram v. State of M. P.,
1979 ( 1 ) SCR 335 = (1978) 4 SCC 47, Vaman Narain
Ghiya v. State of Rajasthan, 2008 (17) SCR 369 =(2009) 2
SCC 281, and Siddharam Satlingappa Mhetre v. State of
Maharashtra, 2010 (15) SCR201 = (2011) 1 SCC 694- D
relied on.
2.2 It would be quite contrary to the concept of
personal liberty enshrined in the Constitution of India that
any person should be punished in respect of any matter,
upon which, he has not been convicted or that in any E
circumstances, he should be deprived of his liberty upon
only the belief that he will tamper with the witnesses if left
at liberty, save in the most extraordinary circumstances.
[para 14) [328-B-C]
F
2.3 In bail applications, generally, it has been laid
down from the earliest times that the object of bail is
neither punitive nor preventative, but to secure the
appearance of the accused at his trial by reasonable
amount of bail. Deprivation of liberty must be considered G
a punishment, unless it can be required to ensure that an
accused will stand his trial when called upon. The courts
owe more than verbal respect to the principle that
punishment begins after conviction, and that every man
is deemed to be innocent until duly tried and duly found
H
312 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A guilty. From time to time, necessity demands that some
un-convicted persons should be held in custody pending
trial to secure their attendance at the trial but in such
cases, 'necessity' is the operative test. [para 14] [327-G-
H; 328-A-B]
B
Prahlad Singh Bhati v. NCT, Delhi, 2001 (2) SCR 684 =
(2001) 4 SCC 280, State of U. P. v. Amarmani Tripathi, 2005
(3) Suppl. SCR 454 = (2005) 8 sec 21 - referred to.
2.4 In the instanf case, the "pointing finger of
C accusation" against the appellants is 'the seriousness of
the charge'. The offences alleged are economic offences
which have resulted in loss to the State exchequer.
Though, it has been contended that there is possibility
of the appellants tampering with witnesses, no material
D has been placed in support of the allegation. Seriousness
of the charge is, no doubt, one of the relevant
considerations while considering bail applications but .
that is not the only test or the factor: The other factor that
also requires to be taken note of is the punishment that
E could be imposed after trial and conviction, both under
the Penal Code and the Prevention of Corruption Act.
Otherwise, the Court would not be balancing the
Constitutional Rights but rather "recalibration of the
scales of justice." [para 15] [328-E-H]
F Kalyan Chandra Sarkar Vs. Rajesh Ranjan (2005) 2
sec 42 - referred to.
3.1 This Court has taken the view that when there is
a delay in the trial, bail should be granted to the accused.
G [para 22] [340-C-D]
Babba v. State of Maharashtra, (2005) 11 SCC 569,
Vivek Kumar v. State of U. P., (2000) 9 SCC 443, Mahesh
Kumar Bhawsinghka v. State of Delhi, (2000) 9 SCC 383 -
H relied on.
SANJAY CHANDRA v. CBI 313
3.2 In the instant case, both the courts have refused A
the request for grant of bail on two grounds: The primary
··ground is that the offence alleged against the accused
persons is very serious involving deep rooted planning
in which huge financial loss is caused to the State
exchequer; the secondary ground is that the possibility 8
of the accused persons tempering with the witnesses.
The charge against the accused is that of cheating and
dishonestly inducing delivery of property, forgery for the
purpose of cheating using a forged document as
genuine. The punishment of the offence is imprisonment C
for a term which may extend to seven years. It is, no
doubt, true that the nature of the charge may be relevant,
but at the same time, the punishment to which the party
may be liable, if convicted, also bears upon the issue.
Therefore, in determining whether to grant bail, both the
seriousness of the charge and the severity of the 0
punishment should be taken into consideration. The
grant or refusal to grant bail lies within the discretion of
the court. The grant or denial is regulated, to a large
extent, by the facts and circumstances of each particular
case. But at the same time, right to bail is not to be denied E
merely because of the sentiments of the community
against the accused. [Para 25) [342-F-H; 343-A-C]
3.3 The primary purposes of bail in a criminal case
are to relieve the accused of imprisonment, to relieve the F
State of the burden of keeping him, pending the trial, and
at the same time, to keep the accused constructively in
the custody of the court, whether before' or after
conviction, to assure that he will submit to the jurisdiction
of the court and be in attendance thereon whenever his G
presence is required. [Para 25) [343-C-E]
3.4 When the under trial prisoners are detained in jail
custody to an indefinite period, Article 21 of the
Constitution is violated. Every person, detained or
H
314 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R
A arrested, is entitled to speedy trial. In the instant case,
there are seventeen accused persons. Statements of the
witnesses run to several hundred pages and the
documents on which reliance is placed by the
prosecution, is voluminous. The trial may take
B considerable time and the appellants, who are in jail, have
to remain in jail longer than the period of detention, had
they been convicted. It is not in the interest of justice that
the accused should be in jail for an indefinite period. [Para
26] [343-F-H; 344-A]
c State of Kera/a v. Raneef (2011) 1 SCC 784- relied on.
3.5 No doubt, the offence alleged against the
appellants is a serious one in terms of alleged huge loss
to the State exchequer, that, by itself, should not deter
D the Court from enlarging the appellants on bail when
there is no serious contention of the respondent that the
accused, if released on bail, would interfere with the trial
or tamper with evidence. There is no good reason to
detain the accused in custody, that too, after the
E completion of the investigation and filing of the charge-
sheet. [Para 26] [344-A-C]
3.6 It is true that the accused are charged with
economic offences of huge magnitude and the offences
alleged, if proved, may jeopardize the economy of the
F country. At the same time, it is also significant that the
investigating agency has already completed investigation
and the charge sheet is already filed before the Special
Judge. Therefore, custody of the accused may not be
necessary for further investigation. Therefore, the
G appellants are entitled to the grant of bail pending trial on
stringent conditions in order to ally the apprehension
expressed by CBI. The appellants are directed to be
released on bail on the conditions stipulated in the
judgment. [Para 28-29] [344-H; 345-A-C]
H
SANJAY CHANDRA v. CBI 315
R vs. Griffiths and Ors., (1966) 1 Q.B. 589 - referred to. A
Case Law Reference:
(1966) 1 Q.B. 589 referred to para 6
2012 (1) sec 65 distinguished para 10 B
(2005) 2 sec 42 referred to para 15
1978 (1) SeR 535 relied on para 16
1978 (2) SeR 371 relied on para 17
c
1978 (2) SCR 358 relied on para 18
1978 (2) SCR 777 relied on para 19
1979 ( 1 ) SCR 335 relied on para 20
2008 (17 ) SeR 369 relied on para 21 D
(2010 (15) SCR 201 relied on para 22
(2005) 11 sec 56 relied on para 22
(2000) 9 sec 443 relied on para 22 E
(2000) 9 sec 383 relied on para 22
2001 (2) SeR 684 referred to para 23
2005 (3) Suppl. SCR 454 referred to para 24
F
(2011) 1 sec 784 relied on para 26
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 2178 of 2011.
From the Judgment & Order dated 23.05.2011 of the High G
Court of Delhi at New Delhi in Bail Application No. 508 of 2011.
WITH
Crl. A. Nos. 2179, 2180, 2181 & 2182 of 2011.
