Rajesh Ranjan Alias Pappu Yadav Vs. State of Bihar - Court Judgment

Excerpt:
(a) code of criminal procedure, 1973, sections 437 and 439 - granting of bail--setting aside of--once ball granted by high court has been set aside by apex court, would not mean that there was ban on filing the subsequent application in subordinate court. - - in the order dated 12th march, 2004 the supreme court further observed that the high court did not look into the question of witnesses turning hostile and the threat extended by the accused or his associates to the witnesses, therefore also the order was bad. 12. submission of the learned counsel for the applicant was that the provisions contained in section 437(1)(i) of the code applies to the court of magistrate because the section itself clearly says that when a person appears or is brought before the court other than the high..... r.s. garg, j.1. heard learned counsel for the petitioner, learned counsel for the cbi and learned counsel for the informant.2. the present is an application under section 439, cr.p.g. on behalf of the applicant rajesh ranjan alias pappu yadav.3. the applicant is in jail in connection with k. hat p. s. case no. 230/98, cr.c. case no. 12(s)/98 pending in sessions trial no. 976/99 before the cbi court. he has made this application for grant of bail.4. the facts material for deciding the matter in short are that one kalyan chandra sarkar lodged a first information report that his brother and other two were murdered while the fourth man suffered serious injuries in an attack opened by one rajan tiwary and his associates. from the records it would appear that the police after completing.....

Judgment:

R.S. Garg, J.

1. Heard learned counsel for the petitioner, learned counsel for the CBI and learned counsel for the informant.

2. The present is an application under Section 439, Cr.P.G. on behalf of the applicant Rajesh Ranjan alias Pappu Yadav.

3. The applicant is in jail in connection with K. Hat P. S. Case No. 230/98, Cr.C. Case No. 12(S)/98 pending in Sessions Trial No. 976/99 before the CBI Court. He has made this application for grant of bail.

