STATE OF BIHARversusRAJBALLAV PRASAD@ RAJBALLAV PP. YADAV@ RAJBALLABH YADAV

                              [2016] 9 S.C.R. 652



A                             STATE OF BIHAR
                                       v.
          RAJBALLAV PRASAD@ RAJBALLAV Pp. YADAV@
                     RAJBALLABH YADAV

B                     (Criminal Appeal No. 1141 of2016)
                            NOVEMBER 24, 2016
           [A.K. SIKRI AND ABHAY MANOHAR SAPRE, JJ.]
         Bail -- Grant of - Challenge to - Respondent-accused was
  facing trial, wherein he was charged for committing offences under
c !PC,  POCSO Act and the Immoral Traffic Act - During investigation,
  respondent had allegedly absconded and there were complaints
  against him of intimidating witnesses -Thereafter, respondent
  surrendered and filed bail application - Trial Court dismissed it -
  High Court, however, granted bail - On appeal, held: The paramount
D consideration is, whether there are any chances of the accused
  person fleeing from justice or reasonable apprehension that the
  accused person would tamper with evidence/trial if released on
  bail - These aspects were not dealt with by the High Court
  appropriately with the seriousness it deserved - This constitutes a
E sufficient reason for interfering with the exercise of discretion by
  the High Court - Order of High Court set aside - Penal Code,
   1860 - ss. 376, 420134, 366-A, 370, 370-A, 212, 120-B - Protection
  oj Children from Sexual Offences Act, 2012-ss.4, 6, 8, 29-Immoral
  Traffic Act, 1956 - ss.4, 5, 6 - Code of Criminal Procedure, 1973 -
  ss.82, 83.
F           Allowing the appeal, the Court
            HELD: 1. The respondent-accused is only an under-trial
      and his liberty is also a relevant consideration. However, equally
      important consideration is the interest of the society and fair trail
      of the case. Thus, undoubtedly the courts have to adopt a liberal
G     approach while considering bail applications of accused persons.
      However, in a given case, if it is found that there is a possibility
      of interdicting fair trial by the accused if released on bail, this
      public interest of fair trial would outweigh the personal interest
      of the accused while undertaking the task of balancing the liberty
1-1
                                    652
 STATE OF BIHAR v. RAJBALLAV PRASAD @ RAJBALLAV                          653
          PD. YADAV @ RAJBALLABH YADAV

of the accused on the one hand and interest of the society to             A
have a fair trial on the other hand. When the witnesses are not
able to depose correctly in the court of law, it results in low rate
of conviction and many times even hardened criminals escape
the conviction. It shakes public confidence in the criminal justice
delivery system. It is this need for larger public interest to
                                                                          B
ensure that criminal justice delivery system works efficiently,
smoothly and in a fair manner that has to be given prime
importance in such situations. After all, if there is a ~hrcat to fair
trial because of intimidation of witnesses etc., that would happen
because of wrongdoing of the accused himself, and the
consequences thereof, he has to suffer. [Para 24)(667-E-H; 668-           c
A-B]
      2. In the present case, the appellant is not seeking
cancellation of bail on the ground that the respondent
misconducted himself after the grant of bail or new facts have
emerged which warrant cancellation of bail. That won Id be a case         D
where conduct or events based grant of bail are to be examined
and considered. On the other hand, when order of grant of bail is
challenged on the ground that grant of bail itself is given contrary
to principles of law, while undertaking the judicial review of such
an order, it needs to be examined as to whether there was
arbitrary or wrong exercise of jurisdiction by the Court granting         E
bail. If that be so, this Court has power to correct the same. It is
a matter of record that when FIR was registered against the
respondent and on the basis of investigation he was sought to be
arrested, the respondent had avoided the said arrest. So much
so, the prosecution was compelled to file an application under             F
Section 82 of Cr.P.C. before the trial court and the trial court
even initiated the process under Section 83 of Cr.P.C. At that
stage only the respondent surrendered before the trial court and
was arrested. It has also come on record that the prosecutrix
and her family members made representations claiming that the
respondent is threatening the family members of the prosecutrix.          G
So much so, having regard to several complaints of intimidation
of witnesses made on behalf of the prosecutl"ix and her family
members, the State administration has deputed a force of 1+4 for
the safety and security of the prosccutrix and her family. Also
                                                                          H
654           SUPREME COURT REPORTS                       [2016] 9 S.C.R.


A     there is no doubt, the prosecutrix has already been examined.
      However, few other material wit 11esses, including father and sister
      of the prosecutrix, have yet to be examined. As per the records,
      threats were extended to the prosecutrix as well as her family
      members. Therefore, the High Court should not have granted
 B    bail to the respondent ignoring all the material and substantial
      aspects which were the relevant considerations. [Paras 14, 16,
      18 and 27)(663-D-G; 664-C; 672-D]
            Kanwar Singh Meena v. State of Rajasthan & Anr.
            (2012) 12 SCC 180 : 2012 (10) SCR 847; Panchanan
            Mishra i< Digambar Mishra & Ors. (2005) 3 SCC 143 :
 c          2005 (1) SCR 484; Ta/ab Haji Hussain v. Madhukar
            Purshottam Mondkar & Ors. 1958 SCR 1226; Masroor
            v. State of Uttar Pradesh & Am: (2009) 14 SCC 286 :
            2009 (6) SCR 1030; Neeru Yadav v. State' of VIiar
            Pradesh & Anr. (2014) 16 SCC 508 : 2014 (12)
 D          SCR 453; Ramesh & Ors. v. State of Haryana 2016 (12)
            SCALE 246 - relied on.
            Rajabhai Abdul Rehman Munshi v. Vasudev Dhanjibhai
            Mody (1964) 3 SCR 480; State (Delhi Administration)
            v. Sanjay Gandhi (1978) 2 SCC 411 : 1978 (3) SCR
 E          950; Bhagirathsinh v. State of Gujarat (1984) 1 SCC
            284 : 1984 (1) SCR 839; Bihar Legal Support Society
            v. Chief Justice of India and another (1986) 4 SCC ,
            767 : 1987 (1) SCR 295; Puran v. Rambilas & Anr.
            (2001) 6 SCC 338 : 2001 (3) SCR 432 - referred to.

