2012 PLP 1732 (SCMR)

H. L. DATTU, J.

Leave granted in all the Special Leave Petitions.

2. These appeals are directed against the common Judgment and Order of the learned Single Judge of the High Court of Delhi, dated 23rd May, 2011 in Bail Application No.508 of 2011, Bail Application No.509 of 2011 and Criminal Miscellaneous Application No.653 of 2011, Bail Application No.510 of 2011, Bail Application No.511 of 2011 and Bail Application No.512 of 2011, by which the learned Single Judge refused to grant bail to the accused-appellants. These cases were argued to gether and submitted for decision as one case.

3. The offence alleged against each of the accused, as noticed by the learned Special Judge, CBI, New Delhi, who rejected bail applications of the appellants, vide his or der dated 20-4-2011, is extracted for easy reference: Sanjay Chandra (A7) in Criminal Appeal No.2178 of 2011 [arising out of SLP (Cri.) No.5650 of 20111:-- "(6) The allegations against accused Sanjay Chandra are that he entered into criminal conspiracy with accused A. Raja, R.K. Chandolia and other accused persons during September 2009 to get UAS licence for providing telecom services to otherwise an ineligible company to get UAS licences. He, as Managing Director of Messrs Unitech Wireless (Tamil Nadu) Limited, was look ing after the business of telecom through 8 group companies of Unitech Limited. The first-come-first-served procedure of allocation of UAS Licences and spectrum was manipulated by the accused persons in or der to benefit Messrs Unitech Group Compa nies. The cut-off date of 25-9-2007 was decided by accused public servants of DoT primarily to allow consideration of Unitech Group applications for UAS licences. The Unitech Group Companies were in busi ness of realty and even the objects of com panies were not changed to 'telecom' and registered as required before applying. The companies were ineligible to get the li cences till the grant of UAS licences. The Unitech Group was almost last within the applicants considered for allocation of UAS licences and as per existing policy of first-come-first-served, no licence could be issued in as many as 10 to 13 circles where sufficient spectrum was not available. The Unitech companies got benefit of spectrum inasmany as 10 circles over the other eli gible applicants. Accused Sanjay Chandra, in conspiracy with accused public servants, was aware of the whole design of the allo cation of LOIs and on behalf of the Unitech group companies was ready with the drafts of Rs.1658 crores as early as 10th Octo ber, 2007." Vinod Goenka (A5) in Criminal Appeal No.2179 of 2011 [arising out of SLP (Cri) No.5902 of 2011]:-- "(5) The allegations against accused Vinod Goenka are that he was one of the directors of Messrs Swan Telecom (P) Lim ited in addition to accused Shahid Usman Balwa w.e.f. 1-10-2007 and acquired ma jority stake on 18-10-2007 in Messrs Swan Telecom (P) Limited (STPL) through DB Infrastructure (P) Limited. Accused Vinod Goenka carried forward the fraudulent applications of STPL dated 2-3-2007 submitted by previous management despite knowing the fact that STPL was ineligible company to get UAS licences by virtue of clause 8 of UASL Guidelines 2005. Accused Vinod Goenka was an associate of accused Shahid Usman Balwa to create false docu ments including Board Minutes of Messrs Giraffe Consultancy (P) limited fraudu lently showing transfer of its shares by the companies of Reliance ADA Group during February, 2007 itself. Accused/applicant in conspiracy with accused Shahid Usman Balwa concealed or furnished false infor mation to DoT regarding shareholding pattern of STPL as on the date of applica tion thereby making STPL an eligible com pany to get licence on the date of applica tion, that is, 2-3-2007. Accused/applicant was an overall beneficiary with accused Shahid Usman Balwa for getting licence and spectrum in 13 telecom circles. (12) Investigation has also disclosed pur suant to TRAI recommendations dated 28-8-2007 when Messrs Reliance Communications Ltd. got the GSM spectrum un der the Dual Technology policy, accused Gautam Doshi, Hari Nair and Surendra Pipara transferred the control of Messrs Swan Telecom Pvt. Ltd., and said structure of holding companies, to accused Shahid Balwa and Vinod Goenka. In this manner they transferred a company which was oth erwise ineligible for grant of UAS license on the date of application, to the said two accused persons belonging to Dynamix Balwa (DB) Group and thereby facilitated them to cheat the DoT by getting issued UAS Licences despite the ineligibility on the date of application and till 18-10-2007. (13) Investigation has disclosed that ac cused Shahid Balwa and Vinod Goenka joined Messrs Swan Telecom Pvt. Ltd. and Messrs Tiger Traders Pvt. Ltd. as directors on 1-10-2007 and DB group acquired the majority stake in TTPL/Messrs Swan Telecom Pvt. Ltd. (STPL) on 18-10-2007. On 18-10-2007 a fresh equity of 49.90 lakh shares was allotted to Messrs DB Infrastruc ture Pvt. Ltd. Therefore, on 1-10-2007, and thereafter, accused Shahid Balwa and Vinod Goenka were in-charge of and were responsible to, the company Messrs Swan Telecom Pvt. Ltd. for the conduct of busi ness. As such on this date, majority shares of the company were held by D.B. Group." Gautam Doshi (A9), Surendra Pipara (A 10) and Hari Nair (A 11) in Criminal Appeals Nos. 2180, 2182 and 2181 of 2011 [arising out of SLP (Cri) Nos.6190, 6315 and 6288 of 2011]:-- "(7) It is further alleged that in January - February, 2007 accused Gautam Doshi, Surendra Pipara and Hari Nath in further ance of their common intention to cheat the Department of Telecommunications, struc tured/created net worth of Messrs Swan Telecom Pvt. Ltd., out of funds arranged from Messrs