Arun Kumar Ranjan vs C.B.I.

Sharad Kumar Sharma, J

Learned counsel for the CBI has opposed the present Bail Application.

The appellant is languishing in jail, who has preferred this Criminal Jail Appeal No.10 of 2017, being aggrieved against an order of conviction dated 05.04.2017 as rendered by the Special Judge Anti Corruption/IInd ADJ, CBI, Dehradun, whereby, in the CBI Case No.2 of 2014, CBI vs. Arun Kumar Ranjan, has been decided by the judgment impugned resulting into the conviction of the appellant sentencing him to undergo a rigorous imprisonment for the period of 10 years and has been sentenced to undergo 7 years rigorous imprisonment for commission of an offence under Section 7 of the Prevention of Corruption Act and 10 years of rigorous imprisonment with a fine of Rs.1 lac for commission of an offence under Section 13(2) of the Prevention of Corruption Act and in an event of failure to pay a penalty as imposed he had been further directed to undergo a sentence of imprisonment for a period of three months.

This case has got a chequered history pertaining to seek the redressal of the issue which is involved in a trap case, the appellant was alleged to be involved in taking illegal gratification to the tune of Rs.5 lacs from the complainant Jagtar Singh. Consequently, an FIR was lodged on 28.05.2014 and he was charge-sheeted for the offences under Section 7, 13(2) and 13(1)(d) of Prevention of Corruption Act, 1988, which was registered at P.S. CBI SPE, Dehradun.

After taking cognizance of the offence on 17.07.2014, the charge was framed and ultimately on culmination of trial the judgment dated 05.04.2017, the appellant was sentenced to undergo imprisonment as detailed above. As against the judgment of conviction dated 05.04.2017, he has preferred this jail appeal by instituting the same before this Court on 08.05.2017. At the time of admission of the appeal, the records were summoned and the bail application was posted to be considered at a later stage after inviting the counter affidavit from the CBI.

The First Bail Application came up for consideration before this Court on 03.10.2017 and considering the backdrop under the trap which has been laid down and the arrest of the convict /appellant, the Bail Application was rejected.

Being aggrieved against the rejection of the First Bail Application by an order dated 03.10.2017, the appellant has approached the Hon'ble Apex Court, by filing an SLP Criminal 188858/2018, the same came up for consideration before the Hon'ble Apex Court, whereby, the Hon'ble Apex Court had dismissed the SLP by the judgment dated 28.01.2019. Subsequently, the appellant had moved a Second Bail Application being Second Bail Application No.1300 of 2019, which was filed by the appellant on 15.05.2019, in consonance of the order dated 07.05.2019, while passing the judgment of rejecting the Bail Application and the effect of cumulatively filing the Bail Application before this Court, the Court vide its order dated 07.05.2019 had made the following observations:-

"The appellant being aggrieved against the order dated 03.10.2017 rejecting his bail application had preferred a Special Leave Petition before Hon'ble Apex Court on 28.01.2019. Hon'ble Apex Court has dismissed the Special Leave Petition and affirmed the order of rejection of bail application. Consequently all subsequent bail applications which have been preferred by the appellant would not be tenable. It is open for him that if at all there is possibility to file a second bail application and not cumulative bail applications which have shown to be pending in the cause list.

List this matter after two weeks."

The Court observed that in the light of the Hon'ble Apex Court's Judgment dated 28.01.2019, affirming the rejection of the First Bail Application, its rejection will not bar the appellant from filing the Second Bail Application which was to be considered on its own merits. Consequently, the convict/appellant has filed the Second Bail Application No.1300 of 2019 on 15.05.2019, which is under consideration before this Court.

In the Second Bail Application, the appellant had taken number of grounds for considering the Second Bail including his family condition as he has two daughters to be taken care of and also the fact that while keeping him in custody he has already served the sentence of about three years after being arrested in pursuance to the order of conviction dated 05.04.2017. Also Considering the fact that the appellant is in jail for last more than three years which is inclusive of the period of arrest which has chanced during the pendency of the trial. The appellant in jail has further argued that lack of possibility of the appeal being decided at an early date could also be one of the grounds to be considered for grant of bail particularly considering the fact that it infringes the liberty of a person guaranteed under Article 21 of the Constitution of India and further since he had already been in custody for the period over three years by now.