 F                           Case Law Reference
      (1964) 3 SCR 480               referred to            Para 7
      1978 (3) SCR 950               referred to            Para 10
      1984 (1) SCR 839               referred to            Para 10
 G    1987 (1) SCR 295               referred to             Para 10
      2001 (3) SCR 432               referred to             Para 13
      2012 (10) SCR 847              relied on               Para 21
      2005 (1) SCR 484               relied on               Para 22
 H
 STATE OF BIHAR v. RAJBALLAV PRASAD @ RAJBALLAV                            655
          PD. YADAV @ RAJBALLABH YADAV

1958 SCR 1226                    relied on                Para23              A
2009 (6) SCR 1030                relied on .              Para24
2014 (12) SCR 453                relied on                Para25
2016 (12) SCALE 2<16             relied on                Para26
      CRIMINAL APPELLATE JURISDICTION: ~riminal Appeal No.                    B
1141 of2016.
      From the Judgment and Order dated 30.09.2016 of the High Court
of Judicature at Patna in Criminal Misc. No. 35951 of2016.
       Gopal Subramaniam, Sr.Adv., Gopal Singh, Manish Kumar,Advs.
for the Appellant.                                                            C
      Dushyant Dave, Sidharth Luthra, Sr. Advs., Farrukh Rasheed,
Sanjeev K. Singh, Advs. for the Respondent.
      The Judgment of the Court was delivered by
       A.K. SIKRI, J. I. Respondent herein is facing trial in Mahila          D
Police Station Case No. 15 of2016, wherein he is charged for committing
offences under Sections 376, 420/34, 366-A, 370, 370-A, 212, 120-B of
the Indian Penal Code, Sections 4, 6 and 8 of the Protection of Children
from Sexual Offences Act, 2012 ("POCSO Act" for short) as well as
Sections 4, 5 and 6 of the Immoral Traffic Act, 1956. He is one of the
co-accused in the said trial. FIR in this behalf was registered on the        E
basis of written complaint of the prosecutrix Preeti Kumari (minor) on
09.02.2016. During investigation, the respondent was identified as the
main accused having committed the rape on the said minor. 'However,
since at that time, he was allegedly absconding, the trial court issued
process u;ider Section 82 of the Code of Criminal Procedure, 1973             F
("Cr.P.C." for short) and thereafter on 27.07.2006 issued process under
Section 83 against the respondent. At that stage, apprehending his
imminent arrest, the respondent surrendered before the trial court on
I 0.03.2016 and was taken into custody. After conclusion of the
investigation, chargesheet in the case was filed on 20.04.2016 and the
charges were framed on 06.08.2016.                                            d
        2. Pending trial, the respondent filed bail application before the
lean1ed Additional Sessions Judge which was heard and dismissed by
the trial court vide order dated 30.05.2016. Obviously, dissatisfied with
this dismissal order, the respondent approached the High Court for grant· -
                                                                              H
656            SUPREME COURT REPORTS                           (2016) 9 S.C.R.



A of bail which came up for hearing before the High Court on 27 .07.2016.
      However, permission was sought to withdraw the said bail application
      and accepting this request, the bail petition was dismissed as withdrawn
      on 27.07.2016. Within three weeks thereafter i.e. on 19.08.2016, the
      respondent preferred another bail petition before the High Court. This
      time he has succeeded in his attempt as the High Court has, videjudgment
 B
      dated 30.09.2016, directed release of the respondent on bail. Certain
      conditions are also imposed while granting this bail. It is the State which
      feels aggrieved by the impugned order granting bail to the respondent
      and has challenged this order in the present proceedings. Notice was
      issued in the SLP on 07.10.2016 for actual returnable date i.e. 17.10.2016.
c     Thereafter, the material date of hearing is 08.11.2016 when the following
      ord~r was passed:

            "We have heard learned counsel for the parties for some
            time.
            In the instant case, the High Court has granted bail to the
D           respondent herein during the pendency of the trial against
            the respondent who is facing the charges under Sections
            376, 420/34, 366-A, 370, 370-A, 212, 120-B of the Indian
            Penal Co_de as well as the charges under Section 4, 6 and 8
            of the POCSO Act, 2012. He is also facing trial for
 E          offences under Sections 4, 5 and 6 of the Immoral Traffic
            Act, 1956. The case is pending in the Court of Additional
            Sessions Judge-1st-cum-Special Judge, Nalanda at
            Biharsharif. The deposition of the Prosecutrix is yet to be
            recorded. Without making any observation at this stage,
            we are of the opinion that in orde! to enable the Prosecutrix
 F          to give her statement fearlessly and without any pressure,
            it would be necessary that she deposes when the respondent
            is in custody. For fhis reason, we suspend the judgment
            and order dated 30t 1 September, 2016 passed by the High
            Court granting bail to the respondent herein for a period of
 G          two weeks from the date the respondent is taken into custody
            to enable the Prosecutrix to give her evidence. We direct
            that the respondent shall surrender to the Trial Court
            tomorrow i.e. 09.11.2016 and would be taken into custody
            in the same manner he was facing incarceration before he
            was granted bail by the High Court, for a period of two
 H
 STATE OF BIHAR v. RAJBALLAV PRASAD@ RAJBALLAV                                 657
   PD. YADAV @ RAJBALLABH YADAV [A.K. SIKRI, J.)

