1997 JTR(SC) 1178
1997 4 AICLR 228 ; 1997 AIR(SC) 3806 ; 1997 AIR(SCW) 3722 ; 1997 2 ALD(Cri)(SC) 747 ; 1997 35 AllCriC 538 ; 1997 2 ALT(Cri)(SC) 690 ; 1997 CriLR 626 ; 1997 3 Crimes(SC) 252 ; 1997 CrLJ 4414 ; 1997 3 CTC 60 ; 1998 1 EastCrC(SC) 343 ; 1997 7 JT 651 ; 1997 4 RCR(Cri) 268 ; 1997 5 Scale 689 ; 1997 7 SCC 187 ; 1997 SCC(Cri) 1039 ; 1997 3 SCJ 32 ; 1997 SCR 737 ; 1997 KHC 1035 ; 1997 2 KLT(Online) 1107 ; 1997 7 Supreme 670
1997(7) Supreme 670
SUPREME COURT OF INDIA
M.K. Mukherjee and K.T. Thomas, JJ.
State Rep. By the C.B.I. - Appellant
versus
Anil Sharma -Respondent
Criminal Appeal No. 811 of 1997
(Arising out of SLP (Crl.) No. 1127 of 1997)
Decided on 3-9-1997
Counsel for the Parties :
For the Appellant : K.N. Bhat, Additional Solicitor General, (Pallav Shishodia) Advocate for P.Parmeswaran, Advocate.
For the Respondent : R.K. Jain, Vijay Bahuguna, Sr. Adovcates, Anis Suhrawardy, Rajesh Kumar, Ms. Shamana Anis, Advocates.
IMPORTANT POINTS
1. Custodial interrogation is qualitatively more elicitation orientated than questioning a suspect well ensconced with a favourable order under Section 438 Cr.P.C.
2. Considerations which should weigh with Court while dealing with anticipatory bail need not be same as for application for bail after arrest.
Act Referred :CRIMINAL PROCEDURE CODE : S.438
(A) The appeal pertains to the exercise of discretion under Section 438 of the Code of Criminal Procedure by a High Court in granting an anticipatory bail order. The reference to Section 438 arises directly from the order being impugned, where the Central Bureau of Investigation sought to challenge the pre-arrest bail granted to a respondent holding high public office. The interplay between the statutory provisions of criminal procedure and the specific allegations of corruption under the Prevention of Corruption Act, 1988, forms the core legal landscape of this case.
(B) Key legal principles include the limited scope of appellate interference with High Court discretion in anticipatory bail, the necessity of considering the nature and gravity of the accusation, the status and influence of the accused, and the potential hindrance to investigation. The court emphasized that custodial interrogation is more effective than questioning a suspect protected by an anticipatory bail order, and that the likelihood of witness influence is a valid and relevant factor in such decisions.
Facts of the case:
The respondent, a former Minister and Member of Legislative Assembly, was under investigation by the Central Bureau of Investigation for an offence punishable under Section 13(2) of the Prevention of Corruption Act, 1988, for allegedly amassing wealth disproportionate to known sources. The respondent approached the High Court for anticipatory bail, which was granted despite CBI objections, subject to conditions like surrendering passport. The CBI challenged this order before the Supreme Court.
Findings of Court:
The Supreme Court found that the High Court misdirected itself by applying the mindset appropriate for post-arrest bail rather than anticipatory bail, and failed to give due weight to the serious nature of the allegations and the respondent's high office. The court concluded that the apprehension of witness influence and impediment to investigation was reasonable and sufficient to justify refusing anticipatory bail.
Issues:
Whether the High Court correctly exercised its discretion under Section 438 of the Code of Criminal Procedure to grant anticipatory bail in a case involving grave allegations of corruption against a public official of high rank.
Ratio Decidendi:
The discretion under Section 438 must be exercised cautiously where the accused holds a high office and faces serious allegations that could obstruct investigation; the court must not ignore the reasonable concerns of the investigating agency regarding witness influence and effective interrogation, and such concerns alone are sufficient to deny anticipatory bail.
Result:
The appeal is allowed and the impugned order granting anticipatory bail is set aside.
(A) The appeal pertains to the exercise of discretion under Section 438 of the Code of Criminal Procedure by a High Court in granting an anticipatory bail order. The reference to Section 438 arises directly from the order being impugned, where the Central Bureau of Investigation sought to challenge the pre-arrest bail granted to a respondent holding high public office. The interplay between the statutory provisions of criminal procedure and the specific allegations of corruption under the Prevention of Corruption Act, 1988, forms the core legal landscape of this case.
(B) Key legal principles include the limited scope of appellate interference with High Court discretion in anticipatory bail, the necessity of considering the nature and gravity of the accusation, the status and influence of the accused, and the potential hindrance to investigation. The court emphasized that custodial interrogation is more effective than questioning a suspect protected by an anticipatory bail order, and that the likelihood of witness influence is a valid and relevant factor in such decisions.
