* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN.651/2011
Date of Decision : 18.10.2011
ROMESH SHARMA ...... Petitioner
Through: Mr.Rakesh Tiku, Sr.Adv.
with Mr.K.K.Manan, Adv.
Versus
CBI ....Respondent
Through: Mr. S.K.Saxena, Adv. for
CBI
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether Reporters of local papers may be
allowed to see the judgment? YES
2. To be referred to the Reporter or not ? YES
3. Whether the judgment should be reported
in the Digest ? YES
V.K. SHALI, J.
1. This is a petition under Section 439 read with Section
436A of Cr.P.C. for grant of bail in respect of FIR
no.RC1(S) 98/STF/CBI registered by P.S. CBI/STF Delhi in
respect of which trial is pending before Sh.K.S.Mohi, ASJ-
3, Saket, New Delhi.
Bail A.No.651/2011 Page 1 of 20
2. Briefly stated the facts of the case are that a Helicopter
Model Bell 47 G5-VT EAP belonging to M/s Pushak Aviation
Pvt. Ltd. having its office at Mumbai was transferred in the
name of Sh.H.Suresh Rao on 19.9.94. He got the
helicopter made air-worthy and was leasing it on hire for
various purposes including spray on the fields,
electioneering, etc.
3. In February, 1996, Sh.H.Suresh Rao came in contact with
the petitioner/Romesh Sharma at Delhi, a resident of C-
30, Mayfair Garden, New Delhi who was also having a
farm house in Chattarpur, Delhi. It is alleged that Romesh
Sharma, the real brother of the accused Harish Mishra,
induced H.Suresh Rao to enter into a pre-dated MOU for
sale of the Helicopter in favour of his sole proprietorship
concern M/s Reliance Developers and Investors.
4. The petitioner was contesting the election for Member of
Parliament from Phoolpur constituency, UP in the year
1996 and he intended to hire helicopter from Sh.H.Suresh
Rao for election purposes. MOU dated 27.3.1996 was
entered into, which was signed by Mr.Harish Mishra,
Bail A.No.651/2011 Page 2 of 20
brother of the petitioner on behalf of M/s Reliance
Developers and Investors. The MOU was ante-dated as
24.2.1996. The reason for ante-dated MOU as alleged by
the prosecution was to avoid the objection of the Election
Commission regarding the limit of election expenses borne
by the petitioner. It is alleged that the petitioner, Romesh
Sharma on various occasions paid an amount of Rs.12
lacs to Sh.H.Suresh Rao as hiring charges. Since certain
amount was still outstanding H.Suresh Rao along with two
of his Advocates i.e. Mr.R.A.Shah and Mr.Rakesh Gupta is
alleged to have visited the house of the petitioner on
5.6.1996 where he was allegedly forced to sign the
documents regarding transfer of helicopter in favour of
Romesh Sharma under threat and duress.
5. One Sh.Neeraj Bhatia was also made to hand over the
original registration certificate to the petitioner on the
promise that he would pay an amount of Rs.18 lacs to
Sh.Neeraj Bhatia, which the petitioner never paid. On
7.6.1996, the petitioner got the helicopter transferred in
his own name. On 20.10.1998, H.Suresh Rao along with
Bail A.No.651/2011 Page 3 of 20
Rakesh Gupta met the petitioner at his residence in order
to receive whatever amount the petitioner wanted to pay
in respect of the helicopter. It is alleged that the petitioner
manhandled H.Suresh Rao and his friend Rakesh Gupta.
They were abducted and taken to 16, Mahadev Road,
residence of an MP. Somebody informed to Delhi police
control room about the abduction and consequently, FIR
no.799/98 dated 20.10.1998 was registered at P.S.Hauz
Khas, New Delhi and the investigations were conducted as
a consequence of which, the helicopter and various
incriminating documents were recovered and Sh.H.Suresh
Rao and Rakesh Gupta were got freed from the captivity
of the petitioner.