      weeks.                                                                     A
      The Trial Court is impressed upon to start recording the
      evidence of the Prosecutrix immediately and endeavour to
      complete the same within the said period of two weeks.
      We also hope and expect that the respondent shall not try
      to exert any pressure, directly or indirectly, upon the                    B
      Prosecutrix or other prosecution witnesses.
      List the matter for further directions on 23.11.2016. Dasti,
      in addition, is permitted."
      3. Pursuant to the aforesaid order, the respondent surrendered             c
and period of two weeks expired yesterday i.e. on 23.11.2016 when this
appeal was also finally heard. During th is period, statement of prosecutrix
has been recorded and she has been cross-examined as well.
        4. Mr. Gopal Subramaniam, learned senior counsel appearing for
tile appellant submitted that since other witnesses remained to be examined
                                                                                 D
are also material witnesses, it was necessary, in the interest of justice,
that respondent remai~s in jail during the period of trial. He, therefore,
impressed the Court to hear the appeal on merits as according to the
appellant, in the facts and circumstances of this case, bail order should
not liave been passed by the High Court and h has committed grave              '"'-..

illegality in passing such an order. In view thereof, we heard the matter        E
finally and.both the sides advanced detailed submissions.
      5. It was argued by Mr. Subramaniam thatthe impugned judgment
was perverse as it did not take into consideration relevant factors which
needed to be kept in mind while deciding as to whether bail is to be
granted or not, even though such relevant factors were taken note of. It         F
was further submitted that the High Court started its discussion by
observing that presumption of innocence would continue to run in favour
of the accused (respondent herein) until the guilt is brought home.
Thereafter, it discussed the merits of the· case. In the process, as per
the appellant, the Court failed to satisfactorily address the pivotal and
                                                                                 G
relevant considerations for grant/refusal of the bail, namely, whether the
respondent was likely to influence the witnes.ses or the trial in case he is
released on bail pending trial or whether the respondent was likely to
abscond and not available for trial. The learned senior counsel argued
that having regard to the background of this case, it could clearly be
                                                                                 H
658            SUPREME COURT REPORTS                           [2016) 9 S.C.R.



A    discerned that there was reasonable apprehension that there was a
     likelihood intimidating and coercing the witnesses by the respondent as
     not only respondent was an influential person, being MLA of the area in
     question, but had in fact, made such attempts in the past. Complaints
   · were made by the prosecutrix and family members. It was, also pointed
     out that the Court also failed to notice that on an earlier occasion, to
 B
     secure his attendance, process under Section 82 of Cr.P.C. had to be
     initiated. Another submission of learned senior counsel was that when
     the first bail application was dismissed by the High Court hardly three
     weeks ago i.e. on 27.07.2016, there was no change in the circumstances
     from that date till the filing of the second bail application on 19.08.2'016
 c in which the impugned order has been passed. Learned senior counsel
     also pointed out that bail application of co-accused had been refused by
     the High Court on 20.08.2016 and while doing so, High Court had directed
     to conclude the trial in terms of POCSO Act without unnecessary delay,
     on day to day basis. All these aspects, according to the appellant, are
     conveniently bypassed by the High Court, thereby making the order
 D
     vulnerable to challenge. Few judgments were cited in support of the
     proposition that in such a situation, this Court can interdict with the
     order of grant of bai I.
             6. It may also be pointed out at this stage that in the special leave
      petition, another ground taken to challenge the impugned order is that
 E    when earlier application was dismissed by a particular Judge of the High
      Court on 27.07.2016, as per the directives of this Court, second application
      should also have to be listed before the same Judge. However, the
      second application was taken by the Chief Justice himself wherein the
      impugned order has been passed rather than assigning it to the Judge
 F    who had passed the order on 27.07.2016. However, Mr. Subramaniam
      did not press this ground too hard, except submitting that propriety
      demanded that matter is posted before the same Judge who had passed
      the order on 27.07.2016 before whom the first bail application had come
      up for hearing.

 G            7. Mr. Dushyant Dave, learned senior counsel appearing for the
      respondent, made a passionate plea that this special leave petition is
      required to be dismissed only on the ground that the appellant has taken
      a false plea regarding assigning bail application by the said Court to
      itself, rather than sending it to the same Judge who had heard first bail
      application. He pointed out that in the impugned order itself, it has been
 H
    STATE OF BIHAR v. RAJBALLAV PRASAD @ RAJBALLAV                             659
      PD. YADAV@ RAJBALLABH YADAV [A.K. SIKRI, J.)