Reliance Telecom Ltd. or its as sociates, for applying to DoT for UAS Li cences in 13 circles, where Messrs Reliance Telecom Ltd. had no GSM spectrum, in a manner that its associations with Messrs Re liance Telecom Ltd. may not be detected, so that DoT could not reject its applica tion on the basis of clause 8 of the UASL Guidelines dated 14-12-2005. (8) In pursuance of the said common in tention of accused persons, they structured the stake-holding of Messrs Swan Telecom Pvt. Ltd. in a manner that only 9.9% eq uity was held by Messrs Reliance Telecom Ltd. (RTL) and rest 90.1% was shown as held by Messrs Tiger Traders Pvt. Ltd. (later known as Messrs Tiger Trustees Pvt. Ltd. - TTPL), although the entire company was held by the Reliance ADA Group of Companies through the funds raised from Messrs Reli ance Telecom Ltd. etc. (9) It was further alleged that Messrs Swan Telecom Pvt. Ltd. (STPL) was, at the time of application dated 2-3-2007, an associate of Messrs Reliance ADA Group/Messrs Reliance Communications Limited/Messrs Reliance Telecom Limited, having existing UAS Licences in all telecom circles. Investigations have also disclosed that Messrs Tiger Traders Pvt. Ltd., which held major ity stake (more than 90%) in Messrs Swan Telecom Pvt. Ltd. (STPL), was also an as sociate company of Reliance ADA Group. Both the companies has no business history and were activated solely for the pur pose of applying for UAS Licences in 13 telecom circles, where Messrs Reliance Telecom Ltd. did not have GSM spectrum and Messrs Reliance Communications Ltd. had already applied for dual technology spectrum for these circles. Investigation has disclosed that the day-to-day affairs of Messrs Swan Telecom Pvt. Ltd. and Messrs Tiger Traders Pvt. Ltd. were managed by the said three accused persons either them selves or through other officers/consultants related to the Reliance ADA group. Commercial decisions of Messrs Swan Telecom Pvt. Ltd. and Messrs Tiger Traders Pvt. Ltd. were also taken by these accused persons of Reliance ADA Group. Material inter company transactions (bank transactions) of Messrs Reliance Communications/Messrs Reliance Telecommunications Ltd. and Messrs Swan Telecom Pvt. Ltd. (STPL) and Messrs Tiger Traders Pvt. Ltd. were carried out by same group of persons as per the in structions of said accused Gautam Doshi and Hari Nair. (10) Investigations about the holding structure of Messrs Tiger Traders Pvt. Ltd. has revealed that the aforesaid accused persons also structured two other compa nies i.e. Messrs Zebra Consultancy Private Limited and Messrs Parrot Consultants Private Limited. Till April, 2007, by when Messrs Swan Telecom Pvt. Ltd. applied for telecom licences, 50% shares of Messrs Zebra Consultancy Private Limited and Messrs Par rot Consultants Private Limited, were pur chased by Messrs Tiger Traders Pvt. Ltd. Similarly, 50% of equity shares of Messrs Parrot Consultants Private Limited and Messrs Tiger Traders Private Limited were pur chased by Messrs Zebra Consultancy Private Limited. Also, 50% of equity shares of Messrs Zebra Consultancy Private Limited and Messrs Tiger Traders Private Limited were purchased by Messrs Parrot Consultants Pri vate Limited. These 3 companies were, therefore, cross holding each other in an interlocking structure w.e.f. March 2006 till 4th April, 2007. (11) It is further alleged that accused Gautam Doshi, Surendra Pipara and Hari Nair instead of withdrawing the fraudu lent applications preferred in the name of Messrs Swan Telecom (P) Limited, which was not eligible at all, allowed the transfer of control of that company to the Dynamix Balwa Group and thus, enabled perpetuating and (sic.) illegality. It is alleged that TRAI in its recommendations dated 28-8-2007 recommended the use of dual technology by UAS Licencees. Due to this reason Messrs Reliance Communications Limited, holding company of Messrs Reliance Telecom Limited, became eligible to get GSM spectrum in telecom circles for which STPL had applied. Consequently, having management control of STPL was of no use for the applicant/accused persons and Messrs Reliance Telecom Limited. Moreover, the transfer of management of STPL to DB Group and sale of equity held by it to Messrs Delphi Investments (P) Limited, Mauritius, Messrs Reliance Telecom Limited has earned a profit of around Rs.10 crores which otherwise was not possible if they had with drawn the applications. Messrs Reliance Communications Limited also entered into agreement with Messrs Swan Telecom (P) Limited for sharing its telecom infrastruc ture. It is further alleged that the three ac cused persons facilitated the new manage ment of Messrs Swan Telecom (P) Limited to get UAS licences on the basis of applica tions filed by the former management. It is further alleged that Messrs Swan Telecom (P) Limited on the date of application, that is, 2-3-2007 was an associate company of Reliance ADA Group, that is, Messrs Reliance Communications Limited/Messrs Reliance Telecom Limited and therefore, ineligible for UAS licences. (12) Investigation has also disclosed pur suant to TRAI recommendations dated 28-8-2007 when Messrs Reliance Commu nications Ltd. got the GSM spectrum un der the Dual Technology policy, accused Gautam Doshi, Hari Nair and Surendra Pipara transferred the control of Messrs Swan Telecom Pvt. Ltd., and said structure of holding companies, to accused Shahid Balwa and Vinod Goenka. In this manner they transferred a company which was oth erwise ineligible for grant of UAS license on the date of application, to the said two accused persons belonging to Dynamix Balwa (DB) Group and thereby facilitated them to cheat the DoT by getting issued UAS Licences despite the ineligibility on the date of application and till 18-10-2007."

