ORDER
Jaspal Singh, J.
1. In Ajit Kumar v. State (1997 IV AD (Delhi) 469) while accepting the
appeal against the judgment of conviction and order of sentence, I
wrote:.ls1
“The very first month of the year 1993 saw the appellant convict-
ed and sentenced under sections 366 and 376 of the Indian penal
Code. Though no time was lost by him in filing the appeal, we let
years slip by. The long and dreary wait within the high walls and
iron gates of the prison, in the meanwhile, must have made his
life grow insipid and lose its relish. Was it not Oscar Wilde who
said in The Ballad of Reading Gaol:
I know not whether laws be right,
Or whether laws be wrong;
All that we know who lie in gaol
Is that each day is like a year,
A year whose days are long.
And what if I now acquit? And if I do so, and that is what I
propose to do, what about his withered years and shattered
dreams?”
2. Mr.V.P.Chaudhary, Senior Advocate while arguing on the bail applica-
tion of Shalini Rawat read out to me the passage quoted above and thereby
made me relive the overwhelming feeling of contrition which had besieged me
while acquitting Ajit Kumar. What if Shalini Rawat too is not enlarged on
bail and is acquitted years later? Asked Mr.Chaudhay. But then this was not
the only contention. Other points too were raised in support of the plea
for bail. I shall delineate the same a little later and of course in greater
detail but first let us have a peep at the canvas brought out by the prosecution.
3. At the cent restage is Harsh Gupta, a second year student of Bhagat
Singh college and the son of a businessman. On September 16, 1995 in broad
day-light he was abducted by two persons who were later joined by yet
another and whisked away to a distant locality and kept confined there in a
house for days and days together. In the meanwhile the persons keeping the
vigil had made enquiries about his father and had assured to release him
after receipt of the ransom amount. On October 5, 1995 Kamlesh, a lady who
used to cook food for him and wash his clothes. told Harsh Gupta that she
would talk about his release with “Shalini Mami”. The same evening Kamlesh
accompanied by Uday Pratap and Shalini Rawat entered his room, where Shali-
ni while stating that the police might have arrested “the other persons”
ordered his release. The same evening he was a free man.
4. Is it all? Surely not. As per the prosecution, there was a demand for
ransom from the father of Harsh Gupta who made the payment in cash but only
after getting in touch with the police. One thing more. The currency notes,
before being handed over as ransom money, had been stealthily signed by the
father of Harsh Gupta and the Investigating Officer. This ingenuity was to
reap rich dividends later. To cut short, a part of the rupees 15 lacs
ransom money bearing those signatures was later recovered allegedly from
the petitioner Shalini Rawat and her father Jagdish Singh Rawat who made a
statement under section 161 of the Code of Criminal Procedure that the
amount so recovered from him had been handed over to him by none other but
his own daughter Shalini Rawat and her husband. It may also be noticed that
Shalini Rawat was arrested on October 8, 1995 while she was with Kamlesh
and that about five days later she refused to participate in test identifi-
cation parade. And, before I conclude this narrative I may as well mention
that after the framing of charges the learned Additional Sessions Judge is
proceeding ahead with the trial. Three witnesses including Harsh Gupta
stand examined and three dates in February 1998 (2nd, 3rd and 4th) stand
fixed for proceeding ahead with the trial.
5. I think I need to mention one more fact, for it is material, before I
revert back to Mr. V. P. Chaudhary and his arguments. And it is that the
present is not the first bail application in this court. In fact it is the
second. The first was dismissed by a learned single judge on February 26,
1997. Mr.V.P.Chaudhary at that time too was the counsel. The order runs as
under:
“Crl.M.(M) No.298/97
Heard the learned counsel for the petitioner.
Learned counsel for the petitioner contends that the petitioner
is an innocent lady. She is an enrolled advocate. She has got
absolutely nothing to do with the present incident. She has been
in custody since October 8, 1995. Thus the present case is a fit
case for bail.
Learned PP on the other hand has contended that the petitioner
and her husband Dinesh Singh are behind the present incident. It
was at the instance of the petitioner and her husband that Shri
Harsh Gupta was kidnapped. A sum of Rs.65,000/- was recovered
from the petitioner.