H
316 SUPREME COURT REPORTS (2011] 13 (ADDL.) S.C.R.
A Harin P. Raval, ASG, Ram Jethmalani, Mukul Rohatgi, Soli
J. Sorabjee, Ashok H. Desai, Ritu Bhalla, Manu Sharma, Karan
Kalia, Pranav Diesh, Ananya Ghosh, Sahil Sharma, Vijay
Agarwal, Saurabh Kirpal, Ninad Laud, Purnima Bhat Kak,
Shally Bhasin Maheshwari, Mahesh Agarwal, Siddharth Singla,
B Tapesh Kumar Singh, Rajiv Nanda, Anirudh Sharma, Harsh N.
Parekh, Anando Mukherjee, Padmalakshmi Nigam, Arvind
Kumar Sharma for the appearing parties.
The Judgment of the Court was delivered by
C H.L. DATTU, J. 1. Leave granted in all the Special Leave
Petitions.
2. These appeals are directed against the common
Judgment and Order of the learned Single Judge of the High
D Court of Delhi, dated 23rd May 2011 in Bail Application No.
508/2011, Bail Application No. 509/2011 & Crl. M.A. 653/2011,
Bail Application No. 510/2011, Bail Application No. 511/2011
and Bail Application No. 512/2011, by which the learned Single
Judge refused to grant bail to the accused-appellants. These
E cases were argued together and submitted for decision as one
case.
3. The offence alleged against each of the accused, as
noticed by the Ld. Special Judge, CBI, New Delhi, who rejected
bail applications of the appellants, vide his order dated
F 20.4.2011, is extracted for easy reference :
Sanjay Chandra CA7l in Crl. Appeal No. 2178 of 2011
[arising out of SLP (Crl.)No.5650 of 20111:
"6. The allegations against accused Sanjay Chandra are
G that he entered into criminal conspiracy with accused A.
Raja, R.K. Chandolia and other accused persons during
September 2009 to get UAS licence for providing telecom
services to otherwise an ineligible company to g<:!t UAS
licences. He, as Managing Director of M/s Unitech
H Wireless {Tamil Nadu) Limited, was looking after the
SANJAY CHANDRA v. CBI [HL DATIU, J.] 317
business of telecom through 8 group companies of Unitech A
Limited. The first-come-first-served procedure of allocation
of UAS Licences and spectrum was manipulated by the
accused persons in order to benefit M/s Unitech Group
Companies. The cutoff date of 25.09.2007 was decided
by accused public servants of DoT primarily to allow B
consideration of Unitech group applications for UAS
licences. The Unitech Group Companies were in business
of realty and even the objects of companies were not
changed to 'telecom' and registered as required before
applying. The companies were ineligible to get the licences c
till the grant of UAS licences. The Unitech Group was
almost last within the applicants considered for allocation
of UAS licences and as per existing policy of first-come-
first-served, no licence could be issued in as many as 10
to 13 circles where sufficient spectrum was not available. D
The Unitech companies got benefit of spectrum in as many
as 10 circles over the other eligible applicants. Accused
Sanjay Chandra, in conspiracy with accused public
servants, was aware of the whole design of the allocation
of LO ls and on behalf of the Unitech group companies was E
ready with the drafts of Rs. 1658 crores as early as 10th
October, 2007."
Vinod Goenka (AS) in Crl. Appeal No. 2179 of 2011 [arising
out of SLP(Crl)No.5902 of 2011] :
F
"5.The allegations against accused Vinod Goenka are that
he was one of the directors of M/s Swan Telecom (P)
Limited in addition to accused Shahid Usman Balwa w.e.f.
01.10.2007 and acquired majority stake on 18.10.2007 in
Mis Swan Telecom (P) Limited (STPL) through DB G
Infrastructure (P) Limited. Accused Vinod Goenka carried
forward the fraudulent applications of STPL dated
02.03.2007 submitted by previous management despite
knowing the fact that STPL was ineligible company to get
UAS licences by virtue of clause 8 of UASL guidelines H
2005. Accused Vinod Goenka was an associate of
318 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A accused Shahid Usman Balwa to create false documents
including Board Minutes of M/s Giraffe Consultancy (P)
Limited fraudulently showing transfer of its shares by the
companies of Reliance ADA Group during February 2007
itself. Accused/applicant in conspiracy with accused
B Shahid Usman Balwa concealed or furnished false
information to DoT regarding shareholding pattern of STPL
as on the date of application thereby making STPL an
eligible company to get licence on the date of application,
that is, 02.03.2007. Accused/applicant was an overall
c beneficiary with accused Shahid Usman Balwa for getting
licence and spectrum in 13 telecom circles.
12. Investigation has also disclosed pursuant to TRAI
recommendations dated 28.08.2007 when Mis Reliance
Communications Ltd. got the GSM spectrum under the
D Dual Technology policy, accused Gautam Doshi, Hari Nair
and Surendra Pipara transferred the control of Mis Swan
Telecom Pvt. Ltd., and said structure of holding companies,
to accused Shahid Balwa anc' Vined Goenka. In this
manner they transferred a company which was otherwise
E ineligible for grant of UAS license on the date of
application, to the said two accused persons belonging to
Dynamix Balwa (DB) group and thereby facilitated them to
cheat the DoT by getting issued UAS Licences despite the
ineligibility on the date of application and till 18.10.2007.
F
13. Investigation has disclosed that accused Shahid Balwa
and Vined Goenka joined M/s Swan Telecom Pvt. Ltd. and
Mis Tiger Traders Pvt. Ltd. as directors on 01.10.2007 and
DB group acquired the majority stake in TTPU M/s Swan
Telecom Pvt. Ltd. (STPL) on 18.10.2007. On 18.10.2007
G
a fresh equity of 49.90 lakh shares was allotted to M/s DB
Infrastructure Pvt. Ltd. Therefore on 01.10.2007, and
thereafter, accused Shahid Balwa and Vined Goenka were
in-charge of, and were responsible to, the company M/s
Swan Telecom Pvt. Ltd. for the conduct of business. As
H
SANJAY CHANDRA v. CBI [H.L. DATTU, J.) 319
such on this date, majority shares of the company were A
held by D.S. Group."
Gautam Doshi (A9), Surendra Pipara (A10) and Hari Nair
(A 11) in Crl. Appeal Nos.2180,2182 & 2181 of 2011
[arising out of SLP (Crll Nos. 6190,6315 & 6288 of 20111:
8
"7. It is further alleged that in January-February, 2007
accused Gautam Doshi, Surendra Pipara and Hari Nath
in furtherance of their common intention to cheat the
Department of Telecommunications, structured/created net
worth of M/s Swan Telecom Pvt. Ltd., out of funds arranged C
from M/s Reliance Telecom Lid. or its associates, for
applying to DoT for UAS Licences in 13 circles, where M/
s Reliance Telecom Ltd. had no GSM spectrum, in a
manner that its associations with M/s Reliance Telecom
Ltd. may not be detected, so that DOT could not reject its D
application on the basis of clause 8 of the UASL Guidelines
dated 14.12.2005.
8. In pursuance of the said common intention of accused
persons, they structured the stake-holding of M/s Swan E
Telecom Pvt. Ltd. in a manner that only 9.9% equity was
held by M/s Reliance Telecom Ltd. (RTL) and rest 90.1 %
was shown as held by M/s Tiger Traders Pvt. Ltd. (later
known as M/s Tiger Trustees Pvt. Ltd. - TIPL), although
the entire company was held by the Reliance ADA Group
of companies through the funds raised from M/s Reliance F
Telecom Ltd. etc.
9. It was further alleged that M/s Swan Telecom Pvt. Ltd.
(STPL) was, at the time of application dated 02.03.2007,
an associate of Mis Reliance ADA Group I M/s Reliance G
Communications Limited I Mis Reliance Telecom Limited,
having existing UAS Licences in all telecom circles.