4. The Special Judge, CBI, New Delhi, rejected Bail Applications filed by the ap pellants by his order dated 20-4-2011. The appellants moved the High Court by filing applications under section 439 of the Code of Criminal Procedure (in short, "Cr.P.C."). The same came to be rejected by the learned Single Judge by his order dated 23-5-2011. Aggrieved by the same, the appellants are before us in these appeals.

5. Shri Ram Jethmalani, Shri Mukul Rohatgi, Shri Soli J. Sorabjee and Shri Ashok H. Desai. learned senior counsel appeared for the appellants and Shri Harin P. Raval, learned Additional Solicitor Gen eral, appears for the respondent-CBI.

6. Shri Ram Jethmalani, learned senior counsel appearing for the appellant-Sanjay Chandra, would urge that the impugned Judgment has not appreciated the basic rule laid down by this Court that grant of bail is the rule and its denial is the exception. Shri Jethmalani submitted that if there is any apprehension of the accused of abscond ing from trial or tampering with the wit nesses, then it is justified for the Court to deny bail. The learned senior counsel would submit that the accused has co-op erated with the investigation throughout and that his behavior has been exemplary. He would further submit that the appellant was not arrested during the investigation, as there was no threat from him of tamper ing with the witnesses. He would submit that the personal liberty is at a very high pedestal in our Constitutional system, and the same cannot be meddled with in a causal manner. He would assail the im pugned Judgment stating that the learned Judge did not apply his mind, and give adequate reasons before rejecting bail, as is required by the legal norms set down by this Court. Shri Jethmalani further contends that it was only after the appellants appeared in the Court in pursuance of summons issued, they were made to apply for bail, and, there after, denied bail and sent to custody. The learned senior counsel states that the trial Judge does not have the power to send a person, who he has summoned in pursu ance of section 87, Cr.P.C. to judicial cus tody. The only power that the trial Judge had, he would contend, was to ask for a bond as provided for in section 88, Cr.P.C. to ensure his appearance. Shri Jethmalani submits that when a person appeared in pursuance of a bond, he was a free man, and such a free man cannot be committed to prison by making him to apply for bail and thereafter, denying him the same. Shri Jethmalani further submits that if it was the intention of the Legislature to make a per son, who appears in pursuance of summons to apply for bail, it would have been so leg islated in section 88, Cr.P.C. The learned senior counsel assailed the Judgment of the Delhi High Court in the 'Court on its own motion v. CBI', 2004 (I) JCC 308, by which the High Court gave directions to Crimi nal Courts to call upon the accused who is summoned to appear to apply for bail, and then decide on the merits of the bail appli cation. He would state that the High Court has ignored even the CBI Manual before issuing these directions, which provided for bail to be granted to the accused, except in the event of there being commission of heinous crime. The learned senior counsel would also argue that it was an error to have a "rolled up charge", as recognized by the Griffiths' case (R v. Griffiths and others, (1966) 1 QB 589). Shri Jethmalani submit ted that there is not even a prima facie case against the accused and would make refer ences to the charge-sheet and the statement of several witnesses. He would emphati cally submit that none of the ingredients of the offences charged with were stated in the charge-sheet. He would further contend that even if, there is a prima facie case, the rule is still bail, and not jail, as per the dicta of this Court in several cases.

