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CASE NO.: Appeal (crl.)  740 of 2008

PETITIONER: Dr. Narendra K Amin

RESPONDENT: State of Gujarat and Anr

DATE OF JUDGMENT: 28/04/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM & AFTAB ALAM

JUDGMENT: J U D G  M E N T REPORTABLE

CRIMINAL APPEAL NO.  740 OF 2008 (Arising out of SLP (Crl.) No.788 of 2008)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the order passed by a  learned Single Judge of the Gujarat High Court cancelling the  bail granted to the appellant in terms of Section 439 (2) of the  Code of Criminal Procedure, 1973 (in short the ’Code’).

3.      The case numbered as Criminal Miscellaneous  Application No.12646/2007 was taken up alongwith Criminal  Miscellaneous application No.12644/2007 filed in respect of a  co-accused Dinesh the appellant in Criminal Appeal relating to  Special Leave Petition (Crl.) No.867/2008. Both the matters  were taken up in view of the order dated 12.12.2007 passed by  this Court in Contempt Petition (Crl.) No.8/2007 in Writ  Petition (Crl.) No. 6/2007.

4.      The application under Section 439(2) was filed by the  State of Gujarat through Investigating Officer, C.I.D. (Crime),  Gandhinagar  for cancellation of bail granted to the appellant  by order dated 5.10.2007 by learned Additional City and  Sessions Judge, Ahmedabad  in Criminal Miscellaneous  Application No.2359/2007 qua FIR being CR No. 5/2005  registered with ATS Police Station  for the offences punishable  under Sections 302, 364, 365, 368, 193, 197, 201, 120B, 420,  342 read with Section 34  of the Indian Penal Code, 1860 (in  short the ’IPC’) and under Sections 25 (1)(b)(a) and 27 of the  Arms Act, 1950 (in short the ’Arms Act’).

5.      Background facts in a nutshell are as under:

One Rubabuddin Shaikh, brother of Sohrabuddin, filed  petition before this Court which was registered as Writ Petition  (Crl.) No.6 of 2007. Pursuant to the directions issued from  time to time, the Investigation Agency of the State of Gujarat  carried out investigation and it was found by the Investigating  Agency that death of Sohrabuddin and subsequently reported  death of Kausarbi, wife of Sohrabuddin, was a result of fake  encounters carried out by the then officers of the Anti- Terrorist Squad (for short ‘ATS’), State of Gujarat and senior

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IPS officers of State of Gujarat and State of Rajasthan are  involved in the fake encounters. All those officers were  arrested and appellant who is accused No.3 is one of such  senior IPS officer belonging to the State of Rajasthan.

During the course of investigation, preliminary inquiry  being Inquiry No.66 of 2006 was instituted by CID (Crime),  Gujarat State, role of the appellant surfaced in the statement  of one Ajay Parmar, Police Constable of ATS, Gujarat State.  Considering the material which had come on record, the  Director General of Police ordered further investigation under  Section 173(8) of the Code on 6.3.2007. Accordingly, the  Metropolitan Magistrate was informed and the appellant  therein was arraigned as accused. He was arrested on  24.4.2007, remanded to custody for 15 days and charge sheet  was filed on 16.7.2007. The appellant preferred a regular bail  application being Criminal Misc. Application No.3459 of 2007  on 17.9.2007, which was allowed vide order dated 5.1.2007 by  learned Additional City and Sessions Judge, Court No.6,  Ahmedabad.  While enlarging the appellant on regular bail in exercise  of power under Section 439 of the Code, learned Additional  City and Sessions Judge, relied on various circumstances,  more particularly on three facets:- first facet is prior to  26.11.2005, second facet is dated 26.11.2005 and the third  facet is post 26.11.2005. The first facet was about conspiracy  part and bringing Sohrabuddin from Hyderabad to  Ahmedabad. Second facet is the day on which alleged  encounter of Sohrabuddin took place on 26.11.2005 and the  third facet, i.e.  post 26 11.2005  about death of Kausarbi  and destroying evidence relating to her death.

