Supreme Court of India
STATE THROUGH C.B.I.versusAMARMANI TRIPTHI
- Citation
- 2005 INSC 440
- Decided
- 26 September 2005
- Disposal
- Disposed off
- Bench
- ASHOK BHAN
Holding
The Supreme Court held that the High Court gravely erred in granting bail and that, on the basis of prima facie evidence of conspiracy and substantial risk of tampering, the bail bonds must be cancelled.
Summary
The State of Uttar Pradesh, represented by the CBI, appealed against the Allahabad High Court's orders granting bail to Amarmani Tripathi, a former minister, and his wife Madhumani Tripathi in a murder case involving the killing of Madhumita Shukla. The prosecution alleged a conspiracy in which Amarmani, who had an illicit relationship with the victim, and Madhumani orchestrated the murder, and that both accused repeatedly attempted to interfere with the investigation, tamper with evidence, and threaten witnesses using their political influence. The High Court had relied mainly on the doubtful admissibility of a co‑accused’s confessional statement and dismissed other material. The Supreme Court examined the factors relevant under Sections 437 and 439 of the CrPC, held that there was prima‑facie evidence of conspiracy and a real risk of witness tampering, and that post‑bail conduct and supervening circumstances are pertinent even in an appeal against bail. Consequently, the Court set aside the High Court’s bail orders, cancelled the bail bonds, and directed the respondents to surrender.
Issues considered
- Whether bail should be granted in a murder case where there is prima facie evidence of conspiracy and a likelihood of witness tampering.
- Whether a retracted confessional statement of a co‑accused can be ignored for the purpose of deciding bail.
- Whether post‑bail conduct and supervening circumstances are relevant in an appeal against the grant of bail.
- Whether the High Court erred in ignoring material showing interference with investigation and political influence.
- Whether the wife, despite being a housewife, should have bail cancelled due to risk of tampering with evidence and witnesses.
Legislation cited
- Code of Criminal Procedure, 1973s. 161, s. 173(8), s. 437, s. 439
Subjects
bailmurderconspiracywitness tamperingpolitical influenceSection 437 CrPCSection 439 CrPCappeal against bailprima facie casehigh court error
Judgment
A STATE THROUGH C.B.I.
11.
AMARMANI TRIPATHI
SPETEMBER 26, 2005
B [ASHOK BHAN AND R.V. RAVEENDRAN, JJ.]
Code of Criminal Procedure, 1973-Sections 437 and 439-High Court
granting bail to accused who conspired and committed the murder ofdeceased
C through other accused-State filing appeals against grant of bail to accused-
Held, from the materials on record, accused are prima facie involved in
conspiracy and committed murder of the deceased-Accused tried to tamper
with evidence, interfere with investigation and threaten/buy over witnesses
using their political influence at the time of investigation and after grant of
bail-Hence, appeals are allowed and accused are directed to surrender.
D
According to the prosecution, the murder of the deceased was a result
of a criminal conspiracy among the respondents-husband and wife-and other
accused. Respondent-husband, who was a State Minister at the relevant time,
was having an illicit relationship with the deceased. This led to pregnancy of
the deceased thrice. On the first two occasions, the pregnancy was aborted at
E the instance of the respondent. On the third occasion, the deceased refused
to abort the pregnancy. Respondent-wife, with the knowledge of her husband,
got the deceased killed with the help of the other accused. A chargesheet was
filed before trial court against all the accused including the respondents by
the prosecution. Respondent-wife was absconding at the time of filing of the
F chargesheet. She later surrendered before the Court when the bail application
of her husband was rejected by the trial court on the ground she was
absconding. The respondents were later granted bail by separate orders of
the High Court.
In appeal against the orders granting bail by the High Court, the
G apIJ'!llant-State contended that there were enough material on record to prove
that the respondents conspired and committed the murder of the deceased
through other accused; that the respondent-husband interfered with the
investigation by trying to side-track and mislead the investigation into a false
trial, planting false stories in the media, creating false evidence and
H 454
STATE THROUGHT C.B.I. v. AMARMANI TRIPATHI 455
threatening witnesses either directly or by using the police; that the A
respondent managed to get the police officers, who were not toeing his line,
transferred through his influence; that after the release on bail in pursuance
to the order of the High Court, the respondents were attempting to threaten/
buy over witnesses; that there is every likelihood of the respondent-wife, who
absconded earlier, to again flee if she continues to be on bail; and that if
respondent-husband is alone granted bail, the threatening of witnesses will B
be taken over by his wife.
Respondents contended that there are no material showing any
involvement of them in the murder of the deceased; that if the confessional
statement of the co-accused, which linked the respondents in the crime, is C
excluded, there is no material which link the respondents with the murder of
the deceased; and that any action taken by the respondents in saving their
marital life cannot be branded as conspiracy to kill the deceased.
Disposing the appeals, the Court
D
HELD: 1.1. In an appeal against grant of bail, all aspects that were
relevant under section 439 read with section 437 of the Code of Criminal
Procedure, 1973 continue to be relevant. While considering and deciding
appeal against grant of bail, where the accused has been at large for a
considerable time, the post bail conduct and supervening circumstances will
have to be taken note of. The matters to be considered in an application for E
bail are (i) whether there is any prima facie or reasonable ground to believe
that the accused had committed the offence; (ii) nature and gravity of the
charge; (iii) severity of the punishment in the event of conviction; (iv) danger
of accused absconding or fleeing if released on bail; (v) character, behaviour,
means, position and standing of the accused; (iv) likelihood of the offence being F
repeated; (vii) reasonable apprehension of the witnesses being tampered with;
and (viii) danger, of course, of justice being thwarted by grant of bail. While
a vague allegation that accused may tamper with the evidence or witnesses
may not be a ground to refuse bail, if the accused is of such character that
his mere presence at large would intimidate the witnesses or if there is
material to show that he will use his liberty to subvert justice or tamper with G
the evidence, then bail will be refused. (465-G; 466-A-B-C]
1.2. While a detailed examination of the evidence is to be avoided while
considering the question of bail, to ensure that there is no pre-judging and
no prejudice, a brief examination to be satisfied about the existence or
otherwise of a primafacie case is necessary. [467-Hl H
456 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.
