SOMESH CHAURASIA versus STATE OF M.P. & ANR. on 22 July 2021

[2021] 6 S.C.R. 692

SUPREME COURT REPORTS

[2021] 6 S.C.R.

ASOMESH CHAURASIA

v.

STATE OF M.P. & ANR.

(Criminal Appeal Nos. 590-591 of 2021)

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JULY 22, 2021

[DR. DHANANJAYA Y CHANDRACHUD ANDHRISHIKESH ROY, JJ.]

Code of Criminal Procedure, 1973: s.389 (1) – ProsecutionCcase was that the second respondent was convicted under s.302IPC and awarded life imprisonment – By order dated 3.2.2016, HighCourt directed that the sentence shall during the pendency of appealremain suspended under s. 389(1) – Two applications were filedbefore High Court for cancellation of bail and revocation of orderDdated 3.2.2016 suspending the sentence of second respondent inter-alia on ground that after the sentence was suspended, an FIR wasregistered against the second respondent at the behest of theappellant alleging that the second respondent was involved in themurder of his father during the period when his sentence wassuspended – By impugned order, High Court declined to entertainEthe application for revocation of suspension of sentence/grant ofbail and allowed him to continue on bail until his claim that he wasbeing falsely implicated was first investigated in ninety days – Hencethe instant appeal – On 12.2.2021, the appellant apprised this Courtthat by order dated 8.1.2021, ASG issued summons to secondFrespondent under s.319 in the course of session trial arising out ofcharge-sheet – However, second respondent was resisting arrest –In order dated 8.2.2021, the ASJ expressed serious apprehensionthat the accused (second respondent) and the Superintendent ofPolice had colluded with the subordinates of the latter “to frameserious charges” against the judge – The Director General of PoliceGof Madhya Pradesh was directed “to immediately ensure the arrestof the second respondent and report compliance by filing a personalaffidavit in this Court” – Second respondent was ostensibly arrestedfrom bus stand after lot of efforts – Held: The High Court bydeclining to revoke suspension of sentence had clearly transgressedinto an unusual domain – High Court in effect stultified theH

administration of criminal justice – This order had the effect ofobstructing a fair investigation into the FIR at the behest of theaccused despite the nature and gravity of the allegations againsthim – High Court erred in passing its directions which were misusedto defeat the investigation – The police submitted a closure reportabsolving the second respondent – Thereafter, despite the orderunder s.319, the second respondent evaded arrested in contraventionof the warrant of arrest which was issued by the ASJ – The factsindicated that the police was complicit in shielding the secondrespondent – The criminal antecedents of the second respondentand the prior conviction on a charge of murder were adverted to –The second respondent, whose spouse was an MLA, was providedsecurity by the State – The DGP was sanguine in informing thiscourt that the second respondent could not be arrested despite thedirections issued by this Court – It was only after this Court issueda peremptory direction indicating recourse to the coercive arm oflaw that the second respondent was arrested, ostensibly from a bus-stand – The material on the record indicated that an effort wasmade to shield the accused from the administration of criminal justice– The apprehensions expressed by the ASJ in his order dated8.2.2021 of the machinations of a highly influential accused evadingthe process of law are amply borne out by the facts – There was noreasonable basis to doubt the anguish and concern of a judicialofficer – That the State did not oppose the application under s.319CrPC is a feeble attempt to justify the inaction of the police –Unfortunately, High Court failed in its duty to ensure that the sanctityof the criminal justice process is preserved.

Judiciary: Independence of judiciary – Judicial independenceof the district judiciary is cardinal to the integrity of the entire system– If the faith of the citizen in the administration of justice has to bepreserved, it is to the district judiciary that attention must be focusedas well as the ‘higher’ judiciary – The district judiciary operatesunder the administrative supervision of the High Court which mustsecure and enhance its independence from external influence andcontrol – This compartmentalization of the judiciary and executiveshould not be breached by interfering with the personal decision-making of the judges and the conduct of court proceedings underthem.

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ADisposing the appeals, the Court

HELD: 1. The High Court by its impugned order allowedthe second respondent, who allegedly committed murder duringthe period when his sentence was suspended, to continue on bailuntil his claim that he was being falsely implicated was firstBinvestigated in ninety days. In adopting such a procedure, theHigh Court has clearly transgressed into an unusual domain. TheHigh Court has in effect stultified the administration of criminaljustice. [Para 29][714-C-D]

2. There are distinct doctrinal concepts in criminal lawCnamely (i) the grant of bail before trial or, what is described asthe ‘pre-conviction’ stage; (ii) setting aside an order grantingbail when the principles which must weigh in the decision onwhether bail should be granted have been overlooked or wronglyapplied; (iii) the post-conviction suspension of sentence underthe provisions of Section 389(1); and (iv) the cancellation of bailDon the ground of supervening events, such as the conduct of theaccused during the period of bail, vitiating the continuance ofbail. The present case falls in the last of the above genres wherebail was sought to be cancelled on the ground that the secondrespondent was implicated in an offence under section 302Eduring the period when his sentence was suspended. [Paras 34,35][716-D-F]

3. This Court in Abdul Basit vs. Abdul Kadir Choudhary,while discussing the powers of the High Court to cancel bailgranted to an accused under Section 439 (2) of the CrPC, hasFobserved that typically the following conduct of the accused wouldresult in the cancellation of bail – (i) misuse of liberty by engagingin similar criminal activity; (ii) interference with the course ofinvestigation; (iii) tampering of evidence or witnesses; (iv)threatening of witnesses or engaging in similar activities whichwould hinder the investigation; (v) possibility of fleeing to anotherGcountry; (vi) attempts to become scarce by becoming unavailablefor investigation or going underground; and (vii) being out of thereach of their surety. Similar considerations govern thecancellation of bail at the post-conviction stage under the secondproviso to Section 389 (1) of the CrPC. [Para 36][716-F-G;H717-A]

Atul Tripathi v. State of U.P. (2014) 9 SCC 177 : [2014]14 SCR 1188; Ramji Prasad v. Rattan Kumar Jaiswaland Anr. (2002) 9 SCC 366; Masood Ali Khan v. Stateof U.P. and Ors. (2009) 3 SCC 492 : [2009] 1 SCR 859;Vijay Kumar v. Narendra (2002) 9 SCC 364 Abdul Basitv. Abdul Kadir Choudhary (2014) 10 SCC 754:[2014]10 SCR 571; Pampapathy v. State of Mysore 1966 SuppSCR 477; Ramesh Kumar Singh v. Jhabbar Singh &Ors. (2003) 10 SCC 195 – relied on.