The applicant in support of his contention for considering his release on second bail application had placed reliance on a judgment reported in (1977) 4 SCC 291, Kashmira Singh vs. State of Punjab, which has provided that though there cannot be any specified conditions for considering the bail application in relation to the heinous offences including Section 302 of IPC, but the Court has laid down that in those circumstances where the appellant to an appeal against an order of conviction and he has preferred an appeal before a Superior Court and the Superior Court on account of the work load or paucity of time if is unable to decide appeal at the earliest than it has to consider the bail application because on account of inability of the Court to dispose of the appeal expeditiously within a reasonable time ordinarily the convict should not be kept in jail for a longer period. It has held that the Court should ordinarily unless there are other cogent grounds for acting otherwise release the accused on the bail in those cases where the appeal is preferred as against the conviction and the same is pending. The relevant paragraph nos.2 and 3 of the said judgment are quoted as under:-

"2. The appellant contends in this application that pending the hearing of the appeal he should be released on bail. Now, the practice in this Court as also in many of the High Courts has been not to release on bail a person who has been sentenced to life imprisonment for an offence under Section 302 of the Indian Penal Code. The question is whether this practice should be departed from and if so, in what circumstances. It is obvious that no practice howsoever sanctified by usage and hallowed by time can be allowed to prevail if it operates to cause injustice. Every practice of the Court must find its ultimate justification in the interest of justice. The practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in this Court on the basis that, once a person has been found guilty and sentenced to life imprisonment-, he should not be let loose, so long as his conviction and sentence are not set aside, but the underlying postulate of this practice was that the appeal of such person would be disposed of within a measurable distance of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long period. The rationale of this practice can have no application where the Court is not in a position to dispose of the appeal for five or six years. It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to unjustified ? Would it be just at all for the Court to tell a person: "We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent ?" What confidence would such administration of justice inspire in the mind of the public ? It may quite conceivably happen and it has in fact happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a judge not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal ? Would it not be an affront to his sense of justice ? Of what avail would the acquittal be to such a person who has already served out his term of imprisonment or at any rate a major part of it ? It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence.

Here in the present case, the appellant, after serving out the sentence of six months' rigorous imprisonment for the offence under Section 323 imposed upon him by the Sessions Court, was on bail throughout the duration of the appeal before the High Court and since the appeal was allowed and he was convicted for the offence under Section 302 and sentenced to life imprisonment, he surrendered before presenting his petition for special leave to appeal to this Court. Since then, the appellant has been in jail and the total period he has spent in jail so far is about four and a half years. The appeal is of 1974-and it is not likely to come up for hearing for at least another two years since this Court is at present hearing appeals preferred in the year 1972. The very fact that this Court has granted to the appellant special leave to appeal against his conviction shows that, in the opinion of this Court, he has prima facie a good case to consider and in the circumstances it would be highly unjust to detain him in jail any longer during the hearing of the appeal."

On another judgment which the reliance has been placed by the applicant for the purposes of consideration of the bail application on the premise that he has been serving the sentence and has been in confinement for last over more than three years as a consequence of his conviction under the provisions of the Prevention of Corruption Act. The reliance has been placed by the applicant's counsel to the full Bench Judgement reported in AIR 1987 PATNA 274 FULL BENCH, Anurag Baitha vs. State of Bihar, while considering the impact of Sections 4, 377 and 378 of the Criminal Procedure Code in consonance to the spirit of the provisions contained under Article 21 of the Constitution of India, the High Court has held that though being convicted for the offences which are heinous in nature, but still the convict would be entitled for an expeditious consideration of the principle proceeding itself of conducting the proceedings at the earliest. In an eventuality, where there happens to be an inordinate delay in disposing of the appeals against an order of conviction, in such an eventuality, the bail application has to be considered because a convict cannot be kept in confinement during the pendency of the appeal. When on account of the work roaster, the Court is unable to dispose of the appeal expeditiously. It has been held that it has to be kept in mind that an event of latter acquittal or an adjudication in an appeal by the Appellate Court and a long incarnation in jail during the pendency of the appeal is inherently incompensatible in any terms which admittedly it has been held is not possible which could be secured by money damages when, the confinement had persisted on account of the delay proceeding before the court of law. The paragraph no.15 of the said judgment reads as under:-

