SANGHIAN PANDIAN RAJKUMARversusCENTRAL BUREAU OF INVESTIGATION & ANR.

                        [2014) 4 S.C.R. 234


A               SANGHIAN PANDIAN RAJKUMAR
                                  v.
         CENTRAL BUREAU OF INVESTIGATION & ANR.
              (Criminal Appeal No. 698 of 2014}
                          MARCH 28, 2014
B
          [P. SATHASIVAM, CJI, RANJAN GOGOi AND
                      N.V. RAMANA, JJ.]

        CODE OF CRIMINAL PROCEDURE, 1973:
c
       s. 439 - Bail - Factors to be considered before granting
  bail - Culled out - Appellants an JPS and an S.J. of Police in
  Anti Terrorist Squad stated to have been involved in killing
  of three persons - Held: In the light of the details, allegations
0 in charge-sheet filed before court, the facts that many of the
  co-accused have been granted bail by trial court/High Court
  and Supreme Court, that both appellants are in custody for
  nearly 7 years pending trial, that it would not be possible for
  Special Court to conclude the trial within a reasonable period
E and that the case has been transferred out of the State, the
  Court is satisfied that both the appellants have made out a
  case for bail - They shall be released on bail on the conditions
  mentioned in the judgment.

       The appellants, A-2 an IPS and A-6, a Sub Inspector
F of Police in Anti Terrorist Squad, along with others were
  stated to have been involved in murders of three persons.
  The appellants were arrested on 24.4.2007 and 1.7 .2007
  and since then they were in custody. Their bail
  applications were dismissed by the High Court.
G
       Disposing of the appeals, the Court

        HELD: 1.1 At the foremost, the court granting bail
    should exercise its discretion in a judicious manner and

H                               234
   SANGHIAN PANDIAN RAJKUMAR v. CENTRAL                  235
          BUREAU OF INVESTIGATION
not as a matter of course. In Kalyan Chandra Sarkar vs.         A
Rajesh Ranjan alias Pappu Yadav* this Court has held
that amongst other circumstances of the case, the
following factors are required to be considered by the
court before granting bail:
                                                                B
    (a) The nature of accusation and the severity of
    punishment in case of conviction and the nature of
    supporting evidence.

    (b) Reasonable apprehension of tampering with the
    witness or apprehension of threat to the complainant.       C

    (c) Prima facie satisfaction of the court in support of
    the charge.

     In the instant case, this Court has perused the role
attributed to the appellants in the charge-sheet filed in       D
court as well as other materials and also taken note of
judicial custody for nearly seven years pending trial. [para
11-12] [240-B-C; D-F; 241-A]

    *Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu        E
Yadav and Another (2004) 7 sec 528 - relied on.

     1.2 As regards the delay, it is not in dispute that in
respect of abduction and killing of two persons, after
prolonged hearings, the trial was transferred to Mumbai,
                                                                F
that is, out of Gujarat on the orders of this Court.
Thereafter, in respect of killing of the third person, again,
on the orders of this Court, the case was transferred to
Mumbai to be heard along with the trial relating to killing
of earlier two persons. Taking note of these aspects
including various orders of this Court, it cannot be            G
claimed that the investigating agency was responsible
for the delay. [para 13] [241-B-D]
    1.3 The appellants are in custody nearly for a period
of seven years pending trial. So far, the charges have not      H
    236      SUPREME COURT REPORTS              [2014] 4 S.C.R.