4. The present case was a fit case for the cancellation ofbail by the High Court. The registration of FIR 143 of 2019implicating the second respondent in the murder of the appellant’sfather during the period when the sentence of the secondrespondent was suspended after his conviction of a prior offenceunder Section 302. The criminal antecedents of the secondrespondent; The strong likelihood of the second respondent usinghis political clout to prevent a fair investigation of FIR 143 of2019; The truth in the apprehensions of the appellant havingbecome evident by the abject failure of the police to properlyinvestigate the FIR lodged against the second respondent onthe allegation that he had committed the murder of the appellant’sfather on 15 March 2019 after his sentence was suspended bythe High Court; The submission of a closure report by the policeagainst the second respondent absolving him; The order of theASJ dated 8 January 2021 summoning the second respondentunder Section 319 of the CrPC; The second respondent havingevaded arrest despite the issuance of a warrant of arrest and aproclamation; The failure of the law enforcement authorities toeffectuate the arrest of the second respondent in spite of theorder of this Court dated 12 March 2021; The peremptorydirections issued by this Court on 26 March 2021 requiring theDGP to take necessary steps for compliance with the previousorder failing which the Court would be constrained to take coercivesteps in accordance with law; The eventual arrest of the secondrespondent on 28 March 2021 ostensibly from a bus stand; Theapprehension expressed by the ASJ in his order dated 8 February2021 that he was being targeted at the behest of a politicallyinfluential accused; and The provision of security to the second A

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Arespondent by the State government at the behest of his spousewho is an MLA despite a prior conviction under Section 302 ofthe IPC. [Para 37][717-F; 718-A-H; 719-A]

5. The High Court mis-applied itself to the legal principleswhich must govern such a case. The serious error by the HighBCourt in its impugned order can be considered from twoperspectives. First, the High Court by simply disposing of theIAs seeking cancellation of bail ignored material considerationswhich ought to have weighed in the decision. Some of the eventsundoubtedly transpired after the order of the High Court.However, taking the position as it stood when the High CourtCconsidered the issue, a clear case for cancellation of bail wasestablished. The second aspect which is also of significance isthe impact of the order of the High Court. The High Court wasapprised of the fact that FIR No 143 of 2019 had been lodgedagainst the second respondent. The investigation into the FIRDhad to proceed according to law. Instead, the High Court gave aperiod of ninety days to the police to enquire into the complaintof the second respondent that he was being targeted and allowedthe police to thereafter proceed in accordance with law. This orderhad the effect of obstructing a fair investigation into the FIR atthe behest of the accused despite the nature and gravity of theEallegations against him. The events which have transpired sincego to emphasize the fact that the High Court was in grievouserror in passing its directions which were misused to defeat theinvestigation. The police submitted a closure report absolvingthe second respondent. Thereafter, despite the order underFsection 319, the second respondent evaded arrested incontravention of the warrant of arrest which was issued by theASJ. The facts indicate that the police have been complicit inshielding the second respondent. The criminal antecedents ofthe second respondent and the prior conviction on a charge ofmurder have been adverted to. The second respondent, whoseGspouse is an MLA was provided security by the State. The DGPwas sanguine in informing this court that the second respondentcould not be arrested despite the directions issued by this Court.It was only after this Court issued a peremptory direction H

indicating recourse to the coercive arm of law that the secondrespondent was arrested, ostensibly from a bus-stand. Thematerial on the record indicates that an effort has been made toshield the accused from the administration of criminal justice.The apprehensions expressed by the ASJ in his order dated 8February 2021 of the machinations of a highly influential accusedevading the process of law are amply borne out by the facts whichhave been revealed before this Court. There is no reasonablebasis to doubt the anguish and concern of a judicial officer. Thatthe state did not oppose the application under section 319 is afeeble attempt to justify the inaction of the police. Unfortunately,the High Court failed in its duty to ensure that the sanctity of thecriminal justice process is preserved. This court has had to stepin to ensure that the rule of law is preserved. [Para 38][719-B-H;720-A-B]

6. The order of the High Court dated 23 July 2019 shallstand set aside. The bail granted to the second respondent shallstand cancelled. The second respondent shall be moved underthe directions of the DGP to another jail in Madhya Pradesh toensure that the fair course of the criminal proceedings is notdeflected. [Para 39][720-C-D]

7. During the course of this proceeding, an enquiry wasdirected to be made into the apprehensions expressed by theASJ in his order dated 8 February 2021. An independent andimpartial judiciary is the cornerstone of democracy. Judicialindependence of the district judiciary is cardinal to the integrityof the entire system. The courts comprised in the district judiciaryare the first point of interface with citizens. If the faith of thecitizen in the administration of justice has to be preserved, it isto the district judiciary that attention must be focused as well asthe ‘higher’ judiciary. Trial judges work amidst appalling conditions– a lack of infrastructure, inadequate protection, examples ofjudges being made targets when they stand up for what is rightand sadly, a subservience to the administration of the High Courtfor transfers and postings which renders them vulnerable. Thecolonial mindset which pervades the treatment meted out to thedistrict judiciary must change. It is only then that civil libertiesfor every stakeholder – be it the accused, the victims or civil AB

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Asociety – will be meaningfully preserved in our trial courts whichare the first line of defense for those who have been wronged.[Para 40][720-D-G]

8. The functioning of the judiciary as an independentinstitution is rooted in the concept of separation of powers.BIndividual judges must be able to adjudicate disputes inaccordance with the law, unhindered by any other factors. Thus,“for that reason independence of judiciary is the independenceof each and every judge”. The independence of individual judgesalso encompasses that they are independent of their judicialsuperiors and colleagues. [Para 41][720-G-H; 721-A]C

Madras Bar Association v. Union of India & Anr. 2021SCC OnLine SC 463 – relied on.

9. Our Constitution specifically envisages theindependence of the district judiciary. This is implicit in Article D50 of the Constitution which provides that the State must takesteps to separate the judiciary from the executive in the publicservices of the State. The district judiciary operates under theadministrative supervision of the High Court which must secureand enhance its independence from external influence and control.This compartmentalization of the judiciary and executive shouldEnot be breached by interfering with the personal decision-makingof the judges and the conduct of court proceedings under them.[Para 42][721-E-F]

10. There is no gainsaying that the judiciary should beimmune from political pressures and considerations. A judiciaryFthat is susceptible to such pressures allows politicians to operatewith impunity and incentivizes criminality to flourish in the politicalapparatus of the State. [Para 43][721-G]

11. India cannot have two parallel legal systems, “one forthe rich and the resourceful and those who wield political powerGand influence and the other for the small men without resourcesand capabilities to obtain justice or fight injustice.” The existenceof a dual legal system will only chip away the legitimacy of thelaw. The duty also falls on the State machinery to be committed H

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to the rule of law and demonstrate its ability and willingness tofollow the rules it itself makes, for its actions to not transgressinto the domain of “governmental lawlessness”. At the same time,we believe that judges, while being undeterred in theircommitment to follow the law and do justice, should be wary oflaunching into a diatribe against the State authorities without duecare and reflection. [Paras 44, 45][722-A-C]

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12. The apprehensions expressed by the ASJ should beduly enquired into by the High Court on its administrative sideso that if they are found to be true, necessary action should betaken in order to secure the fair administration of justice. [Para46][722-C-D]

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CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 590-591 of 2021

From the Judgment and Order dated 23.07.2019 of the High Courtof Madhya Pradesh Principal Bench Jabalpur in I. A. No.6837 of 2019and I. A. No.5781 of 2019 in Criminal Appeal No.3107 of 2015.

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Varun Thakur, Varinder Kumar Sharma, Advs. for the Appellant.