"15. The constitutional right of speedy trial includes within its sweep the expeditious hearing of substantive appeals against conviction as well. Article 21 does not stop short at the end of the trial but continues to extend its protective shield even after the post-conviction stage. Equally it has to be borne in mind that in the event of later acquittal by the appellate Court the long incarceration in jail during the pendency of the appeals is inherently incompensatable in terms of money. In any case it is a virtually legal impossibility to secure monetary damages against the State for wrongful or false imprisonment in such cases. Added to this is the fact that both for under-trials, and for convicts, in jails within the State the conditions are admittedly subhuman. All these are poignantly prominent factors to which one cannot possibly turn the proverbial Nelson's blind eye or to gloss over them as sometime either inevitable or insoluble. Indeed these considerations become even more relevant where prolonged detentions are by the law agency's own default either by way of inordinately delayed trials extending over years, or in the appellate forum by the High Court's own inability to dispose of even substantive criminal appeals in capital cases expeditiously. These are factors which directly and pristinely enter into consideration, and more so in the context of now a constitutional right to speedy trial for the purpose of grant of bail during the pendency of a substantive appeal."

The Full Bench Judgment of Patna High Court has also held that even in those cases where it involves the consideration of a conviction on serious offences if the case is ordinarily to continue for certain longer period, in that eventuality, the exception has to be carved over in considering the bail application. If an accused kept in confinement due to delayed disposal of the appeal. The relevant paragraph no.23 of the Full Bench Judgment of Patna High Court reads as under:-

"23. When even a sessions trial with all its necessary trappings including the service on witnesses, their production, recording of evidence and so may other factors must be completed in one year, (see AIR 1979 SC 1360, AIR 1981 SC 939) then there must be the least reason to hold otherwise in the context of a substantive appeal from the said sessions trial. The reasonable period prescribed for sessions trial, namely, one year would be equally applicable to appeals therefrom as well. Beyond that, the delays, if they occur, must be termed as unreasonable and must be avoided. It can, therefore, be said authoritatively both on larger principle and equally on binding precedent that the reasonable period for hearing of such appeals is not to be extended beyond one year. Delay beyond that period is contrary to the principles of criminal jurisprudence and would not run counter to the law and spirit of the constitutional mandate of speedy public trials and consequently must be termed as unreasonable."

The Hon'ble Apex Court too in a judgment reported in (2005) 7 SCC 387, Surinder Singh @ Shingara Singh vs. State of Punjab, has laid down parameters under which the bail application has to be considered which provided a guidelines that the Court while considering the bail application has had to keep in mind that because none of the conditions of the provisions of law required that a bail application has to be considered only on completion of a certain specified period of detention or custody or on happening of an event. Since consideration of the bail is a discretionary measure. Hence, the matter so far it relates for the grant or refuse of bail it should not be impossible for the courts to invariably evolve a rule or straightjacket formulae in those cases where the discretion comes into play for consideration of the bail application. The only fact which are relevant to be taken into consideration are that in an event of an accused who is convicted of heinous offences, if he is let out as a consequence of the grant of bail application, to what extent or amount he would be a social menace on his release. The relevant paragraph nos.8 and 9 of the said judgment is quoted as under:-

"8. It is no doubt true that this Court has repeatedly emphasized the fact that speedy trial is a fundamental right implicit in the broad sweep and content of Article 21 of the Constitution of India. The aforesaid Article confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law. If a person is deprived of his liberty under a procedure which is not reasonable, fair, or just, such deprivation would be violative of his fundamental right under Article 21 of the Constitution of India. It has also been emphasized by this Court that the procedure so prescribed must ensure a speedy trial for determination of the guilt of such person. It is conceded that some amount of deprivation of personal liberty cannot be avoided, but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. These are observations made in several decisions of this Court dealing with the subject of speedy trial. In this case, we are concerned with the case where a person has been found guilty of an offence punishable under Section 302 IPC and who has been sentenced to imprisonment for life. The Code of Criminal Procedure affords a right of appeal to such a convict. The difficulty arises when the appeal preferred by such a convict cannot be disposed of within a reasonable time. In Kashmira Singh v. State of Punjab this Court dealt with such a case. It is observed :-

