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CASE NO.: Appeal (crl.)  739 of 2008

PETITIONER: Dinesh M.N. (S.P.)

RESPONDENT: State of Gujarat

DATE OF JUDGMENT: 28/04/2008

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

JUDGMENT: J U D G  M E N T

Dr. ARIJIT PASAYAT, J REPORTABLE

CRIMINAL APPEAL NO 739 OF 2008 (Arising out of SLP (Crl.) No. 867 of 2008)

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.12644/2007 was taken up alongwith Criminal  Miscellaneous application No.12646/2007 filed in respect of a  co-accused Narendra K Amin (the appellant in Criminal Appeal  relating to Special Leave Petition (Crl.) No.788/2008). 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.3459/2007 qua FIR being CR No. I-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 sans unnecessary details are as  follows:

The application for cancellation of bail had matrix in FIR  being CR No. I-5 of 2005 filed by one Abdul Rehman, a Police  Officer, subordinate to the appellant and now an accused, who  was a member of the Special Investigating Party formed at  Udaipur, Rajasthan to investigate into various offences  registered against one Sohrabuddin. As per the above FIR,  said Sohrabuddin, son of Ahwaruddin Shaikh, resident of  Zaraniya, Nagda, Madhya Pradesh, who was accused of  offences punishable under Sections 120(b), 121, 121-A, 122,

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123, 307, 186, 224 of IPC, under  Sections 25(1)(b) and  Section 27 of the Arms Act and under Section 13 (1) of the  Bombay Police Act. In the above FIR it was stated that the  above accused (Sohrabuddin) was acting at the behest of ISI to  spread terror and to disturb the unity and integrity of the  country and also entered into conspiracy by possessing arms  and ammunition so as to kill one of the big leaders of the State  of Gujarat and when asked to surrender by the police party,  fired from his revolver and attempted to kill them.

Later on, 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 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.

       The evidence against the accused appellant revealed his  presence as stated by one Nathubha Jadeja on 26.4.2007. As  per the letter dated 7.5.2005 of Investigating Officer said Shri  Nathubha Jadeja is shown as accused, but later on Smt. Gita  Johri, a senior police officer declared in her affidavit before  learned Chief Judicial Magistrate that Shri Nathubha Jadeja is  a witness and on 25.5.2007 Shri Jadeja had stated in his  affidavit before the learned CJM that his statement dated  26.4.2007 was recorded under duress. The other statements of  the driver Puranmal Prabhudayal Mina clearly indicate that  the accused had come alongwith other police officers from  Udaipur to Ahmedabad on 24.11.2005. He stated that he was  not present at the time of alleged encounter and he had no

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personal knowledge. Another statement of Shri Bhailal K  Rathod does not also specifically indicate presence of the  accused at the place of encounter. According to the trial Court  these statements leave room for doubt about the involvement  of the accused. At the same time, learned trial Judge observed  that truthfulness of allegations levelled against the accused  and the satisfaction of the ingredients of various sections  applied are subject matter of appreciation of evidence and it  can be considered at the time of trial. But it was concluded  that sufficient evidence did not surface against the accused   for having committed any heinous crime punishable with  death or imprisonment for life.  

       So far as the possibility of tampering with evidence is  concerned, the trial Court observed that charge sheet was  submitted. By imposing strict conditions, the above aspects  can be taken care of. After discussing the credentials of  Sohrabuddin that as many as 25 FIRs were lodged against  him and considering the remarkable service record of the  accused, it was observed that police officers like him should  not be allowed to be harassed and humiliated unless strong  prima facie evidence or the material for committing a serious  offence is found. Reliance was placed on a decision of this  Court in Jayendra Saraswathi Swamigal v. State of T.N. (2005  (2) SCC 13). Several conditions were imposed to grant bail.  

Before the High Court the primary stands taken were  that seriousness of the offences and the sentences to be  imposed were not kept in view. Irrelevant factors were taken  into consideration for granting bail.