Saurabh Mishra, AAG, Sidharth Luthra, Sr. Adv., Gopal Jha,Shakeel Ahmed, Raj Kishor Choudhary, Ms. Malvika Raghavan, NakulChaudhary, Anupam Bhati, Yaddaiah Jetti, Rajesh Kumar Shukla, ChiragMadan, Akshay Sehgal, Ms. Pankhuri Budhidaja, Ms. Roohe Hina Dua,Brajesh Pandey, Mrs. Suchita Dixit, Rajeev Yadav, Anilendra Pandey,Advs. for the Respondents.

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[2021] 6 S.C.R.

AThe Judgment of the Court was delivered byDR. DHANANJAYA Y CHANDRACHUD, J.

1. This appeal arises from an order by a Division Bench of theHigh Court of Madhya Pradesh dated 23 July 2019. The High Courtdeclined to entertain two applications – IA 6837 of 2019 filed by theBState of Madhya Pradesh and IA 5781 of 2019 filed by the appellant -seeking arevocation of the suspension of sentence and bail granted tothe second respondent.

2. The second respondent has been convicted of an offencepunishable under Section 302 of the Indian Penal Code (“IPC”) andCsentenced to suffer imprisonment for life. By an order dated 3 February2016, the High Court directed that the sentence shall, during the pendencyof the appeal, remain suspended under the provisions of Section 389(1)of the Code of Criminal Procedure 1973 (“CrPC”).

D3. Two applications were moved before the Division Bench ofthe High Court (IA 6837 of 2019 and IA 5781 of 2019) for cancellationof bail and revocation of the order dated 3 February 2016 suspendingthe sentence of the second respondent. These applications for bail werefiled by the appellant and by the State of Madhya Pradesh. The appellantsought cancellation of bail on the ground that after the sentence wasEsuspended, FIR No 143 of 2019 was registered against the secondrespondent at Police Station Hata, District, Damoh,in which he isimplicated in the murder of the appellant’s father. The State of MadhyaPradesh sought cancellation of bail on the ground that:

(i) The second respondent has two other convictions againstFhim on a charge of murder;

(ii) The second respondent has been convicted of another crimefor offences punishable under Section 399 and 402 of theIPC and Section 25 (1) (1B)(a) of the Arms Act; and G(iii)An FIR has been registered at the behest of the appellantalleging that the second respondent is involved in the murderof his father during the period when he was on bail.

4. The application for cancellation of bail which was moved bythe State of Madhya Pradesh sets out the criminal antecedents of theHsecond respondent. Paragraph 8 reads as follows:

“8. At this stage, it would be relevant to detail the three convictionssuffered by the appellant. The same are detailed hereunder:

(a) It is submitted that in the first crime, the appellant committedthe murder of the deceased Rajendra Pathak on 13.10.1998 whowas going on his scooter and was confronted by the appellant andco-accused Chandu Thakur who were coming on a motorcyclefrom theopposite direction. At the relevant point of time theappellant Govind Singh fired through Katta on the deceasedRajendra Pathak which hit the deceased on his chest. Afterreceiving the said shot the deceased ran to save his life and onnoticing the same co-accused Chandu Thakur fired a shot whichhit the deceased on his back. The deceased Rajendra Pathaksuccumbed to the said injuries. Based on the said incident, sessiontrial was instituted and appellant was convicted for the murder ofRajendra Pathak and sentenced to life imprisonment by judgmentdated 30.09.2008. It is thereafter Cr.A No.2353/2008 was filedby the appellant before this Hon’ble Court. It is also relevant tomention herein that the similarity of the present case with a caserelating to deceased Rajendra Pathak is that the deceased in thepresent case Pappu @Ramakant Pathak and Kailash Pathak wereall belonging to the same family.

(b) It is submitted that in the second crime, the appellant alongwith others committed the murder of Munna Vishwakarma. Basedon the said incident, Sessions Trial No. 113/2005 was institutedand the appellant was convicted for the murder of Munna videJudgment dated27.10.2015. It is thereafter, Criminal Appeal No.3108/2015 was filed by the appellant before this Hon’ble Court.

(c) To put it differently, it can thus be seen that the appellantcommitted two crimes punishable under Section 302 IPC on thesame date i.e. 11.5.2004 viz. the present case in which RamakantPathak and Kailash Pathak were killed and Munna Vishwakarmain respect to which Criminal Appeal No. 3108/2015 is pending.

(d) It would also be relevant to mention herein that the appellantcommitted another crime for offences punishable under Section399 and 402 of the Indian Penal Code and Section 25 (1) (1B)(a)of the Arms Act. In the said case too, the appellant was convictedand thereafter filed a Criminal Appeal No. 1984 /2011, in whichcase also his sentence was suspended. It is thus clear that the AB

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Aappellant has been a serious threat to the society and that hasbeen continuously committing criminal offences.”

Paragraph 10 contains a reference to the FIR lodged on 15 March2019 at the behest of the appellant alleging that the second respondenthas committed the murder of his father:

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B“10 It is also relevant to mention herein that after grant of bail inthe said criminal appeals, the appellant has again committed murderof one Devendra Chaurasiva on 15.03.2019 and an F.I.R. to thatrespect has been registered against the appellant on 15.03.2019itself for offences punishable U/s 294. 323, 324, 307, 147, 148,C149, 506 of I.P.C. Pertinently, since the deceased died afterregistration of F.I.R., offence U/s 302 has been added in the presentcrime. Copy of the F.I.R dated 15.03.2019 bearing crime No.143/2019 is filed herewith as ANNEXURE-R/1.”

5. By its order dated 23 July 2019, the High Court declined toentertain the application for revocation ofthe suspension of sentence/Dgrant of bail. The grounds which weighed with the High Court appear inthe following extract:

“…we are of the considered opinion that I.A.No.6837/2019 &I.A.No.5781/2019 can be disposed of as per the statement madeat bar by Shri Ajay Gupta, Additional Advocate General for theEState that the State Government is further investigating the issueon an application filed on behalf of appellant Govind Singh interaliastating that he has been falsely implicated. We,therefore, directthat the investigation may be completed as far as possible withinthree months but not later than 90 days. On completion of theFinvestigation, if the appellant is found involved in commission ofthe crime,he be immediately taken into custody and the procedureas prescribed be followed. It is also observed that neither appellantGovind Singh shall threaten nor influence the witnesses and thecomplainant side.”

6. After notice was issued in these proceedings on 18 NovemberG2020,counsel for the State of Madhya Pradesh was granted anadjournment on 11 January 2021 to file a counter affidavit. In themeantime, on 12 February 2021,counsel for the appellant apprised thisCourt of the fact that on 8 January 2021, the Additional Sessions Judge(“ASJ”) at Aurangabad, issued summons to the second respondent underHSection 319 of the CrPC in the course of the sessions trial arising out of the charge sheet filed in FIR 143 of 2019. The Court was apprised thatthough a warrant of arrest has been issued against the second respondent,he was resisting arrest. The order of the ASJ summoning the secondrespondent to stand trial has been placed on the record.

7. Subsequently, when the proceedings were listed before thisCourt on 12 March 2021, the Court took note of an order dated 8 January2021 passed by the ASJ, Hata District, Damoh in Sessions Trial No 30of 2019 (Addl. No. 143 of 2019).

