# [1978] 3 S.C.R. 950

- **Citation:** [1978] 3 S.C.R. 950
- **Court:** Supreme Court of India
- **Decided:** 1978-05-05
- **Bench:** Y. V. Chandrachud, S. MVRTAZA FAZAL Au, B P. N. Shinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1978-3-s-c-r-950-7470
- **Pages:** 13

## Headnote

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l'onstitution of India, 1950, Art. 136-Appeal by special leave agt1ins1 on
order rejecting an application for cancl'llarion of hail-Courl cannot pen11i1 ;,se
of new nuiterial against accused.
Constitution of India. 1950, Art. 136-Appeal by ,\pecial lea1·e agai11.1r an
order rejecting an application for ca11cellation cf tlu~ hail-l11tcrferenct' with
the findings of the HiRh Court 11.1· 10 H'he1'1t'r the qccused ta111pen'C! with praw·-
cution lt'itnesses_. wlit'll justified.
Bail, cancellation of-Power lo 1 a11cel bail, 111ust ht' exercised with cart' ti.nd
circ1anspection a11d in appropriate cases-Crl. P.C. (Act IT of 1974), 1973,
S. 439(2).
Bail cancellatio11 of-Gro11111/1 1n11st bear casuol co111u'ctiot1 with san1e t,Jrf
or conduct of t1ccu.~cd-Crl.P.C. {Act 2 of 1974).
1973. Ss.
439(2)
r/11.·
437(5).
Burdell of proof. exte11t uf-111 a11 application for ca11cellatio11 of bail, r.J,f
proof of the p!eri that ll'itnesst'.I' turned hostile because they were 1\'tJll over by
the accused need not he heyond a rcnsonahlt' do11ht-Evide11ce A ct, 1872-Ss :;,
101-104 r/w Crl.P.C. S. 439(2).
The respondent who \Vas arraigned as accused No. 2 in a prosecution tor
offences u/Ss. 120B r /w Ss. 409, 435 and 201 l.P.C. instituted by the
Central
Bureau of Investigation in the Court of the (]1ief Metropolitan l\fagistratc,
Delhi was granted anticipatory bail, by the High Court of Delhi.
When the
Committal Proceedings commenced in the Court of the Chief l\.fetropolitan
Magistrate, Delhi on February 20, 1978 as per the time schedule fixed by this
Court, the two. approvers in the case turned hostile, resiled from their statements made to the police u/s 161 of Crl. P.C .• and retracted the confessions
made to the Chief Metropolitan Magistrate.
An application filed for cance11ation of the respondent's bnil was dismissed hy n le:irned single Judge of l~~c
Delhi High Court on 11-4-1978.
Allowing the apreal in part. the C,ourt
HELD: 1. Tn an appeal by special leave agains 1
<'•!l order
rcit;cti~11.: ;.,t\
application for can~cl1<1tion of b .... :i. no new n1aterial which was not available to
the High Court will normally be allowed to be relied upon by the State. Tt \'.'OUld
be unfair to the respondent to make use of that material without giving him
an adequate opportunity to meet it on the ground that the additional data
came into existence after the High Court gave its judgn1ent. Though.
in
appropriate cases, the Court has the po¥.rcr to take additionnl evidence. th:it
power has to be exercised sparingly. particularly in appeals
brought
unthT
Article 136 of the Cor,._,titution.
[956 D-EJ
2. In an appeal by special leave against :in order rejecting an application
for cancellation of the bail, the Iligh Court's findings are norn1ally treated
t,y
this Court as binding on issues like : \Vhether the prosecution has SlJCCeeded in
proving its case that the respondent has tampered \vith its witnesses and that
]'
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DELHI STATE 1'. SAN.JAY
GANDHI
951
·there is a reasonable apprehension that he
~viii continue to indu!ge in. that
oourse of oonduct, if he is allowed to rcnuun at large. If two \11~w~ of t~e
.evidence are reasonably possible and the High Court has taken one view, this_
Court will be disinclineJ to intcrfercc therewith
i~1 an appeal under Art. 136 of
the c:onstitution.
1958 E-FJ
Jn the instant case :-(a) the High Court has
rejected.
incontrovertible
evidence on hypertechn1cal cons1dc1 ations though 1t points. 1n one
direction
only, leaving no manner of doubt that the respondent has n1buse<l the facility
afforded to hin1 by that Court by granting anticipatory bail to him.
( b) Even
excluding
the·
Ja~t incident
in
regard
to Charan Singh which is really
first in point of time and though it is corroborated by an entry in the General
Diary, the o.thcr
evid~ncc. viz., (i)
Yad~~'s compl~int of. t~e ~4th. Feb.n1ary.
(ii) Khedkars complaint of even date, (111) Yadavs adm1ss1on in hts ev1d_ence
that he did make the written complaint in

## Text

_Characters 0–39,886 of 41,645. This is a partial read: ask again with offset=39886 for what follows._

A
950
STATE THROUGH DELHI ADMINISTRATION
l'.