4. The facts material for deciding the matter in short are that one Kalyan Chandra Sarkar lodged a first information report that his brother and other two were murdered while the fourth man suffered serious injuries in an attack opened by one Rajan Tiwary and his associates. From the records it would appear that the police after completing investigation filed a charge-sheet on 20-9-1998 and nothing was reported against the applicant. Thereafter the cognizance was taken by the concerned Magistrate on 23-9-1998 but no cognizance was taken against the applicant. On 28-9-1998 CBI took up the investigation and on 12-2-1999 co-accused Rajan Tiwari was arrested. On 22-2-1999 said Rajan Tiwari was produced before the Metropolitan Magistrate, Delhi in proper custody, his confessional statements were recorded and thereafter his custody was again handed over to the police. In his confessional statement while admitting his guilt that he committed murder, he also made allegations against the present applicant-petitioner that there was meeting of mind much prior to the alleged incident when the present applicant asked him to do away with one Ajit Sarkar. On 1-3-1999 Rajan Tiwari made an application before the concerned Metropolitan Magistrate and retracted from the said confession. Thereafter the charge-sheet was filed against the applicant also. The case of the CBI is that the present applicant conspired with other accused to murder one Ajit Sarkar who was then an M.L.A. from Purnea constituency. The alleged incident took place on 14-6-1998. When said Ajit Sarkar was returning in his official car with three others after attending a Panchayat, some accused named in the complaint/first information report followed the car in which said Ajit Sarkar was travelling, they opened an attack on Ajit Sarkar, his friend Asfaque Alam, Hirendra Sharma and Ramesh Oraon, the body guard of Ajit Sarkar with sophisticated weapons, consequent to which said Ajit Sarkar, Asfaque Alam and Hirendra Sharma died on the spot and Ramesh Oraon suffered serious injuries. It is also to be noted here that certain allegations were made against the police agency that they were not making proper investigation in the matter therefore, the matter was transferred to the CBI, which registered a fresh case. During the course of investigation the CBI found that in view of political rivalry between the deceased and the present applicant, the present applicant entered into a criminal conspiracy with the other co-accused to eliminate said Ajit Sarkar and pursuant to the said conspiracy on 12-6-1998 the applicant held a meeting with the co-accused Harish Chaudhary and others in Siliguri. It was also found that the applicant instructed some of the co-accused to create certain records in his favour to provide a plea of alibi to him and Harish Chaudhary for their absence from the place at the time of proposed attack and thereafter the applicant left for New Delhi from Bagdogra. The case of CBI further is that the present applicant from Delhi instructed the co-accused Rajan Tiwari over phone to eliminate Ajit Sarkar by all means and he also assured the said Rajan Tiwari that required fire-arms would be provided by co-accused Harish Chaudhary. On 14-6-1998 as a result of the conspiracy at about 4.30 p.m. said Rajan Tiwari armed with an AK- 47 rifle, Harish Chaudhary with a .455 revolver and another accused Amar Yadav armed with a .38 revolver waylaid the car in which Ajit Sarkar was travelling at a place near Ankur Hotel in Subhash Nagar and in that attack three persons including Ajit Sarkar died and his body guard Ramesh Oraon suffered serious injuries. From the records it appears that the applicant earlier moved an application before this Court for his release on bail which was rejected on 16-9-1999 and the S.L.P. against the said order was dismissed by the Apex Court on 7-10-1999. The second application for the same relief was rejected by High Court on 22-11-1999 and the S.L.P. filed against the said order was rejected by the Apex Court on 4-2-2000. Third application filed by the applicant was again rejected by this Court on 3-5-2000. The said order was not challeged in S.L.P. before the Hon'ble the Supreme Court. Fourth application for grant of bail was made on 26-7-2000 which again came to be rejected and the order was not challenged in the Supreme Court. The fifth application filed by the applicant for grant of bail before the High Court came to be allowed vide order dated 6-9-2000 and in an appeal filed against grant of said bail Hon'ble the Supreme Court was pleased to allow the said appeal and cancelled the bail granted to the present applicant as per its order dated 25-7-2001. In the order dated 25-7-2001 passed in Cr. Appeal No. 745 of 2001, it was argued before the Supreme Court that while admitting the applicant to bail, the High Court did not apply its mind from the angle provided under Section 437(l)(i) of the Criminal Procedure Code (hereinafter referred to as the 'Code') which restricts the discretion of the Court in granting bail. 'If there appear to be reasonable ground for believing that accused had been guilty of an offence punishable with death or imprisonment for life'. On behalf of the present applicant it was contended that though the High Court did not say in so many words that there were reasonable grounds for presuming that the applicant was not guilty of the offence punishable with death or imprisonment for life, the very fact that the High Court had chosen to exercise the discretion in favour of granting bail would be taken as proof that it appeared to the High Court that there were no reasonable grounds for believing that the applicant was guilty of such offence. Hon'ble the Supreme Court after appreciating the rival contentions without expressing any opinion on the merits of the rival contentions observed that the order passed by the High Court did not show application of mind, from the angle provided in the aforesaid Section 437(1 )(i) which is sine quo non for granting bail. In the light of the specific apprehension contained in the sub-clause that such persons shall not be so released if there appears a reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life, Hon'ble the Supreme Court set aside the judgment but at the same time observed that it had not considered the case of either party relating to the entitlement of bail claimed by the applicant. The Supreme Court left it to the High Court to consider this aspect afresh if any motion is made by the applicant in this behalf. It was further directed that in such an event the High Court shall pass orders untrammelled by any observations made by the High Court in the impugned order or by the Supreme Court in order dated 25-7-2001.

5. Thereafter the applicant filed his sixth application for grant of bail which was rejected by the High Court on 5-11 -2001. The matter was taken to Supreme Court and the S.L.P. came to be rejected on 7-12-2001. The seventh application again came to the High Court and the same was dismissed on 13-3-2002 and special leave petition was rejected on 10-5-2002. The applicant thereafter made eighth application before the High Court and the High Court by its order dated 23-5-2003 granted bail to the applicant. This order was questioned by the applicant. This order was questioned by the first informant Kalyan Chandra Sarkar before the Supreme Court and by order dated 12th March, 2004 the Supreme Court allowed the appeal and cancelled the order granted by this Court. The petitioner thereafter is again before this Court under Section 439, Cr.P.C. Before adverting to the arguments of the parties | must first look into the order of the Supreme Court passed in Cr. Appeal No. 324/2004. In the said matter the Supreme Court had observed that the Court granting bail should exercise its discretion in judicious manner and not as the matter of course. The Apex Court also observed that at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case need not to be undertaken but still there is need to indicate in such orders, reasons for prima facie concluding why bail was being granted particularly when the accused is charged for having committed a serious offence. It was also observed that any order devoid of such reasons would suffer from non-application of mind. The Apex Court observed that the following factors, among other circumstances should be taken into consideration :-

(a) The nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence;

(b) Reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant;

(c) Prima facie satisfaction of the Court in support of charge (Ram Govind Upadhayay v. Sudarshan Singh (2002) 3 SCC 598 : (2002 Cri LJ 1849) and Puran v. Rambilas (2001) 6 SCC 338 : (2001 Cri LJ 2566).

