Supreme Court Sets Aside Delhi HC Bail To Man Accused Of Kidnap-Murder Of 13 Year Old Boy

The Court observed that the trial is going on and important witnesses are yet to be examined. The Court added that the High Court ignored relevant aspects while granting bail and omitted to note the gravity of the offence and the role attributed to the accused.

Before the court, Dr Menaka Guruswamy, senior counsel appearing on behalf of the appellants, submitted that:

(i) The High Court has proceeded on a manifestly erroneous premise that PW 3 Urvashi, who deposed during the course of the trial, is an approver;

(ii) Crucial witnesses, including the caretaker and landlady remain to be examined;

(iii) The material which has emerged during the course of the investigation and the trial would militate against the grant of bail; and

(iv) The High Court has proceeded on the erroneous premise that besides the testimony of PW 3, no other witness has been cited as against the second respondent.

Siddhartha Dave, senior counsel appearing on behalf of the second respondent, on the other hand, urged that:

(i) The second respondent was in custody for over a period of six years;

(ii) Considering the fact that only eleven out of fifty five witnesses have been examined at the trial, the order granting bail does not warrant interference;

(iii) The second respondent had furnished his voice sample unlike the coaccused who had refused to do so and the report of the Forensic Science Laboratory has not been produced on the record;

(iv) PW 3, who has turned hostile, is a witness in the nature of an accomplice since according to the prosecution, she was present at the premises where the child was brought;

(v) The call data records do not specifically pinpoint the location of the second respondent; and

(vi) On the above grounds and having regard to the period of custody undergone, there is no valid reason for this Court to interfere with the order granting bail.

The submissions which have been urged on behalf of the appellants have been supported both in the counter affidavit which has been filed by the NCT of Delhi as well as during the course of the submissions by Mr Jayant K Sud, Additional Solicitor General for the NCT of Delhi.

The High Court has primarily granted bail on the basis that:

(i) The charge-sheet having been filed, the custody of the second respondent was not required for the purpose of investigation;

(ii) PW 3 is an approver who has not supported the case of the prosecution; and

(iii) The case rests on circumstantial circumstance and, at this stage, there is 5 insufficient evidence to indicate the involvement of the second respondent.

The Court observed that while granting bail, the High Court has failed to notice crucial aspects which have a bearing on whether or not a case for the exercise of the jurisdiction to grant bail under Section 439 of CrPC was established.

"Since the trial is presently underway, we are not entering upon a discussion of the material which has emerged during the course of the investigation, which led to the filing of the final report under Section 173 of CrPC or, for that matter, of the material which has emerged during the course of the trial. However, an important circumstance which should have, but has not been taken into consideration by the High Court is that crucial witnesses are yet to be examined. The release of the second respondent on bail, at this stage, would run a grave risk of impeding a fair trial. The apprehension of the appellants and of the prosecution that the witnesses may be tampered with cannot be regarded as lacking in substance", the Supreme Court observed.

The Court noted that considering the nature and gravity of the offence, the role which has been attributed to the second respondent and the crucial witnesses which remain to be examined, the exercise of the discretion by the High Court in the present case is improper.

Accordingly, the Supreme Court set aside the High Court order and directed the accused to surrender forthwith. Since the trial is pending since 2014, the Court directed the trial Judge to conduct the trial expeditiously on a day to day basis and to conclude it, preferably within a period of one year.

Case Title: Mamta and Anr Vs The State (NCT of Delhi) and Anr | 2022 LiveLaw (SC) 531

Coram: Justice Dr Dhananjaya Y Chandrachud And Justice Bela M Trivedi

Headnotes

Code of Criminal Procedure, 1973 ; Section 439 - Bail - Appeal against Delhi High Court order granting bail to a man accused of kidnapping and murdering the 13-year-old son of a Delhi jeweler in 2014, whose body was found in a drain in East Delhi in November 2014 - Allowed - An important circumstance which should have, but has not been taken into consideration by the High Court is that crucial witnesses are yet to be examined. The release of the accused on bail, at this stage, would run a grave risk of impeding a fair trial. The apprehension that the witnesses may be tampered with cannot be regarded as lacking in substance.