SANJA Y GANDHI
May 5, 1978
[Y. V. CHANDRACHUD, C.J., S. MVRTAZA FAZAL Au AND
B
P. N. SHINGHAL, JJ.]
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l'onstitution of India, 1950, Art. 136-Appeal by special leave agt1ins1 on
order rejecting an application for cancl'llarion of hail-Courl cannot pen11i1 ;,se
of new nuiterial against accused.
Constitution of India. 1950, Art. 136-Appeal by ,\pecial lea1·e agai11.1r an
order rejecting an application for ca11cellation cf tlu~ hail-l11tcrferenct' with
the findings of the HiRh Court 11.1· 10 H'he1'1t'r the qccused ta111pen'C! with praw·-
cution lt'itnesses_. wlit'll justified.
Bail, cancellation of-Power lo 1 a11cel bail, 111ust ht' exercised with cart' ti.nd
circ1anspection a11d in appropriate cases-Crl. P.C. (Act IT of 1974), 1973,
S. 439(2).
Bail cancellatio11 of-Gro11111/1 1n11st bear casuol co111u'ctiot1 with san1e t,Jrf
or conduct of t1ccu.~cd-Crl.P.C. {Act 2 of 1974).
1973. Ss.
439(2)
r/11.·
437(5).
Burdell of proof. exte11t uf-111 a11 application for ca11cellatio11 of bail, r.J,f
proof of the p!eri that ll'itnesst'.I' turned hostile because they were 1\'tJll over by
the accused need not he heyond a rcnsonahlt' do11ht-Evide11ce A ct, 1872-Ss :;,
101-104 r/w Crl.P.C. S. 439(2).
The respondent who \Vas arraigned as accused No. 2 in a prosecution tor
offences u/Ss. 120B r /w Ss. 409, 435 and 201 l.P.C. instituted by the
Central
Bureau of Investigation in the Court of the (]1ief Metropolitan l\fagistratc,
Delhi was granted anticipatory bail, by the High Court of Delhi.
When the
Committal Proceedings commenced in the Court of the Chief l\.fetropolitan
Magistrate, Delhi on February 20, 1978 as per the time schedule fixed by this
Court, the two. approvers in the case turned hostile, resiled from their statements made to the police u/s 161 of Crl. P.C .• and retracted the confessions
made to the Chief Metropolitan Magistrate.
An application filed for cance11ation of the respondent's bnil was dismissed hy n le:irned single Judge of l~~c
Delhi High Court on 11-4-1978.
Allowing the apreal in part. the C,ourt
HELD: 1. Tn an appeal by special leave agains 1
<'•!l order
rcit;cti~11.: ;.,t\
application for can~cl1<1tion of b .... :i. no new n1aterial which was not available to
the High Court will normally be allowed to be relied upon by the State. Tt \'.'OUld
be unfair to the respondent to make use of that material without giving him
an adequate opportunity to meet it on the ground that the additional data
came into existence after the High Court gave its judgn1ent. Though.
in
appropriate cases, the Court has the po¥.rcr to take additionnl evidence. th:it
power has to be exercised sparingly. particularly in appeals
brought
unthT
Article 136 of the Cor,._,titution.
[956 D-EJ
2. In an appeal by special leave against :in order rejecting an application
for cancellation of the bail, the Iligh Court's findings are norn1ally treated
t,y
this Court as binding on issues like : \Vhether the prosecution has SlJCCeeded in
proving its case that the respondent has tampered \vith its witnesses and that
]'
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DELHI STATE 1'. SAN.JAY
GANDHI
951
·there is a reasonable apprehension that he
~viii continue to indu!ge in. that
oourse of oonduct, if he is allowed to rcnuun at large. If two \11~w~ of t~e
.evidence are reasonably possible and the High Court has taken one view, this_
Court will be disinclineJ to intcrfercc therewith
i~1 an appeal under Art. 136 of
the c:onstitution.
1958 E-FJ
Jn the instant case :-(a) the High Court has
rejected.
incontrovertible
evidence on hypertechn1cal cons1dc1 ations though 1t points. 1n one
direction
only, leaving no manner of doubt that the respondent has n1buse<l the facility
afforded to hin1 by that Court by granting anticipatory bail to him.
( b) Even
excluding
the·
Ja~t incident
in
regard
to Charan Singh which is really
first in point of time and though it is corroborated by an entry in the General
Diary, the o.thcr
evid~ncc. viz., (i)
Yad~~'s compl~int of. t~e ~4th. Feb.n1ary.
(ii) Khedkars complaint of even date, (111) Yadavs adm1ss1on in hts ev1d_ence
that he did make the written complaint in spite of th'-! fact that he had turned
hostile, (iv) the affidavits of Sat Pal Singh, Ganpat Singh and Di.i:tambar Da')
in regard to tbe inc.ident of the 17th an,I (v) !he affidavit of Sarup Singh
regarding the incident of February 28, furnish satisfactory proof
that
the
respondent has abused his liberty by attempting to suborn the prosecution witllC')SCS.
He has therefore forfeited his right to remain free. [960 G-J.I, 96 J /\]
3. Section 439(2) of the Code of Crin1inal Procedure confers jurisdiction
on the High Court or Court of Sessions to direct that any person who has
been released on bail under Chapter XXXIlI be arrested and committed to
custody.
The power to take back in custody an accused who has been enlarged on bail has to be exercised \Vith care and circumspection.