       Stand of the applicant-State before the High Court was  that very approach of the trial Court in weighing evidence even  prima facie is contrary to the law laid down by this Court, and  based on presumptions of exercise of power under Section 439  of the Code and should not have been exercised.  

       Highlighting the definite role of the accused, it was  pointed out that Sohrabuddin was a wanted accused involved  in an offence registered with Hathipole Police Station, Udaipur.  It was under his jurisdiction the role of the accused surfaced.  He contacted Ahmedabad Police to trace out Sohrabuddin.  When he was apprehended information was given to the  accused and the accused informed his superior officers to  send a team to Ahmedabad. He was leader of the team. Before  any formal order came to be passed for forming a team,  weapons were procured from Kotwali upon his arrival in  Ahmedabad. He coordinated in the fake encounter alongwith  ATS officers of the State of Gujarat.  Therefore, it was  contended that it was a clear case of conspiracy attracting  ingredients of Section 120B IPC. It was pointed out that the  whole case is based on circumstantial evidence and from the  charge sheet, needle of suspicion unerringly pointed out at the  accused and the circumstantial evidence even the form of  statements of witnesses and in view of the role played by  accused as afore-noted, the trial Court should not have  granted bail.            

       So far as the alleged discrepancies in the evidence of  different witnesses are concerned, it was submitted that the  stage for assessing the contradictions, if any, has not come. It  is pointed out that as per the statement of Nathubha on  26.4.2007 presence of the respondent was shown at the place  of encounter which was sufficient to deny the protection under  Section 439 of the Code. A very significant factor was pointed

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out to falsify claim of encounter as narrated in C.R. I-5/2005  and creation of one FIR to falsify that fake encounter aspect  itself amounted to misuse of power by the accused so as to  misguide the investigating agency, though such incident as  narrated in the FIR never took place.  It was also pointed out   that the retraction of the statement made by Nathubha on  25.5.2007 has to be viewed in the background of the affidavit  by Smt. Gita Johri on 25.4.2007.  

       It was also pointed out that by comparing the  antecedents of Sohrabuddin and the alleged bright career of  the accused, the trial Judge mis-directed himself and acted on  irrelevant materials which made his order vulnerable.  

       The High Court on consideration of the rival submissions  held that the learned trial Judge has not kept in view the  seriousness of the offences, punishments prescribed for such  offences and involvement of the accused, a high ranking officer  when allegations or misuse of power necessary in law by  registering false FIR has been lost sight of.   The comparative  past conduct and antecedents of Sohrabuddin by the so called  good official record of the accused could not have been a  ground for grant of bail.  Accordingly, the bail granted was  cancelled.  

6.      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 (Delhi Admn.) 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 (1) SCC 349),  Ramcharan  v. State of M.P.  (2004 (13) SCC 617), Mehboob Dawood Shaikh v. State of  Maharashtra (2004 (2) SCC 362), 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 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.  

7.      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.  He referred to findings of the High  Court as to how appellant has tried to divert attention and  thereby defeat the course of justice.   

8.      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

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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.  

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

10.     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  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).

11.     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

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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  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."

12.     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.                   13.     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)

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

14.     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 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 a  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. The accused  was the leader of the Rajasthan team and the other officials  were Abdul Rehman, Himanshu Singh, Mohan Singh, Shyam  Singh and Jai Singh. The first named Abdul Rehman had  lodged the FIR. It is pointed out from the General Diary in  respect of entry on 26.11.2005 that accused Dinesh was  present. In FIR CR-I 5/2005 also the presence of Dinesh has  been noted. The relevance of these factors does not appear to  have been noticed by the High Court.  In other words, relevant  materials were kept out of consideration. Once it is concluded  that bail was granted on untenable grounds, the plea of  absence of supervening circumstances has no leg to stand.    

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 expression of any  opinion on merits. The case relating to acceptability or  otherwise of the evidence is the subject matter for the trial  Court.