TaxTMI 
TaxTMI 
TaxTMI 
2020 (5) TMI 737
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....he India-South Africa Cricket Test Series to be played in the months of February to March, 2000 whereunder five One-Day matches and three Test matches were to be played at various places in India. The accused/respondent is alleged to have played a major role in fixing these matches, as it is alleged by the petitioner/State that he was the main link between the players and an alleged Syndicate which was running betting on these matches and had profited hugely from these match fixings as they controlled the outcome of each of these matches. 3. The petitioner/State has alleged that it was the accused/respondent who had given mobile phones and money to the late Hansie Cronje and he had enticed various players to play in a pre-planned manner, thus determining the final outcome of each match. The petitioner/State relied on the statements made by Hansie Cronje and Hamid Cassim before the Kings Commission, which revealed the deep-rooted involvement of the respondent/accused in the entire conspiracy. The Call Detail Analysis also revealed his continuous contact with Hamid Cassim. Further disclosures made by co-accused and the call details of other mobile phones used by the respondent/accus....
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....ted bail on parity. It is also submitted that the investigations are not complete as the voice and handwriting samples were yet to be taken. Further, the guidelines with respect to release of under-trial prisoners due to Covid-19 were not applicable in the case of the respondent/accused and this benefit could not have been granted as the accused/respondent was a foreign national and had not spent three months in jail and further the offence was being investigated by the Crime Branch. 6. The learned ASG has argued that in short, the learned ASJ has considered irrelevant factors to grant bail by overlooking all relevant factors. According to the learned ASG, the respondent/accused was ineligible for release on bail as he had left India on an Indian passport a few weeks before the FIR was registered and immediately after his Indian passport was cancelled while he was in the U.K., he sought and was granted British citizenship. Thereafter, since the year 2013, after the charge-sheet was filed against the other accused persons, proceedings for extradition were initiated by the State and it was only in February, 2020 that it was possible to bring the accused back to India. Thus, he was a....
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....dent/accused absconding. Moreover, during the extradition proceedings, which according to learned Senior Counsel, commenced only on 14.06.2016, till its conclusion on 12.02.2020, the respondent/accused had remained on bail and there had been no occasion for him to flee from justice. 9. Learned Senior Counsel also pointed out that for almost 13 years from 2004 onwards, not a notice, not even through email, had been sent to the respondent/accused by the Investigating Agencies, except for one email to his solicitor for voice sample. Thus, the delay in the extradition proceedings ought not to be attributed to the respondent/accused. The State took 13 years to file the charge-sheet against those accused who had been arrested in the year 2000 and released on bail within a month of their arrest. It was only after the charge-sheet was filed in the year 2013 that the State could have, in any case, initiated proceedings for extradition and which they did in the year 2016 when the U.K. courts were approached by the State. Merely because the respondent/accused exercised his legal rights to oppose such extradition proceedings, would not indicate that he was thwarting the legal process or avoid....
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....as no ground to cancel bail of the respondent/accused in this case. Written submissions on these lines have also been submitted on behalf of the accused/respondent, which I have perused. 13. The decision of the Supreme Court in Dolat Ram (supra) is the most significant judgment laying down guidelines to courts while deciding the question of cancellation of bail already granted. It would be useful to reproduce the words of the Supreme Court in this regard, as under:- "4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding ....
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....he could do so, would be most insufficient to cancel bail. 16. Mr. Pahwa, learned Senior Counsel also submitted that if this court found the conditions imposed by the learned ASJ to be insufficient to ensure that the respondent/accused would not abscond, more stringent conditions could be imposed, but that there was no reason to suspect that he would abscond. Thus, according to him, none of the conditions prescribed by the Supreme Court in Dolat Ram (supra) existed in the instant case and the petition was liable to be dismissed. 17. In Ratul Puri (supra), the contentions raised by the State while seeking cancellation of the bail granted to the respondent/accused therein was rejected even though the FIR was registered not only under Section 420 of the IPC, but under various provisions of the Prevention of Money Laundry Act (PMLA); the investigations were pending; the respondent/accused had moved around bags believed to contain crucial leads and which were hidden; the respondent/accused had deleted emails and IDs of Nokia Samsung accounts and had sought to thwart the investigation; the strong likelihood of the respondent/accused of tampering with the evidence and witnesses due to h....
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....patory bail. Moreover, the judgment in Dinesh M.N.(S.P.) (supra) was rendered by a Three Judge Bench and therefore, prevailed over the decision of the Two Judge Bench in Dolat Ram's case. 21. The learned ASG contended that bail could be cancelled even in the absence of the supervening factors as listed by the Supreme Court in Dolat Ram's case (supra) and where the gravity and nature of the offences and seriousness of the accusations against the respondent/accused were ignored by the court granting bail or irrelevant factors were taken into consideration for grant of bail or when the course of justice may be thwarted due to grant of bail or when bail ought not to have been granted to the accused in the first place, the courts could cancel bail already granted. 22. It was pointed out that despite reference to Dolat Ram (supra), the Supreme Court in Prakash Kadam (supra), had cancelled the bail already granted to the accused. A perusal of the said judgment would reveal that it was a case relating to alleged fake encounters and the Supreme Court took into consideration the seriousness of the allegations and status of the respondents/accused who were policemen who were suppose....
