CHANDRASWAMI AND ANOTHERversusCENTRAL BUREAU OF INVESTIGATION

A                    CHANDRASWAMI AND ANOTHER
                                        v.
                 CENTRAL BUREAU OF INVESTIGATION

                             NOVEMBER 7, 1996

B        (A.M. AHMADI, CJ., J.S. VERMA AND B.N. KIRPAL, JJ.]

         Code of Criminal Procedure, 1973:

           S. 473(1)-Bail-Appellants suspected of having committed offence
C   u!s 120B read with s.420 !PC, 16 years ago-Appellants arrested in 1988.
    and released on bail on certain conditions-Charge-sheet filed in April
    1996-Appellants again arrested on 3.5.96-Bail rejected-Order passed
    cancelling the bail granted earlier-Meanwhile trial commenced-
    Complainant, being the main witness examined and a part of cross-
    examination recorded-Held, while considering the application for bail,
D   the paramount consideration would always be to ensure that the enlargement
    of the suspect on bail will not jeopardise the prosecution case-In the
    instant case, prosecution has not been able to show that the appellants
     would be in a position to influence the witnesses (the main witness being
    the complainant himself) or temper with the evidence-The case does not
    fall in either of the clauses of s.473(1)-Appellants ordered to be released
E   on bail subject to certain conditions.

         CRJMINAL APPELLATE JURISDICTION: Criminal Appeal No.
    1912 Of 1996.

F         From the Judgment and Order dated 17.9.96 of the Delhi High Court
    in Cr!. Misc. (Main) No. 2068 of I 996.

         G. Ramaswamy, Ashok Arora, D. Nigam, Vipin Nair, Rajiv Dutta
    and Santosh P. for the Appellants.

G         The following Order of the Court was delivered :

          Leave granted.

          A complaint dated 25.8.1987 was received from one Shri Lakhu
H Bhai Pathak of U.K. whereupon a case under Section I 20B read with
                                        554
                        CHANDRASWAMI v. C.B.I.                            555


Section 420 I.P.C. was registered against the appellants.                         A
      In brief. the allegations of the aforesaid complainant were that during
the year 1983, the appellants came in contact with the complainant Lakhu
Bhai Pathak and led him to believe that they wielded sufficient influence
in India to secure for him lucrative contracts in India. It was further alleged
that in the month of December, 1983, the appellants induced him to pay            B
an amount of US$ one lakh for procuring a contract for him. This amount
was alleged to have been paid to appellant No. I Chandraswami, by two
cheques, one for US$ 27,000 dated 29.12.1983 and another for US$
73,000 dated 30.12.1983. Both the cheques were stated to have been handed
over to appellant No.I on January 4, 1984 in New York.
                                                                                  c
      Both the appellants denied the aforesaid allegations as being false
and baseless. However, on the aforesaid complaint having been lodged,
the appellants were arrested on 13.2.1988 but were ordered to be released
on bail, vide order dated 17.2.1988 of the learned Addi. Chief Metropolitan
Magistrate, New Delhi. While passing the order, some conditions were
imposed including one that the appellants would not leave the country             D
without prior permission of the Court and they would join the investigation
as and when required.

      On an application being filed, the High Court of Delhi, vide order
dated 4.8.1988, allowed the appellants to go abroad on certain conditions.        E
Thereafter, the appellants went abroad on a number of occasions after
securing permission from the Delhi High Court. The last such permission
was granted under order dated 4.9.1995.

      Pursuant to the order passed by this Court on 28.11.1995 in a Public
Interest Litigation, being Writ Petition No.640 of 1995 (Anukul Chandra           F
Pradhan v. U.O.I. and Anr), which was confirmed by order dated
2.4.1996, the appellants have been restrained from going abroad. In reply
to the aforesaid writ petition, the respondent stated that the investigation
in the first information report lodged by Lakhu Bhai Pathak was still
pending. Thereafter, on 12.4.1996, the respondent filed a charge-sheet in         G
the Court of the Chief Metropolitan Magistrate (C.M.M.) Delhi, against
the two appellants. The C.M.M. Delhi, vide order dated 2.5.1996, took
cognizance of the offence and issued non-bailable warrants against both
the appellants. Consequent thereto, the appellants were arrested in Madras
on 2.5.1996 and have been in custody since then. The appellants, on
3.5.1996 filed on application for cancellation of the non-bailable warrants       H
    556                     SUPREMECOURTREPORTS [1996] SUPP. 8 S.C.R.