A 1.3. An examination of the material in this case disclose prima facie,
the existence of a conspiracy to which the respondents-accused were parties.
The contentions of the respondents that the confessional statement of co-
accused is inadmissible in evidence and that should be excluded from
consideration, for purpose of bail is untenable. The conduct of the first
respondent from the day of the murder in trying to interfere, detract and
B mislead the investigation and to threaten and coerce witnesses is very relevant
[468-A, B[
1.4. The materials collected by the prosecution disclose that there were
repeated attempts by the respondent to interfere and side track the
C investigation and threaten the witnesses to come out with a story that will
deflect the suspicion from him and his wife to others. The High Court has
completely ignored the materials placed by the prosecution relating to
tampering with evidence/witnesses. The High Court has failed to deal with
the vast material placed by the CBI which clearly indicated that the accused
has, at all material times, tried to interfere with the course of investigation,
D tamper with witnesses, fabricate evidence, intimidate Gr create obstacles in
the path of investigation officers and derail the case. [471-C-D; 472-B]
1.5. The statement of a witness-senior police officer is revealing and
the High Court on this statement alone should have rejected the bail and, in
any event, it is sufficient to allow the present appeal. The very fact that a senior
E police officer could be transferred shows the amount of influence wielded by
the respondent. [472-C-D]
1.6. The High Court has granted bail being of the opinion that the extra
judicial confession given by one of the co-accused may not stand the test of
F scrutiny by a judicial mind but that by itself was not sufficient to grant bail.
There is voluminous material collected by the CBI to show the involvement of
the respondent and his effort to interfere with the investigation of the case .
before the grant of bail and also after the grant of bail He tried to change the
course of investigation by creating false evidence of the marriage of the
deceased with another person with the help of a police officer. There are
G written complaints with the investigating agency showing that after his
release on bail the respondent tried to threaten as well as win over the sister
of the deceased, and her mother by offering bribe. The High Court gravely
erred in granting bail to the respondents in such circumstances. The High
Court practically failed to consider or take into consideration the voluminous
H materials which had been collected by the investigation agency and have been
STATE THROUGHT C.B.I. v. AMARMANI TRIPATHI 457
referred to by them in their statement of objections to the application for grant A
of bail. (473-F, G, H; 474-A-B]
Bihar Legal Support Society v. Chief Justice of India, (1986) 4 SCC
767 (CB); Prahlad Singh Bhati v. NCT, Delhi, (2001] 4 SCC 280; Gurcharan
Singh v. State (Delhi Administration), AIR (1978) SC 179; Kalyan Chandra
Sarkar v. Rajesh Rajan, (2004] 7 SCC 528; Panchanan Mishra v. Digambar B
Mishra, (2005) 3 SCC 143; Pawan v. Ram Prakash Pandey, (2002) 9 SCC
166; Ram Pratap Yadav v. Mitra Sen Yadav, [2003) 1 SCC 15; State of
Rajasthan v. Balchand, (1977] 4 SCC 308; Gudikanti Narasimhulu v. Public
Prosecutor, (1978] l SCC 240; Do/at Ram and Ors. v. State ofHaryana, (1995)
1 SCC 349 and S.N. Bhattacharjee v. State of West Bengal, [2004) 11 SCC C
165, referred to.
1.7. The position of the respondent wife is somewhat different from the
case of her husband. But there is material to show that she had absconded for
several months and surrendered only when bail was refused to her husband
on the ground that she was absconding. Further when the matter is considered D
in entirety, with reference to the murder of the deceased and the propensity
of the husband and wife to pressurize and persuade others to act according to
their wishes, there is reasonable ground for apprehension that if her husband
alone is taken into custody, leaving her to remain outside, she may take over
the task of tampering the evidence and manipulating/threatening witnesses.
Therefore, interference is called for even in regard to the bail granted to E
-respondent wife. (474-C-D)
1.8. The bail bonds of the respondents in each of these cases are
cancelled. The respondents are directed to surrender forthwith and in case
they fail to do so, the State should take effective steps to take the respondents F
in custody. (474-G]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1248 of
2005.
From the Judgment and Order dated 29.4.2004 of the Allahabad High G
Court in Crl. M. Case. No. 1402(8) of 2004.
WITH
Crl.A. No. 1249 of2005.
H
458 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.
A Gopal Subramanium, Additional Solicitor General, Vikas Sharma, Ms.
Sandhya Goswami and P. Parmeswaran with him for the Appellant.
Ms. Kantini Jaiswal and Mrs. Shomila Bakshi for Intervenor.
Rakesh Dwivedi, K.T.S. Tulsi, Vishwajit Singh, Rishi Malhotra, Mrs.
B Bharati Tyagi and Gaurav Liberhan with them for the Respondents.
The Judgment of the Court was delivered by
BHAN, J. Leave granted.
C The State of Uttar Pradesh through CBI aggrieved by the orders dated
29th April, 2004 and 8th July, 2004 passed by a Single Judge of Allahabad
High Court (Lucknow Bench) in Crl. Misc. Case No. 1402(B)/2004 and No.
l 954(B)/2004 releasing the accused Amarmani Tripathi (Accused No. 5) and
Madhumani Tripathi (Accused No. 4) on bail have filed these appeals.
D On 9th May, 2003 Madhumita Shukla was shot dead in her house
located in Paper Mill Colony by two persons who were later on identified as
Santosh Kumar Rai and Prakash Chandra Pandey. Investigation in the case
revealed that Madhumita Shukla was killed pursuant to a conspiracy involving
Amarmani Tripathi and his wife Smt. Madhumani Tripathi, Nidhi Shukla lodged
a Report in regard to the blind murder of her sister Madhumita Shukla on
E 9.5.2003 in the Mahanagar Police Station, Lucknow. The case was transferred
to Crime Branch, CID on 17.5 .2003. On a request made by the State on
17 .6.2003, the CBI took over the investigation.
