Full Judgment Text
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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.