But
the
power, though of an extra-ordinary nature, is meant to
be
exercised
in
appropriate cases when, by a preponderance of probabilities. it is clear that
the accused is interfering with the course of justice by tampering v.·ith \Vitnesses.
Refusal to exercise that \Vholesomc power in soch cases, few though they
1nay be, will reduce it to a dead letter and will suffer the courts to be silent
spectators ·10 the subversion of the judicial process. [961 A·C]
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Madhukar Funhotta111 Mondakal \'. Talab Haji Hussain 60, Bo111bay Law
E
Reporter 465 <>.nd Gurcharan Singh & Ors. v. State (Delhi Ad1n<oi.nratio11 l,
1978 Criminal I~aw Journal, 129, 137; Principles in, applied.
4. Rejection of bail \\.'hen bail is applied for is one thin1•; cancellation of
_bail already. granted is quite another. lt. is easier to reject ~ bail application
in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made
and
can by and large be permitted only if, by reason of supervening circumstances,
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it \VOnld be no longer conducive to a fair trial to allow the accused to retain
his freedom during the trial.
The fact that prosecution witnesses have turned
hostile cannot .bv itself justify the inference that the accused has v.·on then1
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over.
The objective fact that witnesses have turned hostile must be shov;n
/\ to bear a causal connection with the subjective involvement therein of the
/
respondent.
Without such proof. ::i bail once granted cnnnot be cancelled
on
the off chance o.r on the ~upposition th<>.t \Vitnesses have been won o\cr by the
.<::'
<~ccused. lncons1stent testimony can no more be ascribed by itself
to
the
1nfiuencc of ffie accu<;ed than consisteo.1t testim•Jny, by itself. can be ascnbr.d
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to the pressure of the prosecution.
Tt is therefore necessary for the prose·~ution
to show so_n1c act or conduct on the part of the respondent from
'1.-'hich
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reasonable inference 1nay arise that the witnesses have gone back on their statc1;-]nts as a result of an intervention by or on behalf of the respondenf. f957 A·
5 .. Tt is not necessary for the prosecution to prove by
a
inathematicnl
ce~1nty or even beyond a reasonable doubt that the witnesses have turned
host1I~ because they. ar~ \VO~ ?Ver by the accused.
The issue of cancellation
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?f .bail can only a.nse in ~n1?1nal cases, but that does not mean that
every
inc1.dent~l matter fil a cnm1nal case must be proved beyond a
reasonable
doubt hke the guilt of the accused. Indeed, proof of facts by prcpondcr:1nce
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952
SlJPREME COURT REPORTS
(1978] 3 S.C.R.
of probabilities as in a civil case is n_ot foreign to
criminal
jurisprudence
because, in cases where the statute raises a presumption of
guilt
as,
for
example, the Prevention of Corruption Act, the accused is entitled
to
rebut
that presumption by proving his defence by a balance of probabilities.
He
does not have to establish his case beyond a reasonable
doubt. The
same
standard of proof as in a civil case npplies to proof of incidental i<;sues involved in a criminal trial like the cancellation of bail of an accused.
The prosecution, therefore, can establish its case in an application for cancellation of
bail by showing on a preponderance of probabilities that the
accused
has
attempted to tamper or has tampered with its witnesses.
Proving bv the test
of balance of probabilities that the accused has absued his Iibert)r or that
there is a
re<J.~onabale apprehen'iion that he v.:ill interfere \\·ith th;; ~ourse ot
justice is all that i!'i necessary for the prosecution to do in order to succeed in
an applicaticn for cancellation of bail.
[957 Ci-H, 958 :\-DJ
CRTMTNAL APPELLATE JuRrSDJCTTON : Criminal Appeal No. 18.8
of 1978.
Appeal by Special Leave from the Judgment and Order dated the
1 lth April, J 978 of the Delhi High Court in Criminal Misc. Application No. 130 of 1978.
Ram Jethmala11i, and R. N. Sachthey for the Appellant.
A. N. Malla, D. Mathur, B. R. Handa and D. Goburdhan for Respondent.
The Judgment of the Court was delivered by
CHANDRACHUD, C.J.-The respondent is arraigned as accused No.
2 in a prosecution instituted by the Central Bureau of Investigation
in the Court of the learned Chief Metropolitan Magistrate Delhi. OmitE ting details which arc not necessary for the present pur11ose, the case
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of the prosecution is as follows :
One Shri Amrit Nahata had produced a film called 'Kissa Kursi
Ka', which portrayed the story of the political doings of the respondent and his mother, Smt. Indira Gandhi, the former Prime Minister
of India. The Board of Censors declined to' grant a certificate
ior
exhibition of the film whereupon, Shri Nahata filed a writ petition
in
this Court for a Writ of Mandamus.
On October 29, 1975, a direction was given by the Court that the film be screened on November
17 to enable the Judges to sec whether the censorship certificate was
refused rightly.
In order to prevent this Court from exercising its
constitutional jurisdiction and with a vie\V to preventing the film from
being publicly exhibited, the respondent and his co-accused Shri Vidya
Charan Shukla, who was then the Minister for Information and Bro:fclcasting, entered into a conspiracy to take possession of the film and to
destroy it.