The case of the prosecution in brief is as follows:
F Amarmani Tripathi, a Minister in the U.P. Government, at the relevant
time, was having an affair with deceased Madhumita Shukla, a young Poetess.
This led to Madhumita's pregnancy thrice. On the first two occasions, the
pregnancy was aborted at the instance of Amarmani. On the third occasion,
inspite of pressure and persuasion by Amarmani, Madhumita refused to abort
G the pregnancy. The post-mortem revealed a six month old foetus in her womb.
D.N.A. test of the foetus established the paternity of Amarmani.
Madhumani Tripathi, wife of Amannani, was upset when she learnt
about the illicit intimacy between Amannan i and the deceased. She made
several calls to the deceased and her family members to threaten and abuse
H them. During the end of March, 2003 Madhumani Tripathi informed one Rohit
STATE THROUGHT C.B.I. v. AMARMANI TRIP ATHI [BHAN, J.] 459
Chaturvedi (cousin of Amannani) that she was troubled by her husband's A
relationship with Madhumita and requested him to help her to teach a 'lesson'
to Madhumita. Rohit Chaturvedi, therefore, introduced one Santosh Rai as a
person who can help her. Madhumani told Santosh Rai that Madhumita
should be finished, whatever be the expense.
On 14.4.2003 when Rohit Chaturvedi came to Lucknow, Madhumani B
asked him to instruct Santosh Rai to do the work assigned to him without
delay. On the same evening Rohit Chaturvedi infonned Amannani that Bhabhi
Madhumani wanted Madhumita to be eliminated. Amannani told Rohit that it
may be done taking care to see that his name was not linked to the incident.
He also stated that being a Minister in the U.P. Govt., shall protect them. C
Amannani was no longer interested in Madhumita as she was becoming a
nuisance and he had found other interests. Amannani felt that if Madhumita
gave birth to the love-child, it could adversely affect his image as a politician
and Minister and also cause problem in his family.
Madhumani kept on pressing Rohit to get the work done. On 1.5.2003 D
Madhumani told him that all limits have been crossed and action should be
taken immediately. Madhumani rang up Rohit several times to tell Santosh Rai
to do her work and Rohit passed on the message to Satonsh Rai. Santosh Rai
met Madhumani in this connection on 5.5.2003. Santosh Rai assured Rohit
that the work will be done within 2 to 4 days. In pursuance of it, on 9.5.2003
Santosh Rai along with Prakash Pandey went to the house of Madhumita and E
shot her with a country made pistol (katta) from close range, resulting in her
death.
According to the prosecution, the murder of Madhumita was a result
of the conspiracy among Madhumani, Amannani, Rohit Chaturvedi, Santosh F
-- Rai and Prakash Pandey. Amannani was arrested on 23.9.2003. On 19.12.2003
a charge-sheet was filed against six accused, namely, (I) Santosh Kumar Rai
@ Satya Prakash, (2) Prakash Chander Pandey@ Pappu, (3) Rohit Chaturvedi,
(4) Madhumani Tripathi, (5) Amannani Tripathi and (6) Yagya Narain Dixit. On
the date of filing of the chargesheet, accused no. 4, Madhumani Tripathi, was
absconding. However, when the first bail application filed by Amannani Tripathi G
was rejected by the High Court by order dated 11.3.2004 on the ground that
the co-accused (Madhumani Tripathi) had not surrendered, Madhumani
surrendered on 25.3.2004.
Amarmani made a second bail application under Section 439 Cr.P.C. in
Crl. Misc. Case No. 1402(B)/2004. The High Court by order dated 29.4.2004 H
460 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R. ~
A granted bail to Amannani on the following reasoning:
(a) The entire theory of Amarmani being part of the conspiracy to
murder Madhumita was based on the confessional statement of
the co-accused Rohit Chaturvedi (recorded on 17.11.2003 by Vikas
Dhul, Metropolitan Magistrate, at New Delhi). Rohit had made
B his confession conditional of being treated as an approver. Rohit
had subsequently retracted from the confession. The admissibility
of the confession against a co-accused is doubtful.
(b) Nonnally, Courts should first examine the material, other than the
confessional statement of a co-accused, to find out if there is any
c evidence of conspiracy/abetment. The confessional statement of
a co-accused should be considered only as a supporting piece
of evidence, and not as the substantive evidence against an
accused. The confessional statement of a co-accused, more so,
one that has been retracted, cannot be made the foundation for
establishing the guilt of an accused. In this case, if the said
D confessional statement of Rohit is excluded, there is no evidence,
direct or otherwise to show that Amannani was in any manner,
party to the conspiracy to kill Madhumita.
(c) The other material relied on by the prosecution against Amannani
are: (i) illicit relationship between Amannani and the deceased;
E (ii) DNA test report showing that Amannani was the father of the
foetus in the womb of the deceased; (iii) pressure applied by
Amarmani on the deceased to abort the pregnancy; (iv) undated
letter of the deceased addressed to Amarmani finding fault with
him for ignoring her. These were yet to be tested in trial. More
F importantly it cannot be said that the only inference that can be
drawn from the said material is that Amannani was a party to the
conspiracy to murder the deceased. These material can only lead
to an inference that the conduct of Amannani was immoral and
that there was an effort on his part to cover up such conduct and
nothing more.
G
(d) The criminal history of the accused Amarmani (20 criminal cases
ending in acquittal and 4 cases pending including a case of
kidnapping) cannot be a ground to refuse bail.
(e) The contention of the CBI that the investigation was still in
progress in pursuance of the permission for further investigation
H
STATE THROUGHT C.B.I. v. AMARMANI TRIPATHI [BHAN, J.] 461
granted by the High Court by order dated 8.4.2004 under Section A
173(8) of the Cr.P.C. was not tenable as such further investigation
was only in regard to Madhumani and not in regard to Amarmani.
Charge-sheet had already been submitted. Madhumani was in jail
and shall remain available for interrogation, if any, by CBI.
