Munilakshmi vs Narendra Babu

2023 INSC 943 REPORTABLE

SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 3297 OF 2023 [ARISING OUT OF SPECIAL LEAVE PETITION (CRL) NO. 3312 OF 2021]

Munilakshmi .....Appellant

Versus

Narendra Babu & Anr. …..Respondents

JUDGMENT

Surya Kant, J.

1. Leave granted.

2. This criminal appeal arises out of an order dated

12.08.2020 passed by the High Court of Karnataka at Bengaluru,

whereby Respondent No.1 was granted regular bail in trial

proceedings numbered S.C. 1111/2021, pending before Ld. Addl.

City Civil and Sessions Judge, Bengaluru. The said trial has

emanated from Crime No. 151/2019 dated 21.12.2019 registered

at Police Station Vyalikaval, Bengaluru under Sections 109, Signature Not Verified Digitally signed by satish kumar yadav

120B, 201, 302, 450, 454 read with Section 34 of the Indian Date: 2023.10.20 16:27:21 IST Reason:

Penal Code [Hereafter ‘IPC’].

Crl. Appeal No. of 2023 @ SLP (Crl.) No.3312 of 2021 Page 1 of 20

A. FACTS:

A.1. FACTUAL MATRIX BEFORE THE GRANT OF BAIL

3. Marriage between Vinutha M. and Respondent No. 1 was

solemnised in the year 2006. A male child was born from the

wedlock in the year 2009. It is alleged that Respondent No. 1 was

having an extra­marital affair. He and his family members

allegedly started harassing Vinutha M. soon after the birth of

their child and pressurised her to sign the divorce papers. She,

therefore, started living separately on the first floor of the

matrimonial home.

4. Vinutha M. filed multiple criminal complaints of harassment

including alleged attempts made on her life against Respondent

No. 1 and his family members, leading to registration of several

First Information Reports [Hereafter ‘FIR’], the brief details of

which are as follows:

I. FIR No. 231/2015 was lodged under Section 498A of IPC

at P.S. Vyalikaval, Bengaluru on 23.11.2015 alleging that

Respondent No. 1 along with his family members

assaulted and threatened the complainant to sign divorce

papers. On her refusal, the mother of Respondent No. 1

Crl. Appeal No. of 2023 @ SLP (Crl.) No.3312 of 2021 Page 2 of 20 tried to kill the Complainant by pouring kerosene oil on

her but she managed to escape.

II. FIR No. 238/2015 was registered under Sections 354(A)

(2), 506, 504, 341, 448, 109 read with 34 of IPC at P.S.

Vyalikaval, Bengaluru alleging that the driver of the uncle

of Respondent No. 1 entered the Complainant’s room and

tried to commit rape upon her at the instigation of the

father of Respondent No. 1.

III. FIR No. 97/2016 was registered under Sections 143, 323,

448, 504, 506, and 149 of IPC at P.S. Vyalikaval,

Bengaluru alleging that Respondent No. 1 tried to kill the

Complainant with an axe but she managed to escape to

the toilet and saved herself. She called the police from

inside the toilet and on hearing the sound of the police

siren, Respondent No. 1 and his family members ran

away.

IV. FIR No. 205/2017 was registered under Section 25(1)(B)

(B) of the Arms Act of 1959 and Sections 96 and 97 of the

Karnataka Police Act of 1963 [Hereafter ‘KP Act’] at P.S.

Vyalikaval, Bengaluru, alleging that Respondent No. 1

sent some rowdies to kill the Complainant. The Police

later caught those goons along with axes and chilli

Crl. Appeal No. of 2023 @ SLP (Crl.) No.3312 of 2021 Page 3 of 20 powder, which they carried along to assault the

Complainant.

V. FIR No. 50/2019 was registered under Sections 354(B),

341, 323, 427, 504, and 506 of IPC at P.S. Vyalikaval,

Bengaluru alleging that Respondent No. 1 along with his

childhood friends physically and sexually assaulted the

Complainant on 16.06.2019 and also damaged her two­

wheeler.

5. It is pertinent to note here that due to alleged continuous

attacks and threats to her life, the Complainant wrote a letter to

the Police Commissioner requesting for police protection and

sought legal action against Respondent No. 1 and his family

members.

6. Having received no response from the police officials, she

approached the High Court through W.P. No. 33221/2019,

seeking protection from Respondent No.1 and his family. The writ

petition was disposed of by the High Court vide order dated

08.08.2019 (after noticing the law laid down by this Court in

Lalita Kumari v. Government of U.P. and Ors.1), with a

direction to the competent authority to take necessary action on

1 (2014) 2 SCC 1.