7. Shri Mukul Rohatgi, learned senior counsel appearing for the appellant-Vinod Goenka, while adopting the arguments of Shri Jethmalani, would further supplement by arguing that the learned Trial Judge erred in making the persons, who appeared in pur suance of the summons, apply for bail and then denying the same, and ordering for remand in judicial custody. Shri Rohatgi would further contend that the gravity of the offence charged with, is to be deter mined by the maximum sentence pre scribed by the Statute and not by any other standard or measure. In other words, the learned senior counsel would submit that the alleged amount involved in the so- called Scam is not the determining factor of the gravity of the offence, but the maxi mum punishment prescribed for the of fence. He would state that the only bar for bail pending trial in section 437 is for those persons who are charged with offences punishable with life or death, and there is no such bar for those persons who were charged with offences with maximum pun ishment of seven years. Shri Rohatgi also cited some case-laws.

8. Shri Ashok H. Desai, learned senior counsel appearing for the appellants-Hari Nair and Surendra Pipara, adopted the prin cipal arguments of Shri Jethmalani. In ad dition, Shri Desai would submit that a citi zen of this country, who is charged with a criminal offence, has the right to be en larged on bail. Unless there is a clear ne cessity for deprivation of his liberty, a per son should not be remanded to judicial cus tody. Shri Desai would submit that the Court should bear in mind that such cus tody is not punitive in nature, but preven tive, and must be opted only when the charges are serious. Shri Desai would further submit that the power of the High Court and this Court is not limited by the operation of section

437. He would fur ther contend that Surendra Pipara deserves to be released on bail in view of his seri ous health conditions.

9. Shri Soli J. Sorabjee, learned senior counsel appearing for Gautam Doshi, adopted the principal arguments of Shri Jethmalani. Shri Sorabjee would assail the finding of the learned Judge of the High Court in the impugned Judgment that the mere fact that the accused were not arrested during the investigation was proof of their influence in the society, and hence, there was a reasonable apprehension that they would tamper with the evidence if enlarged on bail. Shri Sorabjee would submit that if this reasoning is to be accepted, then bail is to be denied in each and every criminal case that comes before the Court. The learned senior counsel also highlighted that the accused had no criminal antecedents.

10. Shri Haren P. Raval, the learned Ad ditional Solicitor General, in his reply, would submit that the offences that are be ing charged, are of the nature that the eco nomic fabric of the country is brought at stake. Further, the learned ASG would state that the quantum of punishment could not be the only determinative factor for the magnitude of an offence. He would state that one of the relevant considerations for the grant of bail is the interest of the soci ety at large as opposed to the personal lib erty of the accused, and that the Court must not lose sight of the former. He would sub mit that in the changing circumstances and scenario, it was in the interest of the soci ety for the Court to decline bail to the ap pellants. Shri Raval would further urge that consistency is the norm of this Court and that there was no reason or change in circumstance as to why this Court should take a different view from the order of 20th June, 2011 in Sharad Kumar and others v. Central Bu reau of Investigation [in SLP (Cri) Nos.4584-4585 of 2011] rejecting bail to some of the co-accused in the same case. Shri Raval would 2 further state that the inves tigation in these cases is monitored by this Court and the trial is proceeding on a day- to-day basis and that there is absolutely no delay on behalf of the prosecuting agency in completing the trial. Further, he would submit that the appellants, having co-op erated with the investigation, is no ground for grant of bail, as they were expected to co-operate with the investigation as pro vided by the law. He would further submit that the test to enlarge an accused on bail is whether there is a reasonable apprehen sion of tampering with the evidence, and that there is an apprehension of threat to some of the witnesses. The learned ASG would further submit that there is more rea son now for the accused not to be enlarged on bail, as they now have the knowledge of the identity of the witnesses, who are the employees of the accused, and there is an apprehension that the witnesses may be tampered with. The learned ASG would state that section 437 of the Cr.P.C. uses the word "appears", and, therefore, that the argument of the learned senior counsel for the appellants that the power of the trial Judge with regard to a person summoned under section 87 is controlled by section 88 is incorrect. Shri Raval also made ref erences to the United Nations Convention on Corruption and the Report on the Re forms in the Criminal Justice System by Justice Malimath, which, we do not think, is necessary to go into. The learned ASG also relied on a few decisions of this Court, and the same will be dealt with in the course of the judgment. On a query from the Bench, the learned ASG would submit that in his opinion, bail should be denied in all cases of corruption which pose a threat to the economic fabric of the country, and that the balance should tilt in favour of the pub lic interest.