Investigations have also disclosed that M/s Tiger Traders
Pvt. Ltd., which held majority stake (more than 90%) in M/
s Swan Telecom Pvt. Ltd. (STPL), was also an associate H
320 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A company of Reliance ADA Group. Both the companies
has not business history and were activated solely for the
purpose of applying for UAS Licences in 13 telecom
circles, where Mis Reliance Telecom Lid. did not have
GSM spectrum and M/s Reliance Communications Ltd.
B had already applied for dual technology spectrum for these
circles. Investigation has disclosed that the day to day
affairs of M/s Swan Telecom Pvt. Ltd. and M/s Tiger
Traders Pvt. ltd. were managed by the said three
accused persons either themselves or through other
c officers/consultants related to the Reliance ADA group.
Commercial decisions of M/s Swan Telecom Pvt. Lid. and
M/s Tiger Traders Pvt. Ltd. were also taken by these
accused persons of Reliance ADA group. Material inter-
company transactions (bank transactions) of M/s Reliance
Communications I Mis Reliance Telecommunications Lid.
D
and M/s Swan Telecom Pvt Lid. (STPL) and M/s Tiger
Traders Pvt. ltd. were carried out by same group of
persons as per the instructions of said accused Gautam
Doshi and Hari Nair.
E 10. Investigations about the holding structure of M/s Tiger
Traders Pvt. Ltd. has revealed that the aforesaid accused
persons also structured two other companies i.e. M/s
Zebra Consultancy Private Limited & Mis Parrot
Consultants Private Limited. Till April, 2007, by when M/s
F Swan Telecom Pvt. Lid. applied for telecom licences, 50%
shares of M/s Zebra Consultancy Private Limited & M/s
Parrot Consultants Private Limited, were purchased.by M/
s Tiger Traders Pvt. Ltd. Similarly, 50% of equity shares
of M/s Parrot Consultants Private Limited & Mis Tiger
G Traders Private Limited were purchased by Mis Zebra
Consultancy Private Limited. Also, 50% of equity shares
of M/s Zebra Consultancy Private Limited and Mis Tiger
Traders Private Limited were purchased by M/s Parrot
Consultants Private Limited. These 3 companies were,
H therefore, cross holding each other in an inter-locking
SANJAY CHANDRA v. CBI [H.L. DATIU, J.] 321
structure w.e.f. March 2006 till 4th April, 2007. A
11. It is further alleged that accused Gautam Doshi,
Surendra Pipara and Hari Nair instead of withdrawing the
fraudulent applications preferred in the name of M/s Swan
Telecom (P) Limited, which was not eligible at all, allowed B
the transfer of control of that company to the Dynamix
Balwa Group and thus, enabled perpetuating and (sic.)
illegality. It is alleged that TRAI in its recommendations
dated 28.08.2007 recommended the use of dual
technology by UAS Licencees. Due to this reason M/s
Reliance Communications Limited, holding company of M/ C
s Reliance Telecom Limited, became eligible to get GSM
spectrum in telecom circles for which STPL had applied.
Consequently, having management control of STPL was
of no use for the applicant/accused persons and M/s
Reliance Telecom Limited. Moreover, the transfer of D
management of STPL to DB Group and sale of equity held
by it to M/s Delphi Investments (P) Limited, Mauritius, M/s
Reliance Telecom Limited has earned a profit of around
Rs. 10 crores which otherwise was not possible if they had
withdrawn the applications. Mis Reliance Communications E
Limited also entered into agreement with M/s Swan
Telecom (P) Limited for sharing its telecom infrastructure.
It is further alleged that the three accused persons
facilitated the new management of M/s Swan Telecom (P)
Limited to get UAS licences on the basis of applications F
filed by the former management. It is further alleged that
M/s Swan Telecom (P) Limited on the date of application,
that is, 02.03.2007 was an associate company of Reliance
ADA group, that is, M/s Reliance Communications Limited/
M/s Reliance Telecom Limited and therefore, ineligible for G
UAS licences.
12. Investigation has also disclosed pursuant to TRAI
recommendations dated 28.08.2007 when M/s Reliance
Communications Ltd. got the GSM spectrum under the H
322 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A Dual Technology policy, accused Gautam Doshi, Hari Nair
and Surendra Pipara transferred the control of Mis Swan
Telecom Pvt. Ltd., and said structure of holding
companies, to accused Shahid Balwa and Vinod Goenka.
In this manner they transferred a company which was
B otherwise ineligible for grant of UAS license on the date
of application, to the said two accused persons belonging
to Dynamix Balwa (DB) group and thereby facilitated them
to cheat the DoT by getting issued UAS Licences despite
the ineligibility on the date of application and till
c 18.10.2007."
4. The Special Judge, CBI, New Delhi, rejected Bail
Applications filed by the appellants by his order dated
20.04.2011. The appellants moved the High Court by filing
D applications under Section 439 of the Code of Criminal
Procedure (in short, "Cr. P.C."). The same came to be rejected
by the learned Single Judge by his order dated 23.05.2011.
Aggrieved by the same, the appellants are before us in these
appeals.
E 5. Shri. Ram Jethmalani, Shri. Mukul Rohatgi, Shri Soli J.
Sorabjee and Shri. Ashok H. Desai, learned senior counsel
appeared for the appellants and Shri. Harin P. Raval, learned
Additional Solicitor General, appears for the respondent-CBI.
F 6. Shri. Ram Jethmalani, learned senior counsel
appearing for the appellant Sanjay Chandra, would urge that
the impugned Judgment has not appreciated the basic rule laid
down by this Court that grant of bail is the rule and its denial is
the exception. Shri. Jethmalani submitted that if there is any
apprehension of the accused of absconding from trial or
G tampering with the witnesses, then it is justified for the Court
to deny bail. The learned senior counsel would submit that the
accused has cooperated with the investigation throughout and
that his behavior has been exemplary. He would further submit
that the appellant was not arrested during the investigation, as
H
SANJAY CHANDRA v. CBI [H.L. DATTU, J.] 323
there was no threat from him of tampering with the witnesses. A
He would submit that the personal liberty is at a very high
pedestal in our Constitutional system, and the same cannot be
meddled with in a causal manner. He would assail the
impugned Judgment stating that the Ld. Judge did not apply
his mind, and give adequate reasons before rejecting bail, as B
is required by the legal norms set down by this Court. Shri.
Jethmalani further contends that it was only after the appellants
appeared in the Court in pursuance of summons issued, they
were made to apply for bail, and, thereafter, denied bail and
sent to custody. The learned senior counsel states that the trial c
Judge does not have the power to send a person, who he has
summoned in pursuance of Section 87 Cr.P.C to judicial
custody. The only power that the trial Judge had, he would
contend, was to ask for a bond as provided for in Section 88
Cr.P.C. to ensure his appearance. Shri. Jethmalani submits that D
when a person appeared in pursuance of a bond, he was a free
man, and such a free man cannot be committed to prison by
making him to apply for bail and thereafter, denying him the
same. Shri. Jethmalani further submits that if it was the intention
of the Legislature to make a person, who appears in pursuance
of summons to apply for bail, it would have been so legislated E
in Section 88 Cr.P.C. The learned senior counsel assailed the
Judgment of the Delhi High Co.urt in the 'Court on its own
motion v. CBI', 2004 (I) JCC 308, by which the High Court gave
directions to Criminal Courts to call upon the accused who is
summoned to appear to apply for bail, and then decide on the F
merits of the bail application. He would state that the High Court
has ignored even the CBI Manual before issuing these
directions, which provided for bail to be granted to the accused,
except in the event of there being commission of heinous crime.
