HT This Day: May 6, 1978 -- Sanjay Gandhi lodged in Tihar jail: Supreme Court cancels bail for a month

New Delhi: Sanjay Gandhi was lodged in Tihar Jail today after the Supreme Court had cancelled his bail for a month and ordered his arrest to prevent him from tampering with witnesses in the Kissa Kursi Ka case.

Giving its judgment in an appeal by the Delhi Administration for bail cancellation, a three-judge bench presided over by Chief Justice Y. V. Chandrachud said there was “incontrovertible evidence” that Sanjay Gandhi had abused his liberty by trying to suborn prosecution witnesses.

“He has, therefore, forfeited his right to remain free”, it said in a 25-page judgment. Mr. Justice Chandrachud read the Court’s ruling before a packed hall. He had, along with Mr. Justice S. Murtaza Fazal Ali and Mr. Justice P. N. Shingal, heard for three days the Delhi Administration’s appeal against the Delhi High Court order of April 11.

A large crowd had assembled outside the court hall as well as in the court premises. Police had made elaborate arrangements as a precautionary measure.

As the court finished delivering its judgment, Gandhi who was present, rose to say that he had information that he might be “bodily harmed” in jail.

Mr. Justice Chandrachud remarked: “I am sorry to hear that. I take it we are living in a civilised world.” He said if the slightest physical harm was done to him, he would be free to move the courts.

Additional Solicitor-General Soft Sorabjee, representing the Delhi Administration, said: “This allegation is absolutely baseless. We firmly believe in the rule of law and in being decent to everyone.”

Mr. Justice Chandrachud said any person in Mr. Gandhi’s position would have apprehensions.

Mr. Sorabjee pleaded that the court was setting a bad precedent.

From the Supreme Court, Sanjay Gandhi, followed by a police van, drove to Tis Hazari courts where he and former Information Minister V. C. Shukla are being tried by Additional Sessions Judge O. N. Vohra on a charge of conspiracy to destroy the film Kissa Kursi ka.

Gandhi sought time to pack his things before surrendering. The judge observed that he had not yet received the official order of the Supreme Court and asked the (accused to appear before him after lunch.

Gandhi surrendered himself at 3-30 p.m. and pleaded for “better class” facilities. The judge allowed the plea.

Amid shouts of “Sanjay Gandhi zindabad” by members of the Congress Youth Forum, a beaming Sanjay Gandhi jostled through a crowd to get into the waiting police van, in which half a dozen armed policemen accompanied him to jail.

The trial sessions judge directed the jail authorities to produce Sanjay Gandhi in the court of May 8. the next date of hearing of the case.

Sanjay Gandhi’s wife, Maneka, and his elder brother, Mr. Rajiv Gandhi, who were present in the court, followed the police vehicles.

About 20 minutes after Sanjay Gandh: was taken away, Mrs. Indira Gandhi, accompanied by Mr. R. K Dhawan, her former private secretary, arrived at Tis Hazari courts. When informed that her son has been sent to jail, she drove straight to Tihar to meet him.

Sanjay Gandhi is prime accused in the Kissa Kursi Ka case in which former Union Information and Broadcasting Minister V. C. Shukla is accused No. 1. They are facing trial in the court of the Additional Sessions judge here on charges of theft and criminal conspiracy to destroy the Hindi feature film, a political satire produced by Mr. Amrit Nahata, Janata member of Parliament.

The court gave liberty to the sessions judge to fix the amount and conditions of fresh bail at the expiry of one month. The order of anticipatory hail will stand modified in accordance with today’s judgment.

The court took note of the assurance given by the Delhi Administration’s counsel that the prosecution will examine the Maruti witnesses immediately and that their evidence will occupy no more than a month and held “it will be enough to limit the cancellation of Mr. Gandhi’s bail to that period.”

The judges said: “We hope and trust that no unfair advantage will be taken of our order by stalling the proceedings or by asking for a stay on some pretext or the other.”

“If that is done, the arms of the law shall be long enough,” the court warned.

Out of abundant caution, however, the court reserved liberty to the State to apply to the High Court, if necessary, but only if strictly necessary. “We are hopeful that the State too will take our order in its true spirit.”

The court held that a prima facie case had been made out by the petitioner on the statements of the witnesses and other materials on record that there was a likelihood of the accused tampering with the prosecution witnesses.

The court cited five cases in which Mr. Gandhi had abused liberty by attempt ag to “suborn the prosecution witnesses” and said “He has, therefore, forfeited his right to remain free.”

Mr. Gandhi s counsel, Mr. Madan Bhatta wanted to file a writ petition against the cancellation of the bail because of “reasonable apprehension’’ in the minds of the prosecution. He prayed that the writ be heard later today.