(f) Amarmani was in jail since September, 2003. The investigation B
was already concluded. There was no chance of Amarmani either
fleeing, or tampering with the witnesses. There was nothing to
connect the disappearance of the domestic servants of Amarmani,
with him, whom CBI wanted to interrogate. If it was found at any
stage that he was not co-operating in the trial of the case or
found to be tutoring/maneuvering any witness, CBI can move an C
application for cancellation of bail at that stage.
Amarmani's wife Madhumani applied to the Sessions Judge, Lucknow
for bail in Crl. Misc. Case No. 96012004. It was rejected by order dated
20.4.2004. Thereafter she approached the High Court for bail in Cr!. Misc. Case D
No. 1954(B) of 2004. The High Court granted bail to Madhumani by order
dated 8.7.2004 on the following reasoning:
(a) Madhumani is not the main accused, but only an alleged
conspirator/abettor. Her husband, whom the Prosecution considers
to be the main conspirator had already been granted bail and
grounds on which he was granted bail are also available for E
granting bail to her.
(b) Madhumani is only a housewife without any criminal antecedents.
• She has not been named in the FIR or in the statements ofNidhi
Shukla and Desraj (servant of the deceased) recorded under
Section 161 Cr.P.C. Her name came to be linked with the murder F
for the first time in the confessional statement of Roh it made on
17.11.2003. The admissibility of such confessional statement,
particularly, against a co-accused is doubtful and that question
has to be considered at the time of trial.
(c) There is no allegation that Madhumani made any attempt to G
tamper with the evidence. She was available for interrogation on
4.8.2003 and 6.9.2003. When she moved an application on 24.9.2003
for surrender, the special Judicial Magistrate, CBI by order dated
6.10.2003, rejected the application for surrender on the ground
that she was not wanted till that date. All circumstances show H
462 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.
A that Madhumani was available from the date of incident till
6.10.2003. Though she was said to be absconding after her name
cropped up· in the conspiracy, she subsequently surrendered
before Court when the first application of Amarmani for bail was
rejected on the ground that she was absconding. There is no
chance of her fleeing.
B
(d) The entire material against her regarding intimacy between her
husband and the deceased and subsequent developments is
purely based on circumstances and the evidence indicated only
a possible motive. The mobile phone calls attributed to her and
printouts relating thereto are not sufficient to infer any conspiracy,
c as the Mobile phones used were not in her name, but in the name
of her husband. The Parchi allegedly handed over by her to the
hired killers (containing the name, address and telephone numbers
of the deceased) is yet to be proved as being in her handwriting.
(e) The prosecution case is based on two contradictory theories of
D conspiracy, one hatched by her husband, the other hatched by
her, by joining hands with her husband.
(f) The sessions court committed an error in rejecting her bail
application being influenced by the fact that it is a media
highlighted case and by the fact that her husband is an influential
E person.
Being aggrieved by the two orders of the Allahabad High Court granting
bail to Amannani and Madhumani, the State has approached this Court. Shri
Gopal Subramanium, learned Additional Solicitor General appearing for the
petitioner, submitted that the material on record, before the High Court clearly
F disclosed the following position:
(i) That the murder of pregnant Madhumita, a heinous crime, was
committed in pursuance of a conspiracy hatched by accused I
to 5. The murder was committed by the killers (accused I & 2),
hired by accused no. 4 with the concurrence, support and
G protection of accused no. 5, through accused no. 3. There was I
material to show (i) the illicit relationship of Amannani with the '
deceased resulting in three pregnancies; (ii) Amannani's intention
to get out of the relationship; (iii) Amarmani's attempt to put an
end to the last pregnancy also, by requiring his servant Pappu
H Chaudhary to pose as the father of the foetus and give consent
STATE THROUGHT C.B.I. v. AMARMANI TRIPATHI [BHAN, J.] 463
for abortion; (iv) Madhumani's ire and jealously against the A
deceased and expression of an intention to get rid of her; (v)
Madhumani's subsequent action in engaging killers (accused I
and 2) through accused No. 3 to kill Madhumita; and (vi) the
consent of Amarmani for Killing Madhumita, as instructed by his
wife without involving his name and assuring protection to the B
persons committing the murder.
(ii) That Amarmani was interfering with the investigation, by trying
to side-track it and mislead the Police into a false trail, planting
false stories in the media, creating false evidence and threatening
witnesses either directly or by using the police. He even managed
to get the Police Officers (including an officer of the Rank ofSSP) C
who were not toeing his line, transferred.
(iii) That after release on bail in pursuance to the order of the High
Court, Amarmani was attempting to threaten/coerce/buy over
witnesses (Nidhi Shukla, sister, Shanti Kumari Shukla and Najib
Khan). D
(iv) That Madhumani had already absconded earlier. Only the rejection
of bail application of her husband on that ground made her to
surrender. There is every likelihood of her again fleeing, if she
continues to be on bail. Further, if Amarmani alone is denied bail,
the threatening of witnesses will be taken over by Madhumani. E
On the other hand Shri Rakesh Dwivedi, learned Senior Counsel
appearing for Amarmani submitted that this is a case of blind murder. There
is no material showing any involvement of Amarmani in the murder or in any
conspiracy. There was never any contact between Amarmani ·and the hired
killers. He submitted that the retracted confessional statement of Rohit F
Chaturvedi which alone linked Amarmani's name to the conspiracy is to be
ignored, in view of the law laid down by th is Court; and if it is so ignored,
there is absolutely no material at all to show that Amarmani was involved in
the conspiracy. The, material, including the statements ofNidhi, Shanti Kumari,
Pappu Chaudhary relied upon by the prosecution and t:ie post-mortem report G
showing the six month foetus and the DNA report showing Amannani as the
father, even if accepted could at best establish an illicit relationship between
Amarmani and Madhumita and an attempt to abort the pregnancy and nothing
more. He submitted that the conduct of Amarmani, even if it was morally
incorrect, can in no way be considered as proof of an intention to kill
Madhumita or proof of his being a party to any conspiracy to kill Madhumita. H
464 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.
