While taking potshots at the High Courts and the Trial Courts for the manner in which they deal with bail matters, the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled Manish Sisodia vs Directorate of Enforcement arising out of SLP(Criminal) No. 8781 with 8772 of 2024 and cited in Neutral Citation No.: 2024 INSC 595 that was pronounced most recently on August 9, 2024 took a very critical and serious note that the High Courts and Trial Courts appear to be “playing it safe” when they routinely deny bail in criminal cases instead of granting bail as the norm. We must note that the top court also added that it is high time the courts realize that bail is a rule and jail is an exception. We also need to note that the Bench of Apex Court comprising of Hon’ble Mr Justice BR Gavai and Hon’ble Mr Justice KV Viswanathan made the observation while granting bail to Aam Aadmi Party (AAP) leader and former Deputy Chief Minister of Delhi – Manish Sisodia in the Delhi excise policy case.
It may be recalled that a Trial Court and the Delhi High Court had rejected Sisodia’s third set of bail pleas earlier this year thus prompting him to approach the Apex Court again in appeal. This was the third round of bail pleas that had been moved by Sisodia in the case which is being probed by both the Central Bureau of Investigation (CBI) as well as the Enforcement Directorate (ED). It must be mentioned that the case involves allegations that Delhi government officials tweaked the excise policy to benefit certain liquor sellers in exchange of bribes that were used to fund the AAP’s elections in Goa.
Most glaringly, the Apex Court observed that, “Liberty was given to revive the plea after filing of chargesheet. Now relegating Sisodia to Trial Court and then High Court will be like playing a game of snake and ladder … It will be travesty of justice to note that he has to be relegated to trial court again. Procedures cannot be made a mistress of justice.”
While granting bail to Sisodia, the Apex Court reasoned fortifying its stand by stating brilliantly that, “There is no remote possibility of completion of trial within time and keeping him behind bars for the purpose of completion of trial will be nothing but a violation of Article 21. Sisodia has deep roots in society and he cannot flee away … Regarding tampering evidence, case largely depends on documentation and thus it is all seized and no chance of tampering.” Very rightly so!
At the very outset, this progressive, pragmatic, persuasive and pertinent judgment authored by Hon’ble Mr Justice BR Gavai for a Bench of Apex Court comprising of himself and Hon’ble Mr KV Viswanathan sets the ball in motion by first and foremost putting forth in para 1 that, “Leave granted. Appeals heard on merits.”
To put things in perspective, the Bench envisages in para 2 that, “The present appeals challenge the judgment and order dated 21st May 2024 passed by the learned Single Judge of the High Court of Delhi at New Delhi in Bail Application Nos. 1557 and 1559 of 2024, thereby rejecting the said applications filed by the present appellant for grant of bail. The aforesaid two applications were filed seeking bail in connection with ED Case No. HIU-II/14/2022 registered against the appellant by the Directorate of Enforcement (for short, ‘ED’) and First Information Report (FIR) No. RC0032022A0053 of 2022 registered against the appellant by the Central Bureau of Investigation (for short, ‘CBI’).”
As we see, the Bench discloses in para 3 that, “FIR No. RC0032022A0053 of 2022 came to be registered by the CBI on 17th August 2022, and ED Case No. HIU-II/14/2022 came to be registered by the ED on 22nd August 2022.”
On expected lines, the Bench points out in para 4 that, “Since both the cases arise out of similar facts, the latter being the predicate offence and the former being a case registered on the basis of the predicate offence, both these appeals are heard and decided together.”
Further, the Bench discloses in para 5 that, “The present case travelled two rounds before the trial court, the High Court and this Court. This is now the third round before this Court wherein the appellant is seeking bail in connection with the aforesaid two cases.”