6. Investigations of the case were later on transferred to the
CBI. Apart from the present petitioner, there were 9 other
accused persons and all of them are on bail. The entire
evidence in the case has been recorded. The statement of
the accused has already been recorded. The case is
presently being argued on merits before the learned Judge
for final disposal.
Bail A.No.651/2011 Page 4 of 20
7. The present bail application has been filed by the
petitioner stating that he has been in custody for almost
13 years now and all other accused persons are on bail
and there is no likelihood that the judgment will be
pronounced immediately as arguments are yet to be
concluded, therefore, he prays for grant of bail. It has
been stated that earlier also the matter was heard by one
of the Judges for over a year yet the judgment could not
be pronounced because of his transfer and now when the
matter is to be heard from the beginning, it is bound to
take time.
8. The petitioner has also invoked Section 436 (A) Cr.P.C. to
press his grant of bail by contending that it is mandate of
legislature that in case the person concerned has
undergone half of the period of the maximum sentence
which the said offence carries, except in an offence which
carries sentence of death, he ought to be released on
bail.
9. The CBI has filed reply to the bail application. The learned
counsel for the CBI has not disputed, so far as, the facts
Bail A.No.651/2011 Page 5 of 20
of the case are concerned, however, he has vehemently
opposed the grant of bail to the petitioner. He has also
filed written submissions and relied upon number of
judgments to contest the bail on merits.
10. I have heard the learned senior counsel for the petitioner
and the learned counsel for the CBI. I have also gone
through the record.
11. It has been contended by the learned senior counsel that
the petitioner has already spent almost 13 years in
custody as an under trial and all the remaining accused
persons are enjoying bail, therefore, the petitioner
deserves to be enlarged on bail.
12. It has also been contended that the trial of the case is
almost complete as the final arguments are being heard,
there is absolutely no question of the witnesses being
influenced and so far as the question of petitioner’s fleeing
away from the processes of law is concerned, it was
contended that the petitioner has roots in the society and
immovable properties in India which lend assurance for his
appearance.
Bail A.No.651/2011 Page 6 of 20
13. It was also contended by the learned senior counsel that
Section 436 (A) Cr.P.C. is applicable in all the cases accept
in a case where any of the offence carries a death
sentence. So far as various offences of which the
petitioner has been charged are concerned, only one
offence u/S 395 IPC carries a sentence of life
imprisonment and even if the petitioner is held guilty for
an offence u/S 395 IPC and sentenced to life
imprisonment, it means that the petitioner will not be able
to come out from the jail before expiry of 14 years. The
learned senior counsel has stated that any person who is
sentenced to life imprisonment shall not be released
before expiry of 14 years. Reliance has been placed upon
a judgment of the Apex Court in case titled Ramraj Vs.
State of Chhattisgarh, AIR 2010 SC 420, wherein the
word ‘life imprisonment’ has been interpreted as an
imprisonment, minimum term of which is 14 years. It has
also been observed in the said judgment that it is not to
be interpreted as being imprisonment for whole of the
natural life of a convict. This interpretation was relied
Bail A.No.651/2011 Page 7 of 20
upon with a view to dispel the objection raised by the
learned counsel for the CBI that the life imprisonment
does not necessarily mean an imprisonment of 14 years, it
means for whole of the life and if a person is sentenced to
life imprisonment then the Court is not sure or able to
gauge as to whether a person would serve the sentence of
20 years, 30 years or 40 years depending upon his life
expectancy. In this regard, the learned counsel for the
CBI had referred to the judgment of the Apex Court in
case titled Swamy Shraddananda @ Murli Manohar Mishra
Vs. State of Karnataka, AIR 2008 SC 3040, where while
converting the death sentence of a convict to life
imprisonment, it was observed by the Apex Court that the
life imprisonment in the said case does not mean only 14
years but it would mean the entire life of the accused. But
this judgment has been distinguished in Ramraj’s case
(supra).
