Pawan Kumar v. Qg j

1. This is an application u/s 439 of the Code of Criminal Procedure, 1973 seeking regular bail of the petitioner on the ground that during the course of cross-examination of PW-1, B.S Diwakar, Assistant General Manager (suspended) from State Bank of Mysore, IFB, New Delhi, counsel for the accused wanted to confront him with an audio conversation in order to unearth the truth. Thereupon, an application was moved by learned Public Prosecutor for CBI for cancellation of bail. Vide order dated Bail.Appln.1624/2013 Page ^ 2013:DHC:6949 26.08.2013, the application was allowed and the bail of the petitioner was cancelled and he was taken into custody.

2. It was submitted by learned counsel for the petitioner that the order is patently illegal inasmuch as the learned Judge failed to appreciate that had it been an attempt from the side ofthe petitioner to influence the witness, why the audio recording would have been sought to be brought on record. The petitionerhas not violated any ofthe terms ofthe bail order. The accused and the witnesses were among the four suspended employees of the bank and were proceeded in a domestic inquiry. There was no question of influencing, intimidating or requesting the witness to favour the accused. He had simply talked to the witness in order to elicit the truth. The witnesses have not been appearing for the purpose of evidence for number ofdates ofhearing. Bailable warrants were also issued against them. In this background, the request of the witness to speak with the counsel was fulfilled and the telecom was held. Reference was made to Mehboob Dawood Shaikh v. State ofMaharashtra, 2004(2) SCC 362; Aslam BabalalDesai v. State of Maharashtra, 1992(4) SCC 272 and Banchhanidhi Bail.Appln.1624/2013 Page 2of13 Samal v. Arjuna Rout, 2000 Crl.LJ 3257 for submitting that the liberty of a person who has been granted bail should not be interfered with on mere asking for it by the adverse party.

3. Learned counsel for the petitioner further referred to the charge-sheet by submitting that the same was submitted only against five persons. The other employees of the bank, namely Mr. Manmohan Singh, Mr. B.S. Diwakar, Mr. P.Sivarami Reddy and Mr. S.Suryanarayana were not charge-sheeted. When the charge sheet was submitted, Ms. Swama Kanta Sharma, Special Judge, CBI, vide order dated 05.07.2012 had called the investigating officer of the case for explaining the reason why the charge-sheet against them was not filed, despite being named in the FIR, as such, at the very initial stage, the learned Judge had expressed her doubt regarding the investigation conducted by CBI. Thereafter, vide order dated 10.07.2012, the accused along with others was released on bail. Moreover, Mr. B.S. Diwakar and Mr. Manmohan Singh failed to appear on 21.01.2013, 22.01.2013 and 23.01.2013, 12.02.2013 and 14.02.2013, as such, bailable warrants were issued against them." Thereupon, the counsel spoke to the witness. That Bail.Appln.1624/2013 Page 3 of13 being so, it cannot be said that by simply talking to the witnesses who was also one of the suspended employee of the bank with whom the petitioner had worked as junior, the petitioner tried to tamper with the evidence or wanted to get any favour from the witness. The accused has a young wife and 3-4 months old childto look after. He has no criminal history to his record, as such it was submitted that accused be released on bail.

4. Mr. P.K.Sharma, learned Standing Counsel for the CBI, at the outset, challenged the maintainability of the application on the ground that earlier a writ petition was filed on identical facts for setting aside the order for cancellation of bail, then how on same facts, second petition is maintainable. Furthermore, unless the petitioner first moves the Trial Court, this application is not maintainable. Reliance was placed on Jasbir Singh Sodhi vs. Union ofIndia, 2010(1) AD 517. Moreover, the witness was under cross examination when he was sought to be confronted with the tape recorded proceedings. The fact that the petitioner and his counsel were talking to the witness before he entered the witness box clearly reflects that he was trying to influence the witness and Bail.Appln.1624/2013 Page 4 of13 \ tamper with evidence. Moreover, confrontation ofthe witness with the tape recording proceeding is beyond the scope of Section 145 ofthe Evidence Act. The petitioner could have produced the tape recorded conversation in defence evidence. Since the accused has contacted and tried to tamper with evidence and interfered with the administration ofjustice, as such, the bail was rightly cancelled and he is not entitled to be released on bail till the statement ofPWB.S. Diwakar is complete.

5. Rebutting the submission oflearned counsel for the CBI, it was submitted by learned counsel for the petitioner that there was no need for moving the Trial Court for grant ofbail, inasmuch as, the bail application would have been heard by the same Judge who had cancelled the bail. That being so, the application has been filed before this Court.

