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2005 (9) TMI 659
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....revealed that Madhumita Shukla was killed pursuant to a conspiracy involving Amarmani Tripathi and his wife Smt. Madhumani Tripathi, Nidhi Shukla lodged a Report in regard to the blind murder of her sister Madhumita Shukla on 9.5.2003 in the Mahanagar Police Station, Lucknow. The case was transferred to Crime Branch, CID on 17.5.2003. On a request made by the State on 17.6.2003, the CBI took over the investigation. 4. The case of the prosecution in brief is as follows: Amarmani Tripathi, a Minister in the U.P. Government, at the relevant time, was having an affair with deceased Madhumita Shukla, a young Poetess. This led to Madhumita's pregnancy thrice. On the first two occasions, the pregnancy was aborted at the instance of Amarmani. On the third occasion, inspite of pressure and persuasion by Amarmani, Madhumita refused to abort the pregnancy. The post-mortem revealed a six month old foetus in her womb. D.N.A. test of the foetus established the paternity of Amarmani. Madhumani Tripathi, wife of Amarmani, was upset when she learnt about the illicit intimacy between Amarmani and the deceased. She made several calls to the deceased and her family members to ....
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....t by order dated 11.3.2004 on the ground that the co-accused (Madhumani Tripathi) had not surrendered, Madhumani surrendered on 25.3.2004. 8. Amarmani made a second bail application under Section 439 Cr.P.C. in Crl. Misc. Case No.1402(B)/2004. The High Court by order dated 29.4.2004 granted bail to Amarmani on the following reasoning: a) The entire theory of Amarmani being part of the conspiracy to murder Madhumita was based on the confessional statement of the co- accused Rohit Chaturvedi (recorded on 17.11.2003 by Vikas Dhul, Metropolitan Magistrate, at New Delhi). Rohit had made his confession conditional of being treated as an approver. Rohit had subsequently retracted from the confession. The admissibility of the confession against a co-accused is doubtful. b) Normally, Courts should first examine the material, other than the confessional statement of a co-accused, to find out if there is any evidence of conspiracy/abetment. The confessional statement of a co-accused should be considered only as a supporting piece of evidence, and not as the substantive evidence against an accused. The confessional statement of a co-accused, more so, one that has been retr....
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....d the High Court for bail in Crl. Misc. Case No.1954(B) of 2004. The High Court granted bail to Madhumani by order dated 8.7.2004 on the following reasoning: a) Madhumani is not the main accused, but only an alleged conspirator/abettor. Her husband, whom the Prosecution considers to be the main conspirator had already been granted bail and grounds on which he was granted bail are also available for granting bail to her. b) Madhumani is only a housewife without any criminal antecedents. She has not been named in the FIR or in the statements of Nidhi Shukla and Desraj (servant of the deceased) recorded under Section 161 Cr.P.C. Her name came to be linked with the murder for the first time in the confessional statement of Rohit made on 17.11.2003. The admissibility of such confessional statement, particularly, against a co-accused is doubtful and that question has to be considered at the time of trial. c) There is no allegation that Madhumani made any attempt to tamper with the evidence. She was available for interrogation on 4.8.2003 and 6.9.2003. When she moved an application on 24.9.2003 for surrender, the special Judicial Magistrate, CBI by order dated 6....
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....nd give consent for abortion; (iv) Madhumani's ire and jealously against the deceased and expression of an intention to get rid of her; (v) Madhumani's subsequent action in engaging killers (accused 1 and 2) through accused No.3 to kill Madhumita; and (vi) the consent of Amarmani for Killing Madhumita, as instructed by his wife without involving his name and assuring protection to the persons committing the murder. ii) That Amarmani was interfering with the investigation, by trying to side-track it and mislead the Police into a false trail, planting false stories in the media, creating false evidence and threatening witnesses either directly or by using the police. He even managed to get the Police Officers (including an officer of the Rank of SSP) who were not toeing his line, transferred. iii) That after release on bail in pursuance to the order of the High Court, Amarmani was attempting to threaten/coerce/buy over witnesses (Nidhi Shukla, sister, Shanti Kumari Shukla and Najib Khan). iv) That Madhumani had already absconded earlier. Only the rejection of bail application of her husband on that ground made her to surrender. There is every likeli....
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....d that the basic rule is bail and not jail, unless there are circumstances suggesting fleeing from justice or thwarting justice either by repeating the offence or intimidating witnesses (vide State of Rajasthan vs. Balchand - 1977 (4) SCC 308 and Gudikanti Narasimhulu vs. Public Prosecutor 1978 (1) SCC 240). 13. They relied on the decision in Bihar Legal Support Society vs. Chief Justice of India [1986 (4) SCC 767] wherein a Constitution Bench of this Court observed as follows: "The apex court must interfere only in the limited class of cases where there is a substantial question of law involved which needs to be finally laid at rest by the apex court for the entire country or where there is grave, blatant and atrocious miscarriage of justice. Sometimes, we judges feel that when a case comes before us and we find that injustice has been done, how can we shut our eyes to it. But the answer to this anguished query is that the judges of the apex court may not shut their eyes to injustice but they must equally not keep their eyes too wide open, otherwise the apex court would not be able to perform the high and noble role which it was intended to perform according to the fai....