8. The order dated 8 January 2021 passed by the ASJ specificallyrefers to the criminal record of the second respondent, and is extractedbelow:

“Details of criminal records of accused Govind Singh areaccordingly:- A

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The ASJ provided reasons in his order for taking steps in pursuanceof the provisions of Section 319 of CrPC to arraign the second respondentas an accused.

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9. Thereafter, in his order dated 8 February 2021, the ASJ notedthat though he was taking action in compliance with the directions of thisCourt for ensuring service on the second respondent, the process of thecourt was being obstructed. The ASJ expressed a serious apprehensionthat the accused and the Superintendent of Police (“SP”), Damoh hadHcolluded with the subordinates of the latter “to frame serious charges”

against the judge. The accused, the trial judge noted, is a “highly influentialpolitical person” and though false allegations had been made against thejudge for transfer of the case, the application for transfer had beendismissed by the District Judge. The relevant extract from the orderdated 8 February 2021 reads as follows:

“The action in this case is being taken in compliance with thedirections given by Hon. Supreme Court expeditiously. But accusedpersons are highly influential political persons and have raisedfalse allegations against me and made application for transfer ofcase before Hon. District Judge which was found false and Hon.District Judge had dismissed the application with cost and beingcontemptuous. But like accused persons, now PoliceSuperintendent Damoh had connived with his subordinates andmade false and fabricated pressure onme. From the above suchacts it is clear and I am confident that accused persons with PoliceSuperintendent Damoh had colluded with his subordinates to frameserious charges against me in future or any unpleasant incidentcan be done with me.”

10. Adverting to these developments, this Court took serious noteof the anguish expressed by the ASJ on 8 February 2021 and noted in itsorder dated 12 March 2021 that:

“8. The order of the learned Additional Sessions Judge dated 8February 2021 indicates that he is being pressurized by theSuperintendent of Police, Damoh, who, together with hissubordinates, is attempting to pressurize the judicial officer. Thejudicial officer has expressed the apprehension that the accusedwho are “highly influential political persons” have raised falseallegations against him and applied for transfer of the pendingcase which was dismissed by the District Judge after it was foundto be false. The learned Additional Sessions Judge hasapprehended that he may be subjected to an “unpleasant incident”in the future.”

11. The order of this Court dated 12 March 2021 took note of thefact that:

(i) Despite the registration of an FIR on 15 March 2019 wherethe appellant had alleged that the second respondent wascomplicit in the murder of his father no steps were beingtaken by the investigating authorities to arrest him; A

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A(ii)In this backdrop, it was the ASJ who was constrained toissue summons to the second respondent under Section 319of the CrPC to face trial;

(iii) Despite the issuance of warrants against him, the secondrespondent continued to abscond; andB

(iv) It had been stated during the course of the proceedingsthat the spouse of the second respondentis an MLA and“all possible steps are, therefore, being adopted to shieldthe second respondent from the coercive arm of the law”.

Taking note of the apprehension expressed by the ASJ that heCwas being targeted, this Court observed:

“10. We take serious note of the manner in which the AdditionalSessions Judge, Hata who is in charge of the criminal case hasbeen harassed by the law enforcement machinery in Damoh. Wehave no reason to disbelieve a judicial officer who has made anDimpassioned plea that he was being pressurized as a result of hisorders under Section 319 of the CrPC. The State which had movedthe High Court for cancellation of the bail which was granted tothe second respondent as an incident of the suspension of sentenceon 3 February 2016, has failed to apprehend the second respondentwho continues to evade arrest. A warrant of arrest was issuedEagainst the second respondent. Mr Saurabh Mishra, AdditionalAdvocate General appearing for the State, states that aproclamation has been issued against the second respondent underSection 82 of the CrPC on 4 March 2021 with an award of Rs10,000. Yet the second respondent continues to evade arrest. TheFrule of law must be preserved.”

12. In this backdrop, the Director General of Police (“DGP”) ofMadhya Pradesh was directed “to immediately ensure the arrest of thesecond respondent and report compliance by filing a personal affidavitin this Court”. The DGP was also directed to enquire into the allegationsGlevelled by the second respondent against the SP by the ASJ in his orderdated 8 February 2021.

13. Notice was issued to the SP, Damoh.

14. In pursuance of the order dated 12 March 2021, the DGPfiled an affidavit stating that despite efforts to secure the presence ofH

SOMESH CHAURASIA v. STATE OF M.P. & ANR.[DR. DHANANJAYA Y CHANDRACHUD, J.]

the second respondent, the police were unable to apprehend and arresthim. The affidavit provided the following details:

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(i) After the ASJ by his order dated 8 January 2021, arraignedthe second respondent as an accused, an arrest warrantwas issued against him. Steps were taken by the DamohPolice to arrest the second respondent from 8 January 2021.BHowever, the second respondent was absconding andevading arrest. As a result, an award of Rs. 10,000 wasannounced for giving information on the whereabouts ofthe accused;

(ii) The DGP directed the formation of a “special team” underCthe Additional Superintendent of Police (“ASP”), Damoh,to arrest the second respondent to comply with this Court’sorder dated 12 March 2021. The Special Task Force, Bhopal(“STF”) was also tasked to apprehend the accused. Theaffidavit details the steps taken by Damoh police and theDSTF;

(iii) Provision of security was made for the ASJ Hata; and

(iv) An enquiry into the allegations levelled by the ASJ againstthe SP in his order dated 8 February 2021 was entrusted tothe Additional Director General of Police (“ADGP”), STF,Police headquarters, Bhopal.

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15. Finding the explanation provided by the DGP for the failure ofthe police to arrest the second respondent to be unacceptable, this Courtin its order dated 26 March 2021 observed:

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“2 We find the affidavit of the Director General of Police to becompletely unacceptable. It defies reason as to how an accusedwho is the spouse of a sitting Member of the Legislative Assemblyhas not been arrested despite being arraigned in pursuance of theprovisions of Section 319 of the Code of Criminal Procedure 1973to face trial for an offence under Section 302 of the Indian PenalCode 1860.

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An effort is being made to shield the accused from the due processof criminal law. The Court was informed that earlier,the accused waseven given security by the police though it is stated by Counsel for theState that it is now withdrawn.”

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A16. Accordingly, the DGP was directed to ensure that the previousorder of this Court dated 12 March 2021 is complied with, failing whichthisCourt would be constrained to take coercive steps in accordance withlaw. At that stage, this Court was also apprised by counsel for theappellant that though the second respondent had been summoned underSection 319 of the CrPC to face trial for an offence punishable underBSection 302, he continued to abscond. On the other hand, security hadbeen provided to him by the State of Madhya Pradesh. Accordingly, afurther affidavit was directed to be filed by the DGP stating:

(i) The date on which and the cause on the basis of whichsecurity was granted to the accused;C

(ii) Whether the security continues to be provided as on date;and

(iii) If the answer to (ii) above is in the negative, the date onwhich the security was withdrawn.

