2008 (4) TMI 708 - SC - Indian Laws

Whether bail can be cancelled? Whether irrelevant materials have been taken into account and/or relevant materials have been kept out of consideration? Whether the order of granting bail to the appellant was certainly vulnerable?

Issues Involved:
1. Cancellation of bail granted under Section 439(2) of the Code of Criminal Procedure, 1973.
2. Consideration of irrelevant materials by the trial court while granting bail.
3. Parameters for grant and cancellation of bail.
4. The role of the accused in the alleged fake encounter and conspiracy.
5. The relevance of the accused's and the victim's antecedents in bail decisions.

Issue-Wise Detailed Analysis:

1. Cancellation of Bail Granted under Section 439(2) of the Code of Criminal Procedure, 1973:
The appeal challenges the order of the Gujarat High Court, which canceled the bail granted to the appellant by the Additional City and Sessions Judge, Ahmedabad. The bail was initially granted in connection with FIR CR No. I-5/2005 registered with ATS Police Station for various offenses under IPC and the Arms Act. The High Court canceled the bail, considering the seriousness of the offenses and the involvement of the accused, a high-ranking officer, in the alleged fake encounter and misuse of power.

2. Consideration of Irrelevant Materials by the Trial Court While Granting Bail:
The trial court, while granting bail, considered several factors, including the criminal antecedents of Sohrabuddin and the appellant's service record. The High Court found that the trial court had not kept in view the seriousness of the offenses and had relied on irrelevant materials, such as the victim's criminal history, which should not have influenced the decision to grant bail. The Supreme Court emphasized that the trial court seemed to have been swayed by the fact that Sohrabuddin had a shady reputation, which was not a relevant factor in granting bail.

3. Parameters for Grant and Cancellation of Bail:
The Supreme Court reiterated that the parameters for granting bail and canceling bail are different. While granting bail, the court should exercise its discretion judiciously and consider factors such as the nature of the accusation, the severity of the punishment, the nature of supporting evidence, and the possibility of tampering with evidence or threatening witnesses. The High Court held that the trial court had not kept these factors in view and had acted on irrelevant materials, making its order vulnerable.

4. The Role of the Accused in the Alleged Fake Encounter and Conspiracy:
The accused, a senior IPS officer, was alleged to have played a significant role in the fake encounter of Sohrabuddin and his wife, Kausarbi. The investigation revealed that the accused coordinated with ATS officers of Gujarat and Rajasthan, procured weapons, and participated in the conspiracy. The High Court noted that the trial court had not adequately considered the circumstantial evidence and the role of the accused in the conspiracy while granting bail.

5. The Relevance of the Accused's and the Victim's Antecedents in Bail Decisions:
The trial court had compared the antecedents of Sohrabuddin with the appellant's service record, concluding that police officers like the appellant should not be harassed without strong prima facie evidence. The High Court found this comparison irrelevant and held that the seriousness of the offenses and the misuse of power by the accused were the primary factors to be considered. The Supreme Court agreed, stating that the accused's plea that the victim was a hardened criminal was not a factor to be considered while granting bail.

Conclusion:
The Supreme Court upheld the High Court's decision to cancel the bail granted to the appellant. It emphasized that the trial court had relied on irrelevant materials and had not adequately considered the seriousness of the offenses and the role of the accused in the conspiracy. The appeal was dismissed, and the observations made were clarified to be solely for deciding the question of bail, without expressing any opinion on the merits of the case.

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