6. It was also observed that in cases where earlier bail applications were rejected there would be a further onus on the Court to consider subsequent applications for grant of bail by noticing the grounds on which earlier bail applications were rejected and after such consideration if the Court is of the opinion that the bail has to be granted then the Court should give specific reasons by in spite of such earlier rejections the subsequent application for bail should be allowed.

7. It was also observed by the Supreme Court that in its order dated 25-7-2001 while cancelling the bail granted by the High Court, it was specifically held that the present accused was in custody for more than one year at that time and the further fact that while rejecting the earlier application the High Court granted liberty to renew the bail application in future were no grounds envisaged under Section 437(1)(i) of the Code of Criminal Procedure. It was also observed that the earlier observations made by the Supreme Court in relation to Section 437 would be sine qua non for granting bail even under Section 439 of the Code. On the earlier occasion Hon'ble the Supreme Court observed that the order of the High Court was not tenable and the High Court was required to consider the material available against the accused and his detention in jail by itself would not entitle the accused to be enlarged on bail nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the accused on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail. In the order dated 12th March, 2004 the Supreme Court further observed that the High Court did not look into the question of witnesses turning hostile and the threat extended by the accused or his associates to the witnesses, therefore also the order was bad. Though a question was raised before the Supreme Court that the witnesses turned hostile when the present applicant was in jail but the Supreme Court observed that the High Court could not ignore that question and was obliged to, consider the facts, It was also observed that a conclusive finding in regard to the points urged by both the sides is not expected of the Court considering a bail application. Still one should not forget, giving reasons is different, from discussing merits or demerits. At the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. That did not mean that whilst granting bail some reasons for prima facie concluding why bail was being granted did not have to be indicated. It was further observed by the Supreme Court that the Court was duty bound to apply its mind to the allegations put forth by the Investigating agency and ought to have given atleast a prima facie finding in regard to such allegations because they go to the very root of the right of the accused to seek bail. The Supreme Court also observed that even if number of the witnesses are to be examined that in itself would not be a sufficient ground to admit the accused to bail. It was also observed that evidentiary value of the confessional statement and the other evidence would be matter to be considered at the stage of trial. However, the Supreme Court observed that an accused has right to make successive applications for grant of bail, the Court entertaining such subsequent bail application has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases the Court also has a duty to record what are the fresh grounds which persuaded to take a view different from the one taken in the earlier applications. The Supreme Court observed that grant of bail only on the ground of incarceration of the applicant and non-likelihood of the trial being concluded at an early date were not sufficient to grant bail and therefore the order of the High Court was violative of principles of binding nature of judgments of superior Courts rendered in a lis between the same parties, and in effect tends to ignore and thereby render ineffective the principles enunciated therein, which have a binding character.

8. On some dates Mr, K.T.S. Tulsi appeared and argued the matter at length, however, the hearing could not be concluded, therefore, the matter was adjourned.

9. On 9-9-2004, Mr. Y. V. Giri, appeared in the matter and the case was directed to be taken up on 15-9-2004 again the matter was adjourned to 17-9-20o4. On 17-9-2004 Mr. Vindhyachal Singh filed vakalatnama on behalf of the first information and made a submission that a counsel from the Supreme Court has to appear in the matter, therefore, the matter be taken up after 22nd September, 2004. The prayer was opposed by the learned counsel for the present applicant submitting, inter alia, that the applicant has to submit his candidature in the ensuring parliamentary election and as last date for submitting the candidature is 22-9-2004, the case be not adjourned beyond 20-9-2004, It was the submission of the counsel that if no bail is granted to the applicant then that would be end of the matter but in case bail is granted, the applicant would be in a position to submit his candidature.

10. Today again a request was made by Shri Vindhyachal Singh that the case be adjourned to next week as the counsel engaged by them was not available. When this Court asked the counsel for the C.B.I Mr. Rakesh Kumar, and Shri Vindhyachal Singh, counsel for the informant that if the case is to be adjourned then for a period of one week, temporary bail may be granted to the applicant enabling him to submit his candidature, the suggestion made by the Court was opposed tooth and nail and it was submitted by the counsel for the CBI and the objector that the matter may be heard. Accordingly the matter was fully heard.