D17. A further affidavit dated 3 April 2021 was filed by the DGP incompliance with this Court’s order dated 26 March 2021 explaining that:

(i) Pursuant to the steps taken by the Damoh Police and theSTF, the second respondent was arrested from a bus standin Bhind District on 28 March 2021. The second respondentEwas presently in the judicial custody at Sub-Jail, HataDistrict, Damoh; and

(ii) The SP had recommended grant of security to the secondrespondent in view of his enmity with several persons andhis political background. On the basis of the recommendation,Fthe second respondent was provided security of one officeron 11 July 2020. This was ratified by State SecurityCommittee on 25 September 2020. The security waswithdrawn on 9 January 2021.

18. On 6 April 2021, another affidavit was filed by the DGP detailingGthe reasons for grant of security to the second respondent. The affidavitstated that:

(i) Smt. Rambai Govind Singh,who is an MLA,made anapplication dated 3 July 2020 for providing security to herspouse(the second respondent) “on the basis of his politicalHbackground and enmity with several persons”;

(ii) A security officer was detailed to the second respondentAon 11 July 2020;

(iii) A threat assessment report was sought from the SP whorecommended grant of security on 24 September 2020. Therecommendation of the SP was ratified by the State SecurityCommittee on 25 September 2020; B

(iv) Thereafter, a final order for grant of security was passedon 7 October 2020; and

(v) The ASP by an order dated 10 January 2021 directed theremoval of the security provided to the second respondentCon the issuance of a warrant of arrest by the ASJ on 8January 2021.

19. Mr Varun Thakur, learned counsel appearing on behalf of theappellant has, during the course of his submissions, outlined the basis onwhich cancellation of bail granted pursuant to the order suspendingsentence is sought. Learned counsel urged that the second respondenthas been implicated in a serious offence punishable under section 302 ofthe Penal Code after he was enlarged on bail. It has been urged that thesequence of events indicates that despite the order under Section 319 ofthe CrPC, the second respondent evaded the due course of law despitea warrant against him and a proclamation. It has been submitted that theinvestigating authorities were complicit in this and continued to protectthe second respondent whose spouse is an MLA. Despite the order ofthis court, the DGP reported initially that the second respondent couldnot be apprehended. The state had provided security to him despite theconviction of an offence under Section 302. The order of the ASJ is aclear indicator of the police attempting to pressurize the trial judge. Hencea cancellation of bail is warranted.

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20. These submissions have been contested on behalf of the Stateand its authorities by Mr Saurabh Mishra, learned Additional AdvocateGeneral. Mr Mishra submitted that the following sequence of eventsmay be borne in mind:

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(i) 15 March 2019– an FIR was registered against certainaccused including the second respondent; (ii)13 June 2019 – a chargesheet was submitted to thecompetent court. Though, the second respondent was named H

as an accused in the FIR, the charge sheet did not namethe second respondent as further investigation was pendingagainst him under Section 173(8) of the CrPC; A

(iii) 23 July 2019– the impugned order was passed by the HighCourt; B

(iv) 7 September 2019 – a closure report was submitted beforethe competent court absolving the second respondent; (v)24 March 2020– a new government was formed in the Stateof MP following a floor test in the legislative assembly on18 March 2020; and C

(vi) 8 January 2021– an application was filed by the appellantunder Section 319 of the CrPC for the issuance of summonsto the second respondent to face trial. The State did notoppose the application.

DIt was urged on behalf of the State that there is no substance inthe charge of collusion since as a matter of fact, the State had not opposedthe application under Section 319 of the CrPC.

21. The second limb of the submission is that pursuant to thedirections issued by this Court on 12 March 2021, an enquiry wasconducted by the ADGP and STF, Bhopal. The ADGP in his reportEdated 22 March 2021 to the DGP stated that no substance was found inthe observations of the ASJ in his order dated 8 February 2021. Theconclusions in the enquiry indicate:

“24. Upon analyzing the whole incident the following conclusionsare drawn :F

(a) Ms. Bhawna Dangi, SDOP, had joined her new posting, 6days prior to appearance before Hon’ble Court and it washer first field posting.

(b) Ms. Bhawna Dangi, SDOP informed the incident withGherself in the court to her senior officers.

(c) Superintendent of Police, Damoh, immediately apprised ofthe incident happened with Ms. Bhawna Dangi to the seniormost Judge of the District i.e. Hon’ble District and SessionJudge, Damohon 06.02.21.

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(d) For coordination at the district level between judiciary andexecutive, the District and Additional Session Judge andSuperintendent of Police remain in touch. Under the sameprotocol, the Superintendent of Police informed about theincident to the District and Session Judge.

(e) During the enquiry, the Hon’ble Additional Session Judge,Hata and both the JMFC, Hata were contacted but theyshowed their inability to give any statement unless permittedby the Hon’ble High Court of Jabalpur. In this context on17.03.21 an application was filed before the Hon’bleRegistrar General, Madhya Pradesh High Court,Jabalpur.

(f) The application dated 12.02.21 filed by Ms. Bhawna Dangiis pending in the office of Hon’ble Registrar General,Madhya Pradesh High Court, Jabalpur and only after itsinquiry any comment can be given on the application filedby SOOP, Ms.Dangi.

25. It is proved from the facts came in inquiry that theSuperintendent of Police has endorsed the grievance of his subordinateto his senior officers which is a part of his duty. No evidence ofSuperintendent of Police intention in connivance with accuseds to levelfalse charges is found out.”

Based on the above report, it has been submitted that the SDOPhad joined at her new place of posting on 31 January 2021. On 6 February2021, she appeared before the ASJ and explained the efforts whichwere made to arrest the second respondent. It is alleged that the ASJwas not satisfied with the explanation and had made her stand in thecourt for over four hours and had insulted her. The SDOP had expressedher desire to the ASP to resign from service. This incident was narratedby the ASP to the JMFC, Hata who has attempted to sort out the matter.Subsequently, the SDOP had submitted a complaint to the High Courtand had met the Registrar General on 12 February 2021. The orderdated 8 February 2021 was made known for the first time when it waspublished in the newspapers on 20 February 2021.

22. In this context, it has been submitted that the enquiry againstthe SP has been conducted in pursuance of the orders of this Court andno substance has been found in the allegations leveled by the judicialofficer.

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A23. The report of the ADGP states that though the ASP haddeniedcommunicating to the JMFC that, “it is an order of the … Superintendentof Police that the Magistrate …of Hata should be informed that SDOPDangi is disturbed, she is resigning, Sonkar Sahab to show some leniency”,he had communicated with the JMFC “to maintain better coordinationbetween the Hon’ble Court and the Executive” on his own accord. TheBrelevant extract of the report is as follows:

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“21. In this entire incident, the Additional Superintendent of Police,Damoh communicated with the Hon’ble JMFC’s, Hata to maintainthe better coordination between the Hon’ble Court and theExecutive. During his statement, Addl. Superintendent of PoliceCadmitted some comments mentioned in the order sheet and deniedsome other comments. In his statement, the AdditionalSuperintendent of Police, absolutely denied some references camein between the Hon’ble JMFC, Hata about the Superintendent ofPolice, Damoh. He further states that Superintendent of Police,DDamoh didn’t instruct him to communicate with JMFC, Hata. Hehad discussed the matter with both the Hon’ble JMFCs’ on hisown to maintain better coordination between the parties.”