observed that since no decision on merit ofthe first bail application was       A
taken which was dismissed as withdrawn by order dated 27.07.2016,
there was no legal impediment in proceedings with the second bail
application and more pertinently statement of Additional Advocate
General who appeared on behalf of the State in the High Court was
specifically recorded to the effect that he had no objection to the
                                                                                B
consideration of the bail of the respondent by the said Court. It is only
after recording this that the bail application was taken up for hearing and
order was passed. It was, thus, submitted that the State, which was
supposed to act more responsibly than an individual person, had not come
to the Court with clean hands and tried to prejudice this Court by
suppressing the aforesaid fact while taking such a plea. Reference was          c
made to the judgment of this Cou11 in R(ljablw/Abdu/ Reitman Muns/ti
v. Vasudev Dfwn./ib/1ai Modi and it was pleaded that this conduct of
the appellant/State warranted that the petition be not entertained.
        8. No doubt, there may be some substance in the aforesaid plea
of Mr. Dave having regard to the fact that the Principal Additional             D
 Advocate General had himself stated before the High Court that the
 State had no objection for the consideration of the bail of the respondent
 by the concerned Court. In this backdrop, the State is not justified in
challenging the order on the ground that the matter should not have been
dealt with by the Chief Justice but should have been marked to the
 Judge who passed order on 27.07.20 I6 in the first bail application. May       E
 be, because of this reason, this ground of challenge is not pressed
 seriously by Mr. Subramaniam. In any case, we are of the opinion that
 in the facts and circumstances of the present case, we are not persuaded
 by the argument of Mr. Dave that consequence thereof should be to
 dismiss the special leave petition. There are at least two reasons for this    F
 observation, which are as follows:
       (i) Statement of Principal Additional Advocate General that the
State had no objection for the consideration of the bail application by the
said Court has been recorded in the beginning of the order itself and,
therefore, question of suppression thereof does not arise. This fact was
known to this Court when the SLP was entertained and notice was
issued.· Therefore, the question of misleading the Court on this count
does not arise.
       (ii) More importantly, the primary reason for issuing the notice in
I   (1964) 3 SCR 480                                                            H
660             SUPREME COURT REPORTS                      [2016] 9 S.C.R.


A the SLP was that this Court wanted to examine, on merits, as to whether
  discretion exercised by the High Court under the given circumstances is
  appropriately exercised and it was a fit case for grant of bail to the
  respondent, who is an under trial. We are concerned with a criminal
  trial and the foremost consideration in the mind of this Court is that the
  trial is conducted fairly. These sentiments of the Court were expressed
B
  to Mr. Dave at the time of hearing itself.
          9. Mr. Dave, thus, argued the case on merits also with a fervent
  plea that once the bail is granted by the High Court, this Comt should not
  interfere with the discretion exercised by the High Court. It was argued
  that the respondent had valid reasons to file the second bail application
c inasmuch as in the meantime charges were framed on 06.08.2016, which
  is material change of circumstance.
           I0. Refuting the averments of Mr. Subramaniam, Mr. Dave further
  argued tliat after the grant of bail, the respondent had not abused the
  same in any manner whatsoever and there was no material that he has
D tried to influence the witnesses or tried to temper with the records and
  the observations of the High Court in this behalf in the impugned order
  were perfectly justified. He further submitted that once it is found that
  High Court had applied its mind by passing a detailed order and granted
  bail, such an ex_ercise of discretion should not be interfered with by this
  Court in exercise of powers under Article 136 of the Constitution. In
E suppor): of this proposition, he referred to many judgments gist whereof
  is as under:
          (i) State (Del/ti .At/ministration) v. Sanjay Gandl1P
          "13. Rejection ofbail when bail is applied for is one thing;
          cancellation of bail already granted is quite another. It is
F         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 conducive .
          to a fair trial to allow the accused to retain his freedom
G
          during the trial. The fact that prosecution witnesses have
          turned hostile cannot by itselfjustify the inference that the
          accused has won them over..."
          (ii) B/u1girat/1sin/1 v. State of Gujarat'
      '< 1978) 2 sec 411
 H    '< 1984) 1 sec 284
    STATE OF BJHAR v. RAJBALLAV PRASAD@ RAJBALLAV                          661
      PD. YADAV @ RAJBALLABH YADAV [A.K. SIKRI, J.]

       "7. In our opinion, the learned Judge appears to have                A
       misdirected himself while examining the question of directing
       cancellation of bail by interfering with a discretionary order
       made by the learned Sessions Judge. One could have
       appreciated the anxiety of the learned Judge of the High
       Court that in the circumstances found by him that the victim
                                                                            B
       attacked was a social and political worker and therefore
       the accused should not be granted bail but we fail to
       appreciate how that circumstance should be considered so
       overriding as to permit interference with a discretionary
       order of the learned Sessions Judge granting bail. The High
       Court completely overlooked the fact that it was not for it          c
       to decide whether the bail should be granted but the
       application before it was for cancellation of the bail. Very
       cogent and overwhelming circumstances are necessary for
       an order seeking cancellation of the bail and the trend today
       is towards granting bail because it is now well-settled by a
                                                                            D
       catena of decisions of this Court that the power to grant
       bail is not to be exercised as ifthe punishment before trial
       is being imposed. The only material considerations in such
       a situation are whether the accused would be readily
       available for his trial and whether he is likely to abuse the
       discretion granted in his favour by tampering with evidence.          E
       The order made by the High Court is conspicuous by its
       silence on these two relevant considerations. It is for these
       reasons that we consider in the interest of justice a
       compelling necessity to interfere with the order made by
       the High Court."
                                                                             F
       (iii) Bi/mr Leglt/ Support Society v. Cltief Justice oflndilt """
ltnotl1er
        "3. The question whether special leave petitions against
        refusal ofbail or anticipatory bail should be listed immediately
        or not is a question within the administrative jurisdiction of       G
        the Chief Justice and we cannot give any direction in that
        behalf. But, we may point out that every petitioner who
        tiles a special leave petition against (sic refusal) of bail or

4
    (1986)4SCC767                                                            H
662            SUPREME COURT REPORTS                           [2016] 9 S.C.R.


