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CASE NO.: Appeal (crl.)  1065 of 2007

PETITIONER: State of Gujarat

RESPONDENT: Narendra K. Amin

DATE OF JUDGMENT: 13/08/2007

BENCH: TARUN CHATTERJEE & P.K. BALASUBRAMANYAN

JUDGMENT: JUDGMENT

ORDER CRIMINAL APPEAL NO.  1065              OF 2007 (Arising out of SLP(Crl.) No.4294 of 2007)

P.K. BALASUBRAMANYAN, J.

                1.              Leave granted.

2.              In Writ Petition (Criminal) 6 of 2007 praying for  the issue of a writ of habeas corpus, while monitoring the  investigation into the alleged killing of Sohrabuddin  Sheikh and the disappearance of his wife, the learned  amicus curiae brought to our notice an order of the  Sessions Court granting anticipatory bail to Dr. Amin, a  Deputy Superintendent of Police.  He submitted that the  said order was unsupportable and had an impact on the  investigation itself. When the learned amicus curiae  pointed out that the State of Gujarat has not even  appealed against that order, learned Senior Counsel  appearing for the State of Gujarat sought permission of  this Court to challenge the said order directly in this Court  in view of the fact that this Court was already in seisin of  the matter relating to the concerned crime and that in his  view also, the order required to be challenged.  Thereupon,  we granted permission to the learned Senior Counsel for  the State of Gujarat to file a Petition for Special Leave to  Appeal against that order.  When such a petition, the  present one, was filed, we issued notice on the same in  spite of the request of learned Senior Counsel for the  respondent who had appeared on caveat, that notice need  not be issued and the matter itself may be heard finally.   Today, we heard learned Senior Counsel for the State of  Gujarat, learned Senior Counsel appearing for the  respondent and the learned amicus curiae.   

3.              Learned Senior Counsel for the State of Gujarat  submitted that the learned judge has travelled beyond the  scope of an inquiry under Section 438 of the Code of  Criminal Procedure and that he had dealt with the matter  in such a way that it was almost like passing an order of  acquittal.  This was exactly the submission that the  learned amicus curiae made the other day, which induced  us to entertain this petition directly in this Court.   Learned Senior Counsel for the State of Gujarat also  submitted that there was no proper application of mind by

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the learned Sessions Judge to all the facts available and  considering the gravity of the offence, the circumstances  surrounding the transaction and the position occupied by  the respondent, it was a fit case for refusing anticipatory  bail.  This was a case where custodial interrogation was a  must.  The Sessions Judge has also completely ignored  the apprehension clearly expressed by the prosecution  that the respondent, if granted bail, would be in a position  to influence and coerce the witnesses into retracting  statements already made and in not disclosing relevant  information to the prosecution.  This aspect has been  totally ignored by the court while granting bail.   

4.              Learned Senior Counsel for the respondent  submitted in answer, that the learned Sessions Judge has  only gone by the parameters drawn for an inquiry into an  application under Section 438 of the Code and the  observations made by him are in connection with that  inquiry and it was not correct to characterise the order as  almost amounting to an order of acquittal.  Learned  counsel submitted that the extraordinary jurisdiction of  this Court under Article 136 of the Constitution of India is  exercised by this Court only based on the circumstances  available in a case and in the case on hand, the  circumstances available and the materials available, did  not justify interference by this Court.  He referred to the  charge sheet to plead that the grant of bail was justified.   He also pointed out that subsequent to the order  impugned herein, the respondent has been arrested and  enlarged on bail pursuant to the order and he has made  an application for regular bail in the concerned court and  it would be appropriate to leave the matter to be decided  by that court while entertaining the application under  Section 439 of the Code.  

5.              We think that in view of the fact that the  application for regular bail made by the respondent is  pending before the concerned court, it would not be  appropriate for us to go into the various aspects projected  before us.  All the same, we think that the approach made  by the Sessions Court in granting anticipatory bail to the  respondent, leaves much to be desired.  The apprehension  that the respondent is in a position to influence, induce or  coerce witnesses to desist from furnishing relevant  information to the investigating agency cannot be  considered to be imaginary and the court ought to have  considered that aspect seriously before granting  anticipatory bail.  The court also should have considered  the need put forward for custodial interrogation of the  respondent for finding out what exactly happened to  Kausarbi or how she met with her end. Suffice it to say  that in the circumstances, we are inclined to interfere with  the order granting anticipatory bail to the respondent but  only to the limited extent of setting it aside and leaving the  bail application of the appellant to be dealt with by the  trial court in accordance with law and after taking note of  all the relevant aspects.  Thus, even though we set aside  the order, we do not think it proper to go into the question  on merits and to pass a final order on that application.    This course, we think, will sub-serve the interests of  justice and prejudice neither.

6.              Thus, we allow this appeal, set aside the order of  the court below granting anticipatory bail to the  respondent but consider it not necessary to decide that

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application at this stage since in a sense, the said order  has worked itself out.  We direct the Sessions Court to  deal with the application for bail made by the respondent  under Section 439 of the Code in accordance with law,  consider that application totally uninfluenced by anything  contained in the order challenged before us and by  anything we have said in this order vacating it.