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, 120B, 201, 302, 450, 454 read with Section 34 of the Indian Penal Code [Hereafter ‘IPC’].
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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 examination-in-chief and the cross-examination of the key witnesses, who are none else than the Appellant (PW1), her daughter Vidhya (sister of the Deceased, PW4), and Muniraju (father of the Deceased, PW5). They all have turned hostile and retracted from their earlier statements.
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 examination-in-chief cannot be a mere coincidence. The Appellant has been vigorously pursuing this appeal seeking cancellation of bail given to Respondent No. 1. In her examination-in-chief, 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 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 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 well illustrated by this Court in a catena of decisions including Dolat Ram and Ors. v. State of Haryana – (1995) 1 SCC 349,
(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.
Applying the proximity of win over the witnesses
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 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 Haryana [2017) 1 SCC 529] 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) nonexistence 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.
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 examination-in-chief is diametrically opposite to the one in the cross 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 cross-examination 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.
Party
Munilakshmi vs Narendra Babu & Anr – CRIMINAL APPEAL NO. 3297 OF 2023 – OCTOBER 20, 2023
https://main.sci.gov.in/supremecourt/2021/799/799_2021_5_1501_47797_Judgement_20-Oct-2023.pdf
Author’s note
This judgment cannot be applied as a settled proposition for all hostile cases. There is worldly differences between witnesses resiled from their previous statement and witnesses resiled from their substantive statement given before the court i.e., ‘chief-examination’. In this case the witnesses retracting their statements before the Court and turning hostile in their cross-examination were called for fresh ‘cross-examination’. Hence, this judgment cannot be a ‘straight jacket formulae’ (as is held by the Hon’ble Supreme Court in this judgment) for all hostile cases.