14. The learned counsel for the CBI has also contended that
the case is already at the fag end inasmuch as arguments
on merits are being heard and therefore, the petitioner
Bail A.No.651/2011 Page 8 of 20
may not be granted bail as he will flee from the processes
of law. It was contended that the matter was argued
earlier also for almost two years before another Judge,
however, unfortunately, the learned Judge was transferred
and consequently, the judgment could not be pronounced.
15. The learned counsel for the CBI has also referred to a
number of judgments in order to contest the claim of the
petitioner for grant of bail. These judgments are, State of
Maharashtra Vs. Captain Buddhikota Subha Rao, AIR
1989 SC 2292; Ajay Aggarwal Vs. Union of India & Ors.,
1993 SCC (Cri) 961; State of Maharashtra Vs. Somnath
Thapa, 1996 Cri. L.J. (SC) 2448; N.Devindrappa Vs.
State of Karnataka, II (2007) CCR 381 (SCC) and V.Y.
Joshe & Anr. Vs. State of Gujarat and Anr., I (2008) CCR
246 (SC).
16. I have gone through these judgments. However, I do not
think that it is necessary to discuss these judgments for
the simple reason that the points, which are raised there
in regarding filing of successive bail application or as to
what are the ingredients of conspiracy or cheating and as
Bail A.No.651/2011 Page 9 of 20
to whether these are made out or not, are not involved in
the present case. It is not the stand of the learned senior
counsel for the petitioner that the bail should be granted
to him on merits of the case. The only question to be
examined is whether the petitioner who has undergone
nearly 13 years of incarceration, where he is facing a trial
for an offence under Section 395 Cr.P.C. which carries life
sentence, should he ought to be released on bail pending
conclusion of the trial? This question needs to be
answered in the light of two facts, one that all remaining
accused are on bail and secondly, even if it is assumed
that he is convicted for an offence u/S 395 IPC he may not
be released before undergoing minimum 14 year of
sentence.
17. I have carefully considered the submissions made by the
respective sides.
18. At the outset, it may be mentioned that the petitioner
does not have clean antecedents and is involved in
number of criminal matters. But in most of these matters,
he has either been enlarged on bail or he has been
Bail A.No.651/2011 Page 10 of 20
acquitted or even convicted and sentenced, which
sentence, keeping in view the fact that the petitioner has
been in custody for the last 13 years, he must necessarily
have undergone. The tabulation form of these cases and
their outcome is given as under:-
Sl.No. Offence u/S Sentence
1. 421, 420, 323, 395, 397, 420 (7 years)
412, 506, 120B IPC 323(1 year)
395(Life/10 yrs.)
397 (7 years)
412 (Life/10 yrs.)
506(2 years, if
threat for death-7
years)
2. 50 Wildlife Act Punishment
prescribed
3. 61/1/14 Excise Act Acquitted on
20.8.2011
4. 25/30/54/59 Arms Act 3 years max.
5. 384, 506 IPC 384-3 years 506-2 years 6. 448/384/506/468/471 448-1 year 384-3 years 506-2 years 468-7 years 471-7 years 7. 120B r/w Sec. 302 IPC -- 8. 120B r/w Sec. 384/386 384-3 years IPC 386-10 years 9. 384 IPC 384 -3 years
10. 420/467/471/468/448/506 Max. punishment
IPC is under 467 i.e.
Life.
11. 448,467,468, 471 IPC Max. punishment
is under 467 i.e.
Bail A.No.651/2011 Page 11 of 20
Life
12. 386-10 yrs. 506, 120B IPC Acquitted by
Sessions Court on
16.7.2006
13. 384 IPC 3 yrs.-Discharged
14. 57 FERA 4 yrs. and 6
months and fine of
`55 lacs
15. 57 FERA Pending arguments
16. 302 , 120B IPC Acquitted by High
Court
19. The aforesaid table would show that at serial no.1, which
are the details of the present case, it is only an offence
under Section 395 IPC which carries a maximum sentence
of life imprisonment.