11. On earlier occasions, it was submitted by the learned counsel for the applicant that the Apex Court was not justified in observing that before passing an order under Section 439 of the Code, the High Court must satisfy itself about the provisions contained in Section 437(1)(i) of the Code. Section 437 (l)(i) of the Code says that when any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a Police station, or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail but such persons shall not be so released, if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.

12. Submission of the learned counsel for the applicant was that the provisions contained in Section 437(1)(i) of the Code applies to the Court of Magistrate because the Section itself clearly says that when a person appears or is brought before the Court other than the High Court or Court of Session then he may not be released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.

13. In the opinion of this Court this argument of the learned counsel for the applicant must immediately be turned down in the light of the observation made by the Supreme Court in its earlier two orders in a lis between the same parties. On two occasions the Supreme Court had observed that while considering the application for grant of bail under Section 439 of the Code the High Court must take into consideration the bar as provided under Section 437(1 )(i) of the Code. When the Supreme Court in specific terms held that condition laid down under Section 437(1)(i) of the Code is sine qua non for grant of bail under Section 439 of the Code then it cannot be argued by any body before the High Court, which is bound by the observation of the Supreme Court that the Supreme Court was wrong. In any case being bound by the directions issued by the Supreme Court, I must consider the questions as directed by the Supreme Court.

15. In the opinion of this Court Section 437(1 )(i) of the Code requires a Court to consider the question whether on the material produced before the Court can a finding be recorded that there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or the material produced before the Court falls short for recording a prima facie opinion that the accused is guilty of an offence punishable with death or imprisonment for life ?

15. It was argued by the learned counsel for the C.B.I, so also by the learned counsel for the first information that while setting aside the second order, the Supreme Court in its order dated 12th March 2004 has left no discretion with the High Court to consider the application, therefore, this Court should straightway reject the application.

16. Learned counsel for the applicant on the other hand submitted that the Supreme Court had set aside the order passed by this Court only on the ground that the earlier observations made and the directions issued by the Supreme Court in relation to Section 437(1)(i) of the Code were not taken into consideration by the High Court. According to him, the Supreme Court has clearly observed that an applicant has right to make successive applications for grant of bail. The Court entertaining such subsequent bail applications has duty to consider the reasons and grounds on which the earlier bail applications were rejected.

17. In the considered opinion of this Court, by the order dated 12th March, 2004 by which the earlier orders passed by this Court granting bail was set aside the Supreme Court did not mean to say that there would be a ban on filing the subsequent applications in the Court subordinate to the Supreme Court and the Court would have no jurisdiction to consider this application.

18. It was then contended that the Supreme Court has observed that delay in disposal of the trial, incarceration of the accused in jail for long time and hostility of the witnesses in not supporting the prosecution case would be no ground for consideration of bail. According to them, the Court should go on basis of evidence which is available in the case diary and not any subsequent evidence which is brought during course of trial or at any other stage of the investigation. It was contended by the learned counsel for the applicant that if such a principle is applied then filing of the first charge sheet would conclude the matter and would leave no scope in favour of the CBI to proceed further with the investigation under Section 178 of the Code. According to him, a fair reading and understanding of the judgment of the Supreme Court would show that delay in disposal of the trial, long incarceration of the accused in jail and the question of non-availability of the evidence during course of investigation independently may not provide a ground for consideration of fresh application. But if the totality of the circumstances are not seen and all ground are not considered in juxtaposition and the argument of the respondent is accepted then there would never be any changed circumstances In a given case. What he means to say is that if for purposes of bail, the allegations made in the charge sheet/case diary are taken to be gospel truth and subsequent conduct of the witnesses and the evidence brought during course of the trial are not to be seen, then the purpose of the Code would frustrate. He submits that a perusal of subsection (7) of Section 437 of the Code would make it clear that if, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court records its opinion that there are reasonable grounds for believing that the accused is not guilty of any such non-bailable offence, it shall release the accused, if he is in custody.

19. In my humble opinion, a fair understanding of the judgment of the Supreme Court would make it clear that hostility of the witnesses in not supporting the prosecution case, long detention of the accused in jail in pending trial or non likelihood of conclusion of trial independently may not provide any ground or sufficient ground. When everything is taken into consideration in juxtaposition then and in accordance with the direction of the Supreme Court the Court records an opinion that the accused is not likely to be convicted or may not have committed any offence then such facts may provide changed circumstances.