A been framed. It has been pointed out that there is no
  chance of completion of trial in the near future due to
  voluminous documents and more than 600 witnesses.
  Further, the relevant records/documents are still pending
  in the original court at Gujarat as well as in the custody
B of Registrar General of the High Court. They are yet to be
  transferred to the transferee court. It is also evident that
  voluminous documents are to be translated from Gujarati
  to Marathi. There is no concrete information about the
  probable duration for completion of the said work. In
c such circumstances, the completion of trial cannot even
  be presumed in a reasonable period; [para 14] [241-F-G;
  242-B-C]
       1.4 It has been pointed out that some persons
  arrayed as accused have been granted either regular bail
D or anticipatory bail. Some of the accused were granted
  bail by the trial court while others by the High Court and
  by this Court. It has also been brought to the notice of
  this Court that the appellant (A-6), was released on bail
  by this Court on three occasions for short periods and
E he never misused the privilege granted to him by the
  Court. [para15,16 and 20] [242-D; 243-G-H; 244-G-H]
      1.5 In view of the facts and circumstances, this Court
  is satisfied that both the appellants have made out a •
  case for bail. They are ordered to be released on bail on
F the conditions mentioned in the judgment. [para 24-25]
  [245-G-H; 246-G-H]
                        Case Law Reference:
          (2004) 7 sec 528       relied on            para 11
G       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 698 of 2014.
      From the Judgment and Order dated 20.11.2013 of the
  High Court of Judicature at Bombay in Criminal Bail Application
H No. 2002 of 2013.
   SANGHIAN PANDIAN RAJKUMAR v. CENTRAL                     237
          BUREAU OF INVESTIGATION
                               WITH                                A
Criminal Appeal No. 699 of 2014.

     Indira Jaising, ASG, U.U. Lalit, Krishnan Venugopal,
Tushar Mehta, Jayesh V. Bhairavia, Devang Vyas, Bharat
Sood, Ritesh Prakash Yadav, Varun Punia, R.C. Kohli, Sushil        B
Karanjkar, Charudatta Mahinderkar, Praveena Gautam, Ezaz
Khan, Maheen Pradhan, Rajat Khattry, Anandita Pujari,
Subramonium Prasad, Hemantika Wahi, Preeti Bhardwaj for
the appearing parties.
                                                                   c
    The Judgment of the Court was delivered by

    P. SATHASIVAM, CJI. 1. Leave granted in both the
appeals.

       2. These appeals are directed against the orders dated      o
20.11.2013 and 10.07 .2013 passed by the High Court of
Judicature at Bombay in Criminal Bail Application Nos. 2002
and 1713 of 2012 respectively, whereby the High Court
dismissed the bail applications of both the appellants pending
trial.                                                             E

     3. The appellant - Sanghian Pandian Rajkumar (Accused
No. 2), an IPS Officer, is one of the accused persons in Special
Case No. 5 of 2010 (RC BS1/S/2010/0004-Mumbai dated
01.02.2010), who was charge-sheeted, inter alia, for the
offences punishable under Section 120B read with Sections          F
302, 364, 365, 368, 193, 197, 342, 420, 384, 201 and 34 of
the Indian Penal Code, 1860 (in short 'the IPC') and Sections
25(1 B)(a) and 27 of the Arms Act, 1959 and he was arrested
on 24.04.2007 and since then is in custody.
                                                                   G
     4. The other appellant - Balkrishan Rajendraprasad
Chaubey (Accused No. 6), who was working as a sub-Inspector
of Police in the Anti Terrorist Squad (ATS), Ahmedabad, at the
relevant time, is also one of the accused persons in the same
case arising out of R.C. No. BS1/S/2010/0004 dated                 H
    238       SUPREME COURT REPORTS                 [2014] 4 S.C.R.


A   01.02.201 O registered with the CBI SCB, Mumbai and was
    charge-sheeted for the offences punishable under Section
    120B read with Sections 365, 368, 302 and 201 of the IPC and
    he was arrested on 01.07.2007 and since then is in custody.

       5. Inasmuch as we are concerned only with the grant of bail
8
  pending trial, there is no need to analyse all the factual details
  except their involvement in the commission of offence, as
  alleged by the prosecution. In the cases on hand, as per the
  prosecution story, three murders were allegedly committed inter
C alia by senior police officers like the appellants - Sanghian
  Pandian Rajkumar (A-2} and Balkrishan Rajendraprasad
  Chaubey (A-6), whose duty was otherwise to maintain law and
  order and to prevent the commission of offence.