       According to the prosecution, role played by the appellant  in the episode surfaced initially from the statements of Shri  Nathubha Pravinsinh Jadeja who is a driver with ATS and Shri  Vijay Arjun Rathod, Police Inspector relating to an alleged fake  encounter. Therefore, process was started to find out the truth  for which initially summons under Section 160 of the Code  were issued. In response to it, the appellant appeared before  the then investigating officer, Shri G.B. Padheriya and was not  at all cooperating in disclosing the facts and was trying to  avoid any question. It was apparent from the record that the  appellant had already influenced the witnesses in whose  statements his role had surfaced. His statement was recorded  on 22.5.2007.  The date of first statement of the appellant and  the date of Shri Nathubha surrendering before the Chief  Metropolitan Magistrate was the same. When Shri Nathubha  appeared before the Chief Metropolitan Magistrate, IGP CID  Crime submitted an affidavit dated 24.5.2007. The appellant  was not available either at his residence or at the place where  he was posted. Thereafter, by an order dated 8.6.2007 learned  City and Sessions Court granted anticipatory bail against  which Special Leave Petition was filed before this Court and  the same was allowed on 13.8.2007 by quashing and setting  aside the order of anticipatory bail granted by the learned City  and Sessions Judge. Thereafter, charge sheet was filed on  16.7.2007.                     The appellant’s bail application was accepted by the trial  Judge and was the subject matter of challenge as noted above  before the High Court.  

According to the trial Court the accused had served the  department with sincerity and dedication to curb the anti- social and anti-national element. Persons like him should not

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be subjected to unnecessary harassment and humiliation  when there is possibility of securing the persons by imposing  appropriate conditions.   

       Stand of the State before the High Court was that role of  accused No.12 the appellant was narrated in the charge sheet  and he was charged with offences punishable under Sections  302, 193, 201, 120B read with Section 34 IPC. It was pointed  out that presence of the accused is very much evident as per  the statements of witnesses namely, Nathubha-driver and  Vijay Rathod-Police Inspector and, therefore, the grant of bail  is illegal. It was pointed out that accused was not cooperating  with the investigation. He did not respond to the notice in  terms of Section 160 of the Code. It was pointed out that the  date of statement of the accused and the date of Nathubha  surrendering before the Chief Metropolitan Magistrate are the  same and even during that period only Nathubha tried to  retract from the statement earlier recorded and requested the  Magistrate to join him as an accused and protection in terms  of Section 438 of the Code was granted on 4.6.2007 and this  Court by order dated 13.8.2007 set aside the order passed by  the learned Judge. It was pointed out that the trial Judge  came to an abrupt conclusion and without any material  concluded that the nature and gravity of the offence alleged is  serious but as emerges from the record, there is no cogent,  sufficient and reliable evidence to support the prosecution  case. In other words, he had written indirectly an order of  acquittal even before the trial was concluded.  

       Reference was made also to the fact that accused was in  no way connected with ATS of the Gujarat police but his  presence at the scene of offence where the body of Kausarbi  was burnt was sufficient enough to deny the discretionary  relief under Section 439 of the Code. With reference to the  statement of owner of ’Disha Farm’ where the victims were  illegally confined it is submitted that his role is clear.  Reference was also made to the telephonic conversation of the  accused with Shri D.G. Vanzara between 25.11.2005 to  29.11.2005. Though the accused was in no way concerned  with the enquiry or investigation of ATS, mobile tracking  indicated presence of the accused at the Disha Farm. It was  pointed out that weekly diary shows his presence in the court  during the period, but he was not actually in the court and  some places were kept vacant in weekly diary and surprisingly  during the entire operation mobile phone of the accused was  switched off.  The presence of appellant when corpse of  Kausarbi was cremated has been established by the statement  of witnesses.  

       Stand of the accused before the High Court was that the  parameters for cancellation of bail and grant of bail are  entirely different.  It was pointed out that some of the  witnesses have also retracted from the statements allegedly  made earlier. Therefore, the order granting bail should not be  interfered with.

       The High Court noticed that the accused was charged  with serious and heinous offences punishable under Sections  302 read with Section 120B IPC and while enlarging him on  bail, the trial Court ought to have kept in view the seriousness  of the offences, punishment prescribed for such offences and  involvement of the accused, a high ranking official against  whom grave and serious offences have been made. It was  pointed out that there was no question for referring to the  antecedents of Sohrabuddhin and his characteristics as that

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was of no relevance.    The bail, therefore, was cancelled.                        