The learned senior counsel would also argue that it was an error G
to have a "rolled up charge", as recognized by the Griffiths'
case (R vs. Griffiths and Ors., (1966) 1 Q.B. 589).
Shri.Jethmalani submitted that there is not even a prima facie
case against the accused and would make references to the
charge sheet and the statement of several witnesses. He would H
324 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A emphatically submit that none of the ingredients of the offences
charged with were stated in the charge sheet. He would further
contend that even if, there is a prima facie case, the rule is still
ba·il, and not jail, as per the dicta of this Court in several cases.
B 7. Shri. Mukul Rohatgi, learned senior counsel appearing
for the appellant Vinod Goenka, while adopting the arguments
of Shri. Jethmalani, would further supplement by arguing that
the Ld. Trial Judge erred in making the persons, who appeared
in pursuance of the summons, apply for bail and then denying
C the same, and ordering for remand in judicial custody. Shri.
Rohatgi would further contend that the gravity of the offence
charged with, is to be determined by the maximum sentence
prescribed by the Statute and not by any other standard or
measure. In other words, the learned senior counsel would
submit that the alleged amount involved in the so-called Scam
D is not the determining factor of the gravity of the offence, but
the maximum punishment prescrib')d for the offence. He would
state that the only bar for bail pending trial in Section 437 is
for those persons who are charged with offences punishable
with life or death, and there is no such bar for those persons
E who were charged with offences with maximum punishment of
seven years. Shri. Rohatgi also cited some case laws.
8. Shri. Ashok H. Desai, learned senior counsel appearing
for the appellants Hari Nair and Surendra Pipara, adopted the
F principal arguments of Shri.Jethmalani. In addition, Shri. Desai
would submit that a citizen of this country, who is charged with
a criminal offence, has the right to be enlarged on bail. Unless
there is a clear necessity for deprivation of his liberty, a person
should not be remanded to judicial custody. Shri. Desai would
G submit that the Court should bear in mind that such custody is
not punitive in nature, but preventive, and must be opted only
when the charges are serious. Shri. Desai would further submit
that the power of the High Court and this Court is not limited
by the operation of Section 437. He would further contend that
Surendra Pipara deserves to be released on bail in view of his
H serious health conditions.
SANJAY CHANDRA v. CBI [H.L. DATTU, J.] 325
9. Shri. Soli J. Sorabjee, learned senior counsel appearing A
for Gautam Doshi, adopted the principal arguments of Shri.
Jethmalani. Shri. Sorabjee would assail the finding of the
Learned Judge of the High Court in the impugned Judgment
that the mere fact that the accused were not arrested during
the investigation was proof of their influence in the society, and B
hence, there was a reasonable apprehension that they would
tamper with the evidence if enlarged on bail. Shri. Sorabjee
would submit that if this reasoning is to be accepted, then bail
is to be denied in each and every criminal case that comes
before the Court. The learned senior counsel also highlighted c
that the accused had no criminal antecedents.
10. Shri. Haren P. Raval, the learned Additional Solicitor
General, in his reply, would submit that the offences that are
being charged, are of the nature that the economic fabric of the
country is brought at stake. Further, the learned ASG would D
state that the quantum of punishment could not be the only
determinative factor for the magnitude of an offence. He would
state that one .of the relevant considerations for the grant of bail
is the interest of the society at large as opposed to the personal
liberty of the accused, and that the Court must not lose sight of E
the former. He would submit that in the changing circumstances
and scenario, it was in the interest of the society for the Court
to decline bail to the appellants. Shri. Raval would further urge
that consistency is the norm of this Court and that there was
no reason or change in circumstance as to why this Court F
should take a different view from the order of 20th June 2011
in Sharad Kumar Etc. v. Central Bureau of Investigation [in
SLP (Crl) No. 4584-4585 of 2011] rejecting bail to some of the
co-accused in the same case. Shri. Raval would further state
that the investigation in these cases is monitored by this Court G
and the trial is proceeding on a day-to-day basis and that there
is absolutely no delay on behalf of the prosecuting agency in
completing the trial. Further, he would submit that the appellants,
having cooperated with the investigation, is no ground for grant
of bail, as they were expected to cooperate with the H
326 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A investigation as provided by the law. He would further submit
that the test to enlarge an accused on bail is whether there is a
reasonable apprehension of tampering with the evidence, and
that there is an apprehension of threat to some of the witnesses.
The learned ASG would further submit that there is more reason
B now for the accused not to be enlarged on bail, as they now
have the knowledge of the identity of the witnesses, who are
the employees of the accused, and there is an apprehension
that the witnesses may be tampered with. The learned ASG
would state that Section 437 of the Cr.P.C. uses the word
c "appears", and, therefore, that the argument of the learned
senior counsel for the appellants that the power of the trial Judge
with regard to a person summoned under Section 87 is
controlled by Section 88 is incorrect. Shri. Raval also made
references to the United Nations Convention on Corruption and
0 the Report on the Reforms in the Criminal Justice System by
Justice Malimath, which, we do not think, is necessary to go
into. The learned ASG also reliea on a few decisions of this
Court, and the same will be dealt with in the course of the
judgment. On a query from the Bench, the learn~d ASG would
E submit that in his opinion, bail should be denied in all cases of
corruption which pose a threat to the economic fabric of the
country, and that the balance should tilt in favour of the public
interest.
. 11. In his reply, Shri. Jethmalani would submit that as the
F presumption of innocence is the privilege of every accused,
there is also a presumption that the appellants would not tamper
with the witnesses if they are enlarged on bail, especially in the
facts of the case, where the appellants have cooperated with
the investigation. In recapitulating his submissions, the learned
G senior counsel contended that there are two principles for the
grant of bail - firstly, if there is no prima facie case, and
secondly, even if there is a prima facie case, if there is no
reasonable apprehension of tampering with the witnesses or
evidence or absconding from the trial, the accused are entitled
H to grant of bail pending trial. He would submit that since both
SANJAY CHANDRA v. CBI [H.L. DATTU, J.] 327
the conditions are satisfied in this case, the appellants should A
be granted bail.
12. Let us first deal with a minor issue canvassed by Mr.
Raval, learned ASG. It is submitted that this Court has refused
to entertain the Special Leave Petition filed by one of the co- B
accused [Sharad Kumar Vs. CBI (supra)] and, therefore, there
is no reason or change in the circumstance to take a different
view in the case of the appellants who are also charge- sheeted
for the same offence. We are not impressed by this argument.
In the aforesaid petition, the petitioner was before this Court
before framing of charges by the Trial Court. Now the charges C
are framed and the trial has commenced. We cannot compare
the earlier and the present proceedings and conclude that there
are no changed circumstances and reject these petitions.
13. The appellants are facing trial in respect of the offences D
under Sections 420-B, 468, 471 and 109 of Indian Penal Code
and Section 13(2) read with 13(i)(d) of Prevention of Corruption
Act, 1988. Bail has been refused first by the Special Judge,
CBI, New Delhi and subsequently, by the High Court. Both the
courts have listed the factors, on which they think, are relevant E
for refusing the Bail applications filed by the applicants as
seriousness of the charge; the nature of the evidence in support
of the charge; the likely sentence to be imposed upon
conviction; the possibility of interference with witnesses; the
objection of the prosecuting authorities; possibility of F
absconding from justice.