"The practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in this Court on the basis that once a person has been found guilty and sentenced to life imprisonment he should not be let loose, so long as his conviction and sentence are not set aside, but the underlying postulate of this practice was that the appeal of such person would be disposed of within a measurable distance of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long period. The rationale of this practice can have no application where the Court is not in a position to dispose of the appeal for five or six years. It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to be unjustified? Would it be just at all for the Court to tell a person : "We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent?" What confidence would such administration of justice inspire in the mind of the public? It may quite conceivably happen, and it has in fact happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a judge not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal? Would it not be an affront to his sense of justice? Of what avail would the acquittal be to such a person who has already served out his term of imprisonment or at any rate a major part of it? It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence".

Similar observations are found in some of the other decisions of this Court which have been brought to our notice. But however, it is significant to note that all these decisions only lay down broad guidelines which the Courts must bear in mind while dealing with an application for grant of bail to an appellant before the Court. None of the decisions lay down any invariable rule for grant of bail on completion of a specified period of detention in custody. Indeed in a discretionary matter, like grant or refusal of bail it would be impossible to lay down any invariable rule or evolve a strait jacket formula. The Court must exercise its discretion having regard to all the relevant facts and circumstances. What the relevant facts and circumstances are, which the Court must keep in mind, has been laid down over the years by the Courts in this country in large number of decisions which are well known. It is, therefore, futile to attempt to lay down any invariable rule or formula in such matters."

This Court is of the view that the said situation is not prevailing in the instant case for the reason here that the aftermath of the grant of bail of the appellant would not effect the society at large for the reason that he has been convicted on a personal allegation or corruption of taking bribe, which was established before the court below of his involvement in commission of an offence under the Prevention of Corruption Act and hence, there cannot be any hard and fast rule of universal application which is to be taken into consideration while deciding the bail application. Even the same principle about the test to consider the bail application has been laid down in the aforesaid judgment in its para 21. The wider principle which has been laid down in the aforesaid judgment is that considering the implications of Article 21 of the Constitution of India, a person cannot be deprived of his liberty because of the procedural flaws in the dispensation of justice. Though there are invariably number of circumstances which often contribute in delaying the proceedings before the Court of law but consideration of a bail application on account of pendency of an appeal it has to consider as that the deprivation of the liberty cannot be avoided on account of any straightjacket restrictions which are self imposed by the Court in considering the application for release.

Lastly, a reference is also required to be made to a judgment reported in AIR 1978 SC 527, Babu Singh and others vs. the State of Uttar Pradesh, wherein, yet again an issue which crept for consideration that what would be the parameters to be adopted for considering the bail application during the pendency of the appeal before the Superior Courts. In this judgment too in its paras 8 & 9 and 16 to 23 have provided that the bail has not to be invariably refused, more particularly, when the conditions was so precarious or serious in nature which calls for denial when as a consequence of the release on bail can lead to a threat to a public at large, obviously, which is not the situation prevailing here. The relevant paragraphs 8 & 9 and 16 to 23 read as under:-

"8. The Code is cryptic on this topic and the court prefers to bet tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden on the public treasury, all of which insists that a developed jurisprudence of bail is integral to a socially sensitized judicial process. As Chamber Judge in the summit court I have to deal with this uncanalised case-flow, ad hoc response to the docket being the flickering candle light. So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of "procedure established by law". The last four words of Article 21 are the life of that human right.

The doctrine of Police Power,, constitutionally validates punitive processes for the maintenance of public order, security of the State, national integrity and the interest of the public generally. Even so, having regard to the solemn issue involved, deprivation of personal freedom, ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objectives of society, specified in the Constitution.