6. Perusal of record reveals that a charge-sheet in case N0.RC/BDI/2OII/E/OOOI was filed by respondent CBI before Special Judge, CBI against the petitioner and others. Petitioner was not arrested during the course of investigation. After the charge-sheet was submitted, petitioner along with four others was Ball.Appln.1624/2013 Page5of13 admitted to bail, on furnishing personal bond in the sum of Rs. one lakh each with one surety in like amount, subject to the condition:a. That they shall not leave the country without the permission ofthe Court; b. They shall not tamper with evidence or try to win over any witness; c. They shall attendthe Court as and when directed to do so; d. They shall deposit their passports in the Court.

7. During the trial ofthe case, when PW-1, Mr. B.S. Diwakarwas under cross-examination, at that time, the petitioner wanted to confront him with an audio conversation and wanted to place the same on record. Thereafter, an application for cancellation of bail was moved by the respondentCBI on the ground that the petitioner has tried to tamper with evidence and has thus violated one of the conditions of bail. The application was allowed by the Special Judge by observing that conduct of petitioner and his advocate is not only highly objectionable, unethical but also amounts to tampering of evidence. Since the petitioner has violated one ofthe conditions, subject to which he was admitted to bail, as such, the bail was cancelled and he was taken in custody. Bail.Appln.1624/2013

8. It is not in dispute that before approaching this Court for grant of bail, petitioner has not approached the learned Special Judge, CBI. Jasbir (supra) was a case where also instead of approaching the Trial Court, the petitioner had approached this Court for grant of anticipatory bail and the application was dismissed as the petitioner had failed to show any exceptional circumstances which justified by-passing the Court of Session.' It was observed as under:- "6. Section 438 and 439 of the Code of Criminal Procedure confer concurrent jurisdiction, both on the Sessions Court as well as the High Court to consider an application for grant of regular bail or anticipatory bail as the case may be. The powers being equal and identical, the relief which is sought from the High Court can equally be granted by the Court of Sessions. It is, however, well established rule ofprocedure, that barring exceptional cases, where two Fora are conferred concurrent jurisdiction, the superior Forum should be approached only after the Inferior Forum has first been approached, which will otherwise be flooded with applications for bail/anticipatory bail even where such a relief can be conveniently obtained from the Court of Sessions. The presumption is that if a case is fit for grant of bail or anticipatory bail as the case may be, discretion in such a case would be exercised by the Court of Sessions in favour of the petitioner. It is only those cases where the discretion has not been correctly exercised by the Court of Sessions that need to come up before the High Court for its consideration. This would also enable the High Court to have advantage of application of mind Bail.Appln.1624/2013 Page 7of13 by the Court of Sessions before it is called upon to examine the same set offacts. No doubt, the High Court has jurisdictional competence to entertain an application under Section 438/439 of Cr.PC even at the first instance and it is only a self-imposed restriction, that has been imposed by the Superior Courts as a matter ofpractice. The Legislature has conferred wide discretion on the Superior Courts while enacting Section 438 and 439 of CrPC. How the discretion vested in the court should be exercised, has been left to the discretion of the Courts itself Therefore, such a self-imposed restriction in exercise ofjudicial discretion vested in the High Court under Section 438/439 of Cr.PC, while retaining scope for entertaining such applications, even at the first instance, though only inexceptional cases, cannot be said to be outside the powers conferred upon the High Court.

7. The High Court, however, needs to be careful and circumspect in identifying exceptional cases where it decides to entertain an application under Section 438/439 of Cr. PC without asking the petitioner first to move the Court of Sessions for grant ofrelief being claimed from the High Court. Wherever the circumstances of the case so require, the High Court would be justified in entertaining such an application even without Court of Sessions having first been moved. It is neither desirable norpossible to specify theexceptional cases which would warrant direct intervention of the High Court in exercise of the jurisdiction conferred upon it by Section 438/439 ofCr.PC. It would be for the petitioner approaching the High Court directly to make out a case justifying such an intervention. Yet another reason for not entertaining such an application without the jurisdiction of the Court of Sessions having first been invoked, barring in exceptional circumstances, is that sometimes the courts come to express opinion on the merits ofthe case, while passing orders on bail applications. The High Court being the Superior Court, any expression of opinion by it may sometimes prejudice the trial in lower courts, though it Bail.Appln.1624/2013 Page 8of13 /!/ I may happen only in a very few cases. In any case, the Courts of Sessions being more easily accessible and the disposal of the bail applications by the Court of Sessions being faster, there is no good reason for coming directly to the High Court unless the facts and circumstances of the case justify such a course of action. Similar view was taken by the Gujarat High Court in Rameshchandra Kashiram Vora and etc. v. State of Gujarat and Anr. 1988 Crl. L.J. 210; Kamataka High Court in Smt. Savitri Samson v. State of Kamataka 2001 Crl. L.J. 3164; and the Kerala High Court in Usman v. the Sub-Inspector of Police and Anr. 2003 Crl. L.J. 3928." 7 9. Things are substantially the same in the present case. The mere fact that the learned Special Judge had cancelled the bail in itself is no ground for not approaching the learned Special Judge for grant ofregular bail.

