Full Judgment Text
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CASE NO.:
Appeal (crl.) 739 of 2008
PETITIONER:
Dinesh M.N. (S.P.)
RESPONDENT:
State of Gujarat
DATE OF JUDGMENT: 28/04/2008
BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM & AFTAB ALAM
JUDGMENT:
J U D G M E N T
Dr. ARIJIT PASAYAT, J
REPORTABLE
CRIMINAL APPEAL NO 739 OF 2008
(Arising out of SLP (Crl.) No. 867 of 2008)
1. Leave granted.
2. Challenge in this appeal is to the order passed by a
learned Single Judge of the Gujarat High Court cancelling the
bail granted to the appellant in terms of Section 439 (2) of the
Code of Criminal Procedure, 1973 (in short the ’Code’).
3. The case numbered as Criminal Miscellaneous
Application No.12644/2007 was taken up alongwith Criminal
Miscellaneous application No.12646/2007 filed in respect of a
co-accused Narendra K Amin (the appellant in Criminal Appeal
relating to Special Leave Petition (Crl.) No.788/2008). Both the
matters were taken up in view of the order dated 12.12.2007
passed by this Court in Contempt Petition (Crl.) No.8/2007 in
Writ Petition (Crl.) No. 6/2007.
4. The application under Section 439(2) was filed by the
State of Gujarat through Investigating Officer, C.I.D. (Crime),
Gandhinagar for cancellation of bail granted to the appellant
by order dated 5.10.2007 by learned Additional City and
Sessions Judge, Ahmedabad in Criminal Miscellaneous
Application No.3459/2007 qua FIR being CR No. I-5/2005
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 (in
short the ’IPC’) and under Sections 25 (1)(b)(a) and 27 of the
Arms Act, 1950 (in short the ’Arms Act’).
5. Background facts sans unnecessary details are as
follows:
The application for cancellation of bail had matrix in FIR
being CR No. I-5 of 2005 filed by one Abdul Rehman, a Police
Officer, subordinate to the appellant and now an accused, who
was a member of the Special Investigating Party formed at
Udaipur, Rajasthan to investigate into various offences
registered against one Sohrabuddin. As per the above FIR,
said Sohrabuddin, son of Ahwaruddin Shaikh, resident of
Zaraniya, Nagda, Madhya Pradesh, who was accused of
offences punishable under Sections 120(b), 121, 121-A, 122,
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123, 307, 186, 224 of IPC, under Sections 25(1)(b) and
Section 27 of the Arms Act and under Section 13 (1) of the
Bombay Police Act. In the above FIR it was stated that the
above accused (Sohrabuddin) was acting at the behest of ISI to
spread terror and to disturb the unity and integrity of the
country and also entered into conspiracy by possessing arms
and ammunition so as to kill one of the big leaders of the State
of Gujarat and when asked to surrender by the police party,
fired from his revolver and attempted to kill them.
Later on, Rubabuddin Shaikh, brother of Sohrabuddin,
filed petition before this Court which was registered as Writ
Petition (Crl.) No.6 of 2007. Pursuant to the directions issued
from time to time, the Investigation Agency of the State of
Gujarat carried out investigation and it was found by the
Investigating Agency that death of Sohrabuddin and
subsequently reported death of Kausarbi, wife of Sohrabuddin,
was a result of fake encounters carried out by the then officers
of the Anti-Terrorist Squad (for short ‘ATS’), State of Gujarat
and senior IPS officers of State of Gujarat and State of
Rajasthan are involved in the fake encounters. All those
officers were arrested and appellant who is accused No.3 is
one of such senior IPS officer belonging to the State of
Rajasthan.
During the course of investigation, preliminary inquiry
being Inquiry No.66 of 2006 was instituted by CID (Crime),
Gujarat State, role of the appellant surfaced in the statement
of one Ajay Parmar, Police Constable of ATS, Gujarat State.
Considering the material which had come on record, the
Director General of Police ordered further investigation under
Section 173(8) of the Code on 6.3.2007. Accordingly, the
Metropolitan Magistrate was informed and the appellant
therein was arraigned as accused. He was arrested on
24.4.2007, remanded to custody for 15 days and charge sheet
was filed on 16.7.2007. The appellant preferred a regular bail
application being Criminal Misc. Application No.3459 of 2007
on 17.9.2007, which was allowed vide order dated 5.1.2007 by
learned Additional City and Sessions Judge, Court No.6,
Ahmedabad.
While enlarging the appellant on regular bail in exercise
of power under Section 439 of the Code, learned Additional
City and Sessions Judge, relied on various circumstances,
more particularly on three facets:- first facet is prior to
26.11.2005, second facet is dated 26.11.2005 and the third
facet is post 26.11.2005. The first facet was about conspiracy
part and bringing Sohrabuddin from Hyderabad to
Ahmedabad. Second facet is the day on which alleged
encounter of Sohrabuddin took place on 26.11.2005 and the
third facet, i.e. post 26 11.2005 about death of Kausarbi
and destroying evidence relating to her death.
The evidence against the accused appellant revealed his
presence as stated by one Nathubha Jadeja on 26.4.2007. As
per the letter dated 7.5.2005 of Investigating Officer said Shri
Nathubha Jadeja is shown as accused, but later on Smt. Gita
Johri, a senior police officer declared in her affidavit before
learned Chief Judicial Magistrate that Shri Nathubha Jadeja is
a witness and on 25.5.2