A           anticipatory bail has an opportunity of mentioning his case
            before the learned Chief Justice in his adininistrative
            capacity for urgent listing and wherever a case deserves
            urgent listing, the Chief Justice makes an appropl'iate Ol'der
            for urgent listing. It may, however, be pointed out that this
            Court was never intended to be a regular comt of appeal
B
            against orders made by the High Court or the sessions court
            or the Magistrates. It was created as an Apex Court for
            the purpose of laying down the law for the entire cowntry
            and extraordinary jurisdiction for granting special leave was
          . conferred upon it under A1ticle 136 of the Constitution so
c           that it could interfere whenever it found that law was not
            correctly enunciated by the lower courts or tribunals and it
            was necessary to pronounce the correct law on the subject.
            This extraordinary jurisdiction could also be availed by the
            Apex Court for the purpose of correcting grave miscarriage
            of justice, but such cases would be exceptional by their
 0
            very nature... ".                                   .
             11. We have given our earnest consideration to the submissions
      of the counsel on either side.
          12. We may observe at the outset that we are conscious of the
 Elimitations which bind us while entertaining a plea against grant of bail
  by the lower court, that too, which is a superior court like High Court. It
  is expected that once the discretion is exercised by the High Court on
  relevant considerations and bail is granted, this Court would normally
  not interfere with such a discretion, unless it is found that the discretion
F itselfis exercised on extraneous considerations and/or the relevant factors
  which need to be taken into account while exercising such a discretion
  are ignored or bypassed. In the judgments relied upon by the learned
  counsel for the respondent, which have already been noticed above, this
  Court mentioned the considerations which are to be kept in mind while
  examining as to whether order of bail granted by the court below was
G justified. There have to be very cogent and overwhelming circumstances
  that are necessary to interfere with the discretion in granting the bail.
  These material considerations are also spelled out in the aforesaid
  judgments, viz. whether the accused would be readily available for his
  trial and whether he is likely to abuse the discretion granted in his favour
H by tampering with the evidence. We have kept these very considerations
  STATE OF BIHAR v. RAJBALLAV PRASAD @ RAJBALLAV                                  663
    PD. YADAV @ RAJBALLABH YADAV [A.K. SIKRI, J.]

in mind while examining the correctness of the impugned order.                     A
        13. We may also, at this stage, refer to the judgment in the case of
l'uran v. Rambilfls & Anr. 5, wherein principles while dealing with
 application for bail as well as petition for cancellation of bail were
 delineated and elaborated. Insofar as entertainment of application for
  bail is concerned, the Court pointed out that reasons must be recorded           B
  while granting the bail, but without discussion of merits and demerits of
  evidence. It was clarified that discussing evidence is totally different
  from giving reasons for a decision. This Cou11 also pointed out that
  where order granting bail was passed by ignoring material evidence on
, record and without giving reasons, it would be perverse and contrary to
  the principles of law. Such an order would itself provide a ground for           c
  moving an application for cancellation of bail. This ground for cancellation,
  the Court held, is different from the ground that the accused misconducted
  himself or some new facts dall for cancellation.
       14. The present case falls in the former category as the appellant
is not seeking cancellation of bail on the ground that the respondent              D
misconducted himself after the grant of bail or new facts have emerged
which warrant cancellation ofbai I. That wou Id be a case where conduct
or events based grant of bail are to be examined and considered. On the
other hand, when order of grant of bai I is challenged on the ground that
grant of bail itself is given contrary to principles of law, while undertaking     E
the judicial review of such an order, it needs to be examined as to whether
there was arbitrary or wrong exercise ofjurisdiction by the Court granting
bail. If that be so, this Court has power to correct the same.
      IS. Keeping in view the aforesaid consideration, we proceed to
discuss this matter.                                                               F
        16. It is a matter of record that when FIR was registered against
 the respondent and on the basis of.investigation he was sought to be
 arrested, the respondent had avoided the said arrest. So much so, the
 prosecution was compelled to tile an application under Section 82 of
 Cr.P.C. before the trial court and the trial court even initiated the process     G
 under Section 83 of Cr.P.C. At that stage only that the respondent
 surrendered before the trial court and was arrested.
       17. The respondent's application was dismissed by the Additional
 Sessions Judge vide orders dated 30.05.2016. While passing this order
 5 <2001) 6   sec 338
                                                                                   H
664             SUPREME COURT REPORTS                          [2016) 9 S.C.R.


A     of rejection, the trial court was persuaded by the submission of the
      Prosecutor that direct and specific allegations had been levelled against
      the respondent of committing rape upon the victim minor girl and he was
      identified by the victim during the course of investigation while he was
      walking in the P.O. House. It was also noted that prayer for bail of co-
      accused Sandeep Suman @ Pushpanjay had already been rejected and
B
      the case of the respondent was on graver footing and also that the
      respondent had a long criminal diary, as would be evident from the Case
      Diary produced before the Court.
             I 8. It has also come on record that the prosecutrix and her family
      members made representations claiming that the respondent is
c     threatening the family members of the prosecutrix. So much so, having
      regard to several complaints ofintimidation of witnesses made on behalf
      of the prosecutrix and her family members, the State administration has
      deputed a force of I +4 for the safety and security of the prosecutrix and
      her family.
D             19. In spite of the aforesaid material on record, the High Court
      has made casual and cryptic remarks that there is no material showing
      that the accused had interfered with the trial by tampering evidence.
      On the other hand, it has discussed the merits of the case/evidence
      which was not called for at this stage. No doubt, in a particular case if it
 E    appears to the court that the case foisted agains! the accused is totally
      false, that may become a relevant factor while considering the bail
      application. However, it can be said at this stage that the present case
      falls in this category. That would be a matter of trial. Therefore, the
      paramount consideration should have been as is pointed out above, whether
      there are any chances of the accused person fleeing from justice or
 F    reasonable apprehension that the accused person would tamper with
      the evidence/trial if released on bail. These aspects are not dealt with
      by the High Court appropriately and with the seriousness they deserved.
      This constitutes a sufficient reason for interfering with the exercise of
      discretion by the High Court.
 G        20. The High Court also ignored another vital aspect, namely,
  while rejecting the bail application of co-accused, the High Court had
  ordered expeditious, nay, day-to-day trial to ensure that the trial comes
  to an end most expeditiously. When order had already been passed to
  fast-track the trial, and the application for bail by co-accused Sandeep
H Suman @ Pushpanjay was also rejected, the High Court, while
 STATE QF BIHAR v. RAJBALLAV PRASAD@ RAJBALLAV                                      665
   PD. YADAV @ RAJBALLABH YADAV [A.K. SIKRI, J.]