14. In bail applications, generally, it has been laid down
from the earliest times that the object of bail is to secure the
appearance of the accused person at his trial by reasonable
amount of bail. The object of bail is neither punitive nor G
preventative. Deprivation of liberty must be considered a
punishment, unless it can be required to ensure that an accused
person will stand his trial when called upon. The courts owe
more than verbal respect to the principle that punishment begins
after conviction, and that every man is deemed to be innocent H
328 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A until duly tried and duly found guilty. From the earliest times, it
was appreciated that detention in custody pending completion
of trial could be a cause of great hardship. From time to time,
necessity demands that some un-convicted persons should be
held in custody pending trial to secure their attendance at the
8 trial but in such cases, 'necessity' is the operative test. In this
country, it would be quite contrary to the concept of personal
liberty enshrined in the Constitution that any person should be
punished in respect of any matter, upon which, he has not been
convicted or that in any circumstances, he should be deprived
C of his liberty upon only the belief that he will tamper with the
witnesses if left at liberty, save in the most extraordinary
circumstances. Apart from the question of prevention being the
object of a refusal of bail, one must not lose sight of the fact
that any imprisonment before conviction has a substantial
punitive content and it would be improper for any Court to refuse
0 bail as a mark of disapproval of former conduct whether the
accused has been convicted for it or not or to refuse bail to an
un-convicted person for the purpose of giving him a taste of
imprisonment as a lesson.
E 15. In the instant case, ~s we have already noticed that
the "pointing finger of accusation" against the appellants is 'the
seriousness of the charge'. The offences alleged are economic
offences which has resulted in loss to the State exchequer.
Though, they contend that there is possibility of the appellants
F tampering witnesses, they have not placed any material in
support of the allegation. In our view, seriousness of the charge
is, no doubt, one of the relevant considerations while
considering bail applications but that is not the only test or the
factor : The other factor that also requires to be taken note of
G is the punishment that could be imposed after trial and
conviction, both under the Indian Penal Code and Prevention
of Corruption Act. Otherwise, if the former is the only test, we
would not be balancing the Constitutional Rights but rather
"recalibration of the scales of justice." The provisions of Cr.P.C.
H confer discretionary jurisdiction on Criminal Courts to grant bail
SANJAY CHANDRA v. CBI [H.L. DATTU, J.] 329
to accused pending trial or in appeal against convictions, since A
the jurisdiction is discretionary, it has to be exercised with great
care and caution by balancing valuable right of liberty of an
individual and the interest of the society in general. In our view,
the reasoning adopted by the learned District Judge, which is
affirmed by the High Court, in our opinion, a denial of the whole B
basis of our system .of law and normal rule of bail system. It
transcends respect for the requirement that a man shall be
considered innocent until he is found guilty. If such power is
recognized, then it may lead to chaotic situation and would
jeopardize the personal liberty of an individual. This Court, in C
Kalyan Chandra Sarkar Vs. Rajesh Ranjan- (2005) 2 SCC
42, observed that "under the criminal laws of this country, a
person accused of offences which are non-bailable, is liable
to be detained in custody during the pendency of trial unless
he is enlarged on bail in accordance with law. Such detention D
cannot be questioned as being violative of Article 21 of the
Constitution, since the same is authorized by Jaw. But even
persons accused of non-bailable offences are entitled to bail
if the Court concerned comes to the conclusion that the
prosecution has failed to establish a prima facie case against E
him and/or if the Court is satisfied by reasons to be recorded
that in spite of the existence of prima facie case, there is need
to release such accused on bail, where fact situations require
it to do so."
16. This Court, time and again, has stated that bail is the F
rule and committal to jail an exception. It is also observed that
refusal of bail is a restriction on the personal liberty of the
individual guaranteed under Article 21 of the Constitution. In the
case of State of Rajasthan v. Ba/chand, (1977) 4 SCC 308,
this Court opined: G
"2. The basic rule may perhaps be tersely put as bail, not
jail, except where there are circumstances suggestive of
fleeing from justice or thwarting the course of justice or
creating other troubles in the shape of repe~ting offences H
330 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A or intimidating witnesses and the like, by the petitioner who
seeks enlargement on bail from the Court. We do not
intend to be exhaustive but only illustrative.
3. It is true that the gravity of the offence involved is likely
to induce the petitioner to avoid the course of justice and
8
must weigh with us when considering the question of jail.
So also the heinousness of the crime. Even so, the record
of the petitioner in this case is that, while he has been on
bail throughout in the trial court and he was released after
the judgment of the High Court, there is nothing to suggest
c that he has abused the trust placed in him by the court; his
social circumstances also are not so unfavourable in the
sense of his being a desperate character or unsocial
element who is likely to betray the confidence that the court
may place in him to turn up to take justice at the hands of
D the court. He is stated to be a young man of 27 years with
a family to maintain. The circumstances and the social
milieu do not militate against the petitioner being granted
bail at this stage. At the same time any possibility of the
absconsion or evasion or other abuse can be taken care
E of by a direction that the petitioner will report himself
before the police station at Baren once every fortnight."
17. In the case of Gudikanti Narasimhulu v. Public
Prosecutor, (1978) 1 SCC 240, V.R. Krishna Iyer, J., sitting as
F Chamber Judge, enunciated the principles of bail thus:
"3. What, then, is "judicial discretion" in this bail context?
In the elegant words of Benjamin Cardozo:
"The Judge, even when he is free, is still not wholly free.
G He is not to innovate at pleasure. He is not a knight-errant
roaming at will in pursuit of his own ideal of beauty or of
goodness ..He is to draw his inspiration from consecrated
principles. He is not to yield to spasmodic sentiment, to
vague and unregulated benevolence. He is to exercise a
H discretion informed by tradition, methodized by analogy,
SANJAY CHANDRA v. CBI [H.L. DATIU, J.] 331
disciplined by system, and subordinated to "the primordial A
necessity of order in the social life". Wide enough in all
conscience is the field of discretion that remains."
Even so it is useful to notice the tart terms of Lord Camden
that
B
"the discretion of a Judge is the law of tyrants: it is always
unknown, it is different in different men; it is casual, and
depends upon constitution, temper and passion. In the
best, it is oftentimes caprice; in the worst, it is every vice,
folly and passion to which human nature is liable: ... " c
Perhaps, this is an overly simplistic statement and we must
remember the constitutional focus in Articles 21 and 19
before following diffuse observations and practices in the
English system. Even in England there is a growing D
awareness that the working of the bail system requires a
second look from the point of view of correct legal criteria
and sound principles, as has been pointed out by Dr
Bottomley.
6. Let us have a glance at the pros and cons and the true E
principle around which other relevant factors must revolve.
When the case is finally disposed of and a person is
sentenced to incarceration, things stand on a different
footing. We are concerned with the penultimate stage and
the principal rule to guide release on bail should be to F
secure the presence of the applicant who seeks to be
liberated, to take judgment and serve sentence in the event
of the Court punishing him with imprisonment. In this
perspective, relevance of considerations is regulated by
their nexus with the likely absence of the applicant for fear G
of a severe sentence, if such be plausible in the case. As
Erle. J. indicated, when the crime charged (of which a
conviction has been sustained) is of the highest magnitude
and the punishment of it assigned by law is of extreme
severity, the Court may reasonably presume, some H
332 SUPREME COURT REPORTS (2011] 13 (ADDL.) S.C.R.
A evidence warranting, that no amount of bail would secure
the presence of the convict at the stage of judgment, should
he be enlarged. Lord Campbell, C.J. concurred in this
approach in that case and Coleridge J. set down the order
of priorities as follows:
B
"I do not think that an accused party is detained in custody
because of his guilt, but because there are sufficient
probable grounds for the charge against him as to make
it proper that he should be tried, and because the
detention is necessary to ensure his appearance at trial
c .... It is a very important element in considering whether the
party, if admitted to bail, would appear to take his trial; and
I think that in coming to a determination on that point three
elements will generally be found the most important: the
charge, the nature of the evidence by which it is supported,
D and the punishment to which the party would be liable if
convicted.