A He also stated that any action taken by Amannani to safeguard himself and
his wife, cannot be branded as conspiracy.
Shri KTS Tulsi, learned Senior Counsel appearing for Madhumani similarly
contended that if the confessional statement of Rohit is excluded, there is
nothing to link Madhumani to the death of Madhumita. He pointed out that
B the entire material, even assuming to be true, only showed an illicit relationship
between Amannani and the deceased and expression of anger by Madhumani
against such illicit relationship and nothing more. He submits that the
expression of righteous indignation by a wife and verbal abuse of the girl
trying to wreck her marital life, is not evidence of participation in any
C conspiracy to kill the deceased.
Shri Dwivedi and Shri Tulsi, learned Senior Counsel relied on several
decisions regarding the effect of confessional statements. They contended
that no interference was called for in regard to the orders of the High Court
granting bail to Amarmani and Madhumani. They submitted that the basic
D rule is bail and not jail, unless there are circumstances suggesting fleeing from
justice or thwarting justice either by repeating the offence or intimidating
witnesses (vide State of Rajasthan v. Balchand, [1977] 4 SCC 308 and
Gudikanti Narasimhulu v. Public Prosecutor, (1978] I SCC 240).
They relied on the decision in Bihar legal Support Society v. Chief
E Justice ofIndia, [1986] 4 sec 767 wherein a Constitution Bench of this Court
observed as follows:
"The apex court must interfere only in the limited class of cases where
there is a substantial question of law involved which needs to be
finally laid at rest by the apex court for the entire country or where
F there is grave, blatant and atrocious miscarriage of justice.
Sometimes, we judges feel that when a case comes before us and we
find that injustice has been done, how can we shut our eyes to it. But
the answer to this anguished query is that the judges of the apex
court may not shut their eyes to injustice but they must equally not
G keep their eyes too wide open, otherwise the apex court would not be
able to perform the high and noble role which it was intended to
perfonn according to the faith of the Constitution makers. It is for this
reason that the apex court has evolved, as a matter of self-discipline,
certain norms to guide it in the exercise of its discretion in cases
where special leave petitions are filed against orders granting or
H refusing bail or anticipatory bail... ... We reiterate this policy principle_
STATE THROUGHT C.B.I. v. AMARMANI TRIPATHI [BHAN, J.] 465
laid down by the bench of this Court and hold that this Court should A
not ordinarily, save in exceptional cases, interfere with orders
granting or refusing bail or anticipatory bail, because these are
matters in which the High Court should normally be the final arbiter."
(Emphasis supplied)
B
Reliance is next placed on Do/at Ram and Ors v. State of Haryana,
(1995] I SCC 349, wherein the distinction between the factors relevant for
rejecting bail in a non-bailable case and cancellation of bail already granted,
was brought out :
"Rejection of bail in a non-bailable case at the initial stage and the C
cancellation of bail so granted, have to be considered and dealt with
on different basis. Very cogent and overwhelming circumstances are
necessary for an order directing the cancellation of the bail, already
granted. Generally speaking, the grounds for cancellation of bail,
broadly (illustrative and not exhaustive) are: interference or attempt to D
interfere with the due course of administration of justice or evasion
or attempt to evade the due course of justice or abuse of the concession
granted to the accused in any manner. The satisfaction of the court,
· on the basis of material placed on the record of the possibility of the
accused absconding is yet another reason justifying the cancellation
of bail. However, bail once granted should not be cancelled in a E
mechanical manner without considering whether any supervening
circumstances have rendered it no longer conducive to a fair trial to
allow the accused to retain his freedom by enjoying the concession
of bail during the trial."
They also relied on the decision in S.N. Bhattacharjee v. State of West F
Bengal, [2004] 11 SCC 165 where the above principle is reiterated. The
decisions in Do/at Ram and Bhattacharjee cases (supra) relate to applications
for cancellation of bail and not appeals against orders granting bail. In an
application for cancellation, conduct subsequent to release on bail and the
supervening circumstances alone are relevant. But in an appeal against grant G
of bail, all aspects that were relevant under Section 439 read with Section 437,
continue to be relevant. We, however, agree that while considering and
deciding appeals against grant of bail, where the accused has been at large
for a considerable time, the post bail conduct and supervening circumstances
will also have to be taken note of. But they are not the only factors to be
considered as in the case of applications for cancellation of bail. H
466 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.
A It is well settled that the matters to be considered in an application for
bail are (i) whether there is any prima facie or reasonable ground to believe
that the accused had committed the offence; (ii) nature and gravity of the
charge; (iii) severity of the punishment in the event of conviction; (iv) danger
of accused absconding or fleeing if released on bail; (v) character, behaviour,
means, position and standing of the accused; (vi) likelihood of the offence
B being repeated; (vii) reasonable apprehension of the witnesses being tampered
with; and (viii) danger, of course, ofjustice being thwarted by grant of bail
(see Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280 and Gurcharan
Singh v. State (Delhi Administration), AIR (1978) SC 179). While a vague
allegation that accused may tamper with the evidence or witnesses may not
C be a ground to refuse bail, if the accused is of such character that his mere
presence at large would intimidate the witnesses or if there is material to show
that he will use his liberty to subvert justice or tamper with the evidence, then
bail will be refused. We may also refer to the following principles relating to
grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan,
D [2004J 1 sec 528:
"The law in regard to grant or refusal of bail is very well settled. The
court granting bail should exercise its discretion in a judicious manner
and not as a matter of course. Though at the stage of granting bail
a detailed examination of evidence and elaborate documentation of the
merit of the case need not be undertaken, the~e is a need to indicate
E in such orders reasons for primafacie concluding why bail was being
granted particularly where the accused is charged of having committed
a serious offence. Any order devoid of such reasons would suffer
from non-application of mind. It is also necessary for the court granting
bail to consider among other circumstances, the following factors also
F before granting bail; they are:
(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.
G
(c) Prima facie satisfaction of the court in support of the charge.