      6. Heard Mr. U.U. Lalit, learned senior counsel, Mr. Sushil
D Karanjkar, learned counsel for the appellants (A-2 and A-6)
  respectively and Ms. Indira Jaising, learned Additional Solicitor
  General for the respondent-CBI.

    Submissions:
E       7. Mr. U.U. Lalit, learned senior counsel for the appellant,
  by taking us through the allegations against A-2 in the charge-
  sheet filed in the Special Court, submitted that there is no direct
  evidence linking the present appellant with the commission of
  offence as alleged by the prosecution and the investigation
F carried out by the CBI suffers from serious infirmities. He further
  pointed out that the materials shown to support the prosecution
  charges against the appellant (A-2} are characterized with
  various defects such as lack of spontaneity, invaryness,
  untrustworthiness, hear-say witnesses, inherently impossible or
G improbable facts and humanly abnormal conducts apart from
  the infirmities in the charges which are yet to be framed by the
  Court. He further pointed out that A-2 is in judicial custody
  without trial for almost seven years and continued incarceration
  will amount to violation of Article 21 of the Constitution of India.
H He also pointed out that inasmuch as either the High Court or
  SANGHIAN PANDIAN RAJKUMAR v. CENTRAL        239
BUREAU OF INVESTIGATION [P. SATHASIVAM, CJI.]
this Court granted bail to similarly placed co-accused, the            A
present appellant is also to be released on the ground of parity.
Finally, he stressed on the fact that there are hundreds of
witnesses to be examined and voluminous documents exhibited
in the charge-sheet, it would not be possible to complete the
trial in the near future.                                              B

     8. Though Mr. Sushil Karanjkar, learned counsel for the
appellant - Balkrishan Rajendraprasad Chaubey (A-6) adopted
the arguments made by Mr. U.U. Lalit, learned senior counsel,
he also submitted that A-6, being a sub-Inspector, was present         C
in the company of certain officers and there is no allegation
against him having fired at the deceased. He also pointed out
that even if the Court accepts the prosecution story that he was
present at the place of firing along with the other police officers,
there is no specific role attributed to him. In addition to the
same, he also pointed out that the appellant (A-6) is in judicial      D
custody without trial for almost seven years.

      9. On the other hand, Ms. Indira Jaising. learned Additional
Solicitor General, by taking us through the relevant materials
referred to in the charge-sheet and presented in the court,            E
submitted that inasmuch as both the appellants were police
officers, there is every likelihood of influencing the witnesses.
Learned ASG also submitted that inasmuch as there is a direct
link in the abduction and killing of Sohrabuddin, Kausarbi and
Tulsiram Prajapati, no case is made out for grant of bail at this      F
juncture. She further submitted that by transfer of case records
from the trial court as well as from the High Court of Gujarat to
the transferee Court at Mumbai, viz., the Special Court, CBI and
after translation of the same, the trial is likely to be concluded
within a reasonable time. She also pointed out that the grant          G
of bail/anticipatory bail to certain other accused is not a ground
for release of these appellants at this stage. Accordingly, she
prayed for dismissal of both the appeals.

      10. We have considered the rival contentions and perused
all the relevant materials including the charges levelled against      H
    240       SUPREME COURT REPORTS                [2014] 4 S.C.R.


A the appellants.

    Discussion:

       11. Before considering the claim of the parties and
  materials relied upon for and against the grant of bail, it is
B necessary to highlight the law relating to grant of bail in non-
  bailable offences. At the foremost, the court granting bail should
  exercise its discretion in a judicious manner and not as a matter
  of course. Though, for grant of bail, detailed examination of
  evidence and elaborate discussion on merits of the case need
C not be undertaken, there is a need to indicate in such orders
  reasons for prima facie conclusion why bail was being granted,
  particularly, when the accused is charged of having committed
  a serious offence. In Kalyan Chandra Sarkar vs. Rajesh Ranjan
  alias Pappu Yadav and Another, (2004) 7 SCC 528, this Court,
D while considering Sections 437 and 439 of the Code of
  Criminal Procedure, 1973, (in short 'the Code') held that,
  amongst other circumstances of the case, the following factors
  are required to be considered by the court before granting bail:

          "(a) The nature of accusation and the severity of
E
          punishment in case of conviction and the nature of
          supporting evidence.