The court told Mr. Bhatia that he could file the writ but it was not possible for it to hear the matter today itself.

Dealing with the nature of the burden of the case in the prosecution application for cancellation of Gandhi’s bail, the court said their task was to examine whether, by the application of the test of probabilities, the prosecution had succeeded in proving its case that the respondent had tampered with its witnesses and that there was a reasonable apprehension that he would continue to indulge in that course of conduct if allowed to remain at large.

“Normally, the High Court’s findings are treated by this court as binding on such issues but, regretfully we have to depart from that rule since the High Court has rejected incontrovertible evidence on hyper technical consideration.”

The court said. “If two views of the evidence were reasonably possible and the High Court had taken one view, we would have been disinclined to interfere therewith in this appeal under Article 136 of the Constitution.

“But the evidence points in one direction only, leaving no manner of doubt that the respondent has misused the facility afforded to him by the High Court by granting anticipatory bail to him.”

The court added that the sequence of event was too striking to fail to catch the watchful eye and went on to describe some outstanding instances to show how the prosecution was justified in its application.

Dealing exhaustively with the outstanding instances of tampering with key prosecution witnesses and approvers belonging to Maruti company by Mr. Gandhi the court said, “Even excluding the last incident in regard to Charan Singh, the driver which is really first in point of time and though it is corroborated by an entry in the general diary, we are of the opinion junior security officer K. S. Yadava’s complaint of Feb. 14, Khedkars (senior security officer) complaint of even date, Yadava’s admission in his evidence that he did make the written complaint (to police) in spite of 1he fact that he had turned hostile, the affidavits of Sat Pal Singh, Ganpat Singh and Digambar Dass in regard to the incident of Feb. 17 and lastly the affidavit of Sarup Singh regarding the incident of Feb. 28, furnish satisfactory proof that the respondent has abused his liberty of bail by attempting to suborn the prosecution witnesses.

“He has therefore, forfeited his right to remain free.”

The judgment said: “The sequence of events is too striking to fail to catch the watchful eye, we will confine ourselves to some of the outstanding instances to show how the prosecution is justified in its apprehension that the accused Gandhi was trying to tamper with prosecution witnesses.”

Session Court’s domain

Pointing out that the trial of this case is still pending in the sessions court and any observation made by the court in this incidental proceeding may unwittingly influence the course of the trial, the court said it “will not say anything on the merits of the matter, no comment made on the veracity of witnesses and no subtle guidance offered to unravel why the witnesses have turned hostile.

“These matters, at this moment, are within the exclusive domain of the sessions court and we cannot, by employing an artifice, withdraw the decision of these questions to ourselves.”

“It is the privilege of the sessions court, not of the Supreme Court, to try the aroused. We must, therefore, make it clear that nothing said by us in our judgment shall influence the decision of the case and the sessions judge is free to assess and evaluate the evidence, unhampered oy any observations we may have happened to make.”

The court held it was not necessary for the prosecution to prove by a mathematical certainty if even beyond a reasonable doubt that the witnesses have turned hostile because they were won over by the accused.

“The issue of cancellation of hail can only arise in criminal cases, but that does not mean that every incidental matter in a criminal case must he proved beyond a reasonable doubt like the guilt of the accused.”

It, however, agreed with the content on of defence counsel A. N. Mulla that one had to countenance a reasonable possibility that the employees of Maruti of their own volition -attempted - to protect the respondent from involvement in criminal charges. Their willingness now to oblige the respondent would depend upon how much the respondent had obliged them in the past.

The court said the power to take back into custody an accused who has been enlarged on bail had to be exercised with care and circumspection. But the power, though of an extraordinary nature, was meant to be exercised in appropriate cases when, by a preponderance of probabilities, it was clear that the accused was interfering with the course of justice by tampering with witnesses.

The judgment said: “Refusal to exercise the wholesome power in such cases -- few though they may be, will reduce it to a dead letter and will suffer the courts to be silent spectators to the subversion of judicial process. We might as well wind up the courts and bolt their doors against all than permit a few ensure that justice shall not be done.”

The court cited the case of Madhukar Purshottam Dondkar versus Talab Haji Hussain and that of Gurcharan Singh and others versus Delhi State in which, it had respectively, upheld the Bombay High Court judgment exercising the power to cancel bail and confirmed the Delhi High Court order cancelling bail.

In these cases, the court had held that there was a likelihood of the accused tampering with the prosecution witnesses.

“It is by the application of this test that we have come to the conclusion that the respondent’s bail ought to be cancelled.”