Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.                    OF 2009 (Arising out of S.L.P. (Criminal) No. 4008 of 2008)

Rasiklal ... Appellant

Versus

Kishore s/o Khanchand Wadhwani ... Respondent

J U D G M E N T

J.M. Panchal, J.

Leave granted.

2. The appellant is accused in Criminal Complaint No.

1604 of 2005 filed in the court of learned Judicial

Magistrate  First  Class,  Indore,  M.P.,  for  alleged

commission of offences punishable under Sections

499 and 500 of the Indian Penal Code and assails

the order dated March 24, 2008, rendered by the

learned  Single  Judge  of  High  Court  of  Madhya

Pradesh, Bench at Indore, in Criminal Revision No.

1362 of 2006 by which bail granted to the appellant

by  the  learned  Judicial  Magistrate  First  Class,

Indore, M.P. on December 1, 2006 is cancelled on

the ground that the order granting bail was passed

by  the  learned  Judicial  Magistrate  First  Class,

Indore,  without  hearing  the  original  complainant

and was, therefore, bad for violation of principles of

natural justice.

3. It is the case of the respondent that the appellant

gave an interview on December  15, 2004 on Star

News  TV  Channel  and  defamed  him.   The

respondent,  therefore,  filed  a  Criminal  Complaint

No. 1604 of 2005 in the court of learned Judicial

Magistrate First Class, Indore, M.P. on January 27,

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2005 for alleged commission of offences punishable

under  Sections  499  and 500  of  the  Indian  Penal

Code.   The  learned  Judicial  Magistrate  examined

the respondent on oath as required by Section 200

of the Code of Criminal Procedure, 1973 and issued

summons to the appellant for commission of alleged

offences under Sections 499 and 500 of the Indian

Penal  Code  vide  order  dated  May  9,  2006.   The

appellant  appeared  before  the court  on November

20,  2006  and  submitted  an  application  under

Section  317  of  the  Code  of  Criminal  Procedure,

1973  seeking  exemption  for  personal  appearance

along with vakalatnama of his counsel.  In the said

application prayer for grant of bail was also made.

The application was fixed for hearing on December

26,  2006.   However,  on  December  1,  2006  the

appellant  filed  an  application  mentioning  his

appearance  before  the  court  and  to  consider  his

prayer  for  grant  of  bail  under  Section 436 of  the

Code  of  Criminal  Procedure,  1973  as  offences

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alleged  to  have  been  committed  by  him  under

Sections 499 and 500 of the Indian Penal Code are

bailable.  The application was heard on the day on

which it was filed.  The learned Magistrate noticed

that the offences alleged to have been committed by

the  appellant  were  bailable.   Therefore,  the

appellant was admitted to bail on his furnishing a

surety in the sum of Rs.5,000/- and also furnishing

a bond of the same amount.  While enlarging the

appellant on bail the learned Magistrate imposed a

condition  on  the  appellant  that  he  would  appear

before the court on each date of hearing or else he

would be taken into custody and sent to jail.  The

order  dated  December  1,  2006  passed  by  the

learned Judicial Magistrate further indicates that in

compliance of the direction issued by the court the

appellant  furnished  a  bail  bond  in  the  sum  of

Rs.5,000/- and also executed a bond for the said

amount and that the bail bonds were accepted by

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the court after which the appellant was released on

bail.

4. The respondent,  who is original complainant, filed

Criminal  Revision  No.  1362  of  2006  in  the  High

Court  of  Madhya  Pradesh,  Bench  at  Indore,  on

December 26, 2006 for cancelling the bail granted

to the appellant by the learned Judicial Magistrate

First Class, Indore, on the ground that he was not

heard  and,  therefore,  the  order  was  violative  of

principles  of  natural  justice.   The  learned  Single

Judge,  before  whom  the  revision  application  was

notified  for  hearing,  had  issued  notice  to  the

appellant but the appellant did not remain present

before  the  High  Court.   The  revision  application

filed  by  the  respondent  was  taken  up  for  final

disposal  on March 24,  2008.   The learned  Single

Judge,  by  order  dated  March  24,  2008,  has

cancelled the bail  granted to the appellant by the

learned Judicial Magistrate on the ground that the

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respondent, who was original complainant, was not

heard  and,  therefore,  the  order  granting  bail

violates  the  principles  of  natural  justice.   After

cancelling  the  bail  granted  to  the  appellant  the

learned  Single  Judge  remitted  the  matter  to  the

court  below  with  a  direction  that  the  matter  be

taken  up  according  to  law  between  the  parties

relating to the grant of bail to the appellant.  Feeling

aggrieved  the  appellant  has  invoked  appellate

jurisdiction of this Court  under Article 136 of the

Constitution.

5. This Court  has heard the learned counsel  for the

parties and taken into consideration the documents

forming part of the appeal.