Furthermore, the Bench reveals in para 6 that, “On the basis of a letter dated 20th July 2022 addressed by Shri Vinai Kumar Saxena, the Lieutenant Governor of Delhi, alleging irregularities in the framing and implementation of Delhi’s Excise Policy for the year 2021-22, the Director, Ministry of Home Affairs had directed an enquiry into the said matter vide Office Memorandum dated 22nd July 2022. On 26th February 2023, the appellant came to be arrested by the CBI. Subsequently, the appellant was arrested by the ED on 9th March 2023.”
What’s more, the Bench then mentions in para 7 that, “After investigation, CBI filed charge-sheet on 25th April 2023 for the offences punishable under Sections 7, 7A, 8 and 12 of the Prevention of Corruption Act, 1988 (for short, ‘PC Act’) read with Sections 420, 201 and 120B of the Indian Penal Code, 1860 (for short, ‘IPC’). Upon completion of investigation, the ED filed a complaint under Section 3 of the Prevention of Money Laundering Act, 2002 (for short, ‘PMLA’) on 4th May 2023.”
Adding more, the Bench recalls in para 8 that, “The first application for regular bail of the appellant in CBI matter came to be rejected by the High Court on 30th May 2023. Subsequently, the first application for regular bail of the appellant in ED matter came to be rejected by the High Court on 3rd July 2023. This Court, vide common order dated 30th October 2023 (hereinafter referred to as “the first order of this Court”) rejected the regular bail applications of the appellant in the CBI matter and the ED matter, with certain observations which we will refer to in the subsequent paragraphs.”
Still more, the Bench discloses in para 9 that, “Subsequently, in view of the liberty granted by this Court, the appellant filed second bail application before the trial court on 27th January 2024. In the said proceedings, the appellant was granted interim protection. However, by an order dated 30th April 2024, the trial court rejected the said bail application on the ground that there was no change in the circumstances.”
Not stopping here, the Bench further adds in para 10 that, “The appellant thereafter filed second bail application before the High Court on 2nd May 2024. Vide impugned judgment and order dated 21st May 2024, the learned Single Judge of the High Court rejected the said bail application also.”
Needless to say, the Bench states in para 11 that, “Being aggrieved thereby, the appellant had approached this Court by filing Special Leave Petition (Criminal) Nos. 7795 and 7799 of 2024.”
To recapitulate, the Bench recalls in para 12 that, “The matter was heard on 4th June 2024. This Court, in the said order (hereinafter referred to as “the second order of this Court”) recorded the submissions of the learned Solicitor General that the investigation would be concluded and final complaint/charge-sheet would be filed expeditiously and at any rate on or before 3rd July 2024 and immediately thereafter, the trial court would be free to proceed with the trial. This Court recorded the submissions made by the learned Solicitor General and observed that having regard to the fact that the period of “6-8 months” fixed by this Court by order dated 30th October 2023 had not yet come to an end, disposed of the said petition with liberty to revive his prayer afresh after filing of the final complaint/charge-sheet.”
Additionally, the Bench specifies in para 13 that, “Accordingly, after filing of the final complaint/chargesheet, the appellant has approached this Court by way of the present appeals. This Court, vide order dated 16th July 2024 had issued notice. In response thereto, counter affidavit has been filed on behalf of the ED as well as the CBI opposing the present appeals.”
Do note, the Bench notes in para 45 that, “The trial court, in its order, has held that the appellant individually and along with different accused persons have been filing one or the other applications/making oral submissions frequently. It further observed that some of them were frivolous. It was observed that this was apparently done as a concerted effort for accomplishing the shared purpose of causing delay in the matter. The trial court therefore rejected the contention of the appellant that he had not contributed to delay in proceedings or that the case has been proceeding at a snail’s pace. However, in the very subsequent paragraph i.e., paragraph 80, the court observed that, in order to avoid any delay and considering the time being taken by the counsel for the accused in inspecting the “un-relied upon documents”, it had vide order dated 18th April 2024 put a query to the prosecution if the entire “unrelied upon documents” can be provided to the accused persons in a digitized form. It further recorded that the ED accepted the suggestion that it would expedite the proceedings. However, some time was sought to consider the same. A perusal of the compliance report filed by the Assistant Director of ED dated 7th May 2024 which could be found at page 757 of the paperbook, would reveal that the Cyber Lab has informed that it would take 70-80 days to prepare one copy (cloning) of the data contained in the said unrelied digital devices.”
