Mamta vs The State (Nct Of Delhi)

Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No 878 of 2022 (Arising out of SLP (Crl) No 2971 of 2022)

Mamta & Anr .... Appellant(s)

Versus

The State (NCT of Delhi) & Anr ....Respondent(s)

JUDGMENT

Dr Dhananjaya Y Chandrachud, J

1 Leave granted.

2 This appeal arises from an order dated 2 March 2022 of a Single Judge of the

High Court of Delhi in Bail Application No 196 of 2022.

3 The second respondent is facing trial in connection with FIR No 894 of 2014

dated 18 November 2014 for alleged offences punishable under Sections 363, Signature Not Verified 364A, 302 and 201 read with Section 34 of the Indian Penal Code 1860 Digitally signed by Sanjay Kumar Date: 2022.05.26 16:08:05 IST Reason: registered at Police Station Gandhi Nagar, District East Delhi. Following the

submission of the charge-sheet under Section 173 of the Code of Criminal 2

Procedure 19731, charges have been framed. Eleven prosecution witnesses

have been examined.

4 The appellants are the parents of the deceased, who was a 13 year old Class VIII

student. The case of the prosecution is that he was kidnapped for a ransom of

rupees one crore and his dead body was recovered from a nallah, day after the

kidnapping of the child. The second respondent was arrested on 25 November

2014 and was in custody, except for the period when he was released on interim

bail, until 2 March 2022.

5 Dr Menaka Guruswamy, senior counsel appearing on behalf of the appellants,

submits 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 PW 15 (the caretaker) and PW 16 (the

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.

1 “CrPC” 3

6 Mr 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 co-

accused 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.

7 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. Pertinently, it has been urged that the 4

following material has emerged on the record:

(a) DNA findings implicating the second respondent;

(b) Recovery of the motorcycle belonging to the second respondent which was

used in the commission of crime;

(c) The purchase of Alprax and Montair LC tablets from the chemist which

were used for drugging the child;

(d) The statement of the chemist, PW 5; and

(e) Recoveries of the I-Card, watch and school bag of the deceased.

8 The issue which arises before this Court is whether the High Court was justified

in granting bail to the second respondent. The offence in the present case

involves the alleged murder of a young child for ransom. The trial is proceeding

though, in our view, it would be appropriate to direct that it should be completed

expeditiously.

9 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.

10 The High Court has, while granting bail, 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

11 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.

12 The appeal is accordingly allowed and the judgment and order dated 2 March

2022 of the Single Judge of the High Court of Delhi in Bail Application No 196 of

2022 is set aside. The second respondent shall surrender forthwith. Since the

trial is pending since 2014, we direct 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.

6

13 Pending application, if any, stands disposed of.

…………...…...….......………………........J. [Dr Dhananjaya Y Chandrachud]

…..…..…....…........……………….…........J. [Bela M Trivedi] New Delhi;

May 24, 2022

-S-

7

ITEM NO.2 COURT NO.2 SECTION II-C

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s).2971/2022

(Arising out of impugned final judgment and order dated 02-03-2022 in BA No. 196/2022 passed by the High Court of Delhi at New Delhi)

MAMTA & ANR. Petitioner(s)

VERSUS

THE STATE (NCT OF DELHI) & ANR. Respondent(s)

(WITH IA No. 43222/2022 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT, IA No. 43224/2022 - EXEMPTION FROM FILING O.T.)

Date : 24-05-2022 This petition was called on for hearing today.

CORAM :

HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MS. JUSTICE BELA M. TRIVEDI

For Petitioner(s) Dr. Menaka Guruswamy, Sr. Adv.

Mr. Ashwani Kumar Dubey, AOR Mr. Yash S. Vijay, Adv.

Mr. Saurabh Mishra, Adv.

Mr. Utkarsh Pratap, Adv.

For Respondent(s) Mr. Jayant K. Sud, ASG Ms. Neela Kedar Gokhale, Adv.

Mr. Sourav Singh, Adv.

Mr. Mohit Kumar Singh, Adv.

Mr. Sanjay Kumar Tyagi, Adv.

Ms. Vishakha, Adv.

Mr. Kartik Jasra, Adv.

Mr. Randeep Sachdeva, Adv.

Mr. Harish Nadda, Adv.

Mr. Ashok Panigrahi, Adv.

Mr. Gurmeet Singh Makker, AOR

Mr. Siddhartha Dave, Sr. Adv.

Ms. Supriya Juneja, AOR Mr. Adhishwar Suri, Adv.

Mr. Rajiv Mohan, Adv.

Mr. Manvendra Singh, Adv.

8

UPON hearing the counsel the Court made the following O R D E R

1 Leave granted.

2 The appeal is allowed in terms of the signed reportable judgment and the

judgment and order dated 2 March 2022 of the Single Judge of the High Court of

Delhi in Bail Application No 196 of 2022 is set aside. The second respondent

shall surrender forthwith. Since the trial is pending since 2014, we direct 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.

3 Pending application, if any, stands disposed of.

(SANJAY KUMAR-I) (SAROJ KUMARI GAUR) DEPUTY REGISTRAR COURT MASTER

(Signed reportable judgment is placed on the file)