24. Mr Sidharth Luthra, learned senior counsel appearing on behalfof the SP submitted that on 6 February 2021, the SDOP had made aEcomplaint about being humiliated by the judicial officer in court and theSP had informed the District and Sessions Judge about the incident onthe same date. On 7 February 2021, the Registrar General of the HighCourt was informed on phone. On 8 February 2021, the ASJ passed anorder expressing his apprehension that he was being targeted in thedischarge of his duties. However, on the same day, the ASJ addressed aFcommunication to the SP making no such allegations. On 12 February2021, the Registrar General of the High Court was furnished with theapplication of the SDOP and met her. The order dated 8 February 2021,it has been submitted, was published in the newspapers on 20 February2021. In this backdrop, Mr Luthra urged that there is no substance in theGallegation which have been leveled against the SP.

25. Mr Shakeel Ahmed, learned Counsel appearing on behalf ofthe second respondent has submitted that no adverse order may be passedagainst the second respondent. At this stage, it may be necessary tonote that an application for bail was moved before this Court on behalfHof the second respondent in IA No 50800 of 2021 in SLP (Crl) Diary No. 21783 of 2020. On 1 June 2021, the following order was passed bythis Court:

“1 After arguing the application for bail, the learned counselappearing on behalf ofthe applicant (the second respondent in theSpecial Leave Petitions) seeks thepermission of the Court towithdraw the application for bail.

2 The application for bail is accordingly dismissed as withdrawn.”

The IA was accordingly dismissed as withdrawn.

26. Before we deal with the rival contentions, it is necessary atthe outset to advert to the correctness of the order passed by the HighCourt on 23 July 2019. FIR No143 of 2019 was registered on 15 March2019 for offences under Sections 294, 323, 324, 307, 147, 148, 149 and506 of the IPC against several accused including the second respondent.It was alleged in the FIR that the accused had assaulted the victim,Devendra Chaurasia, by rods and sticks. The injured victim havingsuccumbed to his injuries, an offence under Section 302 wasadded.Among other accused, the FIR named the second respondent.On 13 June 2019, a chargesheet was filed before the competent court,which did not name the second respondent. Investigation under Section173(8) of the CrPC was kept pending against the second respondent.

27. In another case, the second respondent was convicted underSection 302 by the Sessions Court on 27 October 2015 against which hehad filed Criminal Appeal No. 3107 of 2015 before the High Court.During the pendency of the appeal, the sentence was suspended on 3February 2016. In view of the allegation that the second respondent hadcommitted offence of murder when his sentence was suspended, theState government filed an application before the High Court for therevocation of the order suspending the sentence/ granting bail to thesecond respondent. Another application was filed by the appellant. TheHigh Court disposed of the two applications by noting the statements ofthe Additional Advocate General that the State government is furtherinvestigating the application filed by the second respondent stating thathe has been falsely implicated. The High Court directed that theinvestigation may be completed as far as possible within three monthsbut not later, and if upon investigation the second respondent is involvedin the commission of the crime, he should be taken into custodyimmediately and “the procedure as prescribed be followed”.

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A28. On 7 September 2019, the police filed a closure report in relationto the second respondent before the competent court in FIR No. 143 of2019 dated 15 March 2019. An application under Section 319 of theCrPC was filed before the ASJ for summoning the second respondent.Byan order dated 8 January 2021,the application was allowed and thesecond respondent was arraigned as an accused. A warrant of arrestBwas issued against the second respondent. Despite the issuance of thewarrant of arrest and a proclamation, the second respondent was notarrested.The order of this Court dated 12 March 2021 speaks for itself.

29. The High Court by its impugned order dated 23 July 2019allowed the second respondent,who allegedly committed murder duringCthe period when his sentence was suspended, to continue on bail until hisclaim that he was being falsely implicated was first investigated in ninetydays. In adopting such a procedure, the High Court has clearlytransgressed into an unusual domain. The High Court has in effectstultified the administration of criminal justice.

D30. Section 389 (1)[1] of the CrPC allows the court to release aconvicted person on bail. The second proviso to Section 389 (1) of CrPCprovides that where a convicted person has been released on bail, it isopen to the public prosecutor to file an application for the cancellation ofbail. However, the grant of bail post-conviction is governed by well-Edefined procedures and parameters. The factors that govern the grantof suspension of sentence under Section 389 (1) have been discussed bythis Court (speaking through Justice Kurian Joseph) in Atul Tripathivs. State of U.P.[2 ]in the following terms:

“It may be seen that there is a marked difference between theFprocedure for consideration of bail under Section 439, which is 1 "Section 389. Suspension of sentence pending the appeal; release of Appellant onbail.—(1) Pending any appeal by a convicted person, the Appellate Court may, forreasons to be recorded by it in writing, order that the execution of the sentence or orderappealed against be suspended and, also, if he is in confinement, that he be released onbail, or on his own bond.GProvided that the Appellate Court shall, before releasing on bail or on his own bond aconvicted person who is convicted of an offence punishable with death or imprisonmentfor life or imprisonment for a term of not less than ten years, shall give opportunity tothe Public Prosecutor for showing cause in writing against such release:Provided further that in cases where a convicted person is released on bail it shall beopen to the Public Prosecutor to file an application for the cancellation of the bail.”H2 (2014) 9 SCC 177

pre conviction stage and Section 389 Code of Criminal Procedure,which is post-conviction stage. In case of Section 439, the Codeprovides that only notice to the public prosecutor unless impracticalbe given before granting bail to a person who is accused of anoffence which is triable exclusively by the Court of Sessions orwhere the punishment for the offence is imprisonment for life;whereas in the case of post-conviction bail under Section 389Code of Criminal Procedure, where the conviction in respect of aserious offence having punishment with death or life imprisonmentor imprisonment for a term not less than ten years, it is mandatorythat the appellate court gives an opportunity to the public prosecutorfor showing cause in writing against such release.

15. Service of a copy of the appeal and application for bail on thepublic prosecutor by the Appellant will not satisfy the requirementof first proviso to Section 389 Code of Criminal Procedure. Theappellate court may even without hearing the public prosecutor,decline to grant bail. However, in case the appellate court is inclinedto consider the release of the convict on bail, the public prosecutorshall be granted an opportunity to show cause in writing as to whythe Appellant be not released on bail. Such a stringent provisionis introduced only to ensure that the court is apprised of allthe relevant factors so that the court may consider whether it is an appropriate case for release having regard to themanner in which the crime is committed, gravity of theoffence, age, criminal antecedents of the convict, impacton public confidence in the justice delivery system, etc.

Despite such an opportunity being granted to the public prosecutor,in case no cause is shown in writing, the appellate court shallrecord that the State has not filed any objection in writing. Thisprocedure is intended to ensure transparency, to ensure that thereis no allegation of collusion and to ensure that the court is properlyassisted by the State with true and correct facts with regard tothe relevant considerations for grant of bail in respect of seriousoffences, at the post conviction stage.”

31. This Court in Ramji Prasad vs. Rattan Kumar Jaiswal andAnr.[3] has observed that in cases involving conviction under Section 302of the IPC, the sentence should be suspended only in exceptional cases.