It is also worth noting that the Bench notes in para 46 that, “It could further be seen that, though it has been submitted on behalf of the ED that hundreds of applications have been filed for supply of “un-relied upon documents”, the record would not substantiate the said position. Though various applications have been filed by different accused persons, insofar as the present appellant is concerned, he has filed only 13 applications in the CBI matter and 14 in the ED matter. It would reveal that some of the applications are for seeking permission to meet his wife or permission to file vakalatnama, to put signature on the documents, seeking permission to sign a cheque etc. Most of the applications are for supply of missing documents and legible copies under Section 207/208 Cr.P.C. Some of the applications are for inspection of the “un-relied upon documents”. It is pertinent to note that all these applications have been allowed by the learned trial court. It is further pertinent to note that some of these orders were also challenged before the High Court wherein stay was granted. However, a statement was made on behalf of the prosecution before this Court when the first order was passed that the said petitions filed under Section 482 Cr.P.C would be withdrawn. The said statement is recorded in paragraph 27 of the first order of this Court. We may state that, when we specifically asked the learned ASG to point out any order wherein the learned trial judge found any of the applications of the appellant to be frivolous, not a single order could be pointed out.”
As a corollary, the Bench deemed it appropriate to observe in para 47 that, “In that view of the matter, we find that the finding of the learned trial judge that it is the appellant who is responsible for delaying the trial is not supported by the record. The learned Single Judge of the High Court endorses the finding of the trial court on the ground that the accused persons have taken three months’ time from 19th October 2023 to 19th January 2024 for inspection of “un-relied upon documents” despite repeated directions from the learned trial court to conclude the same expeditiously. It is to be noted that there are around 69,000 pages of documents involved in both the CBI and the ED matters. Taking into consideration the huge magnitude of the documents involved, it cannot be stated that the accused is not entitled to take a reasonable time for inspection of the said documents. In order to avail the right to fair trial, the accused cannot be denied the right to have inspection of the documents including the “un-relied upon documents”.”
Do also note, the Bench strikingly also notes in para 48 that, “It is further to be noted that a perusal of the second order of this Court would itself reveal that this Court recorded the submissions of the learned Solicitor General, which were made on instructions, that the investigation would be concluded and final complaint/charge-sheet would be filed expeditiously and at any rate on or before 3rd July 2024. Accordingly, 8th charge-sheet has been filed on 28th June 2024 by the ED. It could thus be seen that, even according to the respondents, the investigation was to be concluded on or before 3rd July 2024. In that view of the matter, we find that the contention raised by the learned ASG is self-contradictory. If the investigation itself was to conclude on or before 3rd July 2024, the question is how could the trial have commenced prior to that? If the investigation itself was to conclude after a period of 8 months from the date of the first order of this Court, there was no question of the trial being concluded within a period of 6-8 months from the date of the first order of this Court. We find that both the High Court and the trial court have failed to take this into consideration.”
Quite forthrightly, the Bench concedes in para 49 that, “We find that, on account of a long period of incarceration running for around 17 months and the trial even not having been commenced, the appellant has been deprived of his right to speedy trial.”
Quite naturally, the Bench acknowledges in para 50 that, “As observed by this Court, the right to speedy trial and the right to liberty are sacrosanct rights. On denial of these rights, the trial court as well as the High Court ought to have given due weightage to this factor.”