considering the bail application of the respondent, was supposed to take             A
into consideration this material fact as well. Further, while making a
general statement of law that the accused is innocent, til I proved guilty,
the provisions of Section 29 of POCSO Act have not been taken into
consideration, which reads follows:
       "29. Presumption as to certain offence: Where a person                        B
       is prosecuted for committing or abetting or attempting to
       commit any offence under sections 3, 5, 7 and section 9 of
       this Act, the Special Court shall presume, that such person
       has committed or abetted or attempted to commit the
       offence, as the case may be unless the contrary is proved."
                                                                                     c
        21. Keeping in view all the aforesaid considerations in mind, we
are of the opinion that it was not a fit case for grant of bail to the respondent
at this stage and grave error is committed by the High Court in this
behalf. We would like to reproduce following discussion from the
judgment in the case of Kanwar Singh Meena v. State of Rttjastlum
& Anr. 6                                                                             D

       "I 0...While cancelling bail under Section 439(2) of the Code,
       the primary considerations which weigh with the court are
       whether the accused is likely to tamper with the evidence
       or interfere or attempt to interfere with the due course of
       justice or evade the due course of justice. But, that is not                  E
       all. The High Court or the Sessions Court can cancel bail
       even in cases where the order granting bail suffers from
       serious infirmities resulting in miscarriage ofjustice. If the
       court granting bail ignores relevant materials indicating prima
       facie involvement of the accused or takes into account                        F
       irrelevant material, which has no relevance to the question
       of grant of bail to the accused, the High Court or the Sessions
       Court would be justified in cancelling the bail. Such orders
       are against the well recognized principles underlying the
       power to grant bail. Such orders are legally infirm and
       vulnerable leading to miscarriage ofjustice and absence of                    G
       supervening circumstances such as the propensity ofthe
       accused to tamper with the evidence, to flee from justice,
       etc. would not deter the court from cancelling the bail. The
       High Court or the Sessions Court is bound to cancel such
 • (2012) 12 sec iso                                                                 H
666            SUPREME COURT REPORTS                          (2016] 9 S.C.R.


A           bail orders particularly when they are passed releasing
            accused involved in heinous crimes because they ultimately
            result in weakening the prosecution case and have adverse
            impact on the society. Needless to say that though the
            powers of this court are much wider. this court is equally
            guided by the above principles in the matter of grant or
 B
            cancellation of bail.
                       xx              xx                 xx
            18. Taking an overall view of the matter, we are of the
            opinion that in the interest of justice, the impugned order
            granting bail to the accused deserves to be quashed and a
 c          direction needs to be given to the police to take the accused
            in custody... "
             22. As indicated by us in the beginning, prime consideration before
   us is to protect the fair trial and ensure that justice is done. This may
   happen only ifthe witnesses are able to depose without fear, freely and
 D truthfully and this Court is convinced that in the present case, that can
   be ensured only ifthe respondent is not enlarged on bail. This importance
   of fair trial was emphasised in Pl1t1f:/U/ntll1 Mislir" v. Dig"mb"r Mislir"
   & Ors. 1 while setting aside the order of the High Court granting bail in
   the following terms:                                                       ··
 E         "13. We have given our careful consideration to the rival
           submissions made by the counsel appearing on either side.
           The object underlying the cancellation of bail is to protect
           the fair trial and secure justice being done to the society by
           preventing the accused who is set at liberty by the bail order
 F         from  tampering with the evidence in the heinous crime and
           if there is delay in such a case the underlying object of
           cancellation of bail practically loses all its purpose and
           significance to the greatesf prejudice and the interest of the
           prosecution. It hardly requires to be stated that once a
           person is released on bail in serious .criminal cases whei·e
 G         the punishment is quite stringent and deterrent, the accused
           in order to get away from the clutches of the same indulge
           in various activities like tampering with the prosecution
           witnesses, threatening the family members of the deceased
           victim and also create problems of law and order situation."
 H    1 (2oos) 3 sec 143
    STATE OF BIHAR v. RAJBALLAV PRASAD @ RAJBALLAV                                 667
      PD. YADAV@ RAJBALLABH YADAV [A.K. SIKRl, J.]