In the present case, the charge is that of wilful murder; the
evidence contains an admission by the prisoners of the
E truth of the charge, and the punishment of the offence is,
by law, death."
7. It is thus obvious that the nature of the charge is the vital
factor and the nature of the evidence also is pertinent. The
punishment to which the party may be liable, if convicted
F or conviction is confirmed, also bears upon the issue.
8. Another relevant factor is as to whether the course of
justice would be thwarted by him who seeks the benignant
jurisdiction of the Court to be freed for the time being.
G
9. Thus the legal principles and practice validate the Court
considering the likelihood of the applicant interfering with
witnesses for the prosecution or otherwise polluting the
process of justice. It is not only traditional but rational, in
this context, to enquire into the antecedents of a man who
H
SANJAY CHANDRA v. CBI [H.L. DATIU, J.] 333
is applying for bail to find whether he has a bad record - A
particularly a record which suggests that he is likely to
commit serious offences while on bail. In regard to
habituals, it is part of criminological history that" a
thoughtless bail order has enabled the bailee to exploit the
opportunity to inflict further crimes on the members of B
society. Bail discretion, on the basis of evidence about the
criminal record of a defendant is therefore not an exercise
in irrelevance.
13. Viewed from this perspective, we gain a better insight C
into the rules of the game. When a person, charged with
a grave offence, has been acquitted at a stage, has the
intermediate acquittal pertinence to a bail plea when the
appeal before this Court pends? Yes, it has. The panic
which might prompt the accused to jump the gauntlet of
justice is less, having enjoyed the confidence of the Court's D
verdict once. Concurrent holdings of guilt have the
opposite effect. Again, the ground for denial of provisional
release becomes weaker when the fact stares us in the
face that a fair finding - if that be so - of innocence has
been recorded by one Court. It may not be conclusive, for E
the judgment of acquittal may be ex facie wrong, the
likelihood of desperate reprisal, if enlarged, may be a
deterrent and his own safety may be more in prison than
in the vengeful village where feuds have provoked the
violent offence. It depends. Antecedents of the man and F
socio-geographical circumstances have a bearing only
from this angle. Police exaggerations of prospective
misconduct of the accused, if enlarged, must be soberly
sized up lest danger of excesses and injustice creep subtly
into the discretionary curial technique. Bad record and G
police prediction of criminal prospects to invalidate the bail
plea are admissible in principle but shall not stampede the
Court into a complacent refusal."
18. In Gurcharan Singh v. State (Delhi Admn.), (1978) 1 H
SCC 118, this Court took the view:
334 SUPREME COURT REPORTS (2011) 13 (ADDL.) S.C.R.
A "22. In other non-bailable cases the Court will exercise its
judicial discretion in favour of granting bail subject to sub-
section (3) of Section 437 CrPC if it deems necessary to
act under it. Unless exceptional circumstances are brought
to the notice of the Court which may defeat proper
B investigation and a fair trial, the Court will not decline to
grant bail to a person who is not accused of an offence
punishable with death or imprisonment for life. It is also
clear that when an accused is brought before the Court of
a Magistrate with the allegation against him of an offence
c punishable with death or imprisonment for life, he has
ordinarily no option in the matter but to refuse bail subject,
however, to the first proviso to Section 437(1) CrPC and
in a case where the Magistrate entertains a reasonable
belief on the materials that the accused has not been guilty
of such an offence. This will, however, be an extraordinary
D
occasion since there will be some materials at the stage
of initial arrest, for the accusation or for strong suspicion
of commission by the person of such an offence.
24. Section 439(1) CrPC of the new Code, on the other
E hand, confers special powers on the High Court or the
Court of Session in respect of bail. Unlike under Section
437(1) there is no ban imposed under Section 439(1),
CrPC against granting of bail by the High Court or the
Court of Session to persons accused of an offence
F punishable with death or imprisonment for life. It is,
however, legitimate to suppose that the High Court or the
Court of Session will be approached by an accused only
after he has failed before the Magistrate and after the
investigation has progressed throwing light on the evidence
G and circumstances implicating the accused. Even so, the
High Court or the Court of Session will have to exercise
its judicial discretion in considering the question of granting
of bail under Section 439(1) CrPC of the new Code. The
overriding considerations in granting bail to which we
H adverted to earlier and which are common both in the case
SANJAY CHANDRA v. CBI [H.L. DATIU, J.] 335
of Section 437(1) and Section 439(1) CrPC of the new A
Code are the nature and gravity of the circumstances in
which the offence is committed; the position and the status
of the accused with reference to the victim and the
witnesses; the likelihood, of the accused fleeing from
justice; of repeating the offence; of jeopardising his own B
life being faced with a grim prospect of possible conviction
in the case; of tampering with witnesses; the history of the
case as well as of its investigation and other relevant
grounds which, in view of so many valuable factors, cannot
be exhaustively set out." c
19. In Babu Singh v. State of U.P., (1978) 1 SCC 579,
this Court opined:
"8. The Code is cryptic on this topic and the Court prefers
to be tacit, be the order custodial or not. And yet, the issue D
is one of liberty, justice, public safety and burden on the
public treasury, all of which insist that a developed
jurisprudence of bail is integral to a socially sensitized
judicial process. As Chamber Judge in this summit Court
I had to deal with this uncanalised case-flow, ad hoc E
response to the docket being the flickering candle light. So
it is desirable that the subject is disposed of on basic
principle, not improvised brevity draped as discretion.
Personal liberty, deprived when bail is refused, is too
precious a value of our constitutional system recognised F
under Article 21 that the curial power to negate it is a great·
trust exercisable, not casually but judicially, with lively
concern for the cost to the individual and the community.
To glamorise impressionistic orders as discretionary may,
on occasions, make a litigative gamble decisive of a G
fundamental right. After all, personal liberty of an accused
or convict is fundamental, suffering lawful eclipse only in
terms of "procedure established by law". The last four
words of Article 21 are the life of that human right.
H
336 SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.
A 16. Thus the legal principle and practice validate the Court
considering the likelihood of the applicant interfering with
witnesses for the prosecution or otherwise polluting the
process of justice. It is not only traditional but rational, in
this context, to enquire into the antecedents of a man who
B is applying for bail to find whether he has a bad record-
particularly a record which suggests that he is likely to
commit serious offences while on bail. In regard to
habituals, it is part of criminological history that a
thoughtless bail order has enabled the bailee to exploit the
c opportunity to inflict further crimes on the members of
society. Bail discretion, on the basis of evidence about the
criminal record of a defendant, is therefore not an exercise
in irrelevance.
17. The significance and sweep of Article 21 make the
D deprivation of liberty a matter of grave concern and
permissible only when the law authorising it is reasonable,
even-handed and geared to the goals of community good
and State necessity spelt out in Article 19. Indeed, the
considerations I have set out as criteria are germane to
E the constitutional proposition I have deduced.
Reasonableness postulates intelligent care and
predicates that deprivation of freedom by refusal of bail
is not for punitive purpose but for the bi-focal interests of
justice-to the .individual involved and society affected.