In pursuance of that conspiracy, 13 steel trunks containing 150 spools of the film were brought under special escort from
Bombay to Delhi at the behest of Shri Shukla,
The. consignment
reached the New Delhi Railway Statipn on November 10, 1975. The
spools were then loaded in two tempo vehicles belonging to the .respondent or to his compai:y, M~s. Maruti Ltd., Gu:gaon, of. which respondent was the Managmg Dlfector.
The vehicles, which
were
driven by Ram Chander and Charan Singh were taken to Gurg;ion at
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DELJ!I STATE v. SANJAY GANDHI (Chandracltud. Cl.)
953
the premises of Maruti Limited where, under instructions given
by
A
the resppndent, the spools were destroyed by setting fire to them some
time prior to November 24, 1975.
A positive print of the film was
lying in the Auditorium of the Ministry at Mahadev Road, New Delhi,
which was taken charge of by one Ghose, a Deputy Secretary in the
Ministry of Information and Broadcasting.
He loaded it in
Shri
Shukla's staff ear whereupon Shri Shukla himself delivered the print
at No. 1, Safdarjang Road, where the respondent and his
mother
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used to live at the relevant time.
The Supreme Coilrt was informed
that it was not possible to screen the film for evaluation by
the
Judges.
And the writ petition filed by Shri Nahata came to
an
abrupt end upon an affidavit being filed on March 22, 1976, by Ghose
that the spools of the film had got mixed up with sp'me other films received by the Government in connection with the International Film
Festival.
C
After the emergency was lifted and the present Janata Government
came into power, a certain information was received in consequence
of which a raid was effected on the Gurgaon premises of the Maruti
Limited.
The raid yielded incriminating material to show that the
13 boxes which had been received from Bombay at the New Delhi
Railway Station contained the spools of the film 'Kissa Kursi Ka'
I)
which were burnt and destroyed in the factory premises.
R. B.
Khedkar, a Security Officer of the Maruti Limited and his assistant,
Kanwar Singh Yadav, who was the Security Supervisor of the company,
were arrested on the very day of the raid.
Yadav made a statement
on the ~11owing day stating bow the film was burnt in the premises of
the ·factory.
Yadav's confessional statement was recorded by the
Chief Metropolitan Magisl!rate on June 3 and Khedkar's on June 4.
E.
They were granted pardon under section 306 of the Code of Criminal
Procedure on July 14, 1977.
During the course of investigation ..
varif)us statements were recorded by the police including those of the
two drivers of the tempo vehicles, Ram Chander and Charan Singh,
a watchman called Om Prakash and several employees of the Store
Department of the company.
After completion of the investigation, a chargesheet was filed by
· ,.-... the C.B.I. in the Court of the Chief Metropolitan Magistrate citing 138
:" witnesses for proving charges under section 120B read with sections
F'
409, 435 and 201 of the Penal Code as also for substantive offences
under the last mentioned three sections of the Penal Code.
ln cerlain proceedings for contempt and perjury which were filed
in this Court against Shri Shukla, it was directed by the Court on January 2, 1978. that the Chief Metropolitan Magistrate shall commence
the hearing of the case on February 15 and that the Sessions Court
will commence the triaJ on March 20, 1978, and shall proceed with
the hearing fqom day to day.
By an order dated February/March
14, the Court extended the time limit by four days in each case.
G
The committal proceedings commenced· in the Court of the learned
lI
Chief Metropolitan Magistrate, Delhi, on February 20, 1978. Khedhr
who was examined on that day supported the procecution fully except
10-329 SCI/78
954
SUPREME tOURT REPORT~
i 1978) 3 's.C.R.
A
that he admitted in his cross-examination that he had
writkn two
inland -letters, which may tend to throw a cloud on his evtdencie. · On
February 21, the second approver Yadav was examined by the prosecutioft
He resiled both from the statement which he made t,o the
police under section 161 of the Code of Criminal Procedure as well
as from his judicial confession.
The recording oi Yndav's evidence
~
was over on the 22nd.
)'
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On February 27, 1978, an application was filed by the
Deihl
Administration, in the High Conrt elf Delhi for cancellation of
the
..
respondent's bail.
That application havirtg been dismissed by a lear-
'
ned single Judge on April 11, 1978, the Administration has filed this -k
appeal by special leave.
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Before the High Court, the following submissions were madt on
behalf of the appellant :
•
(1) That the respondent was charged with offences amongst which
"\'
is the offence under section 409 of the Penal Code which is punishable
<
with imprisonment for life.
The respondent, having been accused
D
of a non-bailable offence, it was wrong in the first instance to enlarge
hiill on bail.
(2) Initially, 'the investigation was started in respect of the oonspiracy and theft of the film from the custody of the Government. The
respondent had obtained an order of antidpatory bail from the Delhi
High Court in respect of those offences.
It transpired during the
course of investigation that a far more serious \Offence under section
E
120B relld with sectio11 409 of the Penal Code was committed by the
respondent and the co-accused. Even though prior to Jnly 14, 1977, on
whith date the chargesheet was filed, the State was in poosession of
infotmatipn showing that the respondent was trying to tamper with
tl1e Witnesses, the State did not apply for cancellation of the anticipatory bail nor did it ask the Magistrate to issue a non-bailable warrant
-
because the very witnesses who were attempted to be tampered with
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bad complained to the police that the respondent was trying to' win them
over. Jn the larger interest of justice, the State did
not adopt a
vindictive attitude towards the respondent by asking that be shonld he
taken into custody.