         23. Such sentiments were expressed much earlier as well by                 A
the Court in T"lab ll"ji Ilms"i" v. Madltukar Pursltottam Momlkar
& Ors. 8 in the following manner:

        "6 ... There can be no more important requirement of the
        ends of justice than the uninterrupted progress of a fair
        trial; and it is for the continuance of such a fair trial that the          B
        inherent powers of the High Courts are soughfto be invoked
        by the prosecution in cases where it is alleged that accused
        persons, either by suborning or intimidating witnesses, are
        obstructing the smooth progress of a fair trial. Similarly, if
        an accused person who is released on bail jumps bail and                    c
        attempts to run to a foreign country to escape the trial, that
        again would be a case where the exercise of the inherent
        power would be justified in order to compel the accused to
        submit to a fair trial and not to escape its consequences by
        taking advantage of the fact that he has been released on
        bail and by absconding to another country. In other words,                  D
        if the conduct of the accused person subsequent to his
        release on bail puts in jeopardy the progress of a fair trial
        itself and if there is no other remedy which can be effectively
        used against the accused person, in such a case the inherent
        power of the High Court can be legitimately invoked ... "
                                                                                    E
         24. We are conscious of the fact that the respondent is only an
under-trial and his liberty is also a relevant consideration. However,
equally important consideration is the interest of the society and fair trail
of the case. Thus, undoubtedly the courts have to adopt a liberal approach
while considering bail applications ofaccused persons. However, in a                F
given case, ifit is found that there is a possibility of interdicting fair trial
by the accused if released on bail, this public interest of fair trial would
outweigh the personal interest of the accusedwhile undertaking the task
of balancing the liberty of the accused on the one hand and interest of
the society to have a fair trial on the other hand. When the witnesses are
not able to depose correctly in the court of law, it results in low rate of         G
conviction and many times even hardened criminals escape the conviction.
It shakes public confidence in the criminal justice delivery system. It is
this need for larger public interest to ensure that criminal justice delivery

8
    1958 SCR 1226
                                                                                    H
668             SUPREME COURT REPORTS                            [2016] 9 S.C.R.



A     system works efficiently, smoothly and in a fair manner that has to be
      given prime importance in such situations. After all, ifthere is a threat to
      fair trial because of intimidation of witnesses etc., that would happen
      because of wrongdoing of the accused himself, and the consequences
      thereof, he has to suffer. This is so beautifully captured by thi.s Court
      in M"sroor v. St"te of Utt"r Pr"deslz & A11r. 9 in the fol lowing words:
 B
            "15. There is no denying the fact that the liberty of an
            individual is precious and is to be zealously protected by the
            courts. Nonetheless, such a protection cannot be absolute
            in every situation. The valuable right ofliberty ofan individual
            and the interest of the society in gen~ral has to be balanced.
 c          Liberty of a person accused of an offence would depend
            upon the exigencies of the case. It is possible that in a given
            situation, the collective interest of the community may
            outweigh the right of personal liberty of the individual
            concerned. In this context, the following observations of
 D          this Court in Shahzad Hasan Khan v. lshtiaq Hasan Khan
            [(1987) 2 SCC 684] are quite apposite: (SCC p. 691, para
            6)
                "6 ... Liberty is to be secured through process oflaw,
                which is administered keeping in mind the interests of
 E              the accused, the near and dear of the victim who lost
                his life.and who feel helpless and believe that there is no
                justice in the world as also the collective interest of the
                community so that parties do not lose faith in the
                institution and indulge in private retribution."

 F              25. This very aspect of balancing of two interests has again
      been discussed lucidly in Neeru Y<td"v v. St"te of Utt"r Pr"deslz &
      Anr. 10 in the following words:
             "16. The issue that is presented before us is whether this
             Court can annul the order passed by the High Court and
 G           curtail the liberty of the second respondent? We are not
             oblivious of the factthat liberty is a priceless treasure for a
             human being. It is founded on the bedrock of the
             constitutional right and accentuated further on the human
             rights principle. It is basically a natural right. In fact, some
       , <2009) 14 sec 286
 H    "'(2014) 16 sec 508
STATE OF BIHAR v. RAJBALLAV PRASAD@ RAJBALLAV                         669
  PD. YADAV@ RAJBALLABH YADAV [A.K. SIKRI, J.]

   regard it as the grammar of life. No one would like to lose         A
   his liberty or barter it for all the wealth of the world. People
   from centuries have fought for liberty, for absence ofliberty
   causes sense of emptiness. The sanctity of liberty is the
   fulcrum of any civilised society. It is a cardinal value on
   which the civilisation rests. It cannot be allowed to be
                                                                       B
   paralysed and immobilised. Deprivation ofliberty of a person
   has enormous impact on his mind as well as body. A
   democratic body polity which is wedded to the rule oflaw,
   anxiously guards liberty. But, a pregnant and significant one,
   the liberty of an individual is not absolute. Society by its
   collective wisdom through process of law can withdraw               c
   the liberty that it has sanctioned to an individual when an
   individual becomes a danger to the collective and to the
   societal order. Accent on individual liberty cannot be
   pyramided to that extent which would bring chaos and
   anarchy to a society. A society expects responsibility and
   accountability from its members, and it desires that the
                                                                       D
   citizens should obey the law, respecting it as a cherished
   social norm. No individual can make an attempt to create a
   concavity in the stem of social stream. It is impermissible.
   Therefore, when an individual behaves in a disharmonious
   manner ushering in disorderly things which the society              E
   disapproves, the legal consequences are bound to follow..
   At that stage, the court has a duty. It cannot abandon its
   sacrosanct obligation and pass an order at its own whim or
   caprice. It has to be guided by the established parameters
   oflaw.
                                                                       F
   17. Coming to the case at hand, it is found that when a
   stand was taken that the second respondent was a history-
   sheeter, it was imperative on the part of the High Court to
   scrutinise every aspect and not capriciously record that the
   second respondent is entitled to be admitted to bail on the
   ground of parity. It can be stated with absolute certitude          G
   that it was not a case of parity and, therefore, the impugned
   order [Mitlhan Yadav v. State of U.P., Criminal Misc. Bail
   Application No. 31078 of2014, decided on 22-9-2014 (All)]
   clearly exposes the non-application of mind. That apart, as
                                                                       H
670                SUPREME COURT REPORTS                           [2016] 9 S.C.R.



