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CASE NO.: Appeal (crl.)  2371 of 2006

PETITIONER: Rizwan Akbar Hussain Syyed

RESPONDENT: Mehmood Hussain and Anr

DATE OF JUDGMENT: 18/05/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.  768 OF 2007 (Arising out of SLP (Crl.) No.2371 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the order passed by a  learned Single Judge of the Bombay High Court cancelling the  bail granted to the appellant, by exercising power under  Section 439(2) of the Code of Criminal Procedure, 1973 (for  short the ’Code’).

3.      The facts as projected by the appellant in a nutshell are  as follows:

4.      On 4th February, 2006 First Information Report was  lodged by the respondent No.1 alleging that he and his friend  named Girish Shetty, were attacked by the appellant and some  other unidentified persons, resulting in injuries. The appellant  was arrested on 4th February, 2006. He filed an application for  grant of bail. By order dated 10th February, 2006 learned  Additional Chief  Metropolitan Magistrate 4th Court, Girgaum,  Mumbai, directed release of the appellant on bail on his  furnishing a surety for a sum of Rs.10,000/-. According to the  appellant, respondent No.1 was not happy with the grant of  bail and wanted to scare the appellant and, therefore, on  various occasions threatened him. The appellant had lodged  report with the police and on 21st February, 2006, his  complaint was registered as N.C. complaint. Again on 4th April,  2006, the appellant was threatened by respondent No.1.   Subsequently, on 19th April, 2006, appellant was served  through an official of the V.P. Road Police Station a notice  relating to an application for cancellation of bail which was  registered as Criminal Application No.780/2006 before the  Bombay High Court. According to the appellant, he was  present on the date fixed for hearing, that is, 24th April, 2006.  His case was listed as item No.52 in Court Room No.9 and by  about 5.00 p.m. only 30 matters had been heard. On enquiry  from an official of the court, he was told that his matter may  be listed next week and, therefore, he left the court premises  at about 5.15 p.m. On 25th April, 2006, the impugned order

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has been passed. In fact, believing the statement of the court  official, appellant, had engaged a counsel who made enquiries  in the Registry on 28th April, 2006 and was told that bail was  cancelled by order dated 25th April, 2006.  

5. In support of the appeal. learned counsel for the appellant  submitted that this is a case involving alleged commission of  offence punishable under Section 324 of the Indian Penal  Code, 1860 (in short the ’IPC’). The case of respondent No.1  appears to be that the case ought to have been registered  under Section 307 IPC. Even if conceding for sake of  arguments that it is so, considering the nature of injuries  allegedly suffered by respondent No.1 and his friend, there  was no reason to refuse bail. Hence the court had rightly  granted bail. In any event, the learned Single Judge has not  indicated any reason for cancellation of bail. No condition was  stipulated by the trial court while granting bail. Surprisingly,  learned Single Judge has observed that the appellant has  violated the conditions imposed and has threatened the  complainant after he was released on bail. The facts point to  the contrary. In fact, the appellant has lodged complaint  before the police about the threats given by respondent No.1.

6.      In response, learned counsel for the State of Maharashtra  and the complainant submitted that though it was not so  specifically spelt out in the order granting bail, it is inherent in  every grant of bail that there shall not be any misuse thereof.  Since the appellant threatened respondent No.1, therefore, the  cancellation of bail is in order.  

7.      The order of learned Single Judge, so far as relevant,  reads as follows:  

"3. It is submitted though an offence  punishable under Section 307 was clearly  made out, the V.P. Road Police Station  registered the offence under Section 324 read  with Section 34 of the I.P.C.  It is alleged that  after Respondent No.1 was released on bail,  thereafter he was started threatening the  Applicant and has informed him that if he does  not withdraw the complaint, he will have to  face dire consequences.  Two N.C. complaints  have been filed by the present Applicant after  the Respondent No.1 was released on bail.      4. Notice was issued and permission was given  to serve the respondent through V.P. Road  Police Station.  

5.      Learned A.P.P. on instructions from the  office who is present in the Court submitted  that Respondent No.1 was served on l9th     April, 2006 and his signature was obtained on  the writ which was issued by this Court. Yet,  none appears on behalf of Respondent No. 1.   With the result, there is no other option but to  cancel the bail which was granted by the trial  Court since he has not complied with the  conditions which are imposed by the Court  and has threatened the Complainant after he  was released on bail."

8.      Learned Single Judge seems to have taken exception for

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non-appearance of the appellant at the time of hearing of the  application for cancellation of bail. The reason for non- appearance has been explained by the appellant. It is true that  in the order granting bail, there was no specific stipulation of  any condition. In fact, in the petition for cancellation of bail,  the respondent No.1 has stated that while granting bail, no  conditions were imposed. In that sense, the appellant is right  that the High Court has erroneously observed that the  conditions for grant of bail were violated. There was no specific  condition imposed and, that was one of the grievances of the  respondent No.1. But learned counsel for the respondents  rightly submitted that even if no condition is specifically  stipulated, the accused, while on bail, is not supposed to  tamper with evidence. There is no specific observation in this  regard in the impugned order.  Cancellation of bail should not  be done in a routine manner. Where it appears to the superior  Court that the Court granting bail acted on irrelevant  materials or there was non-application of mind or where Court  does not take note of any statutory bar to grant of bail, order  for cancellation of bail can be made. These circumstances are  illustrative and not exhaustive. The Court considering the  application for cancellation of bail has to take note of all  relevant aspects.  

9. In the circumstances of the case, we deem it proper to  remand the matter to the High Court for fresh consideration of  the application for cancellation of bail. To avoid unnecessary  delay, let the parties appear before the concerned court on 14th  June, 2007. Learned Chief Justice of the High Court is  requested to direct listing of the case before an appropriate  Court.   10. The interim order dated 12th May. 2006 passed by this  Court shall continue to be operative till the matter is disposed  of afresh by the High Court. It is made clear that by giving this  direction, it shall not be construed as if we have expressed any  opinion on the merits of the case.

11.     Accordingly, the impugned order is set aside and the  appeal is allowed to the aforesaid extent.