Crl. Appeal No. of 2023 @ SLP (Crl.) No.3312 of 2021 Page 4 of 20 the complaint, if not taken already, within a period of three

weeks.

7. Thereafter, the Complainant brought the order of the High

Court to the notice of the jurisdictional Police Station on

19.08.2019 and requested to provide adequate police protection

to her.

8. Apparently, no heed was paid to her request for police

protection, hence the Complainant made another complaint to

the police station, Bengaluru on 21.10.2019, alleging specifically

that Respondent No. 1 had paid a sum of Rs.15 lakhs to one

Chinnaswamy and his associates for her Contract­Killing. It

appears that the above­named Chinnaswamy and his associates

were caught red­handed on 29.11.2017 by the local police in

connection with FIR 205/2017. They were subsequently released

on bail, which posed an imminent threat to the Complainant’s life

at the hands of Respondent No. 1, and his associates like

Chinnaswamy who had criminal antecedents.

9. The Complainant left no stone unturned and made yet

another elaborate complaint reiterating the abovementioned

allegations to the Chief Minister of Karnataka on 30.10.2019.

Additionally, a women’s organisation also came forward and

made a complaint alleging collusion of the police officials of

Crl. Appeal No. of 2023 @ SLP (Crl.) No.3312 of 2021 Page 5 of 20 Vyalikaval Police Station with Respondent No. 1 stating expressly

that the local police was ‘inactive’ for extraneous considerations.

10. It is also discernible from the contents of all the complaints

that the son born from wedlock continued in the sole custody of

the Complainant while Respondent No. 1 unabatedly kept on

harassing the Complainant and pressurising her to agree to a

mutual divorce.

11. On the ill­fated day, i.e., 21.12.2019, the Complainant

[Hereafter ‘Deceased’] was found dead in her apartment. She

was found lying in a pool of blood and in a supine position. The

Appellant – Smt. Munilakshmi, the Deceased’s mother, lodged

the subject FIR, which was initially registered only under

Sections 306 and 498A of IPC. The FIR stated that Respondent

No. 1 was coercing the Deceased to consent to divorce as he

wanted to marry someone else. It further alleged that Respondent

No.1, his family members, and his associates had also previously

attempted to kill the Appellant’s daughter.

12. Being aggrieved by the non­inclusion of offence under

Section 302 of IPC in the subject FIR, the Appellant thereafter

made another complaint on 25.12.2019, alleging that suspects

wearing helmets, etc., used to regularly visit the matrimonial

home of the Deceased on the pretext of meeting the resident of

Crl. Appeal No. of 2023 @ SLP (Crl.) No.3312 of 2021 Page 6 of 20 the second floor but in actuality they would threaten the

Deceased, who was staying on the first floor of that very house,

with dire consequences. Respondent No. 1 along with one

Prashanth (accused No. 2), and one Jaganatha (accused No. 3)

was accused of killing the Appellant’s daughter. The investigation

in Crime No. 151/2019 was eventually completed, and a final

report was submitted on 01.03.2020 against four persons,

including Respondent No. 1, for the offences punishable under

Sections 109, 120B, 201, 302, 450, 454 read with Section 34 of

the IPC. In the final report, Respondent No. 1 was accused of

hatching a criminal conspiracy to kill his wife by giving a ‘supari’

to accused Nos. 2 and 3, who assaulted the Deceased fatally. All

the accused were arrested.

13. Soon after his arrest, Respondent No. 1 applied for bail. The

High Court in the impugned order dated 12.08.2020 observed

that though several other cases were pending against Respondent

No. 1; however, the allegations against him in Crime

No.151/2019 are punishable under Sections 109 and 120B, IPC

only. The High Court observed that whether the material like cell

phone, and CCTV footage, was sufficient to prove the allegation of

hatching of a criminal conspiracy is a subject matter of trial, and

Crl. Appeal No. of 2023 @ SLP (Crl.) No.3312 of 2021 Page 7 of 20 there was no other material as of then to show that Respondent

No. 1 was in communication or contact with other accused

persons. Consequently, Respondent No. 1 was directed to be

released on bail.

A.2 EVENTS SUBSEQUENT TO THE GRANT OF BAIL AND FILING OF PRESENT SLP:

14. The aggrieved Appellant is in appeal before us. During the

pendency of these proceedings, some disturbing events have

taken place which are briefly noticed hereinafter:

(a) Notice was issued in the Special Leave Petition on

16.04.2021, but the matter could be taken up for effective

hearing on 27.03.2023 only when it was informed that

some complaints had been received against Respondent No.

1 after his enlargement on regular bail. Consequently, the

Appellant was granted time to file an additional affidavit.