20. One of the main factors to be taken into account while
granting bail is the gravity of the offence. The same can
be judged by the quantum of sentence which it carries,
obviously, seen from this angle, the offence carries life
sentence and thus is very serious.
21. No doubt, the Supreme Court in Swamy Shraddananda’s
case (supra) had observed that conversion of the death
sentence into a sentence of life imprisonment does not
mean imprisonment only upto 14 years but ‘life sentence’,
Bail A.No.651/2011 Page 12 of 20
means the entire life, but this was a judgment which has
not been held to be laying down the correct interpretation
of the ‘life sentence’ in a subsequent judgment in the
Ramraj’s case (supra). Further even if the judgment of
Swamy Shraddananda’s case (supra) is considered, the
facts of the said case are distinguishable from the facts of
the present case as it was a case of murder which
admittedly carried death sentence and while as the
present case, does not carry the death sentence but only
life sentence, therefore, I feel that it may not be correct to
apply the ratio of the said judgment to the facts of the
present case.
22. Thus the net result of these two authorities would be that
in case a person is sentenced to life imprisonment in
respect of an offence which does not carry the death
sentence, he will not be able to come out from the prison
before undergoing 14 years of sentence. If that be so,
then so far as the present petitioner is concerned, prima
facie, at this point of time, there is nothing to assume that
even if he is convicted for an offence u/S 395, he will be
Bail A.No.651/2011 Page 13 of 20
sentenced to ‘life imprisonment’, which would mean the
entire life of a person. Therefore, prima facie, I am
inclined to hold that even if the petitioner is sentenced to
‘life imprisonment’ u/S 395 IPC even then the minimum
imprisonment which is expected to undergo by him is 14
years and since he has already undergone almost 13
years of the imprisonment, it is a fit case where the
petitioner deserves to be enlarged on bail, because 13
years is admittedly more than one half of the sentence,
rather a substantial portion of the sentence has already
been undergone, if imposed on the petitioner.
23. The contention of the learned counsel for the CBI is that
so far as Section 436(A) IPC is concerned, although the
legislature has excluded the applicability of the said
Section only in cases of offence where one of the sentence
is death sentence but it does not preclude the applicability
of the said provision to an offence where the life
imprisonment is imposed. Meaning thereby, that any
offence which carries ‘life imprisonment’ will not have the
applicability of Section 436A Cr.P.C. If this interpretation
Bail A.No.651/2011 Page 14 of 20
of the learned counsel for the CBI is accepted, it will be
doing violence to the language of the provision and the
object for which it was enacted. The reason which has
been given by the learned counsel for the CBI for such an
interpretation is that in case where a person is sentenced
to ‘life imprisonment’, it will not be open to the Judge or
the Court as to what will be the total period of sentence
which a party will be undergoing because nobody is aware
about the total life expectancy of a person.
24. I do not agree with such submission made by the learned
counsel for the CBI. The object of Section 436A Cr.P.C.
essentially was to decongest the jails by extending the
benefit of grant of bail to the under trials who had already
undergone more than one and a half of the total sentence
which an offence carried the said benefit was deprived in
cases where the offence carried a death sentence, if that
was the object then we will be doing violence to the
provision of the statute by importing in it the offence
which carry the ‘life sentence’ as it would be against the
basic rule of interpretation of statute. Further, Section
Bail A.No.651/2011 Page 15 of 20
436(A) Cr.P.C. is a benevolent provision, which is
incorporated by the legislature with a view to ameliorate
the conditions of the under trials who are languishing in
jail for a long period of time having undergone more than
half of the sentence which the offence carries. The said
provision cannot be interpreted in a manner so as to
deprive the benefit of such beneficial legislation to the
under trial. I, therefore, feel that the argument which is
advanced by the learned counsel for the CBI is not
acceptable and the submission made by the learned senior
counsel for the petitioner seems to be more plausible and
rational as well as in line with the object of the enactment
and incorporation of the provision.