"')-
( 3) It was the plain duty of the High Court to enforce the pre
visions of section 43 7 of the Code of Criminal Procednre when it was
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brought to its notice that the respondent, being charged with· an offence
under section 409 which is punishable with life imprisonment
was
illegally on bail, particularly when he had misused his liberty.
The
obligation of the Court to enforce the provisions of section 437 of the
Code of Criminal Procedure does n9t depend upon whether the State
has acted with vigilance and promptitude.
. ( 4) The burden which rests on the State in an application for can- -
H
cellation of bail is of a limited nature.
All that is necessary for the
~
State to show, in support of its plea that bail be cancelled, is
that
there is a reasonable apprehension that by tampering with witnesses,
..
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DELIUSTATE v. SANJAY GANDHI (Chandrachud, CJ.)
~---955.
'· ,· .
the accused is interfering with the course of justice.
It is neither
n~ce~sary to prove the fact of tampering with mathematical certainty
nor mdeed boycnd ;. reasonable doubt.
The test to be adopted in ·
.such matters is one c.•f 'reasonable apprehension'.
· -
··
. · ·
(5) On Februari 13 and i~,· 1978; approver Yadav, first through
Khedkar and then by an application written and signed by himself,
complained to the C.B.I. Officers that the respondent was trying to
tamper with bis evidence through Ram Chander, the driver of the
tempo. ·· Within a week thereafter, that is on February 21,. · 1978,
Yadav turned hostile by going back upon the statement which he bad
made before the.police under section 161 of the Code of Criminal Procedure and on his confessional statement recorded . by the Magistrate
·. on the basis of which he had secured pardon a few days earlier. This
·incident by itself was sufficient to justify the State's plea that there was
a reasonable apprehension in the mind of the prosecution that the respondent was tampering with their witnesses.
. ___ _ ~- _
. ( 6) . The fact that the respondent had contacted Yadav on February 17 and was seen in-Yadav's company on that date was supported
by the· evidence of Ganpat Singh, a Postal Peon, Digamber Das, an
employee of the Maruti Limited and Satpal Singh, a constable of the
Haryana Armed Police.
There was no justification ~or Jisbelie\ing
the affidavits of these three persons.
·
(7) As far back as July 1977, the respondent had attempted to
tamper with two witnesses, Charan Singh and A. K. Dangwal. Both
<if these witnesses had given written applications to the· police comi>-
laining of attempts made by the respondent to win them over.
The
entries made by the police in the General Diary corroborated ·the
complaints made by these witnesses.
The two complaints, though not
acted upon promptly. by the police by asking for the cancellation of respondent's bail, render it highly probable that during the later stages of·
the trial several witnesses turned hostile on account of the pressure and
influence which the respondent exercised on th<m.
(8) It was through Ram Chander that approver Yadav was approached and tampered with. On February 21, 1978, Ram Chander
was sitting in the Court though his presence was not necessary and indeed, he entered the court-room along with a group of respondent's
partisans for whom the respondent had obtained the Magistrate's permission by seeing him in his chamber .
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. (9) These very contentions have been repeated before us by Shri
Ram Jethamalani who also relied upon some additional data in sup- . G
port of the application for cancellation of the respondent's bail.
The
new material on which counsel relies bas come into existence after the
High Court delivered its judgment on April 11 and in the very nature
•
of things, the High Court has had no opportunity to consider .its weight
~nd relevance on the question in issue . .
Shri A. N. Mu11a who appears on behalf of the respondent controverted each and every allegation made by the appellant.
He contends
that the prosecution has been launched out of political vendetta, that
ordinary offences triable by a· Magistrate have been magnified beyond
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956
SUPREME COURT REPORTS
[1978) 1 S.C.lt.
all proportion, that pardon was tendered to the so-called approvers
though no charge could have been levelled against them, for the sole
purpose of attracting the application of section 306 ( 5) of the Criminal Procedure Code so as to drag the accused to the Sessions Court,
that the police with their unlimited resources have left no stone unturned iu order somehow to implicate the accused and that evideuce in
regard t1o tampering of witnesses is manufactured with a view to explaining away the tell-tale circumstance that the key witnesses, including one of the approvers, have refused to support the prosecution. The
prosecution, according to counsel, ventured into sensation-mongering
by building the super-structure of a Sessions trial on a slippery foun-
~
oafion and having been disillusioned by the performance of its star f'
witnesses, it has resor~ed to the expe_dient of asking _f?r cancellation_
of the respondent's bail m order to give prop to a failmg case based
on trumped-up charges.
Strong objection was taken by the learned
counsel to the attempt made by the appellant to cite new and additional material bef,ore us.
This, according to him is impermissible
in an appeal filed by leave under article 136 of the Constitution, since
the only question that is open to us to consider is whether, ,on
the
material before it, the High Court is right in coming to the conclusion
to whi.ch it did.
We are not dispfYSed to allow the State to rely on any new material
which was not available to the High Court.
