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CASE NO.: Appeal (crl.)  64 of 2004

PETITIONER: Mehboob Dawood Shaikh                                    

RESPONDENT: State of Maharashtra                                             

DATE OF JUDGMENT: 16/01/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.)No. 3606/2003)

ARIJIT PASAYAT,J

       Leave granted.

By the impugned judgment the Bombay High Court directed  cancellation of bail which was granted earlier to the  appellant.

       In a nutshell, the accusations against the appellant  and the background scenario so far as relevant for the  disposal of this appeal are as follows:

       On 11.10.2002 a complaint was lodged by one Sunil  Nyaneshwar Yadav alleging that while he had gone to Solapur  there was communal riot. In the evening he had gone to  Vishnu Nagar for witnessing installation of Shakti Idol  along with five others. They were sitting on the stage in  the evening. At about 5.00 p.m., a group of persons came  there and removed the idol of Shakti. At that time one  Chanderkant Arjun had come by a motorcycle. When the  offenders learnt that the police had come they started  fleeing. The said Chanderkant was chasing the offenders.  There was scuffle between Chanderkant and the offenders. One  of the offenders pierced the knife in the stomach of  Chanderkant and he was lying in the pool of blood and was  taken to the hospital. On the date of incident, two other  persons were assaulted by the five named offenders. The  first information report was registered. The accusations so  far as the appellant is concerned, were that he had  instigated the mob to assault and murder. Learned Single  Judge took note of the fact that persons who were named as  accused persons were already released on bail, on the basis  of the statement made by the learned APP. Accusations  against the appellant were also that he was responsible for  the riots at different places at Solapur. Taking note of the  circumstances and the only allegation against him was of  instigation, bail was granted since the charge sheets were  placed and he was in custody for more than 7 and = months.  On 18.6.2003 an application for cancellation of bail was  filed by the State of Maharashtra under Section 439(2) of  the Code of Criminal Procedure, 1973 (in short the ’Code’)  alleging that there was suppression of material facts from

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the Court. It was not a fact that all the co-accused persons  were released on bail. The application was numbered as  Criminal Application No.2335 of 2003. When the matter was  taken up, an affidavit was filed by one Gajanan Rajaram  Huddedar, the Inspector of Police, stating that that  appellant had threatened the complainant of dire  consequences in the court premises of learned Sessions Judge  during trial on 16.7.2003 at 2.30 p.m. when the matter was  fixed for evidence. Complaint was lodged with the Police  Inspector, Begumpeth Police Station, Solapur by one Sunil  Yadav that he had appeared before the Sessions Judge  pursuant to summons issued by the Court.  During lunch time,  when he was going towards the Court he was threatened by  three persons including the appellant and he was told that  dire consequences would follow if he would depose against  the appellant and other accused. The place where the threat  was made was also indicated. The appellant filed application  under Section 439 of the Code for bail in connection with  the case which was in relation to offences punishable under  Sections 302, 307, 147, 148, 149, 295A, 427, 435 of the  Indian Penal Code, 1860 (in short the ’IPC’) and Section  25(4) of the Arms Act, 1959 (in short the ’Arms Act’). The  learned Sessions Judge who heard the bail application  rejected the same by order dated 21.2.2003. A bail  application was moved before the Bombay High Court which was  registered as Criminal Bail Application No.1012/2003 dated  7.3.2003. The learned Single Judge (Justice S.S. Parkar)  allowed the application for bail by order dated 4.6.2003.          Learned counsel appearing for the State brought this  fact to the notice of the Court and learned Single Judge  (Smt. V.K. Tahilramani) who was hearing the cancellation of  bail application took note of the fact that the appellant  has misused the liberty earlier granted to him by  threatening the witnesses of dire consequences. Taking  further note of the fact that the cross examination of the  complainant was yet to be completed, the learned judge  cancelled the bail and directed the appellant to surrender  before Vijapur Naka Police Station.

       Learned counsel for the appellant submitted that the  order cancelling bail cannot be maintained on more grounds  than one. Firstly, the cancellation of bail application  should have been heard by the learned Judge who had earlier  granted the bail. It was not desirable and proper for  another learned Single Judge to take up the cancellation of  bail application. Further, merely on the statement made by  the learned counsel appearing for the State about alleged  threat, the bail granted should not have been cancelled. An  enquiry as to the correctness of the allegations ought to  have been made and in the absence of that the bail should  not have been cancelled for mere asking. Otherwise, it would  be a routine matter to make allegations of tampering with  the evidence and get the bail cancelled and thereby  affecting the liberty of a person. The consideration for  grant of bail and cancellation of bail stand on different  footings. Stand of the learned APP was that matter had been  reported to learned Sessions Judge, who had called for a  report.  But the order-sheet or the evidence recorded on the  relevant date makes no mention of the alleged threat. Since  these relevant aspects have not been taken note of by the  High Court, the cancellation of bail should be nullified and  the bail granted earlier should be made operative.