          (b) Reasonable apprehension of tampering with the
          witness or apprehension of threat to the complainant.
F
          (c) Prima facie satisfaction of the court in support of the
          charge."

       12. Keeping the above principles in mind, let us discuss
  the stand of both the sides. As observed in the earlier part of
G our judgment, considering the limited issue involved, there is
  no need to elaborately analyse, assess, the acceptability or
  otherwise of the prosecution version, charges levelled,
  witnesses examined and documents exhibited at this juncture.
  However, in the light of the submissions made by both the sides,
H
  SANGHIAN PANDIAN RAJKUMAR v. CENTRAL        241
BUREAU OF INVESTIGATION [P. SATHASIVAM, CJI.]
we have carefully perused the role attributed to these appellants    A
in the charge sheet filed in the Court as well as other materials
and also taken note of judicial custody for nearly seven years
pending trial and the rival contentions.

     13. Coming to the delay, it is not in dispute that in respect   8
of abduction and killing of Sohrabuddin and Kausarbi, after
prolonged hearings, the trial was transferred to Mumbai, that
is, out of Gujarat on the orders of this Court. Thereafter, in
respect of killing of Tulsiram Prajapati, again, on the orders of
this Court dated 08.04.2013, the same was transferred to             C
Mumbai to be heard along with the trial relating to killing of
Sohrabuddin and Kausarbi. Taking note of these aspects
including various orders of this Court, it cannot be claimed that
the investigating agency was responsible for the delay.

       14. Mr. U.U. Lalit, learned senior counsel for Sanghian       D
Pandian Rajkumar (A-2) asserted that not even a single person
implicated him in the commission of offences as alleged by the
prosecution. On going through the allegations pertaining to A-
2 in the charge-sheet and the arguments of Mr. Lalit, learned
senior counsel as well as Ms. Indira Jaising, learned ASG, we        E
are not inclined to express any specific opinion at this stage.
However, there is no dispute that A-2 was arrested on
24.04.2007 and A-6 was arrested on 01.07.2007 and both of
them are in custody since then. In other words, they are in
custody nearly for a period of seven years pending trial. Though     F
the prosecution has filed the charges, admittedly, so far, the
same have not been framed by the Court. Both the counsel for
the appellants pointed out that there is no chance of completion
of trial in the near future due to voluminous documents and more
than 600 witnesses. We have already pointed out that the             G
charges have not been framed even after seven years. Per
contra, Learned ASG submitted that inasmuch as both the
appellants are police officers, there is every likelihood of
influencing the witnesses. She also pointed out that by giving
appropriate direction for transfer of records from Gujarat to the    H
    242       SUPREME COURT REPORTS                 [2014] 4 S.C.R.


A transferee Court, i.e., special Court CBI at Mumbai,
  Maharashtra and after completion of the translation work, a
  direction may be issued to the special court for early completion
  of the trial. We _also considered the above objection. It is clear
  from the statement of Learned ASG that the relevant records/
B documents are still pending in the original court at Gujarat as
  well as in the custody of Registrar General, High Court. They
  are yet to be transferred to the transferee court. It is also evident
  that voluminous documents are to be translated from Gujarati
  to Marathi. There is no concrete information about the probable
c duration for completion of the said work. In such circumstances,
  the completion of trial cannot even be presumed in a
  reasonable period.

       15. Coming to parity, it is pointed out that some persons
  arrayed as accused have been granted either regular bail or
D anticipatory bail. In order to appreciate the above argument, we
  culied out the following details from the impugned order of the
  High Court:

          "(A) Regular Bail
E
          (a) Ajay Parmar (accused No. 10), by the High Court of
          Gujarat, in Criminal Miscellaneous Application No. 5703/
          2012, by common order dated 30/07/2012

          (b) Santram Sharma (accused No. 11 ), by the Gujarat High
F         Court, in Criminal Miscellaneous Application No. 5703/
          2012, by common order dated 30/07/2012.