A and also moved another application for grant of bail. Both these applications
    were dismissed by the C.M.M. on 4.5.1996. He also passed an order
    cancelling the bail granted earlier to the appellants on 17.2.1988.

          The orders dated 2.5.1996 and 4.5. 1996 were challenged by appellant
    No. I under Section 482 Cr. P.C. before the High Court, but without success.
B   By order dated 8.5.1996, the prayer for bail was rejected by the High
    Court of Delhi. The three main grounds for rejecting bail were; (i) new
    material had come to light; (ii) the C.B.I. apprehended that the appellants
    may tamper with the evidence; and (iii) the Supreme Court had restrained
    the appellants from going abroad in view of the apprehension expressed
    by the C.B.J.
c
          Charges were then framed by the C.M.M., Delhi, against the
    appellants on 21.5.1996. Thereupon, another application for bail, being
    Criminal Mist. /(main) No. 1267/1996, was filed in the High Court of
    Delhi but the sa'tne was dismissed on 24.5.1996. The tri;i of the appellants
    then commenced on 3.6.1996.
D
         Applications for bail were again filed by appellant No. I before the
    Additional Chief Metropolitan Magistrate and Special Judge, Delhi but
    were dismissed on 6.6.1996 and 7.6.1996 respectively.

E         On 5th, 7th and 8th July, 1996, the complainant Lakhu Bhai Pathak
    was examined and partly cross-examined. On the basis of his statement,
    the C.M.M. Delhi, vide his order dated 9.7.1996, added the former Prime
    Minister of India Shri P.V. Narasimha Rao as an accused to the criminal
    conspiracy and he was summoned for the offence under Section l 20(B)
    read with Section 420 I.P.C. The summons were returnable on 24.7.1996.
F   The dates which were earlier fixed for recording of evidence in the trial
    were cancelled.

        On 21.9.1996, charges were ordered to be framed against the newly
  added accused but no further evidence has since been recorded. Remaining
G cross-examination alone remains in the testimony of Lakhu Bhai Pathak.

            In the meantime, after summons were issued by the C.M.M., Delhi,
    to Narasimha Rao, the appellants moved yet another application for bail
    before the C.M.M., Delhi. The said application too was dismissed on
     I 0.7.1996. Another application for bail was filed by the appellants before
H   the C.M.M., Delhi, but the same was dismissed on 3.8.1996. Thereupon
                       CHANDRASWAMI v. C.B.I.                            557


a petition under Section 482 Cr.P.C., being Criminal Misc. (main) No.2068/      A
1996, was filed in the High Court of Delhi challenging the said order
dated 3.8.1996. The main contention which was raised in the High Court
was that the prosecution evidence had started on 23 .6.1996 and as the trial
of the appellants had not concluded within a period of 60 days from the
first date for taking the evidence, they were entitled to be released on bail
under Section 437(6) of Cr.P.C.                                                 B

       The High Court by the impugned judgment dated 17.9.1996,
reiterated its earlier order dated 8.5.1996, whereby it had held that bail
could not be granted to the appellants as there was an apprehension that
they may, if released on bail, tamper with the evidence or influence the
witnesses. The High Court rejected the contention of the counsel for the        C
appellants that the provisions of Section 437 (6) Cr.P.C. gave a mandate to
the Court that in case of non-compliance of the provisions of the said
Section, it had no option but to release the appellants on bail observing
that there was strong apprehension that the appellants may tamper with
the evidence and influence the witnesses, if they were admitted to bail.
                                                                                D
      It was contended by the learned counsel on behalf of the appellants,
challenging the aforesaid decision dated 17 .9.1996 of the Delhi High Court,
that the provisions of Section 437(6) Cr.P.C. were cle~rly applicable in
the present case and that the appellants should be released on bail. It was
further contended that, taking all the facts and circumstances of the case      E
into consideration, this was a fit case where the bail should not have been
refused.

      Mr. K.N. Bh&tt, learned Additional Solicitor General submitted that
there was an apprehension that ifthe appellants were released on bail, they
might try to influence the witnesses or tamper with the evidence.               F

       We propose to examine the plea for grant of bail by looking at the
totality of the facts and circumstances of the case at this stage, without
going into the question of interpretation or applicability of Section 437(6)
Cr.P.C. So also, we do not propose to examine if the cancellation of the        G
bail granted to the appellants earlier in point of time was justified.