25. Although I do not agree with the interpretation given by
the learned counsel for the CBI as has been detailed
hereinabove but there is another aspect of the matter.
The Apex Court in Pramod Kumar Saxena Vs. Union of
India & Ors., (2008) 9 SCC 685, while considering the
grant of bail to the petitioner under Section 436A of the
Cr.P.C. observed that the aforesaid provision is not
Bail A.No.651/2011 Page 16 of 20
retrospective in its application. Meaning thereby that it is
applicable only to cases, which have arisen after the
amendment was brought into Cr.P.C. The observation of
the Apex Court is binding, therefore, the benefit of Section
436A Cr.P.C. cannot be given to the petitioner. However,
dehors Pramod Kumar Saxena’s case (supra), keeping in
view the peculiar facts and circumstances of the present
case that the petitioner has been in custody for 13 years
and all other co-accused are on bail and the fact that
evidence has already been concluded long back, I feel that
the benefit of bail, in my considered opinion, ought to be
extended to him also. Even if, it is assumed that the
petitioner will be held guilty for an offence under Section
395 IPC, he will be required to undergo minimum of 14
years & unexpired portion of his sentence would be one
year approximately.
26. The only question, which arises, is that, having said so,
the other aspects have also to be seen while, enlarging
the petitioner on bail namely, his past conduct, his
Bail A.No.651/2011 Page 17 of 20
chances of fleeing away from the processes of law and the
conditions, which are conducive for holding a fair trial.
27. As far as the holding of fair trial is concerned, the trial is
at the penultimate stage inasmuch as witnesses have
been testified and arguments are being heard. Therefore,
the petitioner cannot create conditions, which are not
conducive for holding a fair trial. So far as the witnesses
who have testified against the petitioner are concerned,
he can certainly be put to notice that no threats ought to
be advanced to the persons who have testified against
him and if done so, he will be doing so on his own peril.
28. So far as the past conduct of the petitioner and the
number of cases against him are concerned, no doubt it
does not make a happy reading, inasmuch as the
petitioner seems to be having criminal proclivities as there
were as many as 16 cases registered against him in which
he was facing trial out of which some of the cases are still
pending trial and in some other cases, he has either
already been convicted or acquitted or sentenced which
having regard to his incarceration of 13 years, I assume
Bail A.No.651/2011 Page 18 of 20
he must have undergone by now. The tabulation form of
the cases show that the petitioner is on bail in most of
these cases, which are still pending trial. So far as further
conduct of the petitioner is concerned, it can always be
regulated by putting conditions that no further offence be
committed.
29. As regards, fleeing away from the processes of law, the
petitioner can be put to certain conditions to ensure that
he continues to submit to the processes of law by
furnishing heavy sureties more so when the property
involved in the case was a valuable property running into
crore of rupees.
30. For the reasons mentioned above, I feel that it is a fit case
for granting the benefit of bail to the petitioner as the
petitioner has already undergone a period of incarceration
as an under trial for nearly 13 years and he deserves to
be enlarged on bail. I accordingly, direct that the
petitioner be released on bail on furnishing a personal
bond in the sum of Rs.20 lacs with two sureties of the like
Bail A.No.651/2011 Page 19 of 20
amount to the satisfaction of the Trial Court, subject to
the following conditions:-
(i) That the petitioner shall surrender his passport
before the Court, if he has any,
(ii) That the petitioner shall not threaten any of the
witnesses who have testified against him,
(iii) That he shall not leave the National Capital
Region of Delhi without the permission of the
Court,
(iv) He shall keep his place of residence and the
mobile number available with the IO as well as
the Court,
(v) He shall appear before the SHO of the
concerned police station, to record his
presence, on every alternate Saturday.
31. With these directions, the bail application of the petitioner
is allowed.
32. The petition is disposed of.
V.K. SHALI, J.
OCTOBER 18, 2011
RN/SS
Bail A.No.651/2011 Page 20 of 20