F
18. We must weigh the contrary factors to answer the test
of reasonableness, subject to the need for securing the
presence of the bail applicant. It makes sense to assume
that a man on bail ·has a better chance to prepare or
present his case than one remanded in custody. And if
G
public justice is to be promoted, mechanical detention
should be demoted. In the United States, which has a
constitutional perspective close to ours, the function of bail
is limited, "community roots" of the applicant are stressed
and, after the Vera Foundation's Manhattan Bail Project,
H
SANJAY CHANDRA v. CBI [H.L. DATTU, J.] 337
monetary suretyship is losing ground. The considerable A
public expense in keeping in custody where no danger of
disappearance or disturbance can arise, is not a negligible
consideration. Equally important is the deplorable
condition, verging on the inhuman, of our sub-jails, that the
unrewarding cruelty and expensive custody of avoidable B
incarceration makes refusal of bail unreasonable and a
policy favouring release justly sensible.
20. Viewed from this perspective, we gain a better insight
into the rules of the game. When a person, charged with C
a grave offence, has been acquitted at a stage, has the
intermediate acquittal pertinence to a bail plea when the
appeal before this Court pends? Yes, it has. The panic
which might prompt the accused to jump the gauntlet of
justice is less, having enjoyed the confidence of the Court's
verdict once. Concurrent holdings of guilt have the D
opposite effect. Again, the ground for denial of provisional
release becomes weaker when the fact stares us in the
face that a fair finding - if that be so - of innocence has
been recorded by one Court. It may be conclusive, for the
judgment of acquittal may be ex faciewrong, the likelihood E
of desperate reprisal, it enlarged, may be a deterrent and
his own safety may be more in prison than in the vengeful
village where feuds have provoked the violent offence. It
depends. Antecedents of the man and socio-geographical
circumstances have a bearing only from this angle. Police F
exaggerations of prospective misconduct of the accused,
if enlarged, must be soberly sized up lest danger of
excesses and injustice creep subtly into the discretionary
. curial technique: Bad record and police prediction of
criminal prospects to invalidate the bail plea are G
admissible in principle but shall not stampede the Court
into a complacent refusal."
20. In Moti Ram v. State of M.P., (1978) 4 SCC 47, this
Court, while discussing pre-trial detention, held:
H
338 SUPREME COURT REPORTS (2011] 13 (ADDL.) S.C.R.
A "14. The consequences of pre-trial detention are grave.
Defendants presumed innocent arc subjected to the
psychological and physical deprivations of jail life, usually
under more onerous conditions than are imposed on
convicted defendants. The jailed defendant loses his job
B if he has one and is prevented from contributing to the
preparation.of his defence. Equally important, the burden
of his detention frequently falls heavily on the innocent
members of his family."
21. The concept and philosophy of bail was discussed by
C this Court in Vaman Narain Ghiya v. State of Rajasthan,
(2009) 2 sec 281, thus:
"6. "Bail" remains an undefined term in CrPC. Nowhere
else has the term been statutorily defined. Conceptually,
D it continues to be understood as a right for assertion of
freedom against the State imposing restraints. Since the
UN Declaration of Human Rights of 1948, to which India
is a signatory, the concept of bail has found a place within
the scope of human rights. The dictionary meaning of the
E expression "bail" denotes a security for appearance of a
prisoner for his release. Etymologically, the word is derived
from an old French verb "bailer" which means to "give· or
"to deliver", although another view is that its derivation is
from the Latin term "baiulare", meaning "to bear a burden".
F Bail is a conditional liberty. Stroud's Judicial Dictionary (4th
Edn., 1971) spells out certain other details. It states:
"... when a man is taken or arrested for felony, suspicion
of felony, indicted of felony, or any such case, so that he
is restrained of his liberty. And, being by law bailable,
G offereth surety to those which have authority to bail him,
which sureties are bound for him to the King's use in a
certain sums of money, or body for body, that he shall
appear before the justices of goal delivery at the next
sessions, etc. Then upon the bonds of these sureties, as
H
SANJAY CHANDRA v. CBI [H.L. DATIU, J.] 339
is aforesaid, he is bailed-that is to say, set at liberty until A
the day appointed for his appearance."
Bail may thus be regarded as a mechanism whereby the
State devolutes upon the community the function of
securing the presence of the prisoners, and at the same B
time involves participation of the community in
administration of justice.
7. Personal liberty is fundamental and can be
circumscribed only by some process sanctioned by law.
Liberty of a citizen is undoubtedly important but this is to C
balance with the security of the community. A balance is
required to be maintained between the personal liberty of
the accused and the investigational right of the police. It
must result in minimum interference with the personal
liberty of the accused and the right of the police to D
investigate the case. It has to dovetail two conflicting
demands, namely, on the one hand the requirements of the
society for being shielded from the hazards of being
exposed to the misadventures of a person alleged to have
committed a crime; and on the other, the fundamental E
canon of criminal jurisprudence viz. the presumption of
innocence of an accused till he is found guilty. Liberty exists
in proportion to wholesome restraint, the more restraint on
others to keep off from us, the more liberty we have. (See
A.K. Gopalan v. State of Madras) F
8. The law of bail, like any other branch of law, has its own
philosophy, and occupies an important place in the
administration of justice and the concept of bail emerges
from the conflict between the police power to restrict liberty
of a man who is alleged to have committed a crime,· and G
presumption of innocence in favour of the alleged criminal.
An accused is not detained in custody with the object of
punishing him on the assumption of his guilt."
H
340 SUPREME COURT REPORTS (2011] 13 (ADDL.) S.C.R.
A 22. More recently, in the case of Siddharam Satlingappa
Mhetre v. State of Maharashtra, (2011) 1 SCC 694, this Court
observed that "(j)ust as liberty is precious to an individual, so
is the society's interest in maintenance of peace, law and
order. Both are equally important." This Court further observed
B
"116. Personal liberty is a very precious fundamental right
and it should be curtailed only when it becomes imperative
according to the peculiar facts and circumstances of the
case."
c
This Court has taken the view that when there is a delay
in the trial, bail should be granted to the accused [See Babba
v. State of Maharashtra, (2005) 11 SCC 569, Vivek Kumar
v. State of U.P., (2000) 9 SCC 443, Mahesh Kumar
D Bhawsinghka v. State of Delhi, (2000) 9 SCC 383].
23. The principles, which thti Court must consider while
granting or declining bail, have been culled out by this Court in
the case of Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC
E 280, thus:
'The jurisdiction to grant bail has to be exercised on the
basis of well-settled principles having regard to the
circumstances of each case and not in an arbitrary
manner. While granting the bail, the court has to keep in
F mind the nature of accusations, the nature of the 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, reasonable possibility of securing the
G ·presence of the accused at the trial, reasonable
apprehension of the witnesses being tampered with, the
larger interests of the public or State and similar other
considerations. It has also to be kept in mind that for the
purposes of granting the bail the legislature has used the
H words "reasonable grounds for believing" instead of "the
SANJAY CHANDRA v. CBI [H.L. DATIU, J.] 341
evidence" which means the court dealing with the grant of A
bail can only satisfy it (sic itself) as to whether there is a
genuine case against the accused and that the
prosecution will be able to produce prima facie evidence
in support of the charge. It is not expected, at this stage,
to have the evidence establishing the guilt of the accused B
beyond reasonable doubt."