(see Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC
598 and Puran V. Ram Bi/as, (2001) 6 sec338)."
This Court also in specific terms held that:
H "the condition laid down under section 437(l)(i) is sine qua non for
STATE THROUGHT C.B.I. v. AMARMANI TRIPATHI (BHAN, J.] 467
granting bail even under section 439 of the Code. In the impugned A
order it is noticed that the High Court has given the period of
incarceration already undergone by the accused and the unlikelihood
of trial concluding in the near future as grounds sufficient to enlarge
the accused on bail, in spite of the fact that the accused stands
charged of offences punishable with life imprisonment or even death B
penalty. In such cases, in our opinion, the mere fact that the accused
has undergone certain period of incarceration (three years in this
case) by itself would not entitle the accused to being enlarged on bail,
nor the fact that the trial is not likely to be concluded in the near
future either by itself or coupled with the period of incarceration
would be sufficient for enlarging the appellant on bail when the C
gravity of the offence alleged is severe and there are allegations of
tampering with the witnesses by the accused during the period he was
on bail."
In Panchanan Mishra v. Digambar Mishra, [2005] 3 SCC 143, this
Court observed : D
"The object underlying the cancellation of bail is to protect the fair
trial and secure justice being done to the society by preventing the
accused who is set at liberty by the bail order from tampering with the
evidence in the heinous crime ..... It ,hardly requires to be stated that
once a person is released on bail in serious criminal cases where the E
punishment is quite stringent and deterrent, the accused in order to
get away from the clutches of the same indulge in various activities
like tampering with the prosecution witnesses, threatening the family
members of the deceased victim and also create problems of law and
order situation."
F
Therefore, the general rule that this Court will not ordinarily interfere in
matters relating to bail, is subject to exceptions where there are special
circumstances and when the basic requirements for grant of bail are completely
ignored by the High Court. (see Pawan v. Ram Prakash Pandey, [2002] 9 SCC
166; Ram Pratap Yadav v. Mitra Sen Yadav [2003] l SCC 15 and Kalyan G
Chandra Sarkar v. Rajesh Ranjan, [2004] 7 SCC 528).
While a detailed examination of the evidence is to be avoided while
considering the question of bail, to ensure that there is no pre-judging and
no prejudice, a brief examination to be satisfied about the existence or otherwise
of a primafacie case is necessary. An examination of the material in this case, H
468 SUPREME COURT REPORTS (2005) SUPP. 3 S.C.R.
i'
A set out above, keeping in view the aforesaid principles, disclose prima facie,
the existence of a conspiracy to which Amarmani and Madhumani were
parties. The contentions of Respondents that the confessional statement of
Rohit Chaturvedi is inadmissible in evidence and that should be excluded
from consideration, for purpose of bail is untenable. This Court had negatived
B a somewhat similar contention, in Kalyan Chandra Sarkar, (supra) thus :
"The next argument of learned counsel for the respondent is that
prima facie the prosecution has failed to produce any material to
implicate the respondent in the crime of conspiracy. In this regard he
submitted that most of the witnesses have already turned hostile. The
only other evidence available to the prosecution to connect the
c respondent with the crime is an alleged con[ession of the co-accused
which according to the learned counsel was inadmissible in evidence.
Therefore, he contends that the High Court was justified in granting
bail since the prosecution has failed to establish even a prima facie
case against the respondent. From the High Court order we do not
D find this as a ground for granting bail. Be that as it may, we think that
this argument is too premature for us to accept. The admissibility or
otherwise of the confessional statement and the effect of the evidence
already adduced by the prosecution and the merit of the evidence that
may be adduced hereinafter including that of the witnesses sought to
be recalled are all matters to be considered at the stage of the trial."
E
But what is more relevant, in this case is the conduct of Amarmani from
day of the murder in trying to interfere, detract and mislead the investigation
and to threaten and coerce witnesses. We may refer to the follow~ng
circumstances disclosed by statements recorded under Section 161 Cr.P.C. :
F (i) Nidhi Shukla and Shanti Kumari Shukla (sister and mother of the
deceased respectively) have stated that on I0.5.2003 Amarmani
met them near the mortuary and in!ormed them that he will handle
the entire situation and instructed them with threats, to be careful
while making any statement and not to link him or his wife in
G regard to the murder. This was repeated during the second week
of May 2003, by summoning the mother of the deceased to his
house.
(ii) The statement of Mr. Anil Aggarwal, SSP, Lucknow shows that
on the intervening night of 9th and I0th May, 2003 (at about 1.00
a.m), Amarmani called him on his mobile phone and made enquiries
H
STATE THROUGHT C.B.I. v. AMARMANI TRIPATHI [BHAN, J.] 469
about the murder and informed him that he or his wife had A
nothing to do with the murder and that his wife was a very simple
house wife and that he (Anil Aggarwal) should help him.
(iii) When Anil Aggarwal learnt that there was six month old foetus
in the womb of the deceased and that without removing the
foetus, the body had been handed over to the relatives of the B
deceased, he immediately instructed that the body should be
brought back and the Doctor should remove the foetus and
preserve it for purposes of investigation. In pursuance of it,
action was taken to stop the vehicle in which the body was being
taken to the native place. Amarmani again called the SSP (Anil
Aggarwal) on the mobile phone and told him that he knew c
Madhumita and that she was a simple girl. That there was some
mistake in the report that Madhumita was pregnant and the body
of Madhumita had already started decomposing and the family
should be permitted to proceed to their village immediately with
the body so that funeral can be performed before sun set. D
(iv) That on 15.5.2003 Amarmani again contacted Anil Aggarwal, SSP
on his mobile phone and informed him that from his own sources
and investigation he had found out that Madhumita was married
to one Anuj Mishra, a student of III Kanpur, and that he had
located the Priest who had performed the marriage in November- E
December, 2002. He also stated that if the marriage could be
proved the aspersion cast on his character can be removed by
showing that the deceased was pregnant on account of her
marriage with Anuj Mishra. He instructed the SSP to send Yagya
Narain Dixit, SO, Manek Nagar to him, so that he would tell him
_what is to be done to prove such marriage. F
(v) On the same day around 10 p.m. Amarmani again called Anil
Aggarwal, SSP urging him to depute Yagya Narain Dixit, SO
Manek Nagar (who was apparently close to him and was arrayed
as the 6th accused being charged under Section 20 I of the !PC.
