MAMTA & ANR versus THE STATE (NCT OF DELHI) & ANR on 24 May 2022

1. Leave granted.

2. This appeal arises from an order dated 2 March 2022 of aSingle Judge of the High Court of Delhi in Bail Application No 196 of2022.

3. The second respondent is facing trial in connection with FIRNo 894 of 2014 dated 18 November 2014 for alleged offences punishableunder Sections 363, 364A, 302 and 201 read with Section 34 of theIndian Penal Code 1860 registered at Police Station Gandhi Nagar, DistrictEast Delhi. Following the submission of the charge-sheet under Section173 of the Code of Criminal Procedure 1973[1], charges have been framed.Eleven prosecution witnesses have been examined.

4. The appellants are the parents of the deceased, who was a 13year old Class VIII student. The case of the prosecution is that he waskidnapped for a ransom of rupees one crore and his dead body wasrecovered from a nallah, day after the kidnapping of the child. Thesecond respondent was arrested on 25 November 2014 and was in 1 “CrPC”

A

B

C

D

E

F

G

H

Acustody, except for the period when he was released on interim bail,until 2 March 2022.

5. Dr Menaka Guruswamy, senior counsel appearing on behalf ofthe appellants, submits that:

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

(ii) Crucial witnesses, including PW 15 (the caretaker) and PW16 (the landlady) remain to be examined; C(iii)The material which has emerged during the course of theinvestigation and the trial would militate against the grantof bail; and

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

6. Mr Siddhartha Dave, senior counsel appearing on behalf of thesecond respondent, on the other hand, urged that:

(i) The second respondent was in custody for over a period ofsix years; E

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

(iii) The second respondent had furnished his voice sample unlikethe co-accused who had refused to do so and the report ofFthe Forensic Science Laboratory has not been produced onthe record;

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

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

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

MAMTA & ANR v. THE STATE (NCT OF DELHI) & ANR[DR. DHANANJAYA Y CHANDRACHUD, J.]

7. The submissions which have been urged on behalf of theappellants have been supported both in the counter affidavit which hasbeen filed by the NCT of Delhi as well as during the course of thesubmissions by Mr Jayant K Sud, Additional Solicitor General for theNCT of Delhi. Pertinently, it has been urged that the following materialhas emerged on the record:

A

B

(a) DNA findings implicating the second respondent; (b)Recovery of the motorcycle belonging to the secondrespondent which was used in the commission of crime;

(c) The purchase of Alprax and Montair LC tablets from theCchemist 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 thedeceased.

D

8. The issue which arises before this Court is whether the HighCourt was justified in granting bail to the second respondent. The offencein the present case involves the alleged murder of a young child forransom. The trial is proceeding though, in our view, it would beappropriate to direct that it should be completed expeditiously.

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

E

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

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

(iii) The case rests on circumstantial circumstance and, at thisstage, there is insufficient evidence to indicate theinvolvement of the second respondent.

10. The High Court has, while granting bail, failed to notice crucialaspects which have a bearing on whether or not a case for the exerciseof the jurisdiction to grant bail under Section 439 of CrPC was established.Since the trial is presently underway, we are not entering upon a discussionof 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, G

H

Afor that matter, of the material which has emerged during the course ofthe trial. However, an important circumstance which should have, buthas not been taken into consideration by the High Court is that crucialwitnesses are yet to be examined. The release of the second respondenton bail, at this stage, would run a grave risk of impeding a fair trial. Theapprehension of the appellants and of the prosecution that the witnessesBmay be tampered with cannot be regarded as lacking in substance

11. Considering the nature and gravity of the offence, the rolewhich has been attributed to the second respondent and the crucialwitnesses which remain to be examined. The exercise of the discretionby the High Court in the present case is improper.

C

12. The appeal is accordingly allowed and the judgment and orderdated 2 March 2022 of the Single Judge of the High Court of Delhi inBail Application No 196 of 2022 is set aside. The second respondentshall surrender forthwith. Since the trial is pending since 2014, we directthe trial Judge to conduct the trial expeditiously on a day to day basisDand to conclude it, preferably within a period of one year.

13. Pending application, if any, stands disposed of.

Nidhi Jain

Appeal allowed.

E

F

G

H