24. In State of U.P. v. Amarrnani Tripathi, (2005) 8 SCC
21, this Court held as under:
"18. It is well settled that the matters to be considered in C
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 the accused absconding or fleeing, if D
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 E
Prahlad Singh Bhati v. NCT, Delhi and Gurcharan Singh
v. State (Delhi Admn.)]. While a vague allegation that the
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 F
the witnesses or if there is material to show that he will use
his liberty to subvert justice or tamper with the evidence,
then bail will be refused. We may also refer to the following
principles relating to grant or refusal of bail stated in
Kalyan Chandra Sarkar v. Rajesh Ranjan: (SCC pp. 535- G
36, para 11)
"11. The law in regard to grant or refusal of bail is very well
settled. The court granting bail should exercise its
discretion in a judicious manner and not as a matter of
course. Though at the stage of granting bail a detailed H
342 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A examination of evidence and elaborate documentation of
the merit of the case need not be undertaken, there is a
need to indicate in such orders reasons for prima facie
concluding why bail was being granted particularly where
the accused is charged of having committed a serious
B offence. Any order devoid of such reasons would suffer
from non-application of mind. It is also necessary for the
court granting bail to consider among other circumstances,
the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment
c in case of conviction and the nature of supporting
evidence.
(b) Reasonable apprehension of tampering with the
witness or apprehension of threat to the complainant.
D
(c) Prima facie satisfaction of the court in support of the
charge. (See Ram Govind Upadhyay v. Sudarshan
Singh and Puran v. Ram bi/as.)"
22. While a detailed examination of the evidence is to be
E avoided while considering the question of bail, to ensure
that there is no prejudging and no prejudice, a brief
examination to be satisfied about the existence or
otherwise of a prima facie case is necessary."
F 25. Coming back to the facts of the present case, both the
Courts have refused the request for grant of bail on two grounds
:- The primary ground is that offence alleged against the
accused persons is very serious involving deep rooted planning
in which, huge financial loss is caused to the State exchequer
G ; the secondary ground is th·at the possibility of the accused
persons tempering with the witnesses. In the present case, the
charge is that of cheating and dishonestly inducing delivery of
property, forgery for the purpose of cheating using as genuine
a forged document. The punishment of the offence is
H punishment for a term which may extend to seven years. It is,
SANJAY CHANDRA v. CBI [H.L. DATIU, J.) 343
no doubt, true that the nature of the charge may be relevant, A .
but at the same time, the punishment to which the party may
be liable, if convicted, also bears upon the issue. Therefore, in
determining whether to grant bail, both the seriousness of the
charge and the severity of the punishment should be taken into
consideration. The grant or refusal to grant bail lies within the B
discretion of the Court. The grant or denial is regulated, to a
large extent, by the facts and circumstances of each particular
case. But at the same time, right to bail is not to be denied
merely because of the sentiments of the community against the
accused. The primary purposes of bail in a criminal case are c
to relieve the accused of imprisonment, to relieve the State of
the burden of keeping him, pending the trial, and at the same
time, to keep the accused constructively in the custody of the
Court, whether before or after conviction, to assure that he will
submit to the jurisdiction of the Court and be in attendance
0
thereon whenever his presence is required. This Court in
Gurcharan Singh and Ors. Vs. State AIR 1978 SC 179
observed that two paramount considerations, while considering
petition for grant of bail in non-bailable offence, apart from the
seriousness of ttie offence, are the likelihood of the accused
fleeing from justice and his tampering with the prosecution E
witnesses. Both of them relate to ensure of the fair trial of the
case. Though, this aspect is dealt by the High Court in its
impugned order, in our view, the same is not convincing.
26. When the undertrial prisoners are detained in jail F
custody to an indefinite period, Article 21 of the Constitution is
violated. Every person, detained or arrested, is entitled to
speedy trial, the question is : whether the same is possible in
the present case. There are seventeen accused persons.
Statement of the witnesses runs to several hundred pages and G
the documents on which reliance is placed by the prosecution,
is voluminous. The trial may take considerable time and it looks
to us that the appellants, who are in jail, have to remain in jail
longer than the period of detention, had they been convicted. It
is not in the interest of justice that accused should be in jail for H
344 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A an indefinite period. No doubt, the offence alleged against the
appellants is a serious one in terms of alleged huge loss to the
State exchequer, that, by itself, should not deter us from
enlarging the appellants on bail when there is no serious
contention of the respondent that the accused, if released on
B bail, would interfere with the trial or tamper with evidence. We
do not see any good reason to detain the accused in custody,
that too, after the completion of the investigation and filing of
the charge-sheet. This Court, in the case of State of Kera/a Vs.
Raneef (2011) 1 SCC 784, has stated :-
c "15. In deciding bail applications an important factor which
should certainly be taken into consideration by the court
is the delay in concluding the trial. Often this takes several
years, and if the accused is denied bail but is ultimately
acquitted, who will restore so many years of his life spent
D in custody? Is Article 21 of the Constitution, whjch is the
most basic of all the fundamental rights in our Constitution,
not violated in such a case? Of course this is not the only
factor, but it is certainly one of the important factors in
. deciding whether to grant bail. In the 'present case the
E respondent has already spent 66 days in custody (as
stated in Para 2 of his counter-affidavit), and we see no
reason why he should be denied bail. A doctor
incarcerated for a long period may end up like Dr. Manette
in Charles Dicken's novel A Tale of Two Cities, who forgot
F his profession and even his name in the Bastille."
27. In 'Bihar Fodder Scam', this Court, taking into
consideration the seriousness of the charges alleged and the
maximum sentence of imprisonment that could be imposed
G including the fact that the appellants were in jail for a period
more than six months as on the date of passing of ihe order,
was of the view that the further detention of the appellants as
pre-trial prisoners would not serve any purpose.
28. We are conscious of the fact that the accused are
H charged with economic offences of huge magnitude. We are
SANJAY CHANDRA v. CBI [H.L. DATIU, J.] 345
also conscious of the fact that the offences alleged, if proved, A
may jeopardize the economy of the country. At the same time,
we cannot lose sight of the fact that the investigating agency
has already completed investigation and the charge sheet is
already filed before the Special Judge, CBI, New Delhi.
Therefore, their presence in the custody may not be necessary B
for further investigation. We are of the view that the appellants
are entitled to the grant of bail pending trial on stringent
conditions in order to ally the apprehension expressed by CBI.
29. In the view we have taken, it may not be necessary to C
refer and discuss other issues canvassed by the learned
counsel for the parties and the case laws relied on in support
of their respective contentions. We clarify that we have not
expressed any opinion regarding the other legal issues
canvassed by learned counsel for the parties.
D
30. In the result, we order that the appellants be released
on bail on their executing a bond with two solvent sureties, each
in a sum of '5 lakhs to the satisfaction of the Special Judge,
CBI, New Delhi on the following conditions:-
E
a. The appellants shall not directly or indirectly make any
inducement, threat or promise to any person acquainted
with the facts or the case so as to dissuade him to disclose
such facts to the Court or to any other authority.
b. They shall remain present before the Court on the dates F
fixed for hearing of the case. If they want to remain absent,
then they shall take prior permission of the court and in
case of unavoidable circumstances for remaining absent,
they shall immediately give intimation to the appropriate
court and also to the Superintendent, CBI and request that G
they may be permitted to be present through the counsel.
c. They will not dispute their identity as the accused in the
case.
H
346 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A d. 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 to an affldavit. ff they have already
surrendered before the Ld. Special Judge, CBI, that fact
should also be supported by an affidavit.
B
e. We reserve liberty to the CBI to make an appropriate
appfication·for modification/recalling the order passed by
us, if for any reason, the appellants violate any of the
conditions imposed by this Court.
c 31. The appeals are disposed of accordingly.
R.P. Appeals disposed.
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