Y.V. 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. Omitting details which are not necessary for the present
purpose, the case of the prosecution is as follow:
2. 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 for 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 see whether the censorship certificate was refused rightly. In order
to prevent this Court from exercising its constitutional jurisdiction and with a view 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 Broadcasting, entered
into a conspiracy to take possession of the film and to destroy it. The Supreme Court 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 some other films received by
the Government in connection with the International Film Festival.
3. 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’ 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 following day stating how the film was burnt in the premises
of the factory. Yadav’s confessional statement was recorded by the Chief Metropolitan
Magistrate on June 3 and Khedkar’s on June 4. They were granted pardon under Section 306 of
the Code of Criminal Procedure on July 14, 1977.
4. After completion of the investigation, a charge-sheet was filed by the C.B.I. in the court
of the Chief Metropolitan Magistrate citing 138 witnesses for proving charges under Section
120B read with Sections 409, 435 and 201 of the Penal Code as also for substantive offences
under the last mentioned three sections of the Penal Code.
5. In certain 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 of February 15 and that the Sessions Court
will commence the trial on March 20, 1978, and shall proceed with the hearing from day to day.
By an order dated February 14, the Court extended the time limit by four days in each case.
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6. The committal proceedings commenced in the court of the learned Chief Metropolitan
Magistrate, Delhi, on February 20, 1978. Khedkar who was examined on that day supported
the prosecution fully except that he admitted in his cross-examination that he had written two
inland letters, which may tend to throw a cloud on his evidence. On February 21, the second
approver Yadav was examined by the prosecution. He resiled both from the statement which
he made to the police under Section 161 of the Code of Criminal Procedure as well as from his
judicial confession. The recording of Yadav’s evidence was over on the 22nd.
7. On February 27, 1978, an application was filed by the Delhi Administration, in the High
Court of Delhi for cancellation of the respondent’s bail. That application having been dismissed
by a learned single Judge on April 11, 1978, the Administration has filed this appeal by special
leave.
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11. We are not disposed 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 of 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 before the High Court and on which it has pronounced.
13. 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 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 by itself
justify the inference that the accused has won them over. A brother, a sister or a parent who has
seen the commission of crime, may resile in the Court from a statement recorded during the
course of investigation. That happens instinctively, 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
therefore 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 connection with
the subjective involvement therein of the respondent. Without such proof, a bail once granted
cannot be cancelled on the off chance or on the supposition that witnesses have been won over
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.
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Therefore, Mr. Mulla is right that one has to countenance a reasonable possibility that the
employees of Maruti 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 depend upon how much the respondent has obliged them in the past. It 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 or on behalf of the respondent.
14. Before 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 they are 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 be attached under Section 83 of the Criminal Procedure Code, whether a search
of person or premises was taken as required by the provisions of Section 100 of the Code,
whether a confession is recorded in strict accordance with the requirements of Section 164 of
the Code and whether a fact was discovered in consequence of information received from an
accused as required by Section 27 of the Evidence Act are all matters which fall particularly
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 doubt, these
various 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 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 applies to proof of incidental issues 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 by the test of balance of probabilities that the accused has abused his liberty or that
there is a reasonable apprehension 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.
15. 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 there is a reasonable 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 disinclined 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
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respondent has misused the facility afforded to him by the High Court by granting anticipatory
bail to him.
16. The sequence of events is too striking to fail to catch the watchful 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 the outstanding instances and show how the prosecution is
justified in its apprehension.
17. Kanwar Singh Yadav was working at the relevant time as a Security Supervisor under
R. B. Khedkar who was the Security officer of Maruti Ltd. Both of them were arrested and the
very day of the raid, that is, on May 25, 1977. On the 26th, the police recorded Yadav’s
statement and on the 28th, he made a petition to the Chief Metropolitan Magistrate, expressing
his willingness to confess.
18. The confessional statement was recorded on June 3 and Yadav was granted pardon on
July 14, under section 306 of the Code of Criminal Procedure. Khedkar made a confession on
June 4 and was granted pardon on July 14, 1977. The C.B.I. filed the chargesheet on 14th July
itself. The committal proceedings were fixed by this Court by an order dated January 2, 1978
to begin peremptorily on February 15, 1978. The respondent obtained a modification of that
order, by virtue of which the proceedings began on February 20.