          (c) N.K. Amin (accused No. 12), by Bombay High Court
          in Criminal Bail Application No. 1770/2012.
G         (d) N.V. Chauhan (accused No. 13), by Hon'ble Supreme
          Court in SLP (Crl.) No. 1627/2011, by order dated 19/101
          2012.

          (e) V.A. Rathod (accused No. 14) by Hon'ble Supreme
H         Court, in SLP (Crl.) No. 8318/2011, by order dated 02/03/
  SANGHIAN PANDIAN RAJKUMAR v. CENTRAL        243
BUREAU OF INVESTIGATION [P. SATHASIVAM, CJI.]
    2012.                                                            A
    (f) Amitbhai Shah (accused No. 16), by Gujarat High Court,
    in Criminal Miscellaneous Application No. 1770/2012,
    which order has been confirmed by the Apex Court, by
    rejecting the SLP (Crl.) filed by CBI for cancellation of said   B
    bail.

    (8) Anticipatory bail:

    (a) Ajay Patel (accused No. 17). by Gujarat High court,
    which order came to be continued by way of interim order         c
    passed by the Apex Court.

    (b) Yashpal Chudasama (accused No. 18), by Gujarat High
    Court, which order came to be continued by way of interim
    order passed by the Apex Court.
                                                                     D
    (c) Vimal Pattani (accused No. 20) by Special Judge, CBI,
    Greater Mumbai (Sessions) on 05/07/2013 in Anticipatory
    bail Application No. 773/2013.

    (d) Gulabchand H. Kataria (accused No. 21), by Special           E
    Judge, CBI, Greater Mumbai (Sessions) on 05/07/2013 in
    Anticipatory Bail Application No. 788/2013.

    (e) Narasinhulu Balasubramaniam (accused No. 22) by
    Special Judge, CBI, Greater Mumbai (Sessions), on 05/
    07/2013 in Anticipatory Bail Application No. 781/2013.           F

    (f) Ghattamaneni Srinivasa Rao (accused No. 23), by
    Special Judge, CBI, Greater Mumbai, on 05/07/2013, in
    Anticipatory bail Application No. 781/2013."
                                                                     G
      16. A perusal of the reason(s) for grant of bail or
anticipatory bail shows that some of the accused were granted
bail by the trial court and some by the High Court and by this
Court. Apart from pointing out various orders, learned counsel
for the appellants has brought to our notice the order passed        H
    244      SUPREME COURT REPORTS                [2014] 4 S.C.R.


A by this Court in Naresh Vishnu Chauhan vs. State of Gujarat
  & Anr. in SLP (Crl.) No. 1627 of 2011 wherein Naresh Vishnu
  Chauhan, who was one of the co-accused, at the relevant time
  posted as sub-Inspector of Police and was attached to the Anti-
  Terrorist Squad, Ahmedabad. In spite of the fact that the counsel
B for the State has pointed out that the case against the said
  person (A-13) is not only confined to Section 201 IPC but also
  includes Section 302 read with Section 120B IPC, this Court,
  taking note of the fact that he was in jail for over five years and
  three months, directed to release him on bail forthwith.
c      17. Likewise, another co-accused, viz., Vijay Arjunbhai
  Rathod, who was in custody in connection with the encounter
  case and whose name was included in the list of the accused,
  was released on bail by this Court, by order dated 02.03.2012,
  in Vijay Arjunbhai Rathod vs. CBI & Anr. SLP (Crl.) No. 8318
D of 2011.

       18. In addition to the same, another co-accused, by name,
  Amitbhai Shah (A-16) was granted bail by the High Court. This
  Court, by order dated 27.09.2012, in Criminal Appeal No. 1503
E of 2012 - Central Bureau of Investigation vs. Amitbhai Anil
  Chandra Shah and Another refused to interfere with the said
  order.