3 (2002) 9 SCC 366

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A32. In Masood Ali Khan vs. State of U.P. and Ors.[4], this Courthas held that the mere fact that the accused, who were on bail duringthe period of trial, did not misuse their liberty is not a sufficient reasonfor the grant of suspension of sentence post-conviction. This Court byplacing reliance on Vijay Kumar vs Narendra[5] reiterated that all therelevant factors including “nature of accusation made against the accused,Bthe manner in which the crime was alleged to have been committed, thegravity of the offence, desirability of releasing the accused on bail afterthey have committed the serious offence of murder” must be lookedinto.

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33. The High Court had suspended the sentence. We are not inCthese proceedings called upon to consider whether the order of the HighCourt granting a suspension of sentence was valid in the first place.

34. There are distinct doctrinal concepts in criminal law namely(i) the grant of bail before trial or, what is described as the ‘pre-conviction’stage; (ii) setting aside an order granting bail when the principles whichDmust weigh in the decision on whether bail should be granted have beenoverlooked or wrongly applied; (iii) the post-conviction suspension ofsentence under the provisions of Section 389(1); and (iv) the cancellationof bail on the ground of supervening events, such as the conduct of theaccused during the period of bail,vitiating the continuance of bail.E35. The present case falls in the last of the above genres wherebail was sought to be cancelled on the ground that the second respondentwas implicated in an offence under section 302 during the period whenhis sentence was suspended.

36. This Court in Abdul Basit vs. Abdul Kadir Choudhary[6],Fwhile discussing the powers of the High Court to cancel bail granted toan accused under Section 439 (2) of the CrPC, has observed that typicallythe following conduct of the accused would result in the cancellation ofbail – (i) misuse of liberty by engaging in similar criminal activity; (ii)interference with the course of investigation; (iii) tampering of evidenceor witnesses; (iv) threatening of witnesses or engaging in similar activitiesGwhich would hinder the investigation; (v) possibility of fleeing to anothercountry; (vi) attempts to become scarce by becoming unavailable forinvestigation or going underground; and (vii) being out of the reach of 4 (2009) 3 SCC 4925 (2002) 9 SCC 364H6 (2014) 10 SCC 754

4 (2009) 3 SCC 4925 (2002) 9 SCC 364H6 (2014) 10 SCC 754

their surety. Similar considerations govern the cancellation of bail at thepost-conviction stage under the second proviso to Section 389 (1) of theCrPC. This Court in Pampapathy vs. State of Mysore[7], had held thatthe High Court had the power to revoke the suspension of sentencegranted under sub-Sections (1) and (2) of Section 426[8] of the erstwhileCode of Criminal Procedure, 1898 (“CrPC, 1898”) using its inherentpowers under Section 561-A of the CrPC, 1898. The accused werealleged to have misused their liberty while their sentence was suspended.Sub-Sections (1) and (2) of Section 426 of the CrPC, 1898 are similar toSection 389 (1) of the present CrPC. It may be noted that in Pamapathy(supra), the issue of cancellation of bail of a convict, by taking recourseto Section 561-A of the CrPC, 1898, arose because the second proviso,which, now, has been added to sub-Section (1) of Section 389 CrPC, didnot exist under the earlier legal framework. However, since the secondproviso to sub-Section (1) of Section 389 CrPC., now, deals with thecancellation of bail, no inherent power, would be required for revocationof suspension of sentence and bail granted to a convicted person duringthe pendency of appeal at the appellate court. This Court in its orderpassed in Ramesh Kumar Singh vs. Jhabbar Singh & Ors.[9], hasheld that if the accused misuses their liberty by committing other offencesduring the suspension of sentence under Section 389 (1) of the CrPC,they are not entitled to the privilege of being released on bail. In thatcase, the accused was convicted under Section 302 of the IPC for killingthe father of the complainant and during the suspension of his sentence,when he was out on bail, he had committed the murder of the brothersof the complainant. This Court set aside the bail that was granted to theaccused by the High Court.

37. The present case was a fit case for the cancellation of bail bythe High Court. The narration in the earlier part of the judgment highlightsthe following facets:

7 1966 Supp SCR 477

8 “426. (1) Pending any appeal by a convicted person, the Appellate court may, forreasons to be recorded by it in writing, order that the execution of the sentence or orderappealed against be suspended and, also, if he is in confinement, that he be released onbail or on his own bond.

(2) The power conferred by this section on an appellate court may be exercised also bythe High Court in the case of any appeal by a convicted person to a court subordinatethereto.”

9 (2003) 10 SCC 195

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718SUPREME COURT REPORTS

A(i)The registration of FIR 143 of 2019 implicating the secondrespondent in the murder of the appellant’s father duringthe period when the sentence of the second respondentwas suspended after his conviction of a prior offence underSection 302.

B(ii)The criminal antecedents of the second respondent;

(iii) The strong likelihood of the second respondent using hispolitical clout to prevent a fair investigation of FIR 143 of2019;

(iv) The truth in the apprehensions of the appellant havingCbecome evident by the abject failure of the police to properlyinvestigate the FIR lodged against the second respondenton the allegation that he had committed the murder of theappellant’s father on 15 March 2019 after his sentence wassuspended by the High Court; D(v)The submission of a closure report by the police against thesecond respondent absolving him;

(vi) The order of the ASJ dated 8 January 2021 summoning thesecond respondent under Section 319 of the CrPC; E(vii)The second respondent having evaded arrest despite theissuance of a warrant of arrest and a proclamation;(viii) The failure of the law enforcement authorities to effectuatethe arrest of the second respondent in spite of the order ofthis Court dated 12 March 2021;

F(ix)The peremptory directions issued by this Court on 26 March2021 requiring the DGP to take necessary steps forcompliance with the previous order failing which the Courtwould be constrained to take coercive steps in accordancewith law; G(x)The eventual arrest of the second respondent on 28 March2021 ostensibly from a bus stand;

(xi) The apprehension expressed by the ASJ in his order dated8 February 2021 that he was being targeted at the behestof a politically influential accused; andH

SOMESH CHAURASIA v. STATE OF M.P. & ANR.[DR. DHANANJAYA Y CHANDRACHUD, J.]

(xii) The provision of security to the second respondent by theState government at the behest of his spouse who is anMLA despite a prior conviction under Section 302 of theIPC.