20. In the present matter, the accused says that in the first charge sheet filed by the Police no allegations were made against the applicant but after the C.B.I., took up the investigation, confessional statement of a co-accused was recorded and thereafter the present applicant was also involved in the commission of the crime.

21. The question for consideration now would be whether the facts as submitted in the Court to provide a ground in favour of accused for his release or it still appears to the Court that there are reasonable grounds for believing that the applicant has been guilty of an offence punishable with death or imprisonment for life.

22. In considering an application under Section 439 of the Code the following facts are required to be considered :- (i) nature of allegations and (ii) whether the accused is directly involved in commission of crime or is sought to be booked with the aid and help of Sections 34, 149, 109 or Section 120B of the Indian Penal Code. In case of Sections 34 and 149, I.P.C., some direct evidence may be available against the accused but in a case under Section 109, I.P.C., sometimes direct evidence may not be available.

23. In a case of criminal conspiracy, punishable under Section 12OB, there is almost no likelihood of availability of direct evidence against the applicant. In a case of conspiracy, the same would not be hatched in the public view or at a place where others can see it. Certain circumstances will have to be brought on the record and such circumstances if complete a chain then the Court can record a prima facie finding that the accused might have committed an offence punishable with death or life imprisonment. While considering the case for grant of bail the Court will also have to take into consideration whether there is likelihood of conviction. Where the allegations made against the accused are absurd, moonshine or prima facie unreliable and even if the same are accepted on their face value they would not lead to any conviction would be a material consideration. In a case where allegations are absurd, moonshine then the Court may even quash the proceeding. In a case if the allegations, accepted on their face value, would not lead to conviction then too the High Court in exercise of power under Section 482 of the Code may quash the prosecution or Magistrate/trial Court may refuse to level any charge against the accused and may discharge him. The evidence which the prosecution collects must be reliable and must be of a value which can impress upon the Court that if the evidence is not rebutted and the allegations made in the charge sheet are accepted on their face value then a charge can be framed. Even in such cases, the Court hearing the bail application may release the accused on bail even in exercise of its discretion. However, the Court will have to see whether the character of the evidence collected by the prosecution is unimpeachable or impeccable or in case it is not so whether it is prima facie reliable. Even otherwise where the Court on basis of such case diary/statements records a finding that the applicant or accused before it is guilty of the charges levelled against him, the Court will have to see the conduct of the witnesses.

24. At this stage, while considering the application for grant of bail the Court may not examine the absolute truthfulness of the witnesses but while considering the matter, the Court would look into the character of the witnesses, their reliability and whether on the fateful day or at the first available opportunity they have levelled allegations against the accused. If the Court finds that the accused has not been named in the first information report or in the first set of the statement recorded under Section 161 of the Code or such other evidence which is collected by the prosecution, but he is being shown guilty in the later part of the investigation, the Court may prima facie feel that the accused may not be prima facie guilty of the offence. In any case, the Court would have to see whether the accused is prima facie guilty or not.

25. Learned counsel for the petitioner submitted that the confession of an accused is a very weak type of evidence and cannot be used against a co-accused. According to him, if any confessional statement is made by a co-accused and the same is retracted by the person making it then such a statement would not bind even the maker of it what to say of the co-accused who has been roped in the said confessional statement. Placing reliance upon the judgment of the Supreme Court in the matter of Kalawati v. State of Himachal Pradesh, 1953 SCR 546 : (1953 Cri LJ 668), State of Maharashtra v. Damu (2000) 6 SCC 24 : (2000 Cri LJ 2301), Shivappa v. State of Karnataka (1995) 2 SCC 76 : (AIR 1995 SC 980), State v. Nalini (1999) 5 SCC 253 (1999 Cri. LJ 3124), Haricharan Kurmi v. State of Bihar (1964) 6 SCR 623 : (1964 Cri LJ 344) Param Hans Yadav v. State of Bihar (1987) 2 SCC 197 (1987 Cri. LJ 789), Mahabir Biswas v. State of West Bengal (1995) 2 SCC 25 : (1994 AIR SCW 5052), Kalpanath Rai v. State (1997) 8 SCC 732 :(1998 Cri LJ 369) S. N. Dube v. N. B. Bhoir (2000) 2 SCC 254 : (2000 Cri LJ 830), Bheru Singh v. State of Rajasthan (1994) 2 SCC 467 : (1995 AIR SCW 2126), Shabad Reddy v. State of Andhra Pradesh (1997) 8 SCC 495 : (1997 Cri LJ 3753), it was submitted that a retracted confession has no value even against a person who has made confession against a co-accused. The same cannot be made a foundation of confession. The Magistrate recording the confessional statement has certain duties. Confession of co-accused is very weak type of evidence. It does not substantiate the evidence against the co-accused and for convicting the co-accused it cannot be used.

