Code of Criminal Procedure, 1973: s.389 (1) – Prosecution case was that the second respondent was convicted under s.302 IPC and awarded life imprisonment – By order dated 3.2.2016, High Court directed that the sentence shall during the pendency of appeal remain suspended under s. 389(1) – Two applications were filed before High Court for cancellation of bail and revocation of order dated 3.2.2016 suspending the sentence of second respondent interalia on ground that after the sentence was suspended, an FIR was registered against the second respondent at the behest of the appellant alleging that the second respondent was involved in the murder of his father during the period when his sentence was suspended – By impugned order, High Court declined to entertain the application for revocation of suspension of sentence/grant of bail and allowed him to continue on bail until his claim that he was being falsely implicated was first investigated in ninety days – Hence the instant appeal – On 12.2.2021, the appellant apprised this Court that by order dated 8.1.2021, ASG issued summons to second respondent under s.319 in the course of session trial arising out of charge-sheet – However, second respondent was resisting arrest – In order dated 8.2.2021, the ASJ expressed serious apprehension that the accused (second respondent) and the Superintendent of Police had colluded with the subordinates of the latter “to frame serious charges” against the judge – The Director General of Police of Madhya Pradesh was directed “to immediately ensure the arrest of the second respondent and report compliance by filing a personal affidavit in this Court” – Second respondent was ostensibly arrested from bus stand after lot of efforts – Held: The High Court by declining to revoke suspension of sentence had clearly transgressed into an unusual domain – High Court in effect stultified the administration of criminal justice – This order had the effect of obstructing a fair investigation into the FIR at the behest of the accused despite the nature and gravity of the allegations against him – High Court erred in passing its directions which were misused to defeat the investigation – The police submitted a closure report absolving the second respondent – Thereafter, despite the order under s.319, the second respondent evaded arrested in contravention of the warrant of arrest which was issued by the ASJ – The facts indicated that the police was complicit in shielding the second respondent – The criminal antecedents of the second respondent and the prior conviction on a charge of murder were adverted to – The second respondent, whose spouse was an MLA, was provided security by the State – The DGP was sanguine in informing this court that the second respondent could not be arrested despite the directions issued by this Court – It was only after this Court issued a peremptory direction indicating recourse to the coercive arm of law that the second respondent was arrested, ostensibly from a busstand – The material on the record indicated that an effort was made to shield the accused from the administration of criminal justice – The apprehensions expressed by the ASJ in his order dated 8.2.2021 of the machinations of a highly influential accused evading the process of law are amply borne out by the facts – There was no reasonable basis to doubt the anguish and concern of a judicial officer – That the State did not oppose the application under s.319 CrPC is a feeble attempt to justify the inaction of the police – Unfortunately, High Court failed in its duty to ensure that the sanctity of the criminal justice process is preserved.
Judiciary: Independence of judiciary – Judicial independence of the district judiciary is cardinal to the integrity of the entire system – If the faith of the citizen in the administration of justice has to be preserved, it is to the district judiciary that attention must be focused as well as the ‘higher’ judiciary – The district judiciary operates under the administrative supervision of the High Court which must secure and enhance its independence from external influence and control – This compartmentalization of the judiciary and executive should not be breached by interfering with the personal decisionmaking of the judges and the conduct of court proceedings under them.
