SANJAY CHANDRA v. CBI

13 (ADDL.) S.C.R. 309 SANJAY CHANDRA v. CBI (Criminal Appeal No. 2178 of 2011) NOVEMBER 23, 2011 [G.S. SINGHVI AND H.L. DATTU, JJ.] A B CODE OF CRIMINAL PROCEUDRE, 1973: s. 439 - Bail - Governing principles - Explained - C Telecom scam - Applications for bail rejected by Special Judge and High Court - Held: No doubt, the offence alleged against the accused is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter the Court from enlarging them on bail when there is no o serious contention of the prosecution that the accused, if released on bail, would interfere with the trial or tamper with evidence - It is also significant that the investigation has already been completed and the charge sheet has been filed before the Special Judge and, as such, custody of the E accused may not be necessary for further investigation - Further, when the under trial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated - Every person, detained or arrested, is entitled to speedy trial - accused persons - Statements of the witnesses run to several hundred pages and the documents on which reliance is · placed by the prosecution, is voluminous - The trial may take considerable time and the appellants, who are in jail, have to remain in jail longer than the period of detention, had they G been convicted - It is not in the interest of justice that the accused should be in jail for an indefinite period - Therefore, the accused are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by the prosecution - The accused are directed to 309 In the instant case, there are seventeen F H 310 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R. A be released on bail on the conditions stipulated in the judgment - Constitution of India, 1950 - Article 21 - Doctrine/ Principle - Test of necessity.

C Prosecution was launched against the appellants for B commission of offences punishable uls 120-B, 420, 468, 471 and 109 IPC and s. 13(2) read with s. 13(1) (d) of the Prevention of Corruption Act,1988. Bail was refused to them by the Special Judge CBI as well as by the Single Judge of the High Court. In the Instant appeals, it was, inter alia, contended for the appellants that they were cooperating with the investigation all through out, that there was no threat from them of tempering with the witnesses; that gravity of the offence would be determined by the punishment and not by any other standard or measure and, in the instant case, the D offences alleged against the appellants are punishable with a maximum sentence of 9 years; and that the charge sheet in the case has been filed and the trial is likely to take considerable time to be concluded. Therefore, it was contended that the courts below should not have E declined bail to the appellants. The stand of the prosecution was that the Supreme Court had refused to entertain the special leave petition against the order rejecting the bail of the co-accused. F Disposing of the appeals the Court HELD:

In the earlier petition of the co-accused*, the petitioner therein was before this Court before framing of charges by the trial court. The earlier and the instant proceedings cannot be compared and it cannot be G concluded that there are no changed circumstances. [para 12] [327-B-C] •sharad Kumar etc. vs. Central Bureau of Investigation 2012 (1) sec 65 - distinguished. H SANJAY CHANDRA v. CBI 311

2.1 This Court, time and again, has stated that bail is A the rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution. [para 16) [329-F-G] B State of Rajasthan v. Balchand, 1978 (1) SCR 535 = (1977) 4 SCC 308, Gudikanti Narasimhulu v. Public Prosecutor, 1978 (2) SCR 371 = (1978) 1 SCC 240, Gurcharan Singh v. State (Delhi Admn.) 1978 (2) SCR 358 = (1978) 1 sec 118, Babu Singh v. State of U.P., 1978 ( 2) c SCR 777 = (1978) 1 sec 579, Moti Ram v. State of M. P., 1979 ( 1 ) SCR 335 = (1978) 4 SCC 47, Vaman Narain Ghiya v. State of Rajasthan, 2008 (17) SCR 369 =(2009) 2 SCC 281, and Siddharam Satlingappa Mhetre v. State of Maharashtra, 2010 (15) SCR201 = (2011) 1 SCC 694- D relied on.

2.2 It would be quite contrary to the concept of personal liberty enshrined in the Constitution of India that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any E circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. [para 14) [328-B-C]

2.3 In bail applications, generally, it has been laid down from the earliest times that the object of bail is neither punitive nor preventative, but to secure the appearance of the accused at his trial by reasonable amount of bail. Deprivation of liberty must be considered G a punishment, unless it can be required to ensure that an accused will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found F H 312 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R. A guilty. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, 'necessity' is the operative test. [para 14] [327-G- H; 328-A-B] B Prahlad Singh Bhati v. NCT, Delhi, 2001 (2) SCR 684 = (2001) 4 SCC 280, State of U. P. v. Amarmani Tripathi, 2005 (3) Suppl. SCR 454 = (2005) 8 sec 21 - referred to.

2.4 In the instanf case, the "pointing finger of C accusation" against the appellants is 'the seriousness of the charge'. The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, it has been contended that there is possibility of the appellants tampering with witnesses, no material D has been placed in support of the allegation. Seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but .. that is not the only test or the factor: The other factor that also requires to be taken note of is the punishment that E could be imposed after trial and conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, the Court would not be balancing the Constitutional Rights but rather "recalibration of the scales of justice. " [para 15] [328-E-H] F Kalyan Chandra Sarkar Vs. Rajesh Ranjan (2005) 2 sec 42 - referred to.

3.1 This Court has taken the view that when there is a delay in the trial, bail should be granted to the accused. G [para 22] [340-C-D]