       Per contra, learned counsel for the State submitted  that the cancellation has been done correctly. In granting

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bail the courts repose a confidence on the accused that he  would not tamper with the course of justice. Since that  trust has been betrayed and the appellant tried to interfere  with the course of justice by threatening the witnesses,  this was a fit case for cancellation of bail. It was pointed  out that a case has been registered on the basis of  accusations made by Sunil Yadav and proceedings under  Section 188 IPC had been initiated. According to him this  was not a fit case for interference.  

       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 (1992(4)SCC 272) the circumstances when bail  granted can be cancelled were highlighted in the following  words:

"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 on 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 instill a  sense of urgency in the investigating agency  to complete the investigation promptly and  within the statutory timeframe. 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

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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 Bihar (1986 (4) SCC 481)  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 were (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  investigation, (v) there is likelihood of  his fleeing to another country, (vii)  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."

       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.  

       It is undisputed that an affidavit of Police Inspector  attached to Control Room, Solapur was filed which indicated  the threat given to the complainant  in the court premises  on 16.7.2003. Merely because in the evidence recorded there  is no reference to the threat, that does not go to prove the  nagative or sufficient to infer that there was no such  threat. Learned counsel for the appellant submitted that at  least some reference should have been made to the threat.  That there was no such reference, according to us, is really  of no consequence. The evidence was being recorded with  regard to the incident dated 11.10.2002 and not in relation  to a subsequent event which is the subject matter of  consideration in the case registered in relation to the  alleged threat. In the affidavit it has been clearly  mentioned that a case (CR No.3097/2003) was registered under  Section 188 IPC in relation to the threat.  

       It is fairly accepted by learned counsel for the  appellant that nothing seem to have been urged by way of  reply to the affidavit or the truth or otherwise to the  contents thereof before the High Court, as the order  impugned shows. That being so, the appellant cannot make a  grievance that no enquiry was made to find out the truth or  otherwise of the statement made in the affidavit.       As there  were allegations prima facie showing that the witnesses have

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been threatened, a ground for cancellation of bail did  exist.  

Learned counsel for the appellant is correct on  principles that mere assertion of an alleged threat to  witnesses should not be utilized as a ground for  cancellation of bail, routinely.  Otherwise, there is ample  scope for making such allegation to nullify the bail  granted.  The Court before which such allegations are made  should in each case carefully weigh the acceptability of the  allegations and pass orders as circumstances warrant in law.   Such matters should be dealt with expeditiously so that  actual interference with the ordinary and normal course of  justice is nipped at the bud and an irretrievable stage is  not reached.     

The other aspect which was emphasized with some amount  of vehemence was that the learned Judge who had granted bail  should have heard the application for cancellation of bail.   Observations made in Harjeet Singh v. State of Punjab and  Anr. (2002 (1) SCC 649) was relied upon for that purpose. As  noted above, in the said judgment there is a long standing  convention and requirement of judicial discipline which has  held the field for a long period that subsequent application  for grant or cancellation of bail application should be  placed before the same learned Judge who had passed the  earlier order. This certainly is a desirable course. But at  the same time the party who makes a grievance that the  course has not been followed has to indicate as to in what  manner he was in prejudice by the deviation. The question of  prejudice arises only when on the same set of facts, a  different order is passed by another learned Judge  cancelling the bail or granting the bail as the case may be.  But where the cancellation is sought for on grounds  different from those which existed at the time of granting  bail, the conventional practice of placing the matter before  the same learned Judge need not be followed as if it is a  statutory requirement. It does not appear from the order of  the High Court that any submission was made before the   learned Single Judge who passed the impugned order to place  the matter before the same learned Judge who had passed the  earlier order. In any event, in the case at hand, the  cancellation has been done on a ground other than those  which weighed with learned Single Judge for grant of bail.  Though initially the application for cancellation of bail  was founded on the alleged misrepresentation or suppression  of facts, but what weighed with the learned Single Judge who  dealt with the application for cancellation of bail was the  conduct of the accused in threatening the witnesses. That  being so, the judgment in Harjeet Singh’s case (supra) does  not in any assist the appellant. There is no such thing as a  judicial precedent on facts though counsel, and even Judges,  are sometimes prone to argue and to act as if they were,  said Bose J. about half century back in Willie (William)  Slaney v. The State of Madhya Pradesh (1955 (2) SCR 1140 at  page 1169). A decision is available as a precedent only if  decides a question of law.  A judgment should be understood  in the light of facts of that case and no more should be  read into it than what it actually says. It is neither  desirable nor permissible to pick out a word or a sentence  from the judgment of this Court divorced from the context of  the question under consideration and treat it to be complete  law decided by this Court.  The judgment must be read as a  whole and the observations from the judgment have to be  considered in the light of the questions which were before

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this Court. (See Commissioner of Income Tax v. Sun  Engineering Works (P) Ltd. (1992 (4) SCC 363).      

The learned Single Judge has given cogent reasons for  passing the order of cancellation of bail granted earlier.  

       We find no merit in this appeal which is accordingly  dismissed. However, we find from the records that the trial  was in progress when bail was cancelled. It would be  appropriate if the trial Court completes the trial as early  as practicable, if not already completed, keeping in view  the mandate of Section 309 of the Code.  If appellant makes  any fresh application for bail, the same, it goes without  saying, shall be dealt with in accordance with law.