26. On the other hand learned counsel for the CBI and the respondent have submitted that question of confessional statement and its reliability and binding nature cannot be considered at this stage.

27. In the opinion of this Court unless the evidentiary value of the confessional statement is taken up for consideration it would become impossible for this Court to comply with the provisions as contained in Section 437(1)(i) of the Code in recording a finding that the accused is prima facie guilty or not. The material which is available against him will have to be read. A Court of law would not close eyes to the law but will have to see that the allegations made against the applicants are admissible in evidence, whether those have some evidentiary value and whether on strength of such evidence a conviction can be recorded. At this stage, this Court is not required to pass any order on the merits of the matter but will have to record a reason either for granting bail or rejecting it.

28. In sum and substance as I understand from the above referred law, retracted confession has only little value as the basis for a conviction and that the confession of one accused is not evidence against the co-accused tried jointly for the same offence, but can only be taken into consideration against him. A Magistrate who proposes to record confession has to ensure that the confession is free from police interference. If the accused is produced from police custody, the Magistrate would not record the confession until the lapse of such time as he thinks necessary in the facts of the case. Full and adequate compliance not merely in form but in essence with the provisions of Section 164 of the Code and the rules framed by the High Court is imperative and its non-compliance goes to the root of the Magistrate's jurisdiction to record confession and renders the confession unworthy of credence. The confession made by co-accused is admissible under Section 30 of the Indian Evidence Act and while considering that aspect, the Court has to bear in mind that any confession when it is sought to be used against another has certain inherent weaknesses. The first is it is the statement of a person who claims himself to be offender which means, it is the version of accomplice; second is that truth of it cannot be tested by cross-examination and third is that it is not an item of evidence given on oath and fourth is that the confession was made in the absence of the co-accused against whom it is sought to be used. In the matter of State v. Nalini, the Supreme Court has observed that it is well settled that due to the aforesaid weaknesses, the confession of a co-accused would be treated to be a weak type of evidence. A confession can be used as relevant evidence against its maker because Section 21 of the Evidence Act permits it under certain conditions. But there is no provision which enables a confession to be used as relevant evidence against another persons except that Section 30 of the Evidence Act which at least permits the Court to consider such a confession as against another person against conditions prescribed therein. The Supreme Court had observed that statement contained in the confession of the co-accused person stand on different footing. In cases where such confessions are relied upon by the prosecution against, an accused person, the Court cannot begin with the examination of the said statements. The stage to consider the said confessional statement arrives only after the relevant evidence considered and found to be satisfactory. The difference in approach which the Court has to adopt in dealing with the evidence of an accomplice or confession of co-accused is clear, well understood and will established.

30. In the matter of Hari Charan Kurmi the Supreme Court relied upon certain observations made in its earlier judgments and observed that it should first decide whether the evidence other than confessional statement of the co-accused persons is satisfactory and tends to prove the prosecution case.

31. In the present matter, the prosecution agency has collected certain evidence to show that the co -accused has entered into conspiracy with co-accused Rajan Tiwary for committing murder of Ajit Sarkar. The evidence is of telephone printouts of a PCO and cell phone of the accused. On the basis of these two printouts it is sought to be contended that the accused immediately after committing the murder had talked to the present applicant. The conduct of the co-accused, who made confessional statement as exhibited by him immediately after the commission of the crime would show that he had some links with the applicant.

32. From the records, it would appear and it was also admitted by Mr. Rakesh Kumar that printout would only show that some body had telephoned from that PCO to the place of the incident and not to the present co-accused. The evidence/printout of the PCO would not connect, the applicant with the alleged offence. The other printout: of the mobile of the co-accused Rajan Tiwary would only show that on the fateful day, he had some talks with he present applicant or tried to contact him. In a given case, evidence may assume importance but fact that anybody can contact any one on his telephone also is possible in the day to day life. In our telecommunication system we know that if some food)'' calls us and even if we want to disconnect the telephone in the landline system, we cannot disconnect our telephone unless special instruments are provided by the department.