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.... of bail, all aspects that were relevant under Section 439 read with Section 437, continue to be relevant. We, however, agree that while considering and deciding appeals against grant of bail, where the accused has been at large for a considerable time, the post bail conduct and supervening circumstances will also have to be taken note of. But they are not the only factors to be considered as in the case of applications for cancellation of bail. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of accused absconding or fleeing if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail (see Prahlad Singh Bhati vs. NCT, Delhi 2001 (4) SCC 280 and Gurcharan Singh vs. State (Delhi Administration) ....
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....cused to being enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail." 17. In Panchanan Mishra vs. Digambar Mishra, 2005 (3) SCC 143, this Court observed : "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 from tampering with the evidence in the heinous crime..... It hardly requires to be stated that once a person is released on bail in serious criminal cases where 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." 18. Therefore, the general rule that this Court will not ordinarily ....
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.... threaten and coerce witnesses. We may refer to the following circumstances disclosed by statements recorded under Section 161 Cr.P.C. : i) Nidhi Shukla and Shanti Kumari Shukla (sister and mother of the deceased respectively) have stated that on 10.5.2003 Amarmani met them near the mortuary and informed them that he will handle the entire situation and instructed them with threats, to be careful while making any statement and not to link him or his wife in regard to the murder. This was repeated during the second week of May 2003, by summoning the mother of the deceased to his house. ii) The statement of Mr. Anil Aggarwal, SSP, Lucknow shows that on the intervening night of 9th and 10th May, 2003 (at about 1.00 a.m), Amarmani called him on his mobile phone and made enquiries about the murder and informed him that he or his wife had nothing to do with the murder and that his wife was a very simple house wife and that he (Anil Aggarwal) should help him. iii) When Anil Aggarwal learnt that there was six month old foetus in the womb of the deceased and that without removing the foetus, the body had been handed over to the relatives of the deceased, he immedi....
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....e track the matter by implicating Anuj Mishra and to ensure that the foetus is not removed or preserved or examined. When SSP refused to comply, he was transferred. Kamaal Khan, NDTV correspondent/Bureau Chief, Lucknow and Deepak Gidwani, Bureau Chief, Sahara Samay T.V. have clearly stated that Amarmani informed them that he had complained to the Chief Minister that investigation was not being done properly and got Anil Aggarwal, SSP transferred; and that he also informed them that his private investigation showed that deceased had married Anuj Mishra. vi) Amarmani thereafter managed to ensure that his confidant Yagya Narain Dixit was deputed to threaten Rishi Khare, room mate of Anuj Mishra, to admit that there was a marriage between Anuj Mishra and Madhumita. The statement of Rishi Khare, the room mate of Anuj Misra at IIT Hostel, Kanpur showed that at the instance of Amarmani, Yagya Narain Dixit, SO of Manek Nagar suggested, threatened and coerced him to admit that he was a witness to the marriage of Madhumita with Anuj Mishra in spite of his repeatedly stating that he was not aware of any such marriage; and he even held out promises to Rishi Khare on behalf of Amarmani....
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....ney through one NK Mishra to settle the matter and that when they refused, he threatened them. Another witness Najib Khan (a family friend of the deceased) has also sent a complaint dated 22.9.2004, stating that on that day two persons knocked on his door, hurled abuses at him and told him that the CBI officers were far away and once the cases were closed, no one will protect him and he will be killed. Lastly, one Birjesh Pathak, Member of Parliament has also sent a complaint dated 16.9.2004 to the CBI alleging that an attempt on his life was made on 7.9.2004 which, according to him, was at the instance of Amarmani. The said allegations are denied in the counter-affidavit filed on behalf of Amarmani by his brother/Pairokar. It is contended that these complaints must have been sent at the instance of the CBI itself. In so far as Brijesh Pathak is concerned, it is also alleged that he is a close confidant of Amarmani's political rival. However, in the view we have taken, it is unnecessary to examine this aspect. 24. The High Court has failed to deal with the vast material placed by the CBI which clearly indicated that the accused has, at all material times, tried to interfere ....
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....he principle that the ground to deny bail will be when by testing the balance of probabilities it appears that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice. It was noticed by the Court that once a person is released on bail in serious criminal cases where the punishment is stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tempering with the prosecution witnesses, threatening the family members of the victim and also create problems of law and order. 27. In Prahlad Singh Bhati Vs. NCT, Delhi, 2001 (4) SCC 280, this Court reiterated that if a person was suspected of the crime of an offence punishable with death or imprisonment for life then there must exist grounds which specifically negate the existence of reasonable ground for believing that such an accused is guilty of an offence punishable with the sentence of death or imprisonment for life. The jurisdiction to grant bail must be exercised on the basis of well settled principles having regard to the circumstances of each case. While granting bail, the Court has to keep in m....