He later on died in an accident) to verify the marriage with Anuj G
Mishra. Amarmani again called Anil Aggarwal on the morning of
16.5.2003 at around IO a.m. on the mobile and reiterated the
demand. Again on the evening of 16.5.05 he called the SSP on
his mobile to enquire about the progress and sounded very
anxious and stated that the matter was getting delayed. When
H
470 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.
A the SSP asked Amarmani to send the person who has given the
information about the marriage of Madhumita with Anuj Mishra
to his office so that he could send some police officer to Kanpur
to verify the matter and also informed Amarmani that he (SSP)
will decide who should be deputed to verify the matter, the very
next day (17.5.2003) the SSP was transferred, at the instance of
B Amarmani. The statement of the SSP shows that Amarmani tried
to side track the matter by implicating Anuj Mishra and to ensure
that the foetus is not removed or preserved or examined. When
SSP refused to comply, he was transferred. Kamaal Khan, NDTV
correspondent/Bureau Chief, Lucknow and Deepak Gidwani,
c Bureau Chief, Sahara Samay T.V. have clearly stated that Amarmani
informed them that he had complained to the Chief Minister that
investigation was not being done properly and got Anil Aggarwal,
SSP transferred; and that he also informed them that his private
investigation showed that deceased had married Anuj Mishra.
D (vi) Amarmani thereafter managed to ensure that his confidant Yagya
Narain Dixit was deputed to threaten Rishi Khare, room mate of
Anuj Mishra, to admit that there was a marriage between Anuj
Mishra and Madhumita. The statement of Rishi Khare, the room
mate of Anuj Misra at IIT Hostel, Kanpur showed that at the
instance of Amarmani, Yagya Narain Dix it, SO of Manek Nagar
E suggested, threatened and coerced him to admit that he was a
witness to the marriage of Madhumita with Anuj Mishra in spite
of his repeatedly stating that he was not aware of any such
marriage; and he even held out promises to Rishi Khare on behalf
of Amarmani after repeatedly speaking to Amarmani Tripathi over
F the phone in his presence.
(vii) The statement of Rishi Khare shows that he and his father and
his landlord were taken by Yagya Narain Dixit to meet Amarmani,
who demanded that he should speak about the wedding of Anuj
Mishra and deceased. In his presence Amarmani also informed
Yagya Narain Dixit that if Rishi Khare refused to admit of being
G
a witness to such marriage he shou Id use tougher methods to
make him admit the wedding between Anuj Mishra and Madhumita.
He also threatened Rishi Khare that he can be framed by showing
that a country made revolver was recovered from him, thereby
landing him in jail.
H
STATE THROUGHT C.B.I. v. AMARMANI TRIPATHI [BHAN, J.) 471
(viii) Kamaal Khan, NDTV correspondent/Bureau Chief, Lucknow and A
Deepak Gidwani, Bureau Chief, Sahara Samay T.V. were invited by
him and told them that he had a major scoope which would tum
the entire story of the Madhumita's case upside down. That
Madhumita's case was not being investigated properly and he
was doing his own investigation. That he has been able to
identify the real killers ofMadhumita. Madhumita was married to B
Anuj Mishra and the marriage was performed by a priest who
was present in the house and was introduced to them.
The evidence collected above discloses that there were repeated
attempts by the accused Amarrnani to interfere, and side track the investigation C
and threaten the witnesses to come out with a story that will deflect the
suspicion from him and his wife to Anuj Mishra or others. It is also not in
dispute that Amarrnani was on bail in a kidnapping case, when he indulged
in these activities in May, 2003. These materials were placed by the prosecution
before the High Court to establish a reasonable apprehension of tampering.
The learned Single Judge has, however, completely ignored these materials D
relating to tampering with evidence/witnesses. This necessitates interference
with the order of the High Court.
Shri Subramanium, learned ASG next referred to the threats to witnesses
held out by Amarmani after his release on bail. Reliance is placed on the four
complaints received by the crucial prosecution witnesses. Nidhi Shukla, sister E
of the deceased by letter dated 10.9.2004, and Shanti Kumari, mother of the
deceased by an undated letter, have made separate complaints to the CBI in
regard to efforts made by Amarrnani to induce them to accept money through
one NK Mishra to settle the matter and that when they refused, he threatened
them. Another witness Najib Khan (a family friend of the deceased) has also F
sent a complaint dated 22.9.2004, stating that on that day two persons knocked
on his door, hurled abuses at him and told him that the CBI officers were far
away and once the cases were closed, no one will protect him and he will be
killed. Lastly, one Birjesh Pathak, Member of Parliament has also sent a
complaint dated 16.9.2004 to the CBI alleging that an attempt on his life was
made on 7.9.2004 which, according to him, was at the instance of Amarrnani. G
The said allegations are denied in the counter-affidavit filed on behalf of
Amarrnani by his brother/Pairokar. It is contended that these complaints must
have been sent at the instance of the CBI itself. In so far as Brijesh Pathak
is concerned, it is also alleged that he is a close confidant of Amarmani's
political rival. However, in the view we have taken, it is unnecessary to H
472 SUPREME COURT REPORTS (2005] SUPP. 3 S.C.R.
A examine this aspect.
The High Court has failed to deal with the vast material placed by the
CBI which clearly indicated that the accused has, at all material times, tried
to interfere with the course of investigation, tamper with witnesses, fabricate
evidence, intimidate or create obstacles in the path of investigation officers
B and derail the case.
