Supreme Court: In a criminal appeal against an order passed by the Karnataka High Court, wherein the Court granted regular bail to the man accused of conspiring to murder his wife after she refused to give consent for mutual divorce, the division bench of Surya Kant* and Dipankar Datta, JJ. while setting aside the impugned order, gave the following directions:
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Directed the accused to surrender not later than one week, and to remain in custody till the conclusion of trial or till this Court releases him on bail in changed circumstances.
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Directed the Trial Court to recall the witnesses (family members of deceased) for their further cross-examination.
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Directed the Commissioner of Police, to provide security to the Appellant and her family, including her daughter, round the clock at least till their fresh depositions.
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Directed the Commissioner of Police to investigate as to whether the Appellant and her family members were threatened, induced, or subjected to any extraneous pressure for retracting their statements.
The Court said that it has a narrow scope of interference in an order granting bail while exercising its power of judicial review and will be invariably reluctant to interfere in such order even if it has a different opinion. However, if it is found that an undertrial has attempted to misuse the concession of bail either by influencing the witnesses or tampering with the evidence or trying to flee from justice, such person can be committed to custody by withdrawing the concession of bail.
The Bench said that the Court are under an onerous duty to ensure that the criminal justice system is vibrant and effective; perpetrators of the crime do not go unpunished; the witnesses are not under any threat or influence to prevent them from deposing truthfully and the victims of the crime get their voices heard at every stage of the proceedings.
Further, it said that where, on consideration of the facts and circumstances of a case, the Court is satisfied that there are cogent and overwhelming circumstances indicating misuse of concession of bail, it becomes imperative upon the Court in the interest of justice to withdraw such concession forthwith.
The Court took note of Dolat Ram v. State of Haryana, (1995) 1 SCC 349, wherein the Court has illustrated the expression “cogent and overwhelming circumstances for cancellation of bail” and Vipan Kumar Dhir v. State of Punjab, wherein Court explained the impact ofsupervening circumstances developing post the grant of bail, such as interference in the administration of justice, abuse of concession of bail, etc.
Applying these parameters to the facts and circumstances of the present case, the Court was satisfied that there is a prima facie proximity between the grant of bail to accused and an emboldening opportunity for him to win over the witnesses. Therefore, he does not deserve to enjoy the concession of bail at least until all the crucial witnesses are examined. The privilege of liberty extended to him, thus, deserves to be withdrawn for an effective, fair, just and unbiased conclusion of trial.
Further, the Bench said that if a witness turns hostile for extenuating reasons and is reluctant to depose the unvarnished truth, it will cause irreversible damage to the administration of justice and the faith of the society at large in the efficacy, and credibility of the criminal justice system will stand eroded and shattered.
While noting the unusual and surprising events that have happened post grant of bail to accused, the Court said that it does make out a case for recalling the witnesses for an effective, fair, and free adjudication of the trial. This Court is vested with vast and ample powers to have such recourse not only under Article 142 of the Constitution but also under Section 311 of the Code of Criminal Procedure, 1973 (‘CrPC’), be it on the request of the prosecution or suo moto. Such Constitutional or statutory power is not limited by any barriers like the stage of inquiry, trial, or other proceeding. A person can be called and examined though not summoned as a witness, or can be recalled, or re-examined to throw light upon the imputations. Further, Section 311 CrPC, does not intend to fill the lacunae in the prosecution’s case and cause any serious prejudice to the rights of an accused. This provision is intended to meet the ends of justice and to gather overwhelming evidence to scoop out the truth.
Concerning the present case, the Court noted that the family members of the deceased are the most crucial witnesses to test the veracity of the allegations levelled by the prosecution Their stand in the examination-in-chief is diametrically opposite to the one in the cross examination. The fact that the parents and sister of the deceased have resiled from their earlier standpoint where they had been found to be agitating vigorously before different forums since the year 2019, implores the Court to invoke their Constitutional powers under Article 142 read with Section 311 CrPC and direct their recalling for a fresh cross-examination after ensuring a congenial environment, free from any kind of threat, psychological fear, or any inducement.
Thus, the Court found the present case fit for recalling the witnesses for their further cross-examination to reach an effective decision in the subject trial. However, it added that the power to recall witnesses under Section 311 CrPC ought to be exercised sparingly and mere hostility by a witness, per se, would not be sufficient grounds to infer misuse of concession of bail.
[Munilakshmi v. Narendra Babu, 2023 SCC OnLine SC 1380, decided on 20-10-2023]
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