True, that the additional
data came into existence after the High Court gave its judgment but
it would be unfair to the respondent to make use of that material without giving. him an adequate opportunity to meet it.
That will entail
a fairly long adjournment which may frustrate the very object .or the
proceedings initiated by the State.
Besides, though in appropriate
cases the court has the power to take additional evidence, that power
has to be exercised sparingly, particularly in appeals brought under
article 136 of the Constitution.
The High Court, while dismissing
the State's application for cancellation of bail, has reserved to it the
liberty to approach it "if, at any time in future, the respondent abuses
his liberty".
The new developments could, if the prosecution is so
advised, be brought to the High Court's attention for obtaining suitable
relief.
We cannot spend our time in scanning affidavits and sifting
,
material for the first time for ourselves. for determining whether the.,,..
•
new material can justify cancellation of bail.
We propose, therefore,
to limit ourselves to the facts and incidents which were be~ore the High
'
Court and on which it has pronounced.
,
We ought not to forget, while dealing with the rival contenti.o'ns,
that the trial is still pending in the Sessions Court and any observation
made by us in this incidental proceeding may unwiWngly influence the
course of trial.
We will take care to ·;ee that nothing is said on the
merits of the matter, no comment mad.e on the veracity of witnesses
and no subtle guidance offered to unravel why the witnesses have turned
hostile.
These matters, at this moment, are within the exclusive
domain of the Sessions Court and we cannot, by employing an artifice.
withdraw the decision of these questions to ourselves.
It is
the
privilege of the Sessions Court, not of the Supreme Court. to try the -
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DELHI STATE v. SANJAY GANDHI (Chandrachud, CJ.)
957
accused.
We must therefore make it clear that nothing said by
ns
A
in our judgment shall influence the decision of the case and the Ses·
sions Judge is free to assess and evaluate the evidence, unhampered
by any· observations we may have happened to make.
·
Rejection of bail when bail is applied for is one thing; cancellation
of bail already granted is quite another.
It is easier to reject a bail
application in a non-bailable case than to cancel a bail granted in such
a case.
Cancellation of bail necessarily involves the review of a decision already made and can by .and large be permitted only if,
by
reason of supervening circumstances, it would be no longer aonducive
'
to a fair trial to allow the accused to retain his freedom during the
•
trial.
The fact that prosecution witnesses have turned hostile cannot
1 - by itself justify the inference that the accused has won them over.
A
brother, a sister or a parent who has seen the oommission of crime,
may resile in the Court from a statement recorded during the course
of investigation.
That happens instinciively, out of natural love and
affection, not out of persuasion by the accused.
The witness
has
a stake .in the innocence of the accused and tries thercWre to save him
from the guilt.
Likewise, an employee may, out of a sense of gratitude, oblige the employer by uttering an untruth without pressure or persuasion.
In other words, the objective fact that witnesses have turned hostile must be shown to bear a causal connect\dn with the subjective involvement therein. of the respondent.
Without such proof, a
bail once granted cannot be cancelled on the off chance or on
fhe
supposition that witnesses have been won p'ver by the accused.
Inconsistent testimony can no more be ascribed by itself to the influence
of the accused than consistent testimony, by itself, can be ascribed to
the pressure of the prosecution.
Therefore, Mr. Mulla is right that
enc has to countenance a reasonable possibility that the employees of
Maruli like the approver Yadav might have, of their own
volition,
attempted to protect the respondent from involvement in criminal
charges.
Their willingness now to oblige the respondent
would
<lepend upon f\o'w much the respondent has obliged them in the past.
1t is therefore necessary for the prosecution to show some act or conduct on the part of the respondent from which a reasonable inference
may arise that the witnesses have gone back on their statements as a
)<' result of an intervention by o'r on behalf of the respondent.
Befor~ we go to the facts of the case, it is necessary to consider
what precisely is the nature of the burden which rests on the prosecution in an application for cancellation of bail.
Is it necessary for
the prosecution to prove by a mathematical certainty or even beyond
a reasonable doubt that the witnesses have turned hostile because the·
arc won over by the accused? We think not The issue of cancellation of bail can only arise in criminal cases, but that does not mean
that every incidental matter in a criminal case must be proved beyond
a reasonable doubt like the guilt of the accused.
Whether an accused
is absconding and therefore his property can he attached under section 83 of the Criminal Procedure Code, whether a search of person
of premises was taken as required by the provisions of section
100
of the Code, whether a confession is recorded in strict a:curdance with
ll
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9.5S
SUPR!lj\li COUl\l' l!.!W©l\'fS
[l978] 3 S.C.R.
A the requirements of section 164 of tl)e Code and whether a fact was.
discovered in consequence of information received from l\Il accused
as required by section 27 of the Evidence Act are all matters which
fall peculiarly within the ordinary sweep of
criminal trials.
But
though the guilt of the accused in cases which involve the assessment
of these facts has to be established beyond a reasonable <'IDUht, these
B
''arious facts are not required to be proved by the same rigorous standard.