Thus the legal principle and practice validate the court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record-particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals it is part of criminological history that a thoughtless bail order has enabled the bailee to export the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.

The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Art- 19. Indeed, the considerations I have set out as criteria are germane to the constitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bifocal interests of justice-to the individual involved and society affected.

We must weigh the contrary factors to answer the test of reasonableness, subject to the need for securing the presence of the bail applicant. It makes sense to assume that a man on bail has a batter chance to prepare or present his case than one remanded in custody. And if public justice is to be promoted, mechanical detention should be demoted. In the United States, which has a constitutional perspective close to ours, the function of bail is limited, 'community roots' of the applicant are stressed and, after the Vera Foundation's Manhattan Bail Project, monetary suretyship is losing ground. The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible consideration. Equally important is the deplorable condition, verging on the inhuman, of our sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible.

A few other weighty factors deserve reference. All deprivation of liberty is validated by social defense and individual correction along an anti-criminal direction, public justice is central to the whole scheme of bail law. Fleeing justice must be forbidden but punitive harshness should be minimised. Restorative devices to redeem the man, even through community service, meditative drill, study classes or other resources should be innovated, and playing foul with public peace by tampering with evidence, intimidating witnesses or committing offences while on judicially sanctioned 'free enterprise', should be provided against. No seeker of justice shall play confidence tricks on the court or community. Thus, conditions may be hung around bail orders, not to cripple but to protect. Such is the holistic jurisdiction and humanistic orientation invoked by the judicial discretion correlated to the values of our constitution.

Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage has the intermediate acquittal pertinence to a bail plea when the appeal before this Court depends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of-justice is less, having enjoyed the confidence of the court's verdict once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the fact that a fair finding-if that be so-of innocence has been recorded by one court It may be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, if enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man and socio-geographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the court into a complacent refusal.

Realism is a component of humanism which is the heart of the legal system. We come across cases where parties have already suffered 3, 4 and in one cage (the other day it was unearthed) over 10 years in prison. These persons may perhaps be acquitted-difficult to guess. If they are, the injustice of innocence long in rigorous incarceration inflicted by the protraction of curial processes is an irrevocable injury. And, taking a pragmatic view, while life imprisonment may, in law, last a whole life, in practice it hardly survives ten years, thanks to rules of remission. Thus, at the worst, the prisoner may have to serve some more years, and, at the best, law is vicariously guilty of dilatory deprivation of citizen's liberty, a consummation vigilantly to be vetoed. So, a circumstance of some consequence, when considering a motion for bail, is the period in prison already spent and the prospect of the appeal being delayed for hearing, having regard to the suffocating crowd of dockets pressing before the few Benches.

It is not out of place to mention that if the State takes up a flexible attitude it may be possible to permit long spells of parole, under controlled conditions, so that fear that the full freedom if bailed out, might be abused may be eliminated by this experimental measure, punctuated by reversion to prison. Unremitting insulation in the harsh and hardened company of prisoners leads to many unmentionable vices that humanizing interludes of parole are part of the compassionate constitutionalism of our system.

The basics being thus illuminated, we have to apply them to the tangled knot of specifics projected by each case. The delicate light of the law favours release unless countered by the negative criteria necessitating that course. The corrective instinct of the law plays upon release orders by strapping on to them protective and curative conditions. Heavy bail from poor men is obviously wrong. Poverty is society's malady and sympathy, not sternness, is the judicial response."

This Court is of the view that the appellant should be granted bail considering his family condition and the grounds which has been taken in the Second Bail Application which were altogether a fresh ground which was not available at the time of consideration of the First Bail Application when it was considered and rejected on 03.10.2017.

Considering the aforesaid fact, the Bail Application is allowed subject to the condition that the appellant-Arun Kumar Ranjan furnishes his personal bond and two sureties of the like amount to the satisfaction of the Magistrate concerned, apart from the above, he is also directed to deposit a security of Rs.50,000/- to the satisfaction of the Court concerned. The deposit of which would depend upon the destiny of the decision which is to be rendered in the present appeal.

Subject to the above condition, the appellant is granted bail.