SANJAY CHANDRA versus CBI
Headnote
Code of Criminal Procedure, 1973 — s. 439 — Bail — Governing principles — Economic offence — 2G Telecom scam — Pre-trial detention — Article 21 — Test of necessity — Changed circumstances Held: (i) Bail is the rule and committal to jail an exception; refusal of bail is a restriction on the personal liberty guaranteed under Article 21 of the Constitution. (ii) The object of bail is neither punitive nor preventative but to secure the appearance of the accused at trial by a reasonable amount of bail; deprivation of liberty must be considered a punishment unless required to ensure the accused will stand trial, and the operative test for detaining an unconvicted person pending trial is one of "necessity." (iii) Seriousness of the charge is a relevant but not the sole consideration for bail; the severity of the punishment that may be imposed upon conviction must equally be weighed — to refuse bail purely on the gravity of the charge would amount to "recalibration of the scales of justice" rather than a balancing of constitutional rights. (iv) An allegation of likely tampering with witnesses must be supported by material placed before the court; a bare assertion without evidence is insufficient to deny bail. (v) When the investigating agency has completed investigation and the charge sheet is already filed, custody of the accused is not necessary for further investigation. (vi) Prolonged pre-trial detention of undertrial prisoners for an indefinite period violates Article 21; every person arrested or detained is entitled to a speedy trial. Where the trial is expected to take considerable time on account of the number of accused and the voluminous evidence, bail should be granted on stringent conditions. (vii) Changed circumstances — notably the framing of charges and filing of the charge sheet — justify reconsideration of a bail application even after an earlier petition of a co-accused was dismissed.
Issue
1. Whether bail should be granted to accused charged with serious economic offences (2G Telecom scam) under IPC ss. 120-B, 420, 468, 471, 109 and Prevention of Corruption Act, s. 13(2) r/w s. 13(1)(d), where the Special Judge and the High Court had refused bail. 2. Whether seriousness and magnitude of the charge alone can be a sufficient ground to refuse bail. 3. Whether prolonged pre-trial detention of undertrial prisoners violates Article 21 of the Constitution. 4. Whether the test of "necessity" governs pre-trial custody of an unconvicted accused. 5. Whether completion of investigation and filing of the charge sheet constitutes a changed circumstance justifying grant of bail even after dismissal of an earlier bail petition of a co-accused. 6. Whether an unsubstantiated allegation of likelihood of tampering with witnesses can justify refusal of bail.
Facts
The appellants — Sanjay Chandra (MD, Unitech Wireless), Vinod Goenka, Gautam Doshi, Surendra Pipara, and Hari Nair — were charged in the 2G Telecom scam with offences under ss. 120-B, 420, 468, 471, and 109 IPC and s. 13(2) r/w s. 13(1)(d) of the Prevention of Corruption Act, 1988, for allegedly conspiring to obtain UAS licences for ineligible telecom companies by manipulating the first-come-first-served policy of the Department of Telecommunications, resulting in alleged huge loss to the State exchequer. Their bail applications were rejected by the Special Judge, CBI, New Delhi (order dated 20.04.2011) and thereafter by a Single Judge of the Delhi High Court (order dated 23.05.2011) primarily on the grounds of the gravity of the offence and the possibility of tampering with witnesses. By the time of the Supreme Court hearing, the investigation had been completed and the charge sheet had been filed before the Special Judge; 17 accused persons were involved and the trial involved statements of witnesses running to several hundred pages and voluminous documents. The appellants moved the Supreme Court by special leave, which was granted.
Holding
Appeals allowed and bail granted on stringent conditions. The Court held: (1) Bail is the rule and jail the exception; refusal of bail restricts the personal liberty guaranteed by Article 21. (2) The governing test for pre-trial detention is "necessity" — an unconvicted person may be detained only where it is necessary to secure attendance at trial; punishment begins after conviction and every person is presumed innocent until found guilty. (3) Seriousness of the charge is one relevant factor but not the only test; the punishment that may be imposed upon conviction must also be weighed. No material was placed by the prosecution to support the allegation of witness-tampering, making that ground unsustainable. (4) With investigation complete and charge sheet filed, continued custody was not required for further investigation. (5) Indefinite detention of undertrials pending a trial that is expected to take considerable time violates Article 21. (6) The earlier dismissal of the co-accused's SLP was distinguishable because that petition was filed before framing of charges and constituted different circumstances. Accordingly, the appellants were directed to be released on bail subject to the conditions stipulated in the judgment.
Disposition
allowed