Indeed, proof of facts by preponderance of probabilities
as.
in a civil case is not foreign fio' criminal jurisprudence because, in
cases where the statute raises a presumption of guilt as, for example,
the Prevention of Corruption Act, the accused is entitled' to rebut that
,;
presumption by proving his defence by a balance· of probabilities. ·He
'
does not have to establish his case beyond a reasonable doubt. The --f
same standard of proof as in a civil case applies to proof of inciden4
c
ta] issues involved in a criminal trial like the cancellation of bail of
~
an accused.
The prosecution, therefore, can establish its case in an
applicati1oi1 for cancellation of bail by showing on a preponderance of
probabilities that the accused has attempted to tamper or has tame_ered
with its witnesses.
Proving by the rest of balance of probabilities
•
that the accused has abused his liberty or that there is a reasonable
~
D
a11prehension that he will interfere with the course of justice is all that
is necessary for the prosecution to do in order to succeed in an application for cancellation of bail.
Our task therefore is to determine whether, by the application of
the test of probabilities, the prosecution has succeeded in proving its
case that the respondent has tampered with its witnesses and
that
E
there is a resonable apprehension that he will continue to indulge in
that course of conduct if he is allowed to• remain at large.
Normally,
the High Court's findings are treated by this Court as binding on such
issues, but, regretfully, we have to depart from that rule since the
High Court has rejected incontrovertible evidence on hypertechnical
considerations.
If two views of the evidence were reasonably possible
and the High Court had taken one view, we would have been dis-
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F
incliDed to interfere therewith in this appeal under article 136 of the
Constitution.
But the evidence points in one direction only, leaving
no manner of doubt that the respondent has misused the
facility
afforded to him by the High Court by granting anticipatory bail to ~
him.
·
The sequence of evenl:s is too striking to fail to catch the watch-
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ful eye.
But, we will not enter too minutely into the several incidents on which the appellant relies to prove its case.
We will confine ourselves to some of tbe outstandm,g instances and show how the
prosecution is justified in its apprehension.
Kanwar Singh Yadav was working at the relevant time
as . a
Security Supervisor under
R. B.
Khedkar who wa'
th~ Secunty
II
Officer of Maruti Ltd.
Both of them were arrested on the very day
of the raid that is, on May 25, 1977.
On the 26th, the police re-
~orded Yadav's. statemen~ and on the 2.8t!l, he m~ct.e a petition to theChief Mctropohtal) Magistrate, expressmg flls w1lltr1g11ess to confessc
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· •• DELiu STATE v. SANJAY GANDHI (Chandrachud, Cl.)
959
The confessional statemeDt vas recorded on June 3 and Yadav was
granted pardon on J.1ly 1~, ·".:!er section 306 of the Code of Criminal Procedure. Khe<liwr maJ.: :· ,oafession on June 4 and was gcirit--
ed pardon on July 14, 1977. The C.B.I. filed the chargesheet on
14th July itself.
The conumttal proceedings were fixed by this Court by an order
dated. January 2, 1978 to begin peremptorily on February 15, 1978The respondent obtained a modification of that order, by virtue of
which the proceedings began on February 20.
One day before the proceedings were originally
scheduled
to
begin, that is on 14th February, the two approvers
Yadav and
Khedkar appeared at the C.B.I. office and filed
written complaints
dated the 13th that the respondent was making repeated attempts to
call Yadav to meet him by sending the car with Ram Chander, the
driver of the respondenL
One of these complaints is signed by
Yadav and the other by Khedkar.
Yadav turned ·hostile when he
was examined on the 21st February before the Committing Magistrate.
He went back on his police statement, resiled from his confession
and risked his pardon.
But he admitted in his cross-examination to
the Public Prosecutor that he had given the complaint to the C.B.I.
He explained it away by offering a series of excuses but we will onTy
characterise that attempt as Jame and unconvincing.
A
deeper
probe into the matter and its critical analysis is likely to exceed the
legitimate bounds of this proceeding and therefore we will stop with
the observation that there is more than satisfactory proof of the respondent having attempted to suborn
Yadav.
Whether
Yadav
succumbed· to the persuasion is not for us to . say.
The Sessions
Judg(l shall have to decide that question uninfluenced by anything
appearing herein.
We are concerned with the respondent's conduct,
not with Yadav's reaction or his motives. · Khedkar stuck to the
complainL
I
That is in regard to the event of the 14th February.
On the
17th, Yadav and the respondent were seen together, the former leaving the Maruti factory with the respondent in his car. This is supported by the affidavits of Sat Pal Singh, a constable of the !Iary-ana
Armed Constabulary who was on duty at the Factory, Ganpat Singh, a
Postal Peon and Digambar Das; an Assistant Despatch' Ocrk iii
Maruti. It is undisputed that the respondent had gone for
official
work to the factory on the 17th. The High Court object~ the iitcident firstly because it fa not mentioned in the petition for cancellation
of the respondent's bail. The affidavit of Ved Prakash, Inspector of
Police, C.B.I., shows that information of the incident was received on
the 24tll .. whereas the. petition was drafted o_n the 22nd
February.
That apart, we carmot understand the High Court to say that the
affidavits of the three witnesses could not be. accepted . because the
verification clause of the, affidavitS was . "most defect(ve". as it could
not be said "what part of the affidavit is true to the knowledge of the
deponent and what part thereof is true to the belief of the deponent".
