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2008 (4) TMI 779 - SC - Indian LawsFake encounter - charged with serious and heinous offences - Cancellation of bail granted by the High Court - Whether the exercise of jurisdiction by the High Court Under Section 439(2) of the Code justified? - expression ban on the grant of bail in serious offences - FIR registered with ATS Police Station for the offences punishable under Sections 302, 364, 365, 368, 193, 197, 201, 120B, 420, 342 read with Section 34 of the Indian Penal Code, 1860 (IPC) and under Sections 25 (1)(b)(a) and 27 of the Arms Act, 1950 (Arms Act). HELD THAT - As is evident from the rival stands one thing is clear that the parameters for grant of bail and cancellation of bail are different. There is no dispute to this position. Though it was urged by learned counsel for the appellant that the aspects to be dealt with while considering the application for cancellation of bail and on appeal against the grant of bail, it was fairly accepted that there is no scope of filing an appeal against the order of grant of bail. Under the scheme of the Code the application for cancellation of bail can be filed before the Court granting the bail if it is a Court of Sessions, or the High Court. The High Court also erroneously held that there was a ban in granting bail in heinous crime. Though the High Court appears to have used the expression ban on the grant of bail in serious offences , actually it is referable to the decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr. 2004 (3) TMI 763 - SUPREME COURT . It was also noted that the conditions laid down under Section 437 (1)(i) are sine qua non for granting bail even under Section 439 of the Code. 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. The perversity as highlighted in Puran s case 2001 (5) TMI 971 - SUPREME COURT OF INDIA can also flow from the fact that as noted 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. In the instant case, the trial Court seems to have been swayed by the fact that Sohrabuddin, husband of Kausarbi had shady reputation and criminal antecedents. That was not certainly a factor which was to be considered while granting bail. It was nature of the acts which ought to have been considered. By way of illustration, it can be said that the accused cannot take a plea while applying for bail that the person whom he killed was hardened criminal. That certainly is not a factor which can be taken into account. Another significant factor which was highlighted by the State before the High Court was that an FIR allegedly was filed to divert attention from the fake encounter. The same was not lodged by the Gujarat Police. Once it is found that bail was granted on untenable grounds, same can be cancelled. The stand that there was no supervening circumstance has no relevance in such a case. We have only highlighted the aspects to show that irrelevant materials have been taken into account and/or relevant materials have been kept out of consideration. That being so, the order of granting bail to the appellant was certainly vulnerable. The order of the High Court does not suffer from any infirmity to warrant interference. The appeal is dismissed. However, it is made clear that whatever observations have been made are only to decide the question of grant of bail and shall not be treated to be expressing any opinion on merits. The case relating to acceptability or otherwise of the evidence is the subject matter for the trial Court.
Issues Involved:
1. Cancellation of bail under Section 439(2) of the Code of Criminal Procedure, 1973. 2. Parameters for granting and cancelling bail. 3. Relevance of materials considered by the trial court in granting bail. 4. Supervening circumstances in the context of bail cancellation. 5. Judicial discretion in granting bail for serious offences. Issue-wise Detailed Analysis: 1. Cancellation of Bail under Section 439(2) of the Code of Criminal Procedure, 1973: The appeal challenges the order of the Gujarat High Court, which cancelled the bail granted to the appellant under Section 439(2) of the Code of Criminal Procedure, 1973. The State of Gujarat filed the application for cancellation of bail, arguing that the bail was granted based on irrelevant materials and that the appellant was not cooperating with the investigation. 2. Parameters for Granting and Cancelling Bail: The Supreme Court emphasized that the parameters for granting bail and cancelling bail are distinct. The court granting bail must exercise discretion judiciously, considering the seriousness of the offence, the severity of punishment, and the nature of supporting evidence. The High Court noted that the trial court failed to consider the seriousness of the offences and the involvement of the accused, a high-ranking official charged with grave offences. 3. Relevance of Materials Considered by the Trial Court in Granting Bail: The trial court granted bail to the appellant based on three facets: the conspiracy part before 26.11.2005, the alleged encounter on 26.11.2005, and the events post-26.11.2005, including the death of Kausarbi. The High Court found that the trial court was swayed by irrelevant factors, such as the antecedents of Sohrabuddin, which should not have been considered. The Supreme Court agreed that the trial court's reliance on irrelevant materials made the bail order vulnerable. 4. Supervening Circumstances in the Context of Bail Cancellation: The appellant's counsel argued that the absence of supervening circumstances should prevent the cancellation of bail. However, the Supreme Court clarified that if bail is granted based on untenable grounds, it can be cancelled irrespective of supervening circumstances. The court highlighted that the trial court's consideration of irrelevant materials, such as the criminal antecedents of Sohrabuddin, justified the cancellation of bail. 5. Judicial Discretion in Granting Bail for Serious Offences: The Supreme Court reiterated that while granting bail for serious offences, the court must consider the nature of the accusation, the severity of punishment, and the likelihood of tampering with evidence or threatening witnesses. The High Court found that the trial court failed to adequately consider these factors, leading to the cancellation of bail. The Supreme Court upheld the High Court's decision, emphasizing that the trial court's order granting bail was based on irrelevant considerations. Conclusion: The Supreme Court dismissed the appeal, affirming the High Court's order cancelling the bail granted to the appellant. The court emphasized that the trial court's reliance on irrelevant materials and failure to consider the seriousness of the offences rendered the bail order vulnerable. The observations made by the Supreme Court were specific to the question of bail and not to be construed as an opinion on the merits of the case, which remain to be determined by the trial court.
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