Disposing the appeals, the Court
HELD: 1. The High Court by its impugned order allowed the second respondent, who allegedly committed murder during the period when his sentence was suspended, to continue on bail until his claim that he was being falsely implicated was first investigated in ninety days. In adopting such a procedure, the High Court has clearly transgressed into an unusual domain. The High Court has in effect stultified the administration of criminal justice. [Para 29][714-C-D]
2. There are distinct doctrinal concepts in criminal law namely (i) the grant of bail before trial or, what is described as the ‘pre-conviction’ stage; (ii) setting aside an order granting bail when the principles which must weigh in the decision on whether bail should be granted have been overlooked or wrongly applied; (iii) the post-conviction suspension of sentence under the provisions of Section 389(1); and (iv) the cancellation of bail on the ground of supervening events, such as the conduct of the accused during the period of bail, vitiating the continuance of bail. The present case falls in the last of the above genres where bail was sought to be cancelled on the ground that the second respondent was implicated in an offence under section 302 during the period when his sentence was suspended. [Paras 34, 35][716-D-F]
3. This Court in Abdul Basit vs. Abdul Kadir Choudhary, while discussing the powers of the High Court to cancel bail granted to an accused under Section 439 (2) of the CrPC, has observed that typically the following conduct of the accused would result in the cancellation of bail – (i) misuse of liberty by engaging in similar criminal activity; (ii) interference with the course of investigation; (iii) tampering of evidence or witnesses; (iv) threatening of witnesses or engaging in similar activities which would hinder the investigation; (v) possibility of fleeing to another country; (vi) attempts to become scarce by becoming unavailable for investigation or going underground; and (vii) being out of the reach of their surety. Similar considerations govern the cancellation of bail at the post-conviction stage under the second proviso to Section 389 (1) of the CrPC. [Para 36][716-F-G; 717-A]
Atul Tripathi v. State of U.P. (2014) 9 SCC 177 : [2014]
14 SCR 1188; Ramji Prasad v. Rattan Kumar Jaiswal and Anr. (2002) 9 SCC 366; Masood Ali Khan v. State of U.P. and Ors. (2009) 3 SCC 492 : [2009] 1 SCR 859; Vijay Kumar v. Narendra (2002) 9 SCC 364 Abdul Basit v. Abdul Kadir Choudhary (2014) 10 SCC 754:[2014]
10 SCR 571; Pampapathy v. State of Mysore 1966 Supp SCR 477; Ramesh Kumar Singh v. Jhabbar Singh & Ors. (2003) 10 SCC 195 – relied on.
4. The present case was a fit case for the cancellation of bail by the High Court. The registration of FIR 143 of 2019 implicating the second respondent in the murder of the appellant’s father during the period when the sentence of the second respondent was suspended after his conviction of a prior offence under Section 302. The criminal antecedents of the second respondent; The strong likelihood of the second respondent using his political clout to prevent a fair investigation of FIR 143 of 2019; The truth in the apprehensions of the appellant having become evident by the abject failure of the police to properly investigate the FIR lodged against the second respondent on the allegation that he had committed the murder of the appellant’s father on 15 March 2019 after his sentence was suspended by the High Court; The submission of a closure report by the police against the second respondent absolving him; The order of the ASJ dated 8 January 2021 summoning the second respondent under Section 319 of the CrPC; The second respondent having evaded arrest despite the issuance of a warrant of arrest and a proclamation; The failure of the law enforcement authorities to effectuate the arrest of the second respondent in spite of the order of this Court dated 12 March 2021; The peremptory directions issued by this Court on 26 March 2021 requiring the DGP to take necessary steps for compliance with the previous order failing which the Court would be constrained to take coercive steps in accordance with law; The eventual arrest of the second respondent on 28 March 2021 ostensibly from a bus stand; The apprehension expressed by the ASJ in his order dated 8 February 2021 that he was being targeted at the behest of a politically influential accused; and The provision of security to the second respondent by the State government at the behest of his spouse who is an MLA despite a prior conviction under Section 302 of the IPC. [Para 37][717-F; 718-A-H; 719-A]
5. The High Court mis-applied itself to the legal principles which must govern such a case. The serious error by the High Court in its impugned order can be considered from two perspectives. First, the High Court by simply disposing of the IAs seeking cancellation of bail ignored material considerations which ought to have weighed in the decision. Some of the events undoubtedly transpired after the order of the High Court. However, taking the position as it stood when the High Court considered the issue, a clear case for cancellation of bail was established. The second aspect which is also of significance is the impact of the order of the High Court. The High Court was apprised of the fact that FIR No 143 of 2019 had been lodged against the second respondent. The investigation into the FIR had to proceed according to law. Instead, the High Court gave a period of ninety days to the police to enquire into the complaint of the second respondent that he was being targeted and allowed the police to thereafter proceed in accordance with law. This order had the effect of obstructing a fair investigation into the FIR at the behest of the accused despite the nature and gravity of the allegations against him. The events which have transpired since go to emphasize the fact that the High Court was in grievous error