A              a matter of fact it has been brought on record thatthe second
               respondent has been charge-sheeted in respect of number
               of other heinous offences. The High Court has failed to
               take note of the same. Therefore, the order has to pave the
               path of extinction, for its approval by this Court would
               tantamount to travesty ofjustice, and accordingly we set it
 B
               aside."
          26. In Rameslt & Ors. v. State of Harymrn 11 , whiCh was
  decided only two days ago i.e. on 22.11.2016, this Court discussed the
  problem of witnesses turning hostile, and ifthat is for wrong reasons,
  observed that it affects the very fabric ofcriminaljustice delivery system.
C We would like to reproduce following passages therefrom:
               "40. On the analysis of various cases, following reasons
               can be discerned which make witnesses retracting their
               statements before the Court and turning h<!stile:
D              "(i) Threat/intimidation.
               (ii) Inducement by various means.
               (iii) Use of muscle and money power by the accused.
               (iv} Use of Stock Witnesses.
 E             (v) Protracted Trials.
               (vi) Hassles faced by the witnesses during investigation and
               trial.
               (vii) Non-existence of any clear-cut legislation to check
               hostility of witness."
 F
               41. Threat and intimidation has been one of the major causes
               for the hostility of witnesses. Bentham said: "witnesses
               are the eyes and ears qfjustice". When the witnesses
               are not able to depose correctly in the court oflaw, it results
               in low rate of conviction and many times even hardened
G              criminals escape the conviction. It shakes public confidence
               in the criminal justice delivery system. It is for this reason
               there has been a lot of discussion on witness protection and
               from various quarters demand is made for the State to play
               a definite role in coming out with witness protection
      11
H          Criminal Appeal No. 2526 of2014 decided on November 22, 2016
STATE OF BIHAR v. RAJBALLAV PRASAD@ RAJBALLAV                         671
  PD. YADAV @ RAJBALLABH YADAV [A.K. SIKRI, J.]

   programme, at least in sensitive cases involving those in           A
   power, who have political patronage and cbuld wield muscle
   and money power, to avert trial getting tainted and derailed
   and truth becoming a casualty. A stern and emphatic
   message to this effect was given in Za/1ira Habihul/alz's
   case as well.                               ·
                                                                       B
   42. Justifying the measures to be taken for witness protection
   to enable the witnesses to depose truthfully and without
   fear, Justice Malitnath Committee Report on Reforms of
   Criminal Justice System, 2003 has remarked as under:
   "11.3 Another major problem is about safety of witnesses            c
   and their family members who face danger at different
   stages. They are often threatened and the seriousness of
   the threat depends upon the type of the case and the
   background of the accused and his family. Many times
   crucial witnesses are threatened or injured prior to their
   testifying in the court. If the witness is still not amenable he    D
   may even be murdered. In such situations the witness will
   not come forward to give evidence unless he is assured of
   protection or is guaranteed anonymity of some form of
   physical disguise ... Time has come for a comprehensive law
   being enacted for protection of the witness and members             E
   ofhis family."
  · 43. Almost to similar effect ~{e the observations of Law
    Commission oflndia in its 198 Report (Report on 'witness
    identity protection and witness protection programmes'),
    as can be seen from the following discussion therein:              F
      "The reason is not far to seek. In the case of victims of
      terrorism and sexual offences against women and
      juveniles, we are dealing with a section of society
      consisting of very vulnerable people, be they victims or
      witnesses. The victims and witnesses are under fear of
                                                                       G
      or danger to their lives or lives of their relations or to
      their property. It is· obvious th'at in the case of serious
      offences under the Indian Penal code, 1860 and other
      special enactments, some of which we have referred to
      above, there are bound to be absolutely similar situations
                                                                       H
672             SUPREME COURT REPORTS                              [2016] 9 S.C.R.



A                  for victims and witnesses. While in the case of certain
                   offences under special statutes such fear or danger to
                   victims and witnesses may be more common and
                   pronounced, in the case of victims and witnesses involved
                   or concerned with some serious offences, fear may be
                   no less important. Obviously, if the trial in the case of
 B
                   special offences is to be fair both to the accused as well
                   as to the victims/witnesses, then there is no reason as to
                   why it should not be equally fair in the case of other
                   general offences of serious nature falling under the
                   Indian Penal Code, 1860. It is the fearordangerorrather
 c                 the likelihood thereof that is common to both cases. That
                   is why several general statutes in other countries provide
                   for victim and witness protection."
              27. No doubt, the prosecutrix has already been examined.
      However, few other material witnesses, including father and sister of
 D    the prosecutrix, have yet to be examined. As per the records, threats
      were extended to the prosecutrix as well as her family members.
      Therefore, we feel that the High Court should not have granted bail to
      the respondent ignoring all the material and substantial aspects pointed
      out by us, which were the relevant considerations.
 E               28. for the foregoing reasons, we allow this appeal thereby setting
      aside the order of the High Court. In case the respondent is already
      released, he shall surrender and/or taken into custody forthwith. In case
      he is still in jail, he will continue to remain in jail as a consequence of this
      judgment.
 F             29. Before we part with, we make it clear that this Court has
      not expressed any observations on the merits of the case. Whether the
      respondent is guilty or not, of the charges framed against him, will be
      decided by the trial court on its own merits after analysing the evidence
      that surfaces on record during the trial.
      Ankit Gyan                                                        Appeal allowed.
 G