In support of the appeal, learned counsel for the  appellant submitted that the parameters for grant of bail and  cancellation of bail are entirely different as has been laid down  by this Court in several cases. In the application for  cancellation of bail there was no reference to any supervening  circumstance and only analysis of the materials which were  considered by the trial Court to grant bail were highlighted. It  is submitted that even if two views are possible, once the bail  has been granted, it should not be cancelled.  Reliance is  placed on decisions of this Court in State of Karnataka v. L.  Muniswamy (1977 (2) SCC 699), Babu Singh v. State of U.P.  (1978 (1) SCC 579), State (Delhi Adm.) v. Sanjay Gandhi (1978  (2) SCC 411), Bhagirathsinh v. State of Gujarat (1984 (1) SCC  284), Aslam Babalal Desai v. State of Maharashtra (1992 (4)  SCC 272), Dolat  Ram v. State of Haryana (1995 91) SCC 349),   Ramcharan  v. State of M.P. (2004 (13) SCC 617), Mehboob  Dawood Shaikh v. State of Maharashtra (2004 (2) SCC 362),  Jayendra Saraswati v. State of Tamil Nadu (2005 (2) SCC 13),  Nityanand Rai v. State of Bihar (2005 (4) SCC 178), State of  U.P. v. Amarmani Tripathi (2005 (8) SCC 21) and Panchanan  Mishra v. Digambar Mishra (2005 (3) SCC 143).  It is pointed  out that the common thread passing through the aforesaid  decisions is that there is no scope for cancellation of bail on  re-appreciation of evidence. It is pointed out that in Mehboob’s  case (supra) and Amarmani’s case (supra) the bail was  cancelled as it was established that there were serious  attempts to tamper with the evidence and to interfere with and  sidetrack the investigation and threaten the witnesses.  It is  pointed out that as laid down by this Court in Sanjay Gandhi’s  case (supra) and Dolat Ram’s case (supra) the bail granted  should not have been cancelled by way of re-appreciating  evidence.

       In response, learned counsel for the State of Gujarat  submitted that it has not been laid down by this Court that  only if supervening circumstances are there, on assessing the  same bail can be cancelled.  

6.      As is evident from the rival stands one thing is clear that  the parameters for grant of bail and cancellation of bail are  different. There is no dispute to this position.  But the  question is if the trial Court while granting bail acts on  irrelevant materials or takes into account irrelevant materials  whether bail can be cancelled. Though it was urged by learned  counsel for the appellant that the aspects to be dealt with  while considering the application for cancellation of bail and  on appeal against the grant of bail, it was fairly accepted that  there is no scope of filing an appeal against the order of grant  of bail. Under the scheme of the Code the application for  cancellation of bail can be filed before the Court granting the  bail if it is a Court of Sessions, or the High Court.  

7.      The High Court also erroneously held that there was a  ban in granting bail in heinous crime.  

8.      It has been fairly accepted by learned counsel for the  parties that in some judgments the expression "appeal in  respect of an order of grant of bail" has been used in the sense  that the State can move the higher court.

9.      Though the High Court appears to have used the  expression ’ban’ on the grant of bail in serious offences,  actually it is referable to the decision of this Court in Kalyan

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Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr.  (2004 (7) SCC 528) In para 11 it was noted as follows:

"11. The law in regard to grant or refusal of  bail is very well settled. The court granting bail  should exercise its discretion in a judicious  manner and not as a matter or course. Though  at the stage of granting bail a detailed  examination of evidence and elaborate  documentation of the merit of the case need  not be undertaken, there is a need to indicate  in such orders reasons for prima facie  concluding why bail was being granted  particularly where the accused is charged of  having committed a serious offence. Any order  devoid of such reasons would suffer from non- application of mind. It is also necessary for the  court granting bail to consider among other  circumstances, the following factors also  before granting bail; they are:

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

(b)     Reasonable apprehension of tampering  with the witness or apprehension of threat to  the complainant.

(c)     Prima facie satisfaction of the court in  support of the charge. (See Ram Govind  Upadhyay v. Sudarshan Singh (2002 (3) SC  598) and Puran v. Rambilas (2001 (6) SCC  338).