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....urt dealing with an application for cancellation of bail under Section 439(2) can consider whether irrelevant materials were taken into consideration. That is so because it is not known as to what extent the irrelevant materials weighed with the Court for accepting the prayer for bail." Thus, the learned ASG submitted that this court ought to look into the question whether bail was granted on relevant material or irrelevant factors had prevailed upon the learned ASJ while granting the bail. 25. The next case relied upon by the leaned ASG is Padmakar Tukaram Bhavnagare (supra), which was a case of suicide and anticipatory bail was sought by the accused therein. In this case, the Supreme Court referred to its decisions in Dolat Ram (supra) and Dinesh M.N. (SP) (supra) and further observed as under:- "13. It is true that this Court has held that generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of justice or abuse of the concession granted to the accused in any manner. This Court has clarified that these instances are illustrative and bail can be cancelled where the order of bail is perverse because it is p....
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....o 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 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 of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account 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 of justice and absence of supervening circumstances such as the propensity of the 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 bail orders particularly when they are passed releasing accused involved in heinous crimes because they ultimately result in weakening the prosecution case and ha....
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....nd prima facie satisfaction of the Court in support of the charge which are to be kept in mind." 28. The Supreme Court also reiterated the grounds on which the bail could be cancelled, in paragraph No. 12 of the said judgment, which reads as follows:- "12. We have referred to certain principles to be kept in mind while granting bail, as has been laid down by this Court from time to time. It is well settled in law that cancellation of bail after it is granted because the accused has misconducted himself or of some supervening circumstances warranting such cancellation have occurred is in a different compartment altogether than an order granting bail which is unjustified, illegal and perverse. If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail and have not been taken note of bail or it is founded on irrelevant considerations, indisputably the superior court can set aside the order of such a grant of bail. Such a case belongs to a different category and is in a separate realm. While dealing with a case of second nature, the Court does not dwell upon the violation of conditions by the accused or the superven....
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....iscussed hereinabove, vest courts with the power and discretion to cancel bail even when there are no supervening circumstances. The principles that can be gleaned from these judgments to guide the courts in such situations may be illustratively stated as below:- a) Where the court granting bail ignores relevant material and takes into account irrelevant material of substantial nature and not trivial nature; b) Where the court granting bail overlooks the position of the accused qua the victim especially if the accused is in some position of authority such as a policeman and there is prima facie, a misuse of position and power, including over the victim; c) Where the court granting bail ignores the past criminal record and conduct of the accused while granting bail; d) Where bail has been granted on untenable grounds; e) Where the order granting bail suffers from serious infirmities resulting in miscarriage of justice; f) Where the grant of bail was not appropriate in the first place, given the very serious nature of the charges against the accused which disentitles him for bail and thus cannot be justified; g) When the order granting bail is apparently whimsical, capr....
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....year 2000 and 20 years later, they continue to remain on bail with no trial in sight. Even today, the petitioner/State submits that the investigations are still going on and the voice sample and specimen of handwriting of respondent/accused is also to be gathered. The trial scenario being so stark, liberty of a person cannot be left in limbo only on account of the belief of the State that the respondent/accused is a flight risk. 38. The other contentions raised by the learned ASG that the learned ASJ had considered irrelevant factors while ignoring relevant factors, are not persuasive. When the Supreme Court referred to the standing of the accused, it was not merely referring to the socio-economic status of an accused but rather the ability of such an accused to misuse and abuse their position of power to commit the offence, and/or jinx investigation and trial. Even assuming that the status of the respondent/accused before this court is significant in terms of money and power, there is force in the contentions of Mr. Pahwa, learned Senior Counsel, that for the last twenty years or at least ever since the charge-sheet was submitted in 2013, there is not a whisper that he had been f....
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....y ascertained by the court before it cancels the bail already granted. The present case is not one such case where these circumstances exist as discussed above. The State has not succeeded in making out a case for cancellation of bail of the respondent/accused. 42. In an aside, this case brings to the fore the need for investigative agencies and the Government to consider the use of advances in technology to track under-trials in cases of this nature where the State may fear that an accused may flee from trial. Digital and electronic equipment, as presently used in America, ought to be introduced in India, so that a tracking system similar to the GPS Tracking System, can be used to monitor the movement of the accused released on bail, allowing the authorities to gather information all the time while permitting the accused to undertake the usual and ordinary activities of normal life. 43. In the absence of such systems in India, the learned ASJ has adopted the next best course available, by directing the respondent/accused to keep a mobile phone operational at all times. Apart from the brother of the respondent/accused who has also been directed by the learned ASJ to keep his mobi....