(b) On 24.04.2023, this Court was apprised that though the

charges had been framed, the trial was yet to commence.

The State counsel informed that there were 109 prosecution

witnesses to be examined. We, thus, directed the Trial

Court to commence the examination of prosecution

witnesses. Respondent No.1 was directed to cooperate with

Crl. Appeal No. of 2023 @ SLP (Crl.) No.3312 of 2021 Page 8 of 20 the trial and remain present in the Court on the date of

hearing.

(c) On 31.07.2023, an order dated 24.04.2023 passed by the

Trial Court was brought to our notice, which revealed that

CW­1 to CW­3 (Appellant and her family members) did not

appear for their depositions and they were again served

with non­bailable warrants. A fresh status report from the

Trial Court was accordingly sought with a further direction

that necessary steps, including coercive action be taken to

ensure the presence of the witnesses.

15. What has transpired thereafter is quite disheartening, and it

pricks the conscience of this Court. Our attention has been

drawn to the fact that there was a gap of around 20 days between

the examination­in­chief and the cross­examination of the key

witnesses, who are none else than the Appellant (PW­1), her

daughter­Vidhya (sister of the Deceased, PW­4), and Muniraju

(father of the Deceased, PW­5). They all have turned hostile and

retracted from their earlier statements.

B. CONTENTIONS:

16. Learned Counsel for the Appellant, regardless of her

contradiction in the cross­examination, vehemently contended

Crl. Appeal No. of 2023 @ SLP (Crl.) No.3312 of 2021 Page 9 of 20 that the High Court committed a grave error in overlooking the

well­established principles which guide the Courts to exercise

their discretion in the matter of granting or refusing a bail. He

urged that prima facie there is sufficient material gathered by the

prosecution to indicate the involvement of Respondent No. 1 in a

criminal conspiracy hatched for killing his wife. He also made a

pointed reference to the complaints alleging gross misuse of

concession of bail by Respondent No.1.

17. Learned State Counsel has supported the Appellant

reiterating that Respondent No. 1 had been harassing the

Deceased and was compelling her to concede for divorce, with the

intention to marry someone else. His family members and

relatives also continued to humiliate the Deceased by demanding

dowry and even attempted to kill her by pouring kerosene over

her. He further submitted that Respondent No. 1 has other

criminal antecedents also. He is involved in Crime No. 122/2017

under Section 3(1) of the Scheduled Caste and Scheduled Tribe

(Prevention of Atrocities) Act, 1989, and Sections 345(A)&(B),

341, 355, 323, 504 read with 34 of the IPC and Crime No.

205/2017 under Sections 96, and 97 of the KP Act and Section

25B of the Arms Act. He further submitted that the Government

Crl. Appeal No. of 2023 @ SLP (Crl.) No.3312 of 2021 Page 10 of 20 Pleader for the State of Karnataka had displayed the seized CCTV

footage and cell phone taken from the possession of Respondent

No. 1 to link him to the gruesome murder. He also made a

submission to the effect that Respondent No. 1 hardly spent a

few months in custody and was enlarged on bail soon after,

overlooking the heinous nature of the offence committed and the

fact that Respondent No. 1 could influence the vulnerable

witnesses with his money and muscle power.

18. On the other hand, learned Senior Counsel Mr. Narender

Hooda, appearing on behalf of Respondent No. 1 very

passionately urged that barring the offences under Sections 302,

450, and 454 IPC, all other offences are bailable in nature.

Relying upon Sanjay Chandra v. Central Bureau of

Investigation2 and Siddharam Satlingappa Mhetre v. State of

Maharashtra and Ors.3, he submitted that the seriousness of

the charge is not a test or factor while considering a bail

application. He maintained that Respondent No. 1 has never

misused the concession of bail and there is no cogent evidence

produced so far by the prosecution linking Respondent No. 1 with

the unnatural death of his wife. He emphasised that once the

2 (2012) 1 SCC 40.

3 (2011) 1 SCC 694.

Crl. Appeal No. of 2023 @ SLP (Crl.) No.3312 of 2021 Page 11 of 20 High Court has exercised its discretion in granting bail to

Respondent No.1, this Court should not interfere with it.

C. ANALYSIS:

19. We have given our thoughtful consideration to the rival

submissions and perused the material on record. It appears that

the sudden change of stance shown by the most vital witnesses,

namely, the family members of the Deceased within 20 days of

their examination­in­chief cannot be a mere coincidence. The

Appellant has been vigorously pursuing this appeal seeking

cancellation of bail given to Respondent No. 1. In her

examination­in­chief, she has specifically named Respondent No.