This reasm1 has been cited by the. learned Judge for rejecting many
a11 incident but then it was open to him to ask for better particulars of
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960
SUPREME COURT REPORTS
[1978] 3 S.C.R.
/I
verification.
The witnesses claim to have seen with their own eyes
that Yadav drove away with the respondent.
The incident consisted
of one single event and there was no possibility of the witnesses'
knowledge being mixed up with their belief.
We find it impossible
to endorse this part of the High Court's reasoning and are inclined
to the view that the respondent ultimately succeeded in establishing
contact with Yadav.
Whether the respondent succeeded in achieving
B
his ultimate object is beyond us to say except that Yadav turned
hostile in the Committing Magistrate's conrt on February 21.
c
The High Conrt has also rejected the affidavit of Sarup Singh that
on February 28, 1978, while he was doing duty as an armed constable
at the factory, he saw the respondent coming to the factory and· heard
him assuring Yadav that be need not worry.
The verification clause
of the allidavit was again thought to be 'defective". We are unabfe
to agree with this part of the learned Judge's judgment for reasons
already indicated.
We are also unable to agree with the High Court that the complaint
filed by Charan Singh on July 12 in regard to the incident of July 5,
1977 and the complaint filed by A. K. Dangwal on July 9 in regard
D
to the incident of July 7, 1977 are "irrelevant" since the prosecution
did not even oppose the grant of bail to the respondent after the
chargesheet was filed on July 14, 1977. It is true that it is not possible
to accept Shri Jethmalani's explanation of the inactivity on the part
of the prosecution even after· receiving the two complaints showing
that the respondent was trying to tamper with the witnesses. Concessions of benevolence cannot readily be made in favonr of the proseE
cution. But it cannot be overlooked that Charan Singh did tnrn hostile,
though that happened after the High Conrt gave its judgment on April
11. The respondent k@ws that the witness turned hostile and sig.'1ificantly, though the witness refused to support the prosecution, he
made an important admission that he had submitted a written application or complaint to Inspector Ved Prakash on July 12, 1977 and that
"whatever is mentioned in that application is correct". That applicaF
tion, which is really a complaint, contains the most flagrant allegation
of attempted tampering with the witness by the respondent, through
bis driver Chattar Singh. Reference to this incident is
not in
the
nature of Additional evidence properly so called because the witness
was examined in the Sessions Court in the presence of the respondent
and his advocates. They know what the witness stated in his open
evidence and what explanation he gave for making the complaint on
G
July 12, 1977. The Sessions Court will no doubt assess its value but
for our limited purpose, the episode is difficnlt to dismiss as irrelevant.
H
Even excluding the last incident in regard to Charan Singh which
is really first in point of time and though it is corrobornted by an
entry in the General Diary, we are of the opinion that (i) Yacfav's
complaint of the 14th February, (ii)
Khedkar's complaint of even
date, (iii) Yadav's admission in his evidence that he did make the
written complaint in spite of the fact that he had turned l\ostile (iv)
tile affidavits of Sat Pal Singh, Ganpat Singh and Digambar Das in
regard to the incident of the 17th and (v) the affidavit of Sarup Singh
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DELHI STATE v. SANJAY GANDHI (Chandrachud, CJ.)
961
regarding the incident of February 28, furnish satisfactory proof that
the respondent has abused his liberty by attempting to suborn
the
A
prosecution witnesses.
He has therefore forfeited his right to remain
free.
Section 439 (2) of the Code of Criminal Procedure confers jurisdiction on the High Court or Court of Sessions to direct that any person who has been released on bail under Chapter XXXIII be arrested
and committed to custody.
The power to take back in custody an
accused who has been enlarged on bail has to be exercised with care
and circumspection. But the power,
though of
an extra-ordinary
natnre, is meant to be exercised in appropriate cases when, by a preponderance of probabilities, it is clear that the accused is interfering
with the course of justice by tampering with witnesses.
Refusal to
exercise that wholesome power in such cases, few though they may
be, will reduce it to a dead letter and will suffer the Courts to be silent
spectators to the subversion of the judicial process.
We might as
well wind up the Courts and bolt their doors against all than permit a
few to ensure that justice shall not be done .
B
c
The power to cancel bail was exercised by the
Bombay High
Court in Madhukar Purshottam .londkar v.
Talab Haji Hussain(')
D
where the accused was
charged with a bailable offence.
The test
adopted by that Court was whether the material placed before the
Court was "such as to lead to the conclusion that there is a strong
pnma facie case that if the accused were to be allowed to be at large
he would tamper with the prosecution witnesses and impede the course
of justice". An appeal preferred hy the accused against the
judgment of the Bombay High Court was dismissed by this Court.
In
E
Gurcharan Singh and others v. State (Delhi Administration,(') while
confirming the order of the High Court cancelling the bail of the
accused, this Court observed that the only question which the Court
had to consider at that stage was whether "there was prima facic case
made out, as alleged, on the statements of the witnesses and on other
materials'', that "there was a likelihood of the appellants tampcrin ~
with the prosecution witnesses".
H is by the application of this
F
test that we have come to the conclusion that the respondent's bail
ought to be cancelled.
But avoidance of undue hardship or
harassment
is the quintessence of judicial process.