The Supreme Court has held that if an undertrial attempts to misuse the concession of bail by influencing witnesses or tempering the evidence then such person can be committed to custody by withdrawing the concession of bail.

The Court allowed the Appeal challenging the bail order of the High Court. The Court emphasized the significant responsibility of the courts in ensuring the effectiveness of the criminal justice system and preventing perpetrators of crimes from evading punishment.

However, if it is found that an undertrial has attempted to misuse the concession of bail either by influencing the witnesses or tampering with the evidence or trying to flee from justice, such person can be committed to custody by withdrawing the concession of bail… The Courts are under an onerous duty to ensure that the criminal justice system is vibrant and effective; perpetrators of the crime do not go unpunished”, the Bench comprising Justice Surya Kant and Justice Dipankar Datta observed.

Advocate Mahesh Thakur appeared for the Appellant and Advocate T. Harish Kumar appeared for the Respondent.

Vinutha M. and the First Respondent were married, and they had a son. Allegations arose that the First Respondent engaged in an extra-marital affair and subjected Vinutha M. to harassment, pressuring her to sign divorce papers. She began living separately in their matrimonial home due to this. Multiple criminal complaints were filed against the First Respondent and his family for alleged harassment and attempts on Vinutha's life. These complaints led to a series of First Information Reports (FIRs), including charges under Sections 498A, 354(A), 506, 504, 341, 448, Indian Penal Code (IPC). Vinutha sought police protection but received no response. Eventually, she was found dead. The FIR initially omitted Section 302, prompting a subsequent complaint and the inclusion of murder charges. The First Respondent was arrested.

A Criminal Appeal was filed challenging the order of the High Court whereby the First Respondent was granted regular bail in trial proceedings in a case registered under Sections 109, 120B, 201, 302, 450, and 454 read with Section 34 of the IPC.

The Court observed that all vital witnesses particularly the Deceased’s family abruptly changed their testimonies within 20 days of their initial statement.

The Bench noted, “It appears that the sudden change of stance shown by the most vital witnesses, namely, the family members of the Deceased within 20 days of their examination­-in-­chief cannot be a mere coincidence. The Appellant has been vigorously pursuing this appeal seeking cancellation of bail given to Respondent No. 1. In her examination­in­chief, she has specifically named Respondent No. 1 as the main conspirator in the murder of her daughter. Her sudden somersault, therefore, cannot be easily detached from the chain of allegations made against Respondent No. 1 in the past, of influencing the police, hiring goons, repeatedly assaulting the Deceased, and various attempts to take away her life. All these accusations, for the limited purpose of these proceedings, do suggest that Respondent No. 1 has the potential to influence the investigation or the witnesses who were slated to depose against him”.

Furthermore, the Court noted that in bail cases, the courts have limited judicial review power. The Court must carefully balance the fundamental right to liberty and the rights of a lawful society. The Court observed that such a delicate balance, particularly in cases of prolonged detention, aims to secure a fair and unhindered trial by releasing the accused on bail under specific terms and conditions. However, the Court held that if it's found that an undertrial has attempted to misuse bail by influencing witnesses, tampering with evidence, or evading justice, their bail may be revoked.

Additionally, the Court observed the following remedies; namely cancellation of bail, and reiterated that in cases where a court is satisfied that there are cogent and overwhelming circumstances indicating misuse of concession of bail, it becomes imperative upon the Court in the interest of justice to withdraw such concession forthwith.

Applying these parameters to the facts and circumstances of the case in hand, we are satisfied that there is a prima facie proximity between the grant of bail to Respondent No.1 and an emboldening opportunity for him to win over the witnesses. Respondent No.1, therefore, does not deserve to enjoy the concession of bail at least until all the crucial witnesses are examined. The privilege of liberty extended to him, thus, deserves to be withdrawn for an effective, fair, just and unbiased conclusion of trial”, the Bench observed.

The Court noted that the second remedy would be ensuring a fair trial by recalling the witnesses and reiterated the reasons for witnesses turning hostile including: (i) witness intimidation or threats, (ii) inducement through various means, (iii) the utilization of the accused's influence and resources, (iv) employing unscrupulous individuals as witnesses, (v) prolonged trial durations, (vi) the difficulties witnesses encounter during both the investigative and trial phases, and (vii) the absence of a robust legislative mechanism to address witness hostility.

It seems to us that the unusual and surprising events that have happened post the grant of bail to Respondent No.1, do make out a case for recalling the witnesses for an effective, fair, and free adjudication of the trial. This Court is vested with vast and ample powers to have such recourse not only under Article 142 of the Constitution but also under Section 311 of the Code of Criminal Procedure, 1973”, the Bench observed.

Additionally, the Bench emphasized that the authority to summon witnesses under Section 311 of the Criminal Procedure Code (CrPC) should be used judiciously. Mere witness hostility, on its own, is not a satisfactory reason to conclude that the bail privilege has been abused, the Court noted.

Accordingly, the Court allowed the Appeal and set aside the impugned order of the High Court.

Cause Title: Munilakshmi v Narendra Babu & Anr. (2023 INSC 943)

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