Then there is the statement of Shri Jagdish who has stated before
the police that the petitioner and her husband came to his house
and gave to him a sum of Rs.,5,75,000/- which he got deposited in
different banks.
Then there is the statement of the person kidnapped who has
stated that Smt.Kamlesh told him that she would talk to the
petitioner with regard to his release.
Considering the above facts and circumstances I do not think
present case is a fit case for bail. Dismissed.”
6. Mr.Chaudhary says that the earlier order is no bar to the present
application though Mr.Sawhney appearing for the State, without referring to
any authority in support, says it is. True, successive bail applications by
an accused are not barred as there is nothing like a principle of res
judicata operating in the field but there must be a substantial change in
the fact situation for the court to entertain a subsequent bail applica-
tion. Where there is no substantial change in fact situation thereafter
necessitating release of accused on bail, order granting bail would be
illegal {See: State of Maharashtra v. Buddhikota Subha Rao ]. As for me, I see no substantial change in fact situation excepting
this that after the said order three witnesses including Harsh Gupta have
been examined by the prosecution and unfortunately for Mr.Chaudhary the
victim supports the prosecution version and points accusing finger at the
petitioner. Though, as per Mr.Chaudhary, the prosecution suffers from
certain infirmities and though according to him the statement on oath given
by Harsh Gupta is unworthy of reliance, this, to my mind, is no stage to
dissect the material and examine it microscopically. That would be for the
learned trial judge and that too at an appropriate stage.
7. Mr.Chaudhary says that the petitioner is a lady and add to it an
advocate too. This was said by him earlier too but without success. In any
case, the provision of bail to a woman is not mandatory when there is, as
in the case in hand, ample material to prima facie connect her with the
commission of an heinous offence. May be she is an Advocate. As her involvement is prima facie established (charges having already been framed under sections 364A/411/120-B), the mere fact that she belongs to what we have been regarding a noble profession is not sufficient to be weighed in her favour.
8. Mr.Chaudhary seeks bail on yet another ground. He says that remaining
confined in judicial custody, the petitioner would be handicapped in de-
fending herself. Why should she feel so when she is being represented and
defended by a senior advocate who took not only all the time to present her
case but showed all anxiety to know also whether his arguments were registering with the court or not (for this is what he said) without ever complaining of any handicap? The Madhya Bharat High Court said in State through Public Prosecutor Indore v. Balwant Singh Onkar Singh AIR 1950 MB 43 that where the accused is represented by a counsel the court would not be justified in releasing the accused merely on the ground that it would facilitate his defense. of course, this judgment was not referred to. The
judgment which was referred to is Babu Singh v. State of U.P. . It came from the armoury of Mr.Chaudhary. It was an appeal before the
Supreme Court and one of the grounds for grant of bail was that all the
appellants were the entire male members of a family and all of them were in
jail. As noticed, this was not the only ground. It was an additional
ground. In the case in hand and as stated by Mr.Sawhney, the petitioner has
other family members to stand by and extend a helping hand and the way
Mr.Chaudhary went about arguing the matter those family members must be
complimented for having done a good job.
9. Mr.Chaudhary reminded me that bail and not jail is the basic rule. The
inspiration for this obviously comes from State of Rajasthan v. Balchand
. But then Mr.Chaudhary perhaps forgets, if I may say so
with respect, that the statement so vociferously proclaimed and advocated
is subject to certain very notable exceptions and Krishna Iyer J. who
penned that statement underlined the same in the same breath. Lest we
forget or are led astray, let us listen to what his Lordship says and that
too in clear and unambiguous terms: .ls1
“The basic rule may perhaps be tersely put as bail, not jail,
except where there are circumstances suggestive of fleeing from
justice or creating other troubles in the shape of repeating
offences or intimidating witnesses and the like by the petitioner
who seeks enlargement of bail from the court. We do not intend to
be exhaustive but only illustrative.”
Can it be said still that bail and not jail is the basic rule with no
exceptions attached? Let us neither mutilate nor distort. In Balchand’s
case itself the court observed that the gravity of the offence and heinous-
ness of the offence “must weigh”. I am mentioning it so that our vision is
not clouded. Neither today nor tomorrow.