11. In his reply, Shri Jethmalani would submit that as the presumption of innocence is the privilege of every accused, there is also a presumption that the appellants would not tamper with the witnesses if they are enlarged on bail, especially in the facts of the case, where the appellants have co operated with the investigation. In recapitu lating his submissions, the learned senior counsel contended that there are two prin ciples for the grant of bail - firstly, if there is no prima facie case, and secondly, even if there is a prima facie case, if there is no reasonable apprehension of tampering with the witnesses or evidence or absconding from the trial, the accused are entitled to grant of bail pending trial. He would sub mit that since both the conditions are satisfied in this case, the appellants should be granted bail.

12. Let us first deal with a minor issue canvassed by Mr. Raval, learned ASG. It is submitted that this Court has refused to entertain the Special Leave Petition filed by one of the co-accused [Sharad Kumar v. CBI (supra)] and, therefore, there is no reason or change in the circumstance to take a different view in the case of the ap pellants who are also charge-sheeted for the same offence. We are not impressed by this argument. In the aforesaid petition, the pe titioner was before this Court before fram ing of charges by the Trial Court. Now the charges are framed and the trial has com menced. We cannot compare the earlier and the present proceedings and conclude that there are no changed circumstances and reject these petitions.

13. The appellants are facing trial in re spect of the offences under sections 420-B, 468, 471 and 109 of Indian Penal Code and section 13(2) read with 13(i)(d) of Pre vention of Corruption Act, 1988. Bail has been refused first by the Special Judge, CBI, New Delhi and subsequently, by the High Court. Both the courts have listed the factors, on which they think, are relevant for refusing the Bail applications filed by the applicants as seriousness of the charge; the nature of the evidence in support of the charge; the likely sentence to be imposed upon conviction; the possibility of inter ference with witnesses; the objection of the prosecuting authorities; possibility of ab sconding from justice.

14. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appear ance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be inno cent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending comple tion of trial could be a cause of great hard ship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, 'necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be pun ished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circum stances. Apart from the question of preven tion being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.

15. In the instant case, as we have al ready noticed that the "pointing finger of accusation" against the appellants is 'the seriousness of the charge'. The offences alleged are economic offences which has resulted in loss to the State Exchequer. Though, they contend that there is possibility of the appellants tampering witnesses, they have not placed any material in support of the allegation. In our view serious ness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the Constitu tional Rights but rather "recalibration of the scales of justice." The provisions of Cr.P.C. confer discretionary jurisdiction on Crimi nal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is af firmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recog nized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual. This Court, in Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 2 SCC 42 : (AIR 2005 SC 921), observed that "under the criminal laws of this coun try, a person accused of offences which are non-bailable, is liable to be detained in cus tody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 of the Consti tution, since the same is authorized by law. But even persons accused of non-bailable offences are entitled to bail if the Court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied by reasons to be recorded that in spite of the existence of prima facie case, there is need to release such accused on bail, where fact situations require it to do so."

16. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution. In the case of State of Rajasthan v. Balchand, (1977) 4 SCC 308 : (AIR 1977 SC 2447), this Court opined:-- "(2) The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of flee ing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidat ing witnesses and the like, by the petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative. (3) It is true that the gravity of the of fence involved is likely to induce the peti tioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. Even so; the record of the peti tioner in this case is that, while he has been on bail throughout in the trial court and he was released after the judgment of the High Court, there is nothing to suggest that he has abused the trust placed in him by the court; his social circumstances also are not so unfavourable in the sense of his be ing a desperate character or unsocial ele ment who is likely to betray the confidence that the court may place in him to turn up to take justice at the hands of the court. He is stated to be a young man of 27 years with a family to maintain. The circum stances and the social milieu do not mili tate against the petitioner being granted bail at this stage. At the same time any possibility of the absconsion or evasion or other abuse can be taken care of by a di rection that the petitioner will report him self before the police station at Baren once every fortnight."

