BAIL SHOULD CONTINUE
TILL THE TRIAL
Whether an anticipatory bail should be for a limited period of time is the issue before us on which there are two divergent views.
The line of judgments that anticipatory bail should not be for a limited period places its reliance on the Constitution Bench decision of this Court in Shri Gurbaksh Singh Sibbia and others v. State of Punjab.
The decision in Mhetre was recently followed in Bhadresh Bipinbhai Sheth v. State of Gujarat and another.
The other line of judgments is that orders of anticipatory bail should be of a limited duration. Salauddin Abdulsamad Shaikh v. State of Maharashtra is one of the earlier decisions of a three-Judge Bench. True, there is no reference to the Constitution Bench in Sibbia’s case (supra).
This Court in HDFC Bank Limited v. J.J. Mannan has referred to a contention based on the Constitution Bench decision in Sibbia (supra) and yet it has taken the view that the protection under section 438 is only till the investigation is completed and charge-sheet is filed.
Hon’ble Kurian Joseph, M.M. Shantanagoudar and Navin Sinha, JJ., have held that Shri Harin P. Raval, learned Senior Counsel and Amicus Curriae submits that in the light of the two conflicting schools of thought the matter needs consideration by a larger Bench. According to him even the Constitution Bench in Sibbia (supra) does not, in so many words, lay down a proposition that the protection of anticipatory ball is available to an accused till the conclusion of the trial.
Also having heard learned Counsel appearing on both sides, we are of the prima facie view that the Constitution Bench in Sibbia (supra) has not laid down the law that once an anticipatory bail, it is an anticipatory bail forever.
In Sibbia (supra), this Court has briefly dealt with the question of duration of anticipatory bail. It seems to us that the discussion primarily pertained to grant of anticipatory bail at the pre-FIR stage (See paragraph 43 quoted below). It appears that there are indications in Sibbia (supra) that anticipatory bail may be for a limited period.
In the light of the conflicting views of the different Benches of varying strength, we are of the opinion that the legal position needs to be authoritatively settled in clear and unambiguous terms. Therefore, we refer the following questions for consideration by a larger Bench:
(1).Whether the protection granted to a person under section 438, Cr. P.C. should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail.
(2).Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the Court.
Accordingly, we direct the Registry to place the papers before Hon’ble the Chief Justice of India.
Sushila Aggarwal v. State (NCT of Delhi), 2018 (186) AIC 96 SC
EVIDENCE OF AN EYE-WITNESS
MUST BE RELIED UPON
The brief facts, as culled out from the prosecution case are that on 18th May, 2006 a shop keeper of hardware material, namely, Arshad Sajad accompanied by his father Sajad Ahmed Bhat (P.W.9) were going to their home after closure of shop in the evening at about 5.30 p.m., while they were on their way, near Masjid, the appellant herein intercepted them from the opposite direction and started hurling abuses against them. When they ignored his abuses and moved forward, the appellant attacked Arshad Sajad on his head from behind with an iron rod. The injured Arshad Sajad and his father then went to the clinic of one Ali Mohd. (P.W. 3) and on his advice they went to the Bhaderwah police station and informed the police about the incident. Accordingly, FIR No. 53 of 2006 was registered against the accused-appellant for the offences punishable under sections 341/323, RPC. Police then sent the injured to Sub-District Hospital, Bhaderwah for treatment. As his condition was deteriorating, for better treatment, he was being shifted to Government Medical College, Jammu, but on the way, he succumbed to the injuries.
The Trial Court after a full-fledged trail, came to the conclusion that the prosecution has failed to prove motive and the statement of sole eyewitness (father of the deceased) stood uncorroborated with the other witnesses, as the prosecution has failed to establish the guilt of the accused beyond reasonable doubt has acquitted the accused from the alleged offences under section 302/341, RPC.
Aggrieved by the order of acquittal passed by the Trial Court, the State of Jammu and Kashmir raised appeal before the High Court. Upon adjudicating the same, the High Court has come to the contrary conclusion and observed that the evidence of the sole eye-witness [father of the deceased) was duly corroborated by oral, documentary and expert evidence and by improperly rejecting the same, the Trial Court has committed grave miscarriage of justice. Therefore, the High Court reversed the order of acquittal into conviction for the charges under section 302/341, RPC and sentenced the accused=appellant as stated here in above. That is how the accused is in appeal before this Court.
Hon’ble N.V. Ramana and S.A. Nazeer, JJ., have held that in view of the above discussion, we are of the considered view that the direct oral evidence available on record coupled with the medical evidence, points at the guilt of the accused and not proving the motive for commission of the offence lost its significance in the facts of the case.
There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to sow that the witnesses had reason to shield actual culprit and falsely implicate the accused [See: Harbans Kaur and another v. State of Haryana].
If the evidence of an eye-witness, though a close relative of the victim, inspires confidence, it must be relied upon without seeking corroboration with minute material particulars. It is no doubt true that the Courts must be cautious while considering the evidence of interested witnesses. In his evidence, the description of the incident by P.W. 9 clearly portrays the way in which the accused attacked the deceased causing fatal head injury as propounded by the prosecution. The testimony of the father of deceased (P.W. 9) (eye-witness) must be appreciated in the background of the entire case.
In our opinion, the testimony of father of deceased P.W. 9 inspires confidence, and the chain of events and the circumstantial evidence thereof completely supports his statement which in turn strengthens the prosecution case with no manner of doubt. We have no hesitation to believe that P.W. 9 is a ‘natural’ witness to the incident. On a careful scrutiny, we find his evidence to be intrinsically reliable and wholly trustworthy.
When analyzing the evidence available on record, Court should not adopt hyper-technical approach but should look at the broader probably abilities of the case. Basing on the minor contradictions, the Court should not reject the evidence in its entirety. Sometimes, even in the evidence of truthful witness, there may appear certain contradictions basing on their capacity to remember and reproduce the minute details. Particularly in the criminal cases, from the date of incident till the day they give evidence in the Court, there may be gap of years. Hence the Courts have to take all these aspects into consideration and weigh the evidence. The discrepancies and contradictions which do not go to the root of the matter, credence shall not be given to them. In any event, the paramount consideration of the Court must be to do substantial justice.
Khurshid Ahmed v. State of Jammu and Kashmir, 2018 (186) AIC 44 SC