10. At this stage what requires to be noticed would be the nature and
circumstances of the offence, nature of evidence, circumstances which are
peculiar to the accused, reasonable apprehension of witnesses being tampered with, a reasonable possibility of the presence of the accused at trial and larger interest of the public or the State.
11. The petitioner has been charged with and is facing trial for, offences
which are grave and heinous. Three prosecution witnesses including the
victim already stand examined and the learned trial judge, with a view to
deal with the matter expeditiously, has very properly fixed three dates in
the near future for remaining evidence. The State, it appears is proceeding
ahead with due diligence. Mr.Sawhney appearing for the State submitted that
grant of bail at this juncture may jeopardise the prosecution as the petitioner though attached to a noble profession, is hardly noble in deeds and appears to be a desperate character. The fact that Harsh Gupta was abducted in broad day light, and kept in confinement for ransom and the fact that the petitioner was a party to the entire sordid drama and the fact that part of ransom money was recovered from her and her father stands prima facie proved and all this surely lends credence to the apprehension voiced by Mr.Sawhney.
12. Undoubtedly, inability of the existing judicial machinery to try an
accused expeditiously is known. It is also true that right of speedy trial
guaranteed by Article 21 and section 309 of the Code needs to be kept in
mind. To that extent I find myself one with Mr.Chaudhary. Surely enough
accused person’s right of personal liberty is important but let us not
forget that in case of a conflict between accused person’s right of person-
al liberty and interest of public justice and welfare objectives of socie-
ty, the former should be subordinated to the later (See: Babu Singh v.
State of U.P. ) Mercifully, in this case, there has not been
any delay so far and surely, for the reasons already delineated, it is not
a case of avoidable incarceration.
13. Lastly, the question posed firstly. What if Shalini Rawat is not
enlarged now on bail and is acquitted later? And, in that case, what about
her withered years and shattered dreams? The thought had tormented the
Supreme Court too in G.Narasimhulu v. Public Prosecutor A.P. (AIR 1978 SC 430). I was thus not the first. Nor, in fact, was the Supreme Court. The
question is as old as the hills and has been bothering criminologists and
penologists. The Supreme Court, in G.Narasimhulu was faced with a case
where special leave petition stood admitted and where the final disposal of
the petition would have, in all likelihood, consumed years before disposal.
It held that in such a situation “the Court should ordinarily unless there
are cogent grounds for acting otherwise release the accused on bail”. Thus
emphasis on likelihood of delay in disposal of special leave petition and
its becoming a persuasive ground for grant of bail, too is qualified by:
“unless there are cogent grounds for acting otherwise”. In short even in
such cases bail is not an unqualified right. And, let us remember that what
we have before us is a trial in progress and thus a situation entirely
different. To say that a distant dream of ultimate acquittal should prevail
and entitle the accused to bail would nullify the law of bail with regard
to non-bailable offences. The argument even goes far beyond the demand of
the Delhi Bar Association put before the Law Commission years ago that
section 497(1) should be made more liberal by providing that if the offence
is not punishable with death, bail ought to be granted. The Law Commission
in its 41st Report observed:.ls1
“We are afraid that this would be a radical and undesirable
change in law. Offences punishable with imprisonment for life are
serious enough to justify the present position.”
Another suggestion was to the effect that in section 497(1) for the
words “he may be released on bail” the following words be substituted – “he
shall be released on bail unless the court for reasons recorded in writing
otherwise directs”. The Report observed:
“We are unable to accept the suggestion either. Its acceptance
would practically amount to an abolition of distinction between
bailable and non-bailable offences”
I have no manner of doubt that the argument of Mr.Chaudhary, if ac-
cepted, too would completely wash away the distinction between bailable and
non-bailable offence. We cannot allow it to happen.
14. Keeping in view the totality of the facts and circumstances of the
case, I have absolutely no doubt that equipping the petitioner with an
order as sought by her, would be hazardous to the victim and dangerous to
the society in general. It may even impede the trial. Public interest would
thus suffer as a consequence. The petition is thus dismissed. However,
nothing said in this order shall be read as an expression of opinion on the
case.