6. As is evident, the appellant is being tried for alleged

commission of offences punishable under Sections

499 and 500 of the Indian Penal Code.  Admittedly,

both the offences are bailable.  The grant of bail to a

person accused of  bailable  offence  is governed by

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the  provisions  of  Section  436  of  the  Code  of

Criminal Procedure, 1973.  The said section reads

as under: -

“436 - In what cases bail to be taken - (1) When any person other than a person accused of a non- bailable  offence  is  arrested  or  detained  without warrant by an officer in charge of a police station, or appears  or  is  brought  before  a  Court,  and  is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail:

Provided that such officer or Court, if he or it thinks fit, may, and shall, if such person is indigent and is unable to furnish surety, instead of taking bail  from  such  person,  discharge  him  on  his executing  a  bond  without  sureties  for  his appearance as hereinafter provided:

Explanation. – Where a person is unable to give bail within a week of the date of his arrest, it shall be a sufficient ground for the officer or the Court to presume  that  he  is  an  indigent  person  for  the purposes of this proviso.

Provided  further  that  nothing  in  this  section shall  be  deemed  to  affect  the  provisions  of  sub- section (3) of section 116 or section 446A.

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(2) Notwithstanding  anything  contained  in  sub- section  (1),  where  a  person  has  failed  to  comply with the conditions of the bail-bond as regards the time and place of attendance, the Court may refuse to  release  him  on  bail,  when  on  a  subsequent occasion in the  same  case  he  appears  before  the Court or is brought in custody and any such refusal shall  be  without  prejudice  to  the  powers  of  the Court to call upon any person bound by such bond to pay the penalty thereof under section 446.”

There is no doubt that under Section 436 of the Code of

Criminal  Procedure  a  person  accused  of  a  bailable

offence is entitled to be released on bail pending his trial.

As  soon  as  it  appears  that  the  accused  person  is

prepared to give bail, the police officer or the court before

whom he offers to give bail, is bound to release him on

such terms as to bail as may appear to the officer or the

court  to be reasonable.   It  would even be open to the

officer  or  the  court  to  discharge  such  person  on  his

executing a bond as provided in the Section instead of

taking bail from him.  The position of persons accused of

non-bailable  offence  is  entirely  different.   The  right  to

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claim  bail  granted  by  Section  436  of  the  Code  in  a

bailable offence is an absolute and indefeasible right.  In

bailable  offences  there  is  no  question  of  discretion  in

granting bail as the words of Section 436 are imperative.

The only choice available to the officer or the court is as

between taking a simple recognizance of the accused and

demanding  security  with  surety.   The  persons

contemplated  by  Section  436  cannot  be  taken  into

custody unless they are unable or willing to offer bail or

to execute personal bonds.  There is no manner of doubt

that bail in a bailable offence can be claimed by accused

as of right and the officer or the court, as the case may

be, is bound to release the accused on bail if he is willing

to abide by reasonable conditions which may be imposed

on him.

7. There  is  no  express  provision  in  the  Code

prohibiting the court from re-arresting an accused

released  on  bail  under  Section  436  of  the  Code.

However, the settled judicial trend is that the High

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Court  can  cancel  the  bail  bond  while  exercising

inherent  powers  under  Section  482  of  the  Code.

According  to  this  Court  a  person  accused  of  a

bailable  offence  is  entitled  to  be  released  on  bail

pending  his  trial,  but  he  forfeits  his  right  to  be

released  on bail  if  his conduct  subsequent  to his

release is found to be prejudicial to a fair trial.  And

this forfeiture can be made effective by invoking the

inherent  powers  of  the  High Court  under  Section

482  of  the  Code.  [See:  Talab  Haji  Hussain vs.

Madhukar  Purushottam  Mondkar  and  another

(1958  SCR  1226)]  reiterated  by  a  Constitution

Bench in Ratilal Bhanji Mithani v. Asstt. Collector of

Customs and Anr. (1967 (3) SCR 926)].

8. It  may  be  noticed  that  sub-Section  (2)  of  Section

436 of the 1973 Code empowers any court to refuse

bail without prejudice to action under Section 446

where a person fails to comply with the conditions

of bail bond giving effect to the view expressed by

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this Court in the above mentioned case.  However,

it is well settled that bail granted to an accused with

reference to bailable offence can be cancelled only if

the accused (1) misuses his liberty by indulging in

similar  criminal  activity,  (2)  interferes  with  the

course of investigation, (3) attempts to tamper with

evidence  of  witnesses,  (4)  threatens  witnesses  or

indulges in similar  activities  which would hamper

smooth investigation, (5) attempts to flee to another

country,  (6)  attempts  to  make  himself  scarce  by

going underground or becoming unavailable to the

investigating agency, (7)  attempts to place himself

beyond the reach of his surety, etc.  These grounds

are illustrative and not exhaustive.  However, a bail

granted  to  a  person  accused  of  bailable  offence

cannot  be  cancelled  on  the  ground  that  the

complainant  was  not  heard.   As  mandated  by

Section 436 of the Code what is to be ascertained

by the  officer  or  the  court  is  whether  the  offence

alleged to have been committed is a bailable offence

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and  whether  he  is  ready  to  give  bail  as  may  be

directed by the officer or the court.  When a police

officer  releases  a  person  accused  of  a  bailable

offence, he is not required to hear the complainant

at  all.   Similarly,  a  court  while  exercising  powers

under Section 436 of the Code is not bound to issue

notice to the complainant and hear him.   