         19. It is also brought to our notice that another co-accused
    Dr. N.K. Amin (A-12) was also granted bail by the High Court
F   of Bombay. According to the CBI, the said accused was a part
    of what is called as 'Stage 3' conspiracy. According to the CBI,
    he. was sitting in the jeep in which the dead body of Kausarbi
    was kept. No doubt, he was granted bail due to his ailments.

G       20. In the case of Balkrishan Rajendraprasad Chaubey (A-
  6), the appellant herein, this Court, by order dated 06.08.2012
  in SLP (Crl.) No. 5166 of 2012, granted him interim bail for a
  period of one month. Even before that, earlier, on two
  occasions, he was released on bail for short periods and he
H never misused the privilege granted to him by the Court.
  SANGHIAN PANDIAN RAJKUMAR v. CENTRAL        245
BUREAU OF INVESTIGATION [P. SATHASIVAM, CJI.]
     21. We need not go into the reasonings of grant of                  A
anticipatory bail to some of the accused since no serious
allegations have been levelled against them.

      22. In the light of the details, allegations in the charge-sheet
filed before the court, many of the co-accused were granted bail         B
by the trial court/High Court and this Court and of the fact that
both the appellants are in custody for nearly 7 years pending
trial and also in view of the fact that it would not be possible
for the special Court to conclude the trial within a reasonable
period as claimed by learned ASG, we inclined to consider their          C
claim for bail.

      23. In the light of the statement made by learned ASG, we
direct that all the materials pertaining to these cases which are
lying in the original Court at Gujarat as well as the records
relating to the same under the custody of the High Court of              D
Gujarat, if any, be transferred to the Special Court, CBI, Mumbai
within a period of one month from the date of receipt of copy
of this order. After receipt of all the required materials, the
Special Court, CBI at Mumbai have to get the relevant
documents alone translated within a period of three months               E
thereafter. The Special Court, CBI at Mumbai is directed to take
the assistance of the Registrars of the High Courts of Bombay
and Gujarat for completion of the translation work as fixed. By
this order, we also direct the Registrars of the Bombay and
Gujarat High Courts to render all assistance to the Special              F
Judge, CBI Mumbai for early completion of the translation work
within the time stipulated by this Court. After receipt of the
required material and completion of translation work, we direct
the special Judge to take all endeavor for early completion of
the trial.
                                                                         G
     24. In the light of what is stated above, we are satisfied
that both the appellants have made out a case for bail on
executing a bond with two solvent sureties, each in a sum of
Rs 1 lakh to the satisfaction of the Special Judge, CBI, Mumbai
on the following conditions:                                             H
    246           SUPREME COURT REPORTS               [2014] 4 S.C.R.


A         (i)      The appellants shall not directly or indirectly make
                   any inducement, threat or promise to any person
                   acquainted with the facts of the case so as to
                   dissuade him to disclose such facts to the court or
                   to any other authority.
B
          (ii)     The appellants shall remain present before the
                   court on the dates fixed for hearing of the case, for
                   any reason due to unavoidable circumstances for
                   remaining absent they have to give intimation to the
                   court and also to the officer concerned of the CBI
c                  and make a proper application for permission to be
                   present through counsel.

          (iii)    The appellants shall surrender their passports, if
                   any, if not already surrendered and if they are not
D                  holder of the same, that fact should be supported
                   by an affidavit.

          (iv)     In case they have already surrendered the passport
                   before the Special Judge, CBI, that fact should be
                   supported by an affidavit.
E
          (v)      On such release, both of them (A-2 & A-6) have to
                   stay at Mumbai and report at 11.00 a.m. on
                   alternate working days before the Special Judge,
                   CBI Mumbai.
F
          (vi)     Liberty is given to the CBI to make an appropriate
                   application for modification/recalling the present
                   order passed by us, if the appellants violate any of
                   the conditions imposed by this Court.
G        25. Under these circumstances, the appellants are ordered
    to be released on bail subject to the conditions mentioned
    hereinabove to the satisfaction of the court concerned. With the
    above directions, the appeals are disposed of.

H R.P.                                          Appeals disposed of.