10.     It was also noted in the said case that the conditions laid  down under Section 437 (1)(i) are sine qua non for granting  bail even under Section 439 of the Code.           In para 14 it was noted as follows:

"14. We have already noticed from the  arguments of learned counsel for the appellant  that the present accused had earlier made  seven applications for grant of bail which were  rejected by the High Court and some such  rejections have been affirmed by this Court  also. It is seen from the records that when the  fifth application for grant of bail was allowed  by the High Court, the same was challenged  before this Court and this Court accepted the  said challenge by allowing the appeal filed by  the Union of India and another and cancelled  the bail granted by the High Court as per the  order of this Court made in Criminal Appeal  No. 745 of 2001 dated 25-7-2001. While  cancelling the said bail this Court specifically  held that the fact that the present accused was  in custody for more than one year (at that  time) and the further fact that while rejecting  an earlier application, the High Court had  given liberty to renew the bail application in  future, were not grounds envisaged under  Section 437(1)(i) of the Code. This Court also  in specific terms held that the condition laid

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down under Section 437(1)(i) is sine qua non  for granting bail even under Section 439 of the  Code. In the impugned order it is noticed that  the High Court has given the period of  incarceration already undergone by the  accused and the unlikelihood of trial  concluding in the near future as grounds  sufficient to enlarge the accused on bail, in  spite of the fact that the accused stands  charged of offences punishable with life  imprisonment or even death penalty. In such  cases, in our opinion, the mere fact that the  accused has undergone certain period of  incarceration (three years in this case) by itself  would not entitle the accused to being 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 appellant 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."

11.     Even though the re-appreciation of the evidence as done  by the Court granting bail is to be avoided the Court dealing  with an application for cancellation of bail under Section  439(2) can consider whether irrelevant materials were taken  into consideration. That is so because it is not known as to  what extent the irrelevant materials weighed with the Court for  accepting the prayer for bail.  

12.     In Puran v. Rambilas and Anr. (2001 (6) SCC 338) it was  noted as follows:

"11. Further, it is to be kept in mind that the  concept of setting aside the unjustified illegal  or perverse order is totally different from the  concept of cancelling the bail on the ground  that the accused has misconducted himself or  because of some new facts requiring such  cancellation. This position is made clear by  this Court in Gurcharan Singh v. State (Delhi  Admn.). In that case the Court observed as  under: (SCC p.  124, para 16)

"If, however, a Court of Session had  admitted an accused person to bail, the  State has two options. It may move the  Sessions Judge if certain new  circumstances have arisen which were  not earlier known to the State and  necessarily, therefore, to that court. The  State may as well approach the High  Court being the superior court under  Section 439(2) to commit the accused to  custody. When, however, the State is  aggrieved by the order of the Sessions  Judge granting bail and there are no new  circumstances that have cropped up  except those already existing, it is futile  for the State to move the Sessions Judge  again and it is competent in law to move  the High Court for cancellation of the  bail. This position follows from the

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subordinate position of the Court of  Session vis-‘-vis the High Court."

13.     The perversity as highlighted in Puran’s case (supra) can  also flow from the fact that as noted above irrelevant materials  have been taken into consideration adding vulnerability to the  order granting bail. The irrelevant materials should be of a  substantial nature and not of a trivial nature. In the instant  case, the trial Court seems to have been swayed by the fact  that Sohrabuddin, husband of Kausarbi had shady reputation  and criminal antecedents. That was not certainly a factor  which was to be considered while granting bail.  It was nature  of the acts which ought to have been considered. By way of  illustration, it can be said that the accused cannot take a plea  while applying for bail that the person whom he killed was  hardened criminal. That certainly is not a factor which can be  taken into account. Another significant factor which was  highlighted by the State before the High Court was that an FIR  allegedly was filed to divert attention from the fake encounter.  The same was not lodged by the Gujarat Police.  

14.     Once it is found that bail was granted on untenable  grounds, same can be cancelled.  The stand that there was no  supervening circumstance has no relevance in such a case.  

15.     We have only highlighted the above aspects to show that  irrelevant materials have been taken into account and/or  relevant materials have been kept out of consideration.  That  being so, the order of granting bail to the appellant was  certainly vulnerable. The order of the High Court does not  suffer from any infirmity to warrant interference.  The appeal  is dismissed. However, it is made clear that whatever  observations have been made are only to decide the question  of grant of bail and shall not be treated to be expressing any  opinion on merits. The case relating to acceptability or  otherwise of the evidence is the subject matter for the trial  Court.