19. 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 respondent. 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 crossexamination 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 only characterise that attempt as lame 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 Judge 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 complaint.
20. 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 Haryana Armed
Constabulary who was on duty at the Factory, Ganpat Singh, a Postal Peon and Digambar Das,
an Assistant Despatch Clerk in Maruti. It is undisputed that the respondent had gone for official
work to the factory on the 17th. The High Court objects the incident firstly because it is 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 24th
whereas the petition was drafted on the 22nd February. That apart, we cannot understand the
High Court to say that the affidavits of the three witnesses could not be accepted because the
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verification clause of the affidavits was “most defective” 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 reason has been cited by the learned Judge for rejecting many an incident
but then it was open to him to ask for better particulars of 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 his ultimate object is
beyond us to, say except that Yadav turned hostile in the Committing Magistrate’s court on
February 21.
21. The High Court 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 he need not worry. The verification clause of the
affidavit was again thought to be defective. We are unable to agree with this part of the learned
Judge’s judgment for reasons already indicated.
22. 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 to the incident ofJuly 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 favour of the prosecution. But it cannot be overlooked that Charan Singh did turn
hostile, though that happened after the, High Court gave its judgment on April 11. The
respondent knows that the witness turned hostile and significantly, though the witness
refused to support the prosecution he made an important admission that he bad 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 application, which is really a complaint,
contains the most flagrant allegation of attempted tampering with the witness by the respondent,
through his 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 July 12, 1977. The
Sessions Court will no doubt assess its value but for our limited purpose, the episode is difficult
to dismiss as irrelevant.
23. Even excluding the last 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, we are of the opinion
that (i) Yadav’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 inspite of the
fact that he had turned hostile (iv) the 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 regarding the
incident of February 28, furnish satisfactory proof that the respondent has abused his liberty by
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attempting to, suborn the prosecution witnesses. He has therefore forfeited his right to remain
free.
24. Section 439(2) of the Code of Criminal Procedure confers jurisdiction on the High
Court to Court of Session 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 extraordinary 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 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.
25. The power to cancel bail was exercised by the Bombay High Court in Madhukar
Purshottam Mondkar v. Talab Haji Hussain [AIR 1958 Bom 406] 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 prima 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 by the accused against the
judgment of the Bombay High Court was dismissed by this Court. In Gurcharan Singh v. State
(Delhi Administration) [1978) 1 SCC 118, 128-129] 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 facie case made out, as
alleged, on the statements of the witnesses and on other materials”, that “there was a likelihood
of the appellants tampering with the prosecution witnesses”. It is by the application of this test
that we have come to the conclusion that the respondent’s bail ought to be cancelled.
26. But avoidance of undue hardship or harassment is the quintessence of judicial process.
Justice, at all times and in all situations, has to be tempered by mercy, even as against persons
who attempt to tamper with its processes. The apprehension of the prosecution is that ‘Maruti
witnesses’ are likely to be won over. The instances discussed by us are also confined to the
attempted tampering of Maruti witnesses like Yadav and Charan Singh, though we have
excluded Charan Singh’s complaint from our consideration. Since the appellant’s counsel has
assured us that the prosecution will examine the Maruti witnesses immediately and that their
evidence will occupy no more than a month, it will be enough to limit the cancellation of
respondent’s bail to that period. We hope and trust that no unfair advantage will be taken of our
order by stalling the proceedings or by asking for a stay on some pretext or the other. If that is
done, the arms of law shall be long enough. Out of abundant caution, we reserve liberty to the
State to apply to the High Court, if necessary, but only if strictly necessary. We are hopeful that
the State too will take our order in its true spirit.
27. In the result, we allow the appeal partly, set aside the judgment of the High Court dated
April 11, cancel the respondent’s bail for a period of one month from today and direct that he
be taken into custody. Respondent will, in the normal course, be entitled to be released on fresh
bail on the expiry of the aforesaid period. The learned Sessions Judge will be at liberty to fix
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the amount and conditions of bail. The order of anticipatory bail will stand modified to the
extent indicated herein.