33. In case of mobile anybody who knows other man's number purposely or mischievously may dial his number and may disconnect after sometime. This evidence that the co-accused had detailed talk or some talk with the present applicant in itself would not be sufficient to hold or record a prima facie finding that the present applicant entered into conspiracy with Rajan Tiwary. The other evidence which was brought on the record and asserted in the Court is that the present applicant had gone to Siliguri, he had meeting of minds, he required some of the railway contractors to provide certain facility to the co-accued and thereafter he flew from Siliguri to Bagdogra. Some of the contractors have already been examined before the trial Court and they have not supported the prosecution case. In fact they have informed the Court that they had nothing to do with the case.

34. Beyond this, the third set of evidence which is sought to be relied upon by the prosecution is that PW-8 Subodh had given a chit to PW-7 Rabindra Nath that the present applicant had called some mercenary to commit murder of Ajit Sarkar. PW-7 Rabindra Nath has stated before the Court below that his friend Subodh had written a chit and gave the same to him and thereafter he took this chit to Ajit Sarkar and gave the same to him and also asked him to be more careful. According to him, he was informed by PW-8 that the present applicant had hired some one to kill Ajit Sarkar. PW-8 Subodh had stated before the Court that he had heard from some one that Ajit Sarkar would be murdered and he had given chit to PW-7 but in his statement he has not said that he ever informed PW-7 that the present applicant has hire the co-accused Rajan Tiwary. When examining this evidence I may not be misunderstood to mean that I have examined every thing on merits. In fact I am examining the evidence collected during course of investigation and at the time of trial to record a finding whether the accused prima facie appears to be guilty or not.

35. Learned counsel for the respondents, however, submitted that when the witnesses turn hostile, it should be taken to be a fact against the accused. The argument certainly is holding some strength and specially when the Supreme Court has observed that question of hostility of the witness should also be taken into consideration by the Court. While appreciating the above referred question, the Court will have to see whether the witnesses who turned hostile were witnesses against the present applicant or they were witnesses against the co-accused. If out of 38 witnesses, 13 turned hostile and none of them, if they did not turn hostile, were to speak against the present applicant, then their becoming hostile would not matter against the present applicant. I pointedly asked the learned counsel for the CBI and the objector as to what material fact was to be stated by the hostile witnesses against the interest of the applicant, the learned counsel for both the respondents only submitted that driver who had carried the co-accused to the place of assassination in the car of the present applicant has turned hostile and secondly certain persons who had provided some help to the co-accused Rajan Tiwary had turned hostile.

36. In the opinion of this Court, the hostility of this witness against the prosecution cannot create a trap against the present applicant. I have gone through their statements and the cross-examinations and the suggestions in the cross-examination conducted by the counsel of the CBI. No materials suggestions have been given to them nor it has been suggested that to protect the co-accused persons of the case, they were not telling the truth.

37. Learned counsel for the CBI and the private objector have submitted that in case of conspiracy importance of Sections 8, 9 and 10 of the Evidence Act cannot be ignored. Sections 8, 9 and 10 of the Indian Evidence Act reads as follows :-

'8. Motive, preparation and previous or subsequent conduct.- Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any part, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person and offence against whom is the subject of any proceeding, is relevant, if such conduct influence or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

9. Facts necessary to explain or introduce relevant facts.- Facts necessary to explain or introduce a fact in issue or relevant fact or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of anything or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.

10. Things said or done by conspirator in reference to common death.- Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.'

38. So far as question of motive in relation to Section 8 of the Evidence Act is concerned, the prosecution has simply said that the applicant was not supported by the deceased while he was contesting the election. The applicant was annoyed with the deceased and he had made a public statement that the deceased must purchase a coffin for him. In the opinion of this Court when such statements are publicly made they have no value. In our system of politics when people make allegations against each other and call each other thieves, dacoits, blackmailer, or black marketeers or non-secular, then they really do not mean to say that but the allegations are made only to impress upon the public. It would be too much to expect from a person that in a public meeting he would extend threat that he would murder or kill another man. In fact the meaning of the statement is that future and career of such person is finished. So far as motive and preparation are concerned, very feeble attempt has been made by the prosecution to bring on record material facts. Even during course of investigation nothing could be brought. Section 9 says that facts necessary to explain or introduce a fact in issue or relevant facts are relevant in so far as they are necessary for that purpose. I am unable to understand as to what purpose would be served by going through Section 9.

39. Placing reliance upon Section 10 of the Indian Evidence Act, it was submitted that when things are said or done by conspirator, in reference to common design, then such conduct of the conspirator would become material. In fact the submission is that immediately after the meeting of the mind, the present applicant flew from Bagdogra to New Delhi and immediately after commission of the crime, co-accused Rajan Tiwary had contacted the present applicant on his mobile phone.