While citing the relevant case laws, the Bench hastens to add in para 51 stating that, “Recently, this Court had an occasion to consider an application for bail in the case of Javed Gulam Nabi Shaikh v. State of Maharashtra and Another 2024 SCC OnLine SC 1693 wherein the accused was prosecuted under the provisions of the Unlawful Activities (Prevention) Act, 1967. This Court surveyed the entire law right from the judgment of this Court in the cases of Gudikanti Narasimhulu and Others v. Public Prosecutor, High Court of Andhra Pradesh (1978) 1 SCC 240:1977 INSC 232 , Shri Gurbaksh Singh Sibbia and Others v. State of Punjab (1980) 2 SCC 565:1980 INSC 68, Hussainara Khatoon and Others (I) v. Home Secretary, State of Bihar (1980) 1 SCC 81:1979 INSC 34, Union of India v. K.A. Najeeb (2021) 3 SCC 713:2021 INSC 50 and Satender Kumar Antil v. Central Bureau of Investigation and Another (2022) 10 SCC 51:2022 INSC 690. The Court observed thus:
“19. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.””
It would be worthwhile to note that the Bench then states in para 52 that, “The Court also reproduced the observations made in Gudikanti Narasimhulu (supra), which read thus:
“10. In the aforesaid context, we may remind the trial courts and the High Courts of what came to be observed by this Court in Gudikanti Narasimhulu v. Public Prosecutor, High Court reported in (1978) 1 SCC 240. We quote: “What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said [R v. Rose, (1898) 18 Cox]:
“I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial.”””
Most significantly and so also most forthrightly, the Bench postulates in para 53 mandating that, “The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that “bail is rule and jail is exception”.”
Most commendably, the Bench propounds in para 54 that, “In the present case, in the ED matter as well as the CBI matter, 493 witnesses have been named. The case involves thousands of pages of documents and over a lakh pages of digitized documents. It is thus clear that there is not even the remotest possibility of the trial being concluded in the near future. In our view, keeping the appellant behind the bars for an unlimited period of time in the hope of speedy completion of trial would deprive his fundamental right to liberty under Article 21 of the Constitution. As observed time and again, the prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial.”
To be sure, the Bench states in para 55 that, “As observed by this Court in the case of Gudikanti Narasimhulu (supra), the objective to keep a person in judicial custody pending trial or disposal of an appeal is to secure the attendance of the prisoner at trial.”
Be it noted, the Bench notes in para 56 that, “In the present case, the appellant is having deep roots in the society. There is no possibility of him fleeing away from the country and not being available for facing the trial. In any case, conditions can be imposed to address the concern of the State.”
While putting to rest all speculations of the appellant tampering with the evidence, the Bench opines in para 57 that, “Insofar as the apprehension given by the learned ASG regarding the possibility of tampering the evidence is concerned, it is to be noted that the case largely depends on documentary evidence which is already seized by the prosecution. As such, there is no possibility of tampering with the evidence. Insofar as the concern with regard to influencing the witnesses is concerned, the said concern can be addressed by imposing stringent conditions upon the appellant.”
Finally, the Bench then concludes by holding in para 58 that, “In the result, we pass the following order: (i) The appeals are allowed; (ii) The impugned judgment and order dated 21st May 2024 passed by the High Court of Delhi in Bail Application Nos. 1557 and 1559 of 2024 is quashed and set aside; (iii) The appellant is directed to be released on bail in connection with ED Case No. HIU-II/14/2022 registered against the appellant by the ED and FIR No. RC0032022A0053 of 2022 registered against the appellant by the CBI on furnishing bail bonds for a sum of Rs.10,00,000/- with two sureties of the like amount; (iv) The appellant shall surrender his passport with the Special Court; (v) The appellant shall report to the Investigating Officer on every Monday and Thursday between 10-11 AM; and (vi) The appellant shall not make any attempt either to influence the witnesses or to tamper with the evidence.”
In conclusion, we thus see that the Apex Court very rightly gives bail to Manish Sisodia in this leading Delhi excise policy case according cogent reasons also for it. It also rightly castigates the manner in which the Trial Courts and the High Courts routinely deny bail in criminal cases in order to appear to be “playing it safe”. It was also underscored by the top court that, “It is high time the courts realize that bail is a rule and jail is a exception.” No denying!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.
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