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TMI Blog2004 (3) TMI 763X X X X Extracts X X X X X X X X Extracts X X X X ..... itnesses who were examined after the respondent was enlarged on bail had turned hostile and there are complaints made to the court as to the threats administered by the respondent or his supporters to witnesses in the case. In such circumstances, the Court was duty bound to apply its mind to the allegations put forth by the investigating agency and ought to have given at least a prima facie finding in regard to these allegations because they go to the very root of the right of the accused to seek bail. The non consideration of these vital facts as to the allegations of threat or inducement made to the witnesses by the respondent during the period he was on bail has vitiated the conclusions arrived at by the High Court while granting bail to the respondent. The other ground apart from the ground of incarceration which appealed to the High Court to grant bail was the fact that a large number of witnesses are yet to be examined and there is no likelihood of the trial coming to an end in the near future. Thus, this ground on the facts of this case is also not sufficient either individually or coupled with the period of incarceration to release the respondent on bail because of the seri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsequent to which said Ajit Sarkar, Asfaq Alam and Hamender Sharma died and Ramesh Oraon was seriously injured. A complaint in this regard was registered with the jurisdictional Police at the instance of the appellant and the original investigation was initiated by the said Police. However, when it was noticed that the said jurisdictional Police were not conducting proper investigation, the same was transferred to the Central Bureau of Investigation (CBI) which registered a fresh case. During the course of investigation the CBI found that in view of political rivalry between the deceased and the first respondent herein, the latter entered into a criminal conspiracy with the other co-accused to eliminate said Ajit Sarkar and pursuant to the said conspiracy on 12.6.1998 the first respondent held a meeting with co-accused Harish Chaudhary and others in Siliguri. It is also found that the first respondent instructed some of the co-accused to falsify certain records to create an alibi for himself and Harish Chaudhary for their absence from the place and the time of proposed attack and he himself left for New Delhi from Bagdogra. The further case of the prosecution is that later on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation filed by the first respondent for grant of bail before the High Court was rejected by the said court on 3.5.2000 which order became final because no SLP was filed before this Court. A fourth application for grant of bail was made on 26.7.2000 which also came to be rejected against which no SLP was filed before this Court. The fifth application filed by the first respondent for grant of bail before the High Court came to be allowed vide order dated 6.9.2000 and an appeal filed against the grant of said bail, this Court was pleased to allow the said appeal and cancel the bail granted to the respondent as per its order dated 25.7.2001. Thereafter, the respondent filed a sixth application for grant of bail which was rejected by the High Court on 5.11.2001. Against the said rejection order, the respondent preferred a SLP to this Court which came to be rejected on 7.12.2001. The seventh application was filed by the respondent before the High Court for grant of bail came to be dismissed on 13.3.2002 and a SLP filed against the said order came to be dismissed on 10.5.2002. The learned counsel submitted in this background the eighth attempt by the respondent became successful and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditional Solicitor General appearing for the CBI supporting the appellant, contended that the High Court has seriously erred in granting bail to the first respondent in spite of the fact that this Court by an earlier order had set aside the bail granted to him by the High Court on 6.9.2000. He contended that in the said order of this Court dated 25.7.2001, this Court had specifically held the grounds on which the High Court had granted bail viz., (a) that the respondent was in custody for more than a year; and (b) that in an earlier order, the High Court while rejecting the bail application had reserved liberty to renew the bail application after framing of charge in the case, are by themselves insufficient for grant of bail. Learned A.S.G. contended in spite of the same the High Court again proceeded to grant bail practically on the very same ground without there being any change in the circumstances. Learned ASG also contended that liberty reserved in the order of this Court dated 25.7.2001 that in the event of there being any fresh application for bail by the first respondent, the High Court is free to consider such application without being in any manner influenced by the obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the Magistrate under section 437 of the Code. Learned counsel also pointed out that section 437 imposes a jurisdictional embargo on grant of bail by courts other than the courts mentioned in Section 439 of the Code in non-bailable offences, and such a restriction is deliberately omitted in section 439 of the Code when it comes to the power of the High Court or the Court of Sessions to grant bail even in non-bailable offences. In this regard, he placed reliance on a judgment of the High Court of Madhya Pradesh delivered by Faizanuddin, J., as His Lordship then was, in Badri Prasad Puran Badhai v. Bala Prasad Mool Chand Sahu Ors. [1985 MP Law Journal 258]. Mr. Tulsi also contended that the present appeal not being one for cancellation of bail on the grounds contemplated in section 439(2) of the Code ought not to be entertained by us being one in the nature of an appeal against an interim order this Court should not interfere unless it is shown that the respondent has violated the terms under which the bail was granted to him. He also submitted there is absolutely no legal evidence to implicate the first respondent in the charge of conspiracy. He submitted that though the prosec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bail applications have been rejected there is a further onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications have been rejected and after such consideration if the court is of the opinion that bail has to be granted then the said court will have to give specific reasons why in spite of such earlier rejection the subsequent application for bail should be granted. (See Ram Govind Upadhyay, supra). Bearing in mind the above principles which on facts are applicable to the present case also, we will now consider the merits of the above appeal. We have already noticed from the arguments of learned counsel for the appellant that the present accused had earlier made seven applications for grant of bail which were rejected by the High Court and some such rejections have been affirmed by this Court also. It is seen from the records when the seventh application for grant of bail was allowed by the High Court, the same was challenged before this Court and this Court accepted the said challenge by allowing the appeal filed by the Union of India and another and cancelled the bail granted by the High Court as per the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bail. Of course, the learned counsel for the respondent has pointed out that even when the respondent was in custody, some other witnesses had turned hostile. But the question for our consideration is whether the High Court was justified in not taking into consideration these facts while deciding to grant bail in a case where this Court has earlier come to the conclusion that grant of bail on the ground of period of incarceration by itself was not proper. Learned counsel for the respondent however, contended that all these points were argued before the High Court and the High Court though did not give a finding in regard to this aspect of the case, did bear in mind these factors and rejected these contentions since these allegations were frivolous. Learned counsel in this regard submitted that the High Court was justified in not giving any conclusive finding in regard to some of the arguments addressed on behalf of the parties because any such finding given by the High Court might have prejudiced the pending trial. We agree that a conclusive finding in regard to the points urged by both the sides is not expected of the court considering a bail application. Still one should not for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gument 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 respondent with the crime is an alleged confession 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 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 herein after including that of the witnesses sought to be recalled are all matters to be considered at the stage of the trial. Before concluding, we must note though an accused has a right to make successive applications for grant of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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