Facts of the case:
The respondent, a former Minister and Member of Legislative Assembly, was under investigation by the Central Bureau of Investigation for an offence punishable under Section 13(2) of the Prevention of Corruption Act, 1988, for allegedly amassing wealth disproportionate to known sources. The respondent approached the High Court for anticipatory bail, which was granted despite CBI objections, subject to conditions like surrendering passport. The CBI challenged this order before the Supreme Court.
Findings of Court:
The Supreme Court found that the High Court misdirected itself by applying the mindset appropriate for post-arrest bail rather than anticipatory bail, and failed to give due weight to the serious nature of the allegations and the respondent's high office. The court concluded that the apprehension of witness influence and impediment to investigation was reasonable and sufficient to justify refusing anticipatory bail.
Issues:
Whether the High Court correctly exercised its discretion under Section 438 of the Code of Criminal Procedure to grant anticipatory bail in a case involving grave allegations of corruption against a public official of high rank.
Ratio Decidendi:
The discretion under Section 438 must be exercised cautiously where the accused holds a high office and faces serious allegations that could obstruct investigation; the court must not ignore the reasonable concerns of the investigating agency regarding witness influence and effective interrogation, and such concerns alone are sufficient to deny anticipatory bail.
Result:
The appeal is allowed and the impugned order granting anticipatory bail is set aside.
JUDGMENT
Thomas J.-Leave granted.
2. This appeal is by the Central Bureau of Investigation ( CBI for short) assailing the pre-arrest order granted by the High Court of Himachal Pradesh in favour of the respondent under Section 438 of the Code of Criminal Procedure. Respondent was a former Minister of the Himachal Pradesh State Government and he held the office for about three years. Besides that, he is a Member of the Legislative Assembly of that State also. His father (Sukhram) was Union Minister for Telecommunications. CBI has been investigating a case against respondent for offence under Section 13(2) of the Prevention of Corruption Act, 1988 with the allegation that respondent had amassed wealth far in excess of his known sources of income. While the investigation was in progress respondent approached the High Court of Himachal Pradesh for an order of anticipatory bail. Over-ruling all the objections raised by the CBI, a learned Single Judge of the High Court granted the order subject to the conditions that respondent shall not go abroad without prior permission of the Court, and shall surrender his passport to the CBI etc.
3. Accusations made against respondent, as at present, are inter alia, that he had acquired wealth to the tune of Rs. 16,65,000/- as against his known sources of income which could not reach even half of that. CBI further alleges that the assets have been made by the respondent through illegal means and "there is clear-cut evidence pointing to the transfer of assets by Shri Sukhram in the name of his son". According to the CBI, respondent s is a clear case of corruption in high places and the order of anticipatory bail should never have been granted in such a case.
4. We heard Sri K.N. Bhat, Additional Solicitor General who argued for the CBI and Shri RK Jain, Senior Advocate who argued for the respondent. We felt the need to go through the Case-Diary which was made available to us in a sealed cover. We perused that, Additional Solicitor General contended that High Court has gone wholly wrong in exercising the discretion in favour of the respondent. According to him, considering the responsible and high office which respondent held and the wide influence which he could wield and the great handicap which investigating agency would be subjected to while interrogating a person armed with an order of anticipatory bail, the discretion under Section 438 should never have been exercised in favour of the respondent.
5. On the other hand Sri R.K. Jain, defending the order contended that it is not proper for the Supreme Court to interfere with it as it was passed by the High Court in exercise of a discretionary power.
6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation orientated than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible Police Officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.
7. High Court has approached the issue as though it was considering a prayer for granting regular bail after arrest. Learned Single Judge of the High Court reminded himself of the principle that "it is well-settled that bail and not jail is a normal Rule and then observed thus :
"Unless exceptional circumstances are brought to the notice of the Court which may defeat the proper investigation and fair trial, the Court will not decline bail to a person who is not accused of an offence punishable with death or imprisonment for life. In the present case, no such exceptional circumstances have been brought to the notice of this Court which may defeat proper investigation to decline bail to the applicant."
8. The above observations are more germane while considering an application for post-arrest bail. Consideration which should weigh with the Court while dealing with a request for anticipatory bail need not be the same as for an application to release on bail after arrest. At any rate learned Single Judge ought not have side-stepped the apprehension expressed by the CBI (that respondent would influence the witnesses) as one which can be made against all accused persons in all cases. The apprehension was quite reasonable when considering the high position which respondent held and in the nature of accusation relating to a period during which he held such office.
9. After betowing our anxious consideration, including a perusal of the Case-Diary file, we definitely feel that the High Court has mis-directed itself in exercising the discretionary power under Section 438 of the Code by granting a pre-arrest bail order to the respondent. We, therefore, upset the impugned order. The appeal is allowed accordingly.
Appeal allowed.
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