38. The High Court mis-applied itself to the legal principles whichmust govern such a case. The serious error by the High Court in itsimpugned order can be considered from two perspectives. First, theHigh Court by simply disposing of the IAs seeking cancellation of bailignored material considerations which ought to have weighed in thedecision. Some of the events which we have narrated above haveundoubtedly transpired after the order of the High Court. However, takingthe position as it stood when the High Court considered the issue, a clearcase for cancellation of bail was established. The second aspect whichis also of significance is the impact of the order of the High Court. TheHigh Court was apprised of the fact that FIR No 143 of 2019 had beenlodged against the second respondent. The investigation into the FIRhad to proceed according to law. Instead, the High Court gave a periodof ninety days to the police to enquire into the complaint of the secondrespondent that he was being targeted and allowed the police to thereafterproceed in accordance with law. This order had the effect of obstructinga fair investigation into the FIR at the behest of the accused despite thenature and gravity of the allegations against him. The events which havetranspired since go to emphasize the fact that the High Court was ingrievous error in passing its directions which were misused to defeat theinvestigation. The police submitted a closure report absolving the secondrespondent. Thereafter, despite the order under section 319, the secondrespondent evaded arrested in contravention of the warrant of arrestwhich was issued by the ASJ. The facts which have been narrated inthe earlier part of this judgment indicate that the police have been complicitin shielding the second respondent. The criminal antecedents of the secondrespondent and the prior conviction on a charge of murder have beenadverted to earlier. The second respondent, whose spouse is an MLAwasprovided security by the State. The DGP was sanguine in informing thiscourt that the second respondent could not be arrested despite thedirections issued by this Court. It was only after this Court issued aperemptory direction indicating recourse to the coercive arm of law thatthe second respondent was arrested, ostensibly from a bus-stand. Thematerial on the record indicates that an effort has been made to shieldthe accused from the administration of criminal justice. The apprehensions A

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Aexpressed by the ASJ in his order dated 8 February 2021 of themachinations of a highly influential accused evading the process of laware amply borne out by the facts which have been revealed before thisCourt. There is no reasonable basis to doubt the anguish and concern ofa judicial officer. That the state did not oppose the application undersection 319 is a feeble attempt to justify the inaction of the police.BUnfortunately, the High Court failed in its duty to ensure that the sanctityof the criminal justice process is preserved. This court has had to step into ensure that the rule of law is preserved.

39. We accordingly order and direct that the order of the HighCourt dated 23 July 2019 shall standset aside.IA Nos 6837 and 5781 ofC2019 shall in the circumstances stand allowed. The bail granted to thesecond respondent shall stand cancelled. We also direct that the secondrespondent shall be moved under the directions of the DGP to anotherjail in Madhya Pradesh to ensure that the fair course of the criminalproceedings is not deflected.D

40. During the course of this proceeding, an enquiry was directedto be made into the apprehensions expressed by the ASJ in his orderdated 8 February 2021. An independent and impartial judiciary is thecornerstone of democracy. Judicial independence of the district judiciaryis cardinal to the integrity of the entire system. The courts comprised inEthe district judiciary are the first point of interface with citizens. If thefaith of the citizen in the administration of justice has to be preserved, itis to the district judiciary that attention must be focused as well as the‘higher’ judiciary. Trial judges work amidst appalling conditions – a lackof infrastructure, inadequate protection, examples of judges being madetargets when they stand up for what is right and sadly, a subservience toFthe administration of the High Court for transfers and postings whichrenders them vulnerable. The colonial mindset which pervades thetreatment meted out to the district judiciary must change. It is only thenthat civil liberties for every stakeholder – be it the accused, the victimsor civil society – will be meaningfully preserved in our trial courts whichGare the first line of defense for those who have been wronged.

41. The functioning of the judiciary as an independent institutionis rooted in the concept of separation of powers.Individual judges mustbe able to adjudicate disputes in accordance with the law, unhindered byany other factors. Thus, “for that reason independence of judiciary isHthe independence of each and every judge”. The independence of individual judges also encompasses that they are independent of theirjudicial superiors and colleagues.[10 ]This Court in Madras BarAssociation v. Union of India & Anr.[11] speaking through Justice L.Nageswara Rao has observed:

“29. Impartiality, independence, fairness and reasonableness indecision-making are the hallmarks of the judiciary. If “impartiality”is the soul of the judiciary, “independence” is the lifeblood of thejudiciary. Without independence, impartiality cannot thrive.Independence is not the freedom for Judges to do what they like.It is the independence of judicial thought. It is the freedom frominterference and pressures which provides the judicial atmospherewhere he can work with absolute commitment to the cause ofjustice and constitutional values. It is also the discipline in life,habits and outlook that enables a Judge to be impartial. Its existencedepends however not only on philosophical, ethical or moralaspects but also upon several mundane things—security in tenure,freedom from ordinary monetary worries, freedom frominfluences and pressures within (from others in the judiciary) andwithout (from the executive). The independence of an individualJudge, that is, decisional independence; and independence of thejudiciary as an institution or an organ of the State, that is, functionalindependence are the broad concepts of the principle ofindependence of the judiciary/ tribunal.”

42. Our Constitution specifically envisages the independence ofthe district judiciary. This is implicit in Article 50 of the Constitution whichprovides that the State must take steps to separate the judiciary from theexecutive in the public services of the State. The district judiciary operatesunder the administrative supervision of the High Court which must secureand enhance its independence from external influence and control. Thiscompartmentalization of the judiciary and executive should not bebreached by interfering with the personal decision-making of the judgesand the conduct of court proceedings under them.

43. There is no gainsaying that the judiciary should be immunefrom political pressures and considerations. A judiciary that is susceptibleto such pressures allows politicians to operate with impunity andincentivizes criminality to flourish in the political apparatus of the State.

10 M.P. Singh, Securing the Independence of the Judiciary – The Indian Experience,Indiana International and Comparative Law Review 10, No. 2 (2000): 245-292.11 2021 SCC OnLine SC 463

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A44. India cannot have two parallel legal systems, “one for the richand the resourceful and those who wield political power and influenceand the other for the small men without resources and capabilities toobtain justice or fight injustice.” The existence of a dual legal systemwill only chip away the legitimacy of the law. The duty also falls on theState machinery to be committed to the rule of law and demonstrate itsBability and willingness to follow the rules it itself makes, for its actions tonot transgress into the domain of “governmental lawlessness”.[12]

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45. At the same time, we believe that judges, while beingundeterred in their commitment to follow the law and do justice, shouldbe wary of launching into a diatribe against the State authorities withoutCdue care and reflection.

46. The apprehensions expressed by the ASJ should be dulyenquired into by the High Court of Madhya Pradesh on its administrativeside so that if they are found to be true, necessary action should betaken in order to secure the fair administration of justice. We have alreadyDtaken note of the fact that the SDOP Hata had submitted a complaint tothe Registrar General. The complaint by the SDOP as well the the orderof the ASJ dated 8 February 2021 shall be placed before the Chief justiceof the Madhya Pradesh High Court on the administrative side by theRegistrar General within two weeks. The Chief Justice of the High CourtEof Madhya Pradesh is requested to cause an enquiry to be made on theadministrative side so that an appropriate decision in that regard is taken.Having regard to this direction we are not expressing any views on thereport which has been submitted by the ADGP and STF, Bhopal. Theenquiry as directed above should be concluded expeditiously andpreferably within a period of one month from the date of the receipt of aFcertified copy of this judgment. A copy of this order shall becommunicated by the Registrar (Judicial) of this court to the RegistrarGeneral of the High Court for compliance. The appeals shall standdisposed of in the above terms.

47. Pending application(s), if any, stand disposed of.G

Devika Gujral

Appeals disposed of.

12 Upendra Baxi, The Crisis of Legitimation of Law in The Crisis of the Indian LegalHSystem: Alternative Developments in Law (Vikas Publishing House, 1982).