17. In the case of Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240 : (AIR 1978 SC 429), V. R. Krishna Iyer, J., sitting as Chamber Judge, enunciated the principles of bail thus:-- "(3) What, then, is "judicial discretion" in this bail context? In the elegant words of Benjamin Cardozo: "The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roam ing at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primor dial necessity of order in the social life". Wide enough in all conscience is the field of discretion that remains." Even so it is useful to notice the tart terms of Lord Camden that "the discretion of a Judge is the law of tyrants: it is always unknown, it is differ ent in different men; it is casual, and depends upon constitution, temper and pas sion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly and passion to which human nature is liable...." Perhaps, this is an overly simplistic statement and we must remember the con stitutional focus in Articles 21 and 19 be fore following diffuse observations and practices in the English system. Even in En gland there is a growing awareness that the working of the bail system requires a second look from the point of view of cor rect legal criteria and sound principles, as has been pointed out by Dr Bottomley. (6) Let us have a glance at the pros and cons and the true principle around which other relevant factors must revolve. When the case is finally disposed of and a person is sentenced to incarceration, things stand on a different footing. We are concerned with the penultimate stage and the princi pal rule to guide release on bail should be to secure the presence of the applicant who seeks to be liberated, to take judgment and serve sentence in the event of the Court punishing him with imprisonment. In this perspective, relevance of considerations is regulated by their nexus with the likely absence of the applicant for fear of a se vere sentence, if such be plausible in the case. As Erle J. indicated, when the crime charged (of which a conviction has been sustained) is of the highest magnitude and the punishment of it assigned by law is of extreme severity, the Court may reasonably presume, some evidence warranting, that no amount of bail would secure the pres ence of the convict at the stage of judg ment, should he be enlarged. Lord Campbell C.J. concurred in this approach in that case and Coleridge J. set down the order of priorities as follows: "I do not think that an accused party is detained in custody because of his guilt, but because there are sufficient probable grounds for the charge against him as to make it proper that he should be tried, and because the detention is necessary to en sure his appearance at trial .... It is a very important element in considering whether the party, if admitted to bail, would appear to take his trial; and I think that in coming to a determination on that point three ele ments will generally be found the most important: the charge, the nature of the evi dence by which it is supported, and the pun ishment to which the party would be liable if convicted. In the present case, the charge is that of wilful murder; the evidence contains an ad mission by the prisoners of the truth of the charge, and the punishment of the offence is, by law, death." (7) It is thus obvious that the nature of the charge is the vital factor and the na ture of the evidence also is pertinent. The punishment to which the party may be li able, if convicted or conviction is con firmed, also bears upon the issue. (8) Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. (9) Thus the legal principles and practice validate the Court considering the like lihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record - particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has en abled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evi dence about the criminal record of a de fendant is, therefore, not an exercise in ir relevance. (13) Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before this Court pends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the Court's verdict once. Concur rent holdings of guilt have the opposite ef fect. Again, the ground for denial of provi sional release becomes weaker when the fact stares us in the face that a fair finding - if that be so - of innocence has been recorded by one Court. It may not be con clusive, for the judgment of acquittal may be ex facie wrong, the likelihood of des perate reprisal, if enlarged, may be a de terrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man and socio geographical circumstances have a bear ing only from this angle. Police exaggera tions of prospective misconduct of the ac cused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police predic tion of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the Court into a com placent refusal."

18. In Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118 : (AIR 1978 SC 179), this Court took the view:-- "(22) In other non-bailable cases the Court will exercise its judicial discretion in favour of granting bail subject to sub section (3) of section 437, Cr.P.C. if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprison ment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to section 437(1), Cr.P.C. and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some materials at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence. (24) Section 439(1), Cr. P.C. of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under section 437(1) there is no ban imposed under section 439(1), Cr.P.C. against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or impris onment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an ac cused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under section 439(1), Cr.P.C. of the new Code. The overriding con siderations in granting bail to which we adverted to earlier and which are common both in the case of section 437(1) and sec tion 439(1), Cr.P.C. of the new Code are the nature and gravity of the circumstances in which the offence is committed; the po sition and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investi gation and other relevant grounds which, in view of so many valuable factors, can not be exhaustively set out."

19. In Babu Singh v. State of U.P., (1978) 1 SCC 579 : (AIR 1978 SC 527), this Court opined:-- "(8) The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden on the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. As Chamber Judge in this summit Court 1 had to deal with this uncanalised case-flow, ad hoc response to the docket being the flickering candle light. So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, de prived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the curial power to negate it is a great trust exercis able, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorise impression istic orders as discretionary may, on occa sions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamen tal, suffering lawful eclipse only in terms of "procedure established by law". The last four words of Article 21 are the life of that human right. ........ (16) Thus the legal principle and prac tice validate the Court considering the like lihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record - particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has en abled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evi dence about the criminal record of a de fendant, is therefore, not an exercise in ir relevance. (17) The significance and sweep of Ar ticle 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reason able, even-handed and geared to the goals of community good and State necessity spelt out in Article

19. Indeed, the considerations I have set out as criteria are germane to the constitutional proposition I have de duced. Reasonableness postulates intelli gent care and predicates that deprivation of freedom by refusal of bail is not for pu nitive purpose but for the bifocal interests of justice - to the individual involved and society affected. (18) We must weigh the contrary factors to answer the test of reasonableness, sub ject to the need for securing the presence of the bail applicant. It makes sense to as sume that a man on bail has a better chance to prepare or present his case than one remanded in custody. And if public justice is to be promoted, mechanical detention should be demoted. In the United States, which has a constitutional perspective close to ours, the function of bail is lim ited, "community roots" of the applicant are stressed and, after the Vera Foundation's Manhattan Bail Project, monetary suretyship is losing ground. The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negli gible consideration. Equally important is the deplorable condition, verging on the inhuman, of our sub-jails, that the unre warding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible. (20) Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before this Court pends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the Court's verdict once. Concur rent holdings of guilt have the opposite ef fect. Again, the ground for denial of provi sional release becomes weaker when the fact stares us in the face that a fair finding - if that be so - of innocence has been recorded by one Court. It may be conclu sive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, it enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man and socio-geo graphical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of crimi nal prospects to invalidate the bail plea are admissible in principle but shall not stampede the Court into a complacent refusal."