40. In the opinion of this Court the conduct of the accused even flying from Bagdogra to New Delhi cannot be said to be objectionable. This conduct would assume importance if the other relevant facts were brought on the record. So far as the conduct of co-accused Rajan Tiwary is concerned, in the opinion of this Court but for the printout no other evidence is available with the prosecution.

41. In these circumstances we are left with two circumstances which are floating on the surface of the record and the prosecution wants to swim across the channel of insufficiency of the evidence by taking shelter of these two circumstances. These are (i) confession of co-accused Rajan Tiwary and (ii) conduct of Rajan Tiwary in contacting the present applicant on his phone.

42. I have already observed that confession of the co-accused is very weak type of evidence. If it is retracted then same may not be even admissible against the maker of it and in case it is proved that the confession of the co-accused was made either under threat or when he was in police custody or when he was unable to understand as to what he was doing then confessional statement would not be credible against the person who had made it. In the present case, co-accused at the first available opportunity made application to the Metropolitan Magistrate, Delhi that under forced circumstance he was compelled to make confession and when he was brought to the jurisdiction of the trial Court he again made an application to the concerned Magistrate that confession was obtained from him under threat. He was produced from custody. The Magistrate did not observe the requirement of law and immediately after his statements were recorded he was sent back to police custody. This confession of the co-accused, how far would support the case is a different thing but his retraction would certainly give a dent to the reliability and acceptability of the confessional statement made by the co-accused against the interest of the present applicant.

43. At this stage, I would also refer to the statement of the three eye-witnesses which was recorded during course of investigation. PW-8 is Kalyan Chandra Sarkar, PW-9 is Madhusudan and PW-10. These witnesses did not. say that the present applicant was present nor they did say even a single word as to how they are connecting the present applicant with the alleged crime. In fact Ramesh Oraon, bodyguard of the deceased has stated in the Court that Kalyan Chandra Sarkar, Lal Babu Uraon and Madhusudan who claim to be eye-witnesses, did not see the occurrence.

44. It was then submitted that the present applicant and his associates even from jail, have been threatening the eye-witnesses and other witnesses of dire consequences, therefore, the petitioner is not entitled to be released on bail. Learned counsel for the applicant on the other hand submitted that from the statement of PW-4 and some of the witnesses, it would clearly appear that in fact the Police officers/CBI are threatening the witnesses and are compelling them to speak against the interest of the present applicant. These facts, in fact are borne out from the statement of PW-4 and the other documents which have been produced before me. So far as the question of recall of some of the witnesses is concerned, the records would show that Kalyan Chandra Sarkar, the first informant and some other witnesses are sought to be recalled. It is no body's case that they know anything about the alleged conspiracy. For proving conspiracy, as earlier observed, the prosecution is relying upon two facts which in view of the earlier discussions for purposes of this application are not sufficient to connect the applicant with the alleged crime.

45. So far as earlier rejections are concerned, those were on basis of the material which was then available before the Court. Now further material has been brought on record to show that accused is not involved in commission of crime. All these new material certainly would fulfil the requirement of changed circumstances.

46. Taking into consideration the totality of the circumstances for the purpose of this bail application, I must record a finding that there appear no reasonable grounds :for believing that the applicant has been 'guilty /is guilty of an offence punishable with death or imprisonment for life.

47. The application is allowed. Let applicant Rajesh Ranjan alias Pappu Yadav be released on bail on furnishing cash security of Rs. 50,000/- (fifty thousand) and also furnishing bond of Rs. 50,000/- (fifty thousand) with two sureties of the like amount each in K. Hat P. S. Case No. 230/98 Cr. C. case No. 12(s)/98 to the satisfaction of trial Court, Additional District and Sessions Judge XI, Patna.

48. The applicant is hereby directed that he shall appear before the Court on each and every date given to him and shall not extend any threat or intimidation to the prosecution witnesses. He shall conduct himself properly and shall not involve himself in commission of any crime. He is forewarned that if he involves himself into commissions of any crime then on a complaint by the Police, this Court may cancel this order and forefeit the cash and cancel the ball bonds. He shall make himself available whenever required by a Police Officer. He shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing facts to the Court or to any Police Officer. He shall not leave India without previous permission of this Court and in case any order/orders adverse to his interest are passed by any Court, then he shall immediately surrender before the Court.

49. The application is allowed.