1 as the main conspirator in the murder of her daughter. Her

sudden somersault, therefore, cannot be easily detached from the

chain of allegations made against Respondent No. 1 in the past,

of influencing the police, hiring goons, repeatedly assaulting the

Deceased, and various attempts to take away her life. All these

accusations, for the limited purpose of these proceedings, do

suggest that Respondent No. 1 has the potential to influence the

investigation or the witnesses who were slated to depose against

him. The seriousness of allegations levelled against Respondent

Crl. Appeal No. of 2023 @ SLP (Crl.) No.3312 of 2021 Page 12 of 20 No. 1 by the Deceased during her lifetime or by the Appellant

before the Police or in this appeal ought to be evaluated against

this backdrop.

20. This Court undoubtedly has a narrow scope of interference

in an order granting bail while exercising its power of judicial

review and will be invariably reluctant to interfere in such order

even if it has a different opinion. The Courts often grapple with

balancing the most precious right to liberty embodied in Article

21 of the Constitution on one hand and the right of the orderly

society, which is committed to the rule of law, on the other. The

delicate balance in the case of long incarceration is drawn by

releasing a suspect on bail on such terms and conditions that

will ensure that a fair and free trial is not hampered. However, if

it is found that an undertrial has attempted to misuse the

concession of bail either by influencing the witnesses or

tampering with the evidence or trying to flee from justice, such

person can be committed to custody by withdrawing the

concession of bail.

21. The Courts are under an onerous duty to ensure that the

criminal justice system is vibrant and effective; perpetrators of

the crime do not go unpunished; the witnesses are not under any

threat or influence to prevent them from deposing truthfully and

Crl. Appeal No. of 2023 @ SLP (Crl.) No.3312 of 2021 Page 13 of 20 the victims of the crime get their voices heard at every stage of

the proceedings.

C.1 THE REMEDIES IN LAW:

C.1.1 CANCELLATION OF BAIL

22. Where, on consideration of the facts and circumstances of a

case, the Court is satisfied that there are cogent and

overwhelming circumstances indicating misuse of concession of

bail, it becomes imperative upon the Court in the interest of

justice to withdraw such concession forthwith.

23. The expression “cogent and overwhelming circumstances for

cancellation of bail” has been well­illustrated by this Court in a

catena of decisions including Dolat Ram and Ors. v. State of

Haryana4, which are:

(i) Evasion or attempt to evade the due course of justice or

abusing or attempt to abuse the concession of bail

granted;

(ii) Possibility of the accused to abscond;

(iii) Development of supervening circumstances impeding

upon the principles of fair trial;

(iv) The link between the gravity of the offence, the conduct of

the accused, and the societal impact on the Court’s

interference.

4 (1995) 1 SCC 349.

Crl. Appeal No. of 2023 @ SLP (Crl.) No.3312 of 2021 Page 14 of 20

24. In Vipan Kumar Dhir v. State of Punjab and Anr.5, this

Court explained the impact of supervening circumstances

developing post the grant of bail, such as interference in the

administration of justice, abuse of concession of bail, etc., which

are aversive to a fair trial and would warrant cancellation of bail.

25. Applying these parameters to the facts and circumstances of

the case in hand, we are satisfied that there is a prima facie

proximity between the grant of bail to Respondent No.1 and an

emboldening opportunity for him to win over the witnesses.

Respondent No.1, therefore, does not deserve to enjoy the

concession of bail at least until all the crucial witnesses are

examined. The privilege of liberty extended to him, thus, deserves

to be withdrawn for an effective, fair, just and unbiased

conclusion of trial.

C.1.2 ENSURING A FAIR TRIAL : RECALLING OF WITNESSES

26. A major challenge before this Court is to ensure a fair trial

amidst the hostility of witnesses. Undoubtedly, witnesses play a

very vital role in bringing justice home, especially in the

adversarial system of court trials where the onus lies on the

prosecution to prove the guilt of the accused by bringing persons

acquainted with the facts before the courts of justice. Their

5 (2021) 15 SCC 518.

Crl. Appeal No. of 2023 @ SLP (Crl.) No.3312 of 2021 Page 15 of 20 testimony determines the fate of a trial before the court of law,

without which the court would be like a sailor in an ocean sans

the radar and the compass.6 If a witness turns hostile for

extenuating reasons and is reluctant to depose the unvarnished

truth, it will cause irreversible damage to the administration of

justice and the faith of the society at large in the efficacy and

credibility of the criminal justice system will stand eroded and

shattered.

27. This Court in Ramesh and Ors. v. State of Haryana7 has

illustratively explained the reasons behind the witnesses

retracting their statements before the Court and turning hostile.