20. In Moti Ram v. State of M.P., (1978) 4 SCC 47 : (AIR 1978 SC 1594), this Court, while discussing pre-trial detention, held:-- "

14. The consequences of pre-trial de tention are grave. Defendants presumed innocent are subjected to the psychologi cal and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention fre quently falls heavily on the innocent mem bers of his family."

21. The concept and philosophy of bail was discussed by this Court in Vaman Narain Ghiya v. State of Rajasthan, (2009) 2 SCC 281: (AIR 2009 SC 1362), thus (Paras 13 to 16 of AIR) : "6. "Bail" remains an undefined term in Cr.P.C. Nowhere else has the term been statutorily defined. Conceptually, it contin ues to be understood as a right for asser tion of freedom against the State imposing restraints. Since the UN Declaration of Human Rights of 1948, to which India is a signatory, the concept of bail has found a place within the scope of human rights. The dictionary meaning of the expression "bail" denotes a security for appearance of a prisoner for his release. Etymologi cally, the word is derived from an old French verb "bailer" which means to "give" or "to deliver", although another view is that its derivation is from the Latin term "baiulare", meaning "to bear a bur den". Bail is a conditional liberty. Stroud's Judicial Dictionary (4th Edn., 1971) spells out certain other details. It states: "....... when a man is taken or arrested for felony, suspicion of felony, indicted of felony, or any such case, so that he is restrained of his liberty. And, being by law bailable, offereth surety to those which have authority to bail him, which sureties are bound for him to the King's use in a cer tain sums of money, or body for body, that he shall appear before the justices of goal delivery at the next sessions, etc. Then upon the bonds of these sureties, as is aforesaid, he is bailed - that is to say, set at liberty until the day appointed for his appear ance." Bail may thus be regarded as a mecha nism whereby the State devolutes upon the community the function of securing the presence of the prisoners, and at the same time involves participation of the commu nity in administration of justice. (7) Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. Liberty of a citizen is undoubtedly important but this is to bal ance with the security of the community. A balance is required to be maintained be tween the personal liberty of the accused and the investigational right of the police. It must result in minimum interference with the personal liberty of the accused and the right of the police to investigate the case. It has to dovetail two conflicting demands, namely, on the one hand the requirements of the society for being shielded from the hazards of being exposed to the misadven tures of a person alleged to have commit ted a crime; and on the other, the funda mental canon of criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty. Liberty exists in pro portion to wholesome restraint, the more restraint on others to keep off from us, the more liberty we have. (See A.K. Gopalan v. State of Madras (AIR 1950 SC 27)). (8) The law of bail, like any other branch of law, has its own philosophy, and occu pies an important place in the administration of justice and the concept of bail emerges from the conflict between the po lice power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal. An accused is not de tained in custody with the object of pun ishing him on the assumption of his guilt."

22. More recently, in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 : (AIR 2011 SC 312), this Court observed that "(j)ust as liberty is precious to an individual, so is the society's interest in maintenance of peace, law and order. Both are equally im portant." This Court further observed:-- "

116. Personal liberty is a very precious fundamental right and it should be cur tailed only when it becomes imperative according to the peculiar facts and circum stances of the case." This Court has taken the view that when there is a delay in the trial, bail should be granted to the accused [See Babba v. State of Maharashtra, (2005) 11 SCC 569; Vivek Kumar v. State of U.P., (2000) 9 SCC 443 : (AIR 2000 SC 3406.2); Mahesh Kumar Bhawsinghka v. State of Delhi, (2000) 9 SCC 383 : (2000 AIR SCW 1903)].

23. The principles, which the Court must consider while granting or declining bail, have been culled out by this Court in the case of Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280 : (AIR 2001 SC 1444), thus:-- "The jurisdiction to grant bail has to be exercised on the basis of well-settled prin ciples having regard to the circumstances of each case and not in an arbitrary man ner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the charac ter, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the wit nesses being tampered with, the larger in terests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only sat isfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."

