Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3
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.