These include: (i) threat/intimidation; (ii) inducement by various

means; (iii) use of muscle and money power by the accused; (iv)

use of stock witnesses; (v) protracted trials; (vi) hassles faced by

the witnesses during investigation and trial; and (vii) non­

existence of a robust legislative mechanism to check hostility of

witnesses. Amongst these reasons, the ‘threat’ and ‘intimidation’

of the witnesses have always been a matter of serious concern

amongst all the stakeholders.

6 Mohd. Ashraf, ‘Peculiarities of Indian Criminal Justice System Towards Witnesses : An Analysis’ (2018) 26 ALJ 64.

7 (2017) 1 SCC 529.

Crl. Appeal No. of 2023 @ SLP (Crl.) No.3312 of 2021 Page 16 of 20

28. It seems to us that the unusual and surprising events that

have happened post the grant of bail to Respondent No.1, do

make out a case for recalling the witnesses for an effective, fair,

and free adjudication of the trial. This Court is vested with vast

and ample powers to have such recourse not only under Article

142 of the Constitution but also under Section 311 of the Code of

Criminal Procedure, 1973 (Hereafter ‘CrPC’), be it on the request

of the prosecution or suo moto. Such Constitutional or statutory

power is not limited by any barriers like the stage of inquiry, trial,

or other proceeding. A person can be called and examined though

not summoned as a witness, or can be recalled, or re­examined

so as to throw light upon the imputations. Section 311 CrPC, of

course, does not intend to fill the lacunae in the prosecution’s

case and cause any serious prejudice to the rights of an accused.

The exercise of power under this provision is intended to meet

the ends of justice and to gather overwhelming evidence to scoop

out the truth.

29. In the case at hand, the family members of the Deceased are

the most crucial witnesses to test the veracity of the allegations

levelled by the prosecution. Their stand in the examination­in­

chief is diametrically opposite to the one in the cross­

Crl. Appeal No. of 2023 @ SLP (Crl.) No.3312 of 2021 Page 17 of 20 examination. The fact that the parents and sister of the

Deceased have resiled from their earlier standpoint where they

had been found to be agitating vigorously before different forums

since the year 2019, implores us to invoke our Constitutional

powers under Article 142 read with Section 311 CrPC and direct

their recalling for a fresh cross­examination after ensuring a

congenial environment, free from any kind of threat,

psychological fear, or any inducement.

30. We, thus, find it a case fit for recalling the witnesses (PW­1,

PW­4 and PW­5) for their further cross­examination to reach an

effective decision in the subject trial.

31. We, however, hasten to add that power to recall witnesses

under Section 311 CrPC ought to be exercised sparingly and

mere hostility by a witness, per se, would not be a sufficient

ground to infer misuse of concession of bail. Still further, the

observations made hereinabove shall have no bearing on the

merits of the pending trial.

D. CONCLUSION:

32. In view of the above discussion and without expressing

anything on merits, we allow this Appeal with the following

directions:

Crl. Appeal No. of 2023 @ SLP (Crl.) No.3312 of 2021 Page 18 of 20

(i) the impugned order dated 12.08.2020 is set aside and

the bail granted to Respondent No. 1 is hereby cancelled;

(ii) Respondent No. 1 is directed to surrender not later than

one week. He shall remain in custody till the conclusion

of trial or till this Court releases him on bail in changed

circumstances;

(iii) the Trial Court is directed to recall PW­1, PW­4, and PW­

5 for their further cross­examination;

(iv) the Commissioner of Police, Bengaluru is directed to

provide security to the Appellant and her family,

including her daughter (PW­4), round the clock at least

till their fresh depositions;

(v) the Commissioner of Police, Bengaluru is further

directed to investigate as to whether the Appellant and

her family members were threatened, induced, or

subjected to any extraneous pressure for retracting their

statements. Such a report be presented before the Trial

Court within 2 weeks subject to the right of objection to

Respondent No. 1 and his co­accused, if there is any

finding against them in such report; and;

(vi) the Trial Court will closely observe the demeanour of

Respondent No.1 or his counsel during further cross­

examination of the Appellant, PW­4, PW­5 and other

Crl. Appeal No. of 2023 @ SLP (Crl.) No.3312 of 2021 Page 19 of 20 important prosecution witnesses. No minacious gesture

or appeasing expressions be allowed so that the

voluntary, free and unpolluted version of all the material

witnesses is brought on record.

33. The present appeal is disposed of in the above terms.

………..………………… J.

(SURYA KANT)

……………………………J. (DIPANKAR DATTA) NEW DELHI;

OCTOBER 20, 2023.

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