24. In State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21 : (AIR 2005 SC 3490), this Court held as under:-- "

18. It is well settled that the matters to be considered in an application for bail are : (i) whether there is any prima facie or reasonable ground to believe that the ac cused had committed the offence; (ii) na ture and gravity of the charge; (iii) sever ity of the punishment in the event of con viction; (iv) danger of the accused abscond ing or fleeing, if released on bail; (v) char acter, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tam pered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati V. NCT, Delhi (AIR 2001 SC 1444) and Gurcharan Singh v. State (Delhi Admn.) (AIR 1978 SC 179)]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the wit nesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan (AIR 2004 SC 1866) : (SCC pp. 535-36, para 11). "

11. The law in regard to grant or re fusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious of fence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circum stances, the following factors also before granting bail; they are: (a) The nature of accusation and the se verity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tamper ing with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh (AIR 2002 SC 1475) and Puran v. Rambilas (AIR 2002 SC 2023).)"

22. While a detailed examination of the evidence is to be avoided while consider ing the question of bail, to ensure that there is no prejudging and no prejudice, a brief examination to be satisfied about the ex istence or otherwise of a prima facie case is necessary."

25. Coming back to the facts of the present case, both the Courts have refused the request for grant of bail on two grounds:

The primary ground is that offence al leged against the accused persons is very serious involving deep rooted planning in which, huge financial loss is caused to the State Exchequer ; the secondary ground is that the possibility of the accused persons tampering with the witnesses. In the present case, the charge is that of cheating and dis honestly inducing delivery of property, forgery for the purpose of cheating using as genuine a forged document. The pun ishment of the offence is punishment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the pun ishment should be taken into consideration. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sen timents of the community against the ac cused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to as sure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required. This Court in Gurcharan Singh and others v. State, AIR 1978 SC 179, observed that two para mount considerations, while considering petition for grant of bail in non-bailable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses. Both of them relate to ensure of the fair trial of the case. Though, this aspect is dealt by the High Court in its impugned order, in our view, the same is not convincing.

26. When the under-trial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or ar rested, is entitled to speedy trial, the ques tion is: whether the same is possible in the present case. There are seventeen accused persons. Statement of the witnesses runs to several hundred pages and the documents on which reliance is placed by the pros ecution, is voluminous. The trial may take considerable time and it looks to us that the appellants, who are in jail, have to re main in jail longer than the period of de tention, had they been convicted. It is not in the interest of justice that accused should be in jail for an indefinite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State Exchequer, that, by itself, should not deter us from enlarging the ap pellants on bail when there is no serious contention of the respondent that the ac cused, if released on bail, would interfere with the trial or tamper with evidence. We do not see any good reason to detain the accused in custody, that too, after the completion of the investigation and filing of the charge-sheet. This Court, in the case of State of Kerala v. Raneef (2011) 1 SCC 784 : (AIR 2011 SC 340), has stated:-- "

15. In deciding bail applications an im portant factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitu tion, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail. A doctor in carcerated for a long period may end up like Dr. Manette in Charles Dicken's novel A Tale of Two Cities, who forgot his pro fession and even his name in the Bastille."

27. In 'Bihar Fodder Scam', this Court, taking into consideration the seriousness of the charges alleged and the maximum sentence of imprisonment that could be imposed including the fact that the appel lants were in jail for a period more than six months as on the date of passing of the or der, was of the view that the further deten tion of the appellants as pre-trial prisoners would not serve any purpose.

28. We are conscious of the fact that the accused are charged with economic of fences of huge magnitude. We are also con scious of the fact that the offences alleged, if proved, may jeopardize the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge-sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are en titled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI.

29. In the view we have taken, it may not be necessary to refer and discuss other issues canvassed by the learned counsel for the parties and the case-laws relied on in support of their respective contentions. We clarify that we have not expressed any opin ion regarding the other legal issues can vassed by learned counsel for the parties.

30. In the result, we order that the ap pellants be released on bail on their execut ing a bond with two solvent sureties, each in a sum of 5 lakhs to the satisfaction of the Special Judge, CBI, New Delhi on the following conditions:-- (a) The appellants shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts or the case so as to dissuade him to disclose such facts to the Court or to any other authority. (b) They shall remain present before the Court on the dates fixed for hearing of the case. If they want to remain absent, then they shall take prior permission of the court and in case of unavoidable circumstances for remaining absent, they shall immedi ately give intimation to the appropriate court and also to the Superintendent, CBI and request that they may be permitted to be present through the counsel. (c) They will not dispute their identity as the accused in the case. (d) They shall surrender their passport, if any (if not already surrendered), and in case, they are not a holder of the same, they shall swear to an affidavit. If they have already surrendered before the learned Special Judge, CBI, that fact should also be supported by an affidavit. (e) We reserve liberty to the CBI to make an appropriate application for modification/recalling the order passed by us, if for any reason, the appellants violate any of the conditions imposed by this Court.

31. The appeals are disposed of accordingly. MWA/26/IND. Order accordingly.