The statement of Anil Aggarwal, SSP Lucknow is revealing and in our
opinion the High Court on this statement alone should have rejected the bail
and, in any event, it is sufficient to allow the present appeal. A senior police
C officer has stated that the accused asked for his help against his implication
in the case. The accused asked the officer not to preserve the foetus and that
the body should be taken to her native place for the last rites. The officer also
speaks about his being rebuked by senior bureaucrats for recovering the
foetus. It is relevant to note that the officer was sought to be misled by the
accused by giving false information about a marriage between Anuj Mishra
D and the deceased. But for his diligence, the foetus would not have been
preserved. For doing his duty diligently, the officer was punished with a
transfer out of normal course. The very fact that a senior police officer could
be transferred out of Lucknow on 17th of May, 2003, clearly shows the
amount of influence wielded by the accused. Ajay Kumar Chaturvedi, the first
investigating officer who. had also refused to tow the line of the accused was
E also transferred on the same date. Likewise, Mr. Beni Singh Verma, Inspector
of Police, CB-CID and Mr. Dinanath Mishra, Inspector of Police, CB-CID were
also transferred. S/Sh. N.V. Sirohi, Mr. Vishwa Bhushan Singh, Mr. Sahab
Rashid Khan were also transferred but their transfer orders were quashed by
the High Court later on.
F
In Panchanan Mishra case (supra), it has been held that the Court must
apply its mind and go into the merits and evidence on record and determine
whether prima facie case was established against the accused. It was held·
that the seriousnt;ss and gravity of the crime was also a relevant consideration.
That a balance has to be drawn by the Court to protect fair trial and to secure
G justice being done to the society by preventing the accused who is set at
liberty by the bail order from tampering with the evidence in a heinous crime
and if there is delay in such a case the underlying object of cancellation of
bail practically looses all its purpose and significance to the great prejudice
and the interest of the prosecution. The Court summed up the principle that
H the ground to deny bail will be when by testing the balance of probabilities
STATE THROUGHT C.B.l. v. AMARMANI TRIPATHI [BHAN, J.] 473
it appears that the accused has abused his liberty or that there is a reasonable A
apprehension that he will interfere with the course of justice. It was noticed
by the Court that once a person is released on bail in serious criminal cases
where the punishment is stringent and deterrent, the accused in order to get
away from the clutches of the same indulge in various activities like tampering
with the prosecution witnesses, threatening the family members of the victim B
and also create problems of law and order.
In Prahlad Singh Bhati v. NCT, Delhi, [200 l] 4 SCC 280, this Court
reiterated that if a person was suspected of the crime of an offence punishable
with death or imprisonment for life then there must exist grounds which
specifically negate the existence of reasonable ground for believing that such C
an accused is guilty of an offence punishable with the sentence of death or
imprisonment for life. The jurisdiction to grant bail must be exercised on the
basis of well settled principles having regard to the circumstances of each
case. While granting bail, the Court has to keep in mind the nature of
accusations, the nature of evidence in support thereof, the severity of the
punishment which conviction will entail, the character, behaviour, means and D
standing of the accused, circumstances which are peculiar to the accused and
reasonable apprehension of witnesses being tampered with,
In Kalyan Chandra Sarkar case (supra), this Court reiterated that while
granting bail discretion must be exercised in a judicious manner and not as
a matter of course. It may not be necessary to do detailed examination of E
evidence and documentation of the merit of the case but there is a need to
indicate reasons for prima facie conclusion why bail was being granted
particularly where the accused is charged of having committed serious offence.
In the present case, we find that the High Court has granted bail being F
of the opinion that the extra judicial confession given by Rohit Chaturvedi
one of the co-accused may not stand the test of scrutiny by a judicial mind
but that by itself was not sufficient to grant the bail. There is voluminous
evidence collected by the CBI to show the involvement of Amannani Tripathi,
and his effort to interfere with the investigation of the case before the grant
of bail and also after the grant of bail. He tried to change the course of G
investigation by creating false evidence of the marriage of Madhumita with
Anuj Mishra with the help of Yagya Narain Dixit, a police officer, the 6th
accused who died in an accident during the course of investigation. There
are written complaints with the investigating agency showing that after his
release on bail Amannani Tripathi tried to threaten as well as win over Nidhi H
474 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.
A Shukla, sister of the deceased, and her mother by offering bribe. In our
opinion, the High Court gravely erred in granting bail to Amarrnani Tripathi
in such circumstances. The High Court practically failed to consider/take into
consideration the voluminous evidence which had been collected by the
investigation agency and have been referred to by them in their statement of
B objections to the application for grant of bail.
It is true that the position of Madhumani is somewhat different from the
case of her husband. While her husband is a politician and ex-Minister, she
is no doubt a house wife. While her husband has several criminal cases
against him, she has no such record. While there is material to show attempts
C by her husband to tamper with the evidence and threaten witnesses, there is
nothing to show that she made any attempt to tamper with the evidence. But
there is material to show that she had absconded for several months and
surrendered only when bail was refused to her husband on the ground that
she was absconding. Further when the matter is considered in entirety, with
reference to the murder of Madhumita and the propensity of the husband and
D wife to pressurize and persuade others to act according to their wishes there
is reasonable ground for apprehension that if her husband alone is taken into
custody, leaving her to remain outside, she may take over the task of tampering
the evidence and manipulating/threatening witnesses. Therefore, interference
is called for even in regard to the bail granted to Madhumani.
E We are conscious of the fact that evidence in this case has yet not been
led in the Court. Wherever we have referred to the word "evidence" in this
order the same may be read as material collected by the prosecution. Reference
to the material collected and the findings recorded herein are for the purposes
of these appeals only. This may not be taken as an expression ofopinion. The
F Court would be at liberty to decide the matter in the light of evidence which
shall come on record after it is led de hors any finding recorded in this order.
For the reasons stated above, the orders dated 29th April, 2004 and. 8th
July, 2004 passed by the High Court are set aside. The bail bonds of the
respondents in each of these cases are cancelled. Respondents are directed
G to surrender forthwith and in case they fail to do so, the State should take
effective steps to take the respondents in custody. The appeals stand disposed
of.
B.S. Appeals disposed of.
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