IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1113    OF 2008 (Arising out of S.L.P. (Crl.) No. 4205 of 2007)

Manjit Prakash & Ors. … Appellants

Vs.

Shobha Devi & Anr. … Respondents

J U D G M E N T

DR. ARIJIT PASAYAT, J.

1. Leave granted.

2. Appellants  challenge  the  order  passed  by  a  learned

Single  Judge  of  the  Patna  High  Court  cancelling  the  bail

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granted  to  them  by  order  dated  7.9.2006  in  Criminal

Miscellaneous  No.  10719  of  2006.  The  application  for

cancellation  of  bail  was  filed  by  the  respondent  No.1.

Appellants 1, 2 & 3  are arrayed as accused Nos. 1, 2 & 4.

Five  persons  were  granted  bail  by  order  dated  7.9.2006  in

Criminal  Misc.  Case  No.  10719 of  2006.   By the impugned

order  the  learned  Single  Judge  directed  cancellation of  bail

granted to the present appellants while holding that the two

others  being  ladies  there  was  no  need  to  cancel  the  bail

granted to them.  

2.  Though  various  points  were  urged  in  support  of  the

appeal primarily it was submitted that no reasons have

been given for canceling the bail.  

3. Learned  counsel  for  the  respondent  No.1-complainant

submitted that though the order canceling bail has not

elaborately  dealt  with  the  circumstances  to  warrant

cancellation of bail, the same is in order.

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4. The appellants and the other two in respect of whom the

High Court has not interfered, were granted provisional

bail by order dated 3.5.2006 which came to be confirmed

on 7.9.2006.  It  was stated that the  husband and wife

have  been  residing  together  in  the  matrimonial  home.

Earlier there was a suit for restitution of conjugal rights

filed by appellant No. 2 who withdrew the same after the

provisional  bail  was  confirmed  and  instituted

Matrimonial case No. 34 of 2006 for divorce.  According

to the complaint on 10.10.2006, there was an incident

and therefore  the  bail  was  to  be  cancelled.   The  High

Court,  as rightly contended by learned counsel  for  the

appellants,  has  not  indicated  the  reasons  for  directing

cancellation of bail.

6. It is trite law that the considerations for grant of bail and

cancellation of bail stand on different footings. By a majority

judgment in  Aslam Babalal Desai v.  State of Maharashtra the

circumstances  when  bail  granted  can  be  cancelled  were

highlighted in the following words: (SCC pp. 289-90, para 11):

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“11.  On a  conjoint  reading of  Sections  57 and  167  of  the  Code  it  is  clear  that  the legislative  object  was  to  ensure  speedy investigation after a person has been taken in custody.  It  expects  that  the  investigation should  be  completed  within 24 hours  and if this is not possible within 15 days and failing that within the time stipulated in clause (a) of the proviso to Section 167(2) of the Code. The law  expects  that  the  investigation  must  be completed  with dispatch  and the  role  of  the Magistrate  is  to  oversee  the  course  of investigation and to prevent abuse of the law by the investigating agency. As stated earlier, the  legislative  history  shows  that  before  the introduction  of  the  proviso  to  Section 167(2) the maximum time allowed to the investigating agency was 15 days under sub-section (2)  of Section 167 failing which the accused could be enlarged  on  bail.  From  experience  this  was found to be insufficient particularly in complex case  and  hence  the  proviso  was  added  to enable the Magistrate to detain the accused in custody for a period exceeding 15 days but not exceeding  the  outer  limit  fixed  under  the proviso (a)  to that sub-section. We may here mention  that  the  period  prescribed  by  the proviso  has  been  enlarged  by  State amendments  and  wherever  there  is  such enlargement, the proviso will have to be read accordingly.  The  purpose  and  object  of providing for the release of the accused under sub-section (2) of Section 167 on the failure of the  investigating  agency  completing  the investigation within the extended time allowed by the proviso was to instil a sense of urgency in  the  investigating  agency  to  complete  the

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investigation  promptly  and  within  the statutory  time  frame.  The  deeming  fiction  of correlating  the  release  on  bail  under  sub- section (2) of Section 167 with Chapter XXXIII i.e. Sections 437 and 439 of the Code, was to treat the order as one passed under the latter provisions.  Once  the  order  of  release  is  by fiction of law an order passed under Section 437(1) or (2) or Section 439(1) it follows as a natural  consequence  that the said order can be cancelled under sub-section (5) of Section 437  or  sub-section  (2)  of  Section  439  on considerations relevant for cancellation of  an order thereunder. As stated in Raghubir Singh v. State of Bihar2 the grounds for cancellation under Sections 437(5) and 439(2) are identical, namely, bail granted under Section 437(1) or (2) or Section 439(1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii)  interferes with the  course  of  investigation,  (iii)  attempts  to tamper  with  evidence  or  witnesses,  (iv) threatens  witnesses  or  indulges  in  similar activities  which  would  hamper  smooth investigation,  (v)  there  is  likelihood  of  his fleeing  to  another  country,  (vi)  attempts  to make himself scarce by going underground or becoming  unavailable  to  the  investigating agency, (vii) attempts to place himself beyond the reach of his surety etc. These grounds are illustrative and not exhaustive. It must also be remembered  that  rejection  of  bail  stands  on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to.”

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7. It  is, therefore, clear that when a person to whom bail

has been granted either tries to interfere with the course of

justice  or attempts to tamper  with evidence or witnesses or

threatens  witnesses  or  indulges  in  similar  activities  which

would hamper smooth investigation or trial, bail granted can

be  cancelled.  Rejection  of  bail  stands  on  one  footing,  but

cancellation of bail is a harsh order because it takes away the

liberty of an individual granted and is not to be lightly resorted

to.

8. 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

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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).

9. 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.  

10. 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

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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 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

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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

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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 subordinate  position  of  the  Court  of Session vis-à-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.

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14. Since the High Court has not indicated any reasons for

directing cancellation of bail, the impugned order cannot be

maintained and is set aside.   The matter is remitted to the

High  Court  to  decide  the  matter  afresh and  dispose  of  the

application filed.  We make it clear that we have not expressed

any opinion on the merits of the case.

14.The appeal is allowed to the aforesaid extent.

…………………..……….J. (Dr. ARIJIT PASAYAT)

…………………………….J. (H.S. BEDI)

New Delhi, July 18, 2008   

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