in passing its directions which were misused to defeat the investigation. The police submitted a closure report absolving the second respondent. Thereafter, despite the order under section 319, the second respondent evaded arrested in contravention of the warrant of arrest which was issued by the ASJ. The facts indicate that the police have been complicit in shielding the second respondent. The criminal antecedents of the second respondent and the prior conviction on a charge of murder have been adverted to. The second respondent, whose spouse is an MLA was provided security by the State. The DGP was sanguine in informing this court that the second respondent could not be arrested despite the directions issued by this Court. It was only after this Court issued a peremptory direction indicating recourse to the coercive arm of law that the second respondent was arrested, ostensibly from a bus-stand. The material on the record indicates that an effort has been made to shield the accused from the administration of criminal justice. The apprehensions expressed by the ASJ in his order dated 8 February 2021 of the machinations of a highly influential accused evading the process of law are amply borne out by the facts which have been revealed before this Court. There is no reasonable basis to doubt the anguish and concern of a judicial officer. That the state did not oppose the application under section 319 is a feeble attempt to justify the inaction of the police. Unfortunately, the High Court failed in its duty to ensure that the sanctity of the criminal justice process is preserved. This court has had to step in to ensure that the rule of law is preserved. [Para 38][719-B-H; 720-A-B]
6. The order of the High Court dated 23 July 2019 shall stand set aside. The bail granted to the second respondent shall stand cancelled. The second respondent shall be moved under the directions of the DGP to another jail in Madhya Pradesh to ensure that the fair course of the criminal proceedings is not deflected. [Para 39][720-C-D]
7. During the course of this proceeding, an enquiry was directed to be made into the apprehensions expressed by the ASJ in his order dated 8 February 2021. An independent and impartial judiciary is the cornerstone of democracy. Judicial independence of the district judiciary is cardinal to the integrity of the entire system. The courts comprised in the district judiciary are the first point of interface with citizens. If the faith of the citizen in the administration of justice has to be preserved, it is to the district judiciary that attention must be focused as well as the ‘higher’ judiciary. Trial judges work amidst appalling conditions – a lack of infrastructure, inadequate protection, examples of judges being made targets when they stand up for what is right and sadly, a subservience to the administration of the High Court for transfers and postings which renders them vulnerable. The colonial mindset which pervades the treatment meted out to the district judiciary must change. It is only then that civil liberties for every stakeholder – be it the accused, the victims or civil society – will be meaningfully preserved in our trial courts which are the first line of defense for those who have been wronged. [Para 40][720-D-G]
8. The functioning of the judiciary as an independent institution is rooted in the concept of separation of powers. Individual judges must be able to adjudicate disputes in accordance with the law, unhindered by any other factors. Thus, “for that reason independence of judiciary is the independence of each and every judge”. The independence of individual judges also encompasses that they are independent of their judicial superiors and colleagues. [Para 41][720-G-H; 721-A] Madras Bar Association v. Union of India & Anr. 2021 SCC OnLine SC 463 – relied on.
9. Our Constitution specifically envisages the independence of the district judiciary. This is implicit in Article
50 of the Constitution which provides that the State must take steps to separate the judiciary from the executive in the public services of the State. The district judiciary operates under the administrative supervision of the High Court which must secure and enhance its independence from external influence and control. This compartmentalization of the judiciary and executive should not be breached by interfering with the personal decision-making of the judges and the conduct of court proceedings under them. [Para 42][721-E-F]
10. There is no gainsaying that the judiciary should be immune from political pressures and considerations. A judiciary that is susceptible to such pressures allows politicians to operate with impunity and incentivizes criminality to flourish in the political apparatus of the State. [Para 43][721-G]
11. India cannot have two parallel legal systems, “one for the rich and the resourceful and those who wield political power and influence and the other for the small men without resources and capabilities to obtain justice or fight injustice.” The existence of a dual legal system will only chip away the legitimacy of the law. The duty also falls on the State machinery to be committed to the rule of law and demonstrate its ability and willingness to follow the rules it itself makes, for its actions to not transgress into the domain of “governmental lawlessness”. At the same time, we believe that judges, while being undeterred in their commitment to follow the law and do justice, should be wary of launching into a diatribe against the State authorities without due care and reflection. [Paras 44, 45][722-A-C]
12. The apprehensions expressed by the ASJ should be duly enquired into by the High Court on its administrative side so that if they are found to be true, necessary action should be taken in order to secure the fair administration of justice. [Para 46][722-C-D]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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