10. Even if, it is taken that since the cancellation was done by the Special Judge and, therefore, the petitioner was not hopeful of ^ getting bail by the same Court, it is to be seen whether the petitioner has been able to make out a case for grant ofregular bail in the prevailing circumstances.

11. The facts are undisputed that the petitioner was released on bail, subject to certain terms and conditions and one of the conditions was that ''he shall not tamper with evidence ortry to win over any witness''.. It is not in dispute that when prosecution Bail.Appln.1624/2013 Page 9of 13 witness Mr. B.S. Diwakar was being cross-examined by the petitioner at that stage, he wanted to confront him with an audio conversation which had taken place between the counsel for the petitioner and the witness which was objected by learned PP for CBI and thereupon the application was moved by CBI for cancellation of bail which was allowed by observing that the conduct of the petitioner and his counsel was not only highly objectionable and unethical but also amounts to tampering with evidence.

12. Much emphasis has been laid by learned counsel for the petitioner for submitting that since the witness was not appearing on number of dates, therefore, counsel for the petitioner talked to the witness in order to unearth the truth. It is a matter of record that for number ofdates ofhearing, the witness was not appearing and as such, bailable warrants were being issued. The petitioner has placed on record transcript of the audio conversation and a perusal of the same goes to show that this talk took place on 16.02.2013 between Mr. B.S. Diwakar, the prosecution witness and Mr. Somnath Bharti, counsel for the petitioner. The transcript Bail.Appln.1624/2013 Page 10of13 reflects that the petitioner had been talking to him on earlier i occasions also, which is clear from the following talk: "Pawan: Sir Sir Pawan GoodAfternoon. Mr. B.S. Diwakar: Haan, Good Afternoron, Pawan ye kaun sa alag alag numbers se karte ho "

13. The witness was not aware that his talk with the counsel was being recorded inasmuch as in cross-examination, when he was tried to be confronted with some portion of talk, then he stated that this conversation was a ploy to trap him. Moreover, although it is alleged that since witness was not appearing despite issuance of bailable warrant, therefore, counsel for petitioner talked to him but, as stated above, petitioner had been talking to the witness on earlier occasions also. The earlier conversations between the petitioner and the witness are not available and it is not disclosed by the petitioner as to why at all he had been talking to the witness on earlier occasions. In this background, the absence of the witness on number of dates of hearing, despite issuance of bailable warrants, assumes significance. Possibility of tampering with or trying to win over the witness cannot be ruled out. Moreover, it tantamounts to interference in the administration of justice. Bail.Appln.1624/2013 "7 Generally speaking ground for cancellation of a bail would encompass interference or attempt to interfere with the course of administration of justice or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. It was highly unethical on the part of petitioner and his counsel to record the conversation and then to place the same on record. Since the petitioner and the witness were working in the same bank and had joined domestic inquiry, therefore, petitioner must be aware about the facts and the same could have been elicited in cross examination. Underthe circumstances, the conduct of the petitioner in talking to the prosecution witnesses who was yet to be examined and then to record the conversation was quite deplorable. That being so, the cancellation ofbail cannot be said to be perverse.

14. The authorities referred in the bail application by the petitioner does not help him inasmuch as in Mehboob (supra) and Banchhanidhi (supra) it was observed that mere assertion of an alleged threat to witness should not be utilised as a ground for cancellation of bail. In the instant case, it is not the allegation of Bail.Appln.1624/2013 Page12 of13 CBl but admittedly the petitioner talked to the witness and recorded the conversation in violation of the terms of the bail order. Therefore, the bail was rightly cancelled. For the same reason, Aslam (supra) also does not help the petitioner.

15. In view of the foregoing, there is no ground to release the petitioner on bail at this juncture. However, after the statement of Mr. B.S. Diwakar is complete, petitioner would be at liberty to approach the Special Judge, CBI for grantof regular bail. Thebailapplication is accordingly disposed of. A copy ofthis order be given dasti.