9. The contention raised by the learned counsel for the

respondent on the basis of decision of this Court in

Arun  Kumar vs.  State  of  Bihar  and  another [JT

2008 (2) SC 584], that the complainant should have

been heard by the Magistrate before granting bail to

the appellant, cannot be accepted.  In the decision

relied  upon  by  the  learned  counsel  for  the

respondent challenge was to the order passed by a

learned  Single  Judge  of  the  Patna  High  Court

quashing  the  order  passed  by  the  learned  Fast

Track  Court  holding  that  the  respondent  No.  2

therein was not juvenile  and, therefore, there was

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no need  to  refer  his  case  to  the  Juvenile  Justice

Board for  ascertaining  his  age  and then  for  trial.

The High Court was of the view that the prayer was

rejected  only  on  the  ground  that  two  or  three

witnesses were examined and though the accused

was in possession of school leaving certificate, mark

sheet,  etc.  to  show  that  he  was  a  juvenile,  the

prayer  could  not  have  been  rejected.   This  Court

found that the High Court in a very cryptic manner

had  observed  that  the  application  of  the  accused

deserved to be allowed and directed the court below

to consider the accused as a juvenile and proceed

accordingly.  Before this Court it was submitted by

the  learned  counsel  for  the  informant  that  the

documents produced had been analysed by the trial

court and it was found at the time of framing charge

that  he  was  major  without  any  doubt.   The

grievance  was  made  on  behalf  of  the  informant

before this Court that the High Court did not even

consider as to how the conclusions of the trial court

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suffered from any infirmity and merely referring to

the  stand  of  the  accused  and  even  without

analyzing  the  correctness  or  otherwise  of  the

observations  and  conclusions  made  by  the  trial

court  the  learned  Single  Judge  came  to  the

conclusion that the accused was a juvenile.   This

Court concluded that the High Court had failed to

notice  several  relevant  factors  and  no  discussion

was  made  as  to  how the  conclusions  of  the  trial

court  suffered  from  any  infirmity.   It  was  also

noticed by this Court that no notice was issued to

the appellant before the matter was disposed of.  In

view of  the above  position the order impugned in

the appeal was set aside by this Court.  To say the

least,  the  facts  of  the  present  case  are  quite

different  from  those  mentioned  in  the  above

reported decision.  Therefore the ratio laid down in

the said decision cannot be applied to the fact of the

instant case.

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10. Even if  notice  had been issued to the respondent

before granting bail to the appellant, the respondent

could  not  have  pointed  out  to  the  court  that  the

appellant  had  allegedly  committed  non-bailable

offences.   As  observed  earlier,  what  has  to  be

ascertained  by  the  officer  or  the  court  is  as  to

whether  the  person  accused  is  alleged  to  have

committed  bailable  offences  and  if  the  same  is

found to be in affirmative, the officer or the court

has no other alternative but to release such person

on  bail  if  he  is  ready  and  willing  to  abide  by

reasonable  conditions,  which may  be  imposed  on

him.  Having  regard to the  facts  of  the  case  this

Court is of the firm opinion that the bail granted to

the  appellant  for  alleged  commission  of  bailable

offence could not have been cancelled by the High

Court on the ground that the complainant was not

heard and, thus, principles of natural justice were

violated.   Principles  of  natural  justice  is  not  a

‘mantra’ to be applied in vacuum in all cases.  The

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question as to what extent, the principles of natural

justice are required to be complied with, will depend

upon the facts of the case.  They are not required to

be  complied  with  when  it  will  lead  to  an  empty

formality (See State Bank of Patiala vs. S.K. Sharma

(1996  (3)  SCC  364)  and  Karnataka  State  Road

Transport  Corporation vs.   S.G. Kotturappa (2005

(3)  SCC 409).   The  impugned  order  is,  therefore,

liable to be set aside.

11. For the foregoing reasons the appeal succeeds.  The

order dated March 24, 2008, passed by the learned

Single  Judge  of  High  Court  of  Madhya  Pradesh,

Bench at Indore, in Criminal Revision No. 1362 of

2006 cancelling the bail granted to the appellant by

the learned Judicial Magistrate is hereby set aside

and order dated December 1, 2006, passed by the

learned  Judicial  Magistrate  First  Class,  Indore,

M.P.,  in Criminal  Complaint  No.  1604  of  2005  is

hereby restored.

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12. The appeal accordingly stands disposed of.

…………………………J. [R.V. Raveendran]

…………………………J. [J.M. Panchal]

New Delhi; February 20, 2009.

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