      The complaint relates to an offence alleged to have been committed
by the appellants nearly 16 years ago. Not much progress has taken place
in the conduct of the proceedings but the examination-in-chief and a part
of the cross-examination of the complainant, the main witness, has been         H
    558                      SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A   completed. The appellants have been in custody since 2.5.1996. The only
    reason put forth by the trial court, as well as the High Court, for not
    releasing the appellants on bail is that there is an apprehension that they
    are likely to influence the witnesses or tamper with the evidence. The
    main witness in the present case is the complainant himself, who has been
    zealously pursuing this case since 1987. It is his perseverance throughout
B   these long years that has made it possible for the case to reach the stage at
    which it presently stands. His commitment to see the prosecution reach its
    logical end is strong and he is not likely to be influenced by the accused.
    In spite of our query at the hearing, the learned Additional Solicitor General
    was unable to point out any evidence which could now be tampered or
    influenced by the accused. We are, therefore, ·not satisfied that if the
C   appellants are released on bail, they would be in a position to influence the
    witnesses, the main witness being the complainant himself, or tamper with
    the evidence.

           Section 437(1) provides that when any person accused of, or suspected
    of, the Commission of any non-bailable offence is brought before a Court,
D   he may be released on bail unless his case falls in clauses (i) or (ii) thereof.
    The present case is not covered by the said two clauses. Therefore, ordinarily
    a person who is suspected of having committed an offence under Section
    1208 read with section 420 I.P.C. would be entitled to bail; of course the
    paramount consideration would always be to ensure that the enlargement
E   of such persons on bail will not jeopardise the prosecution case. Any such
    likelihood is not shown by the learned Additional Solicitor General.
    Moreover, the learned counsel for the C.B.I. had admitted before the High
    Court that there was nothing to indicate any attempt of tampering by the
    accused in India or abroad during the long period available to them earlier.
    There is no reasonable basis for such an apprehension now at this stage
F   and in the existing circumstances.

          It was pointed out from the High Court's order dated 8.5.1996, that
    the statements of W.E. Millar and Kishore Kamdar revealed that the
    appellants had indulged in similar activity of cheating a number of persons
G   and therefore the apprehension was not misplaced. We fail to see how that
    is a factor supporting the apprehension of tampering in this case.

          Looking at the nature of the offence which is alleged to have been
    co1nmitted, and the facts and circumstances now in existence, we are of
    the view that the appellants should be released on bail in this case, subject
H to the imposition of the necessary conditions. We make it clear that this
                            CHANDRASWAMI v. C.B.I.                           559


    order is subject to the requirement of the appellants remaining in custody      A
    by virtue of any order made in connection with any other crime by the
    competent court or authority. This is so, because of several other cases
    pending in cou11s against the appellants, and some other crimes alleged to
    have been committed by them.

          Accordingly, without expressing any opinion on the merits of the          B
    case, we direct that both the appellants be released on bail, unless required
    to be detained by any order made in any other case/crime, on their
    furnishing bail bonds for a sum of Rs.one lakh each with one surety in like
    amount each. But this order is subject to the appellants strictly adhering to
    the following conditions:
                                                                                    c
           (I) The appellants will not leave the country;

          (2) The appellants shall not make any attempt to contact any of the
    prosecution witnesses, directly or through any other person, or in any
                                                                                    D

-
    other way try to tamper with the evidence or influence any witness in this
    case or any other case against them or any other crime under investigation
    by any government agency;

         (3) If the appellants desire to go out of Delhi, they shall give prior
    information to C.B.I. about their programme, including the places and
    addresses where they can be contacted during that period;                       E

           ( 4) The appellants shall cooperate in the early completion of the
    trial and shall attend the hearings unless exempted;

          (5) The appellants shall intimate the place of their residence and        F
    shall not change the same without prior intimation to the respondent of
    their intention to .shift elsewhere;

          (6) The appellants will appear before the concerned officer of the
    C.B.I. or any other government agency whenever required in connection
    with any crime or matter under investigation.                                   G

          The judgment of the High Court is set aside and this appeal is disposed
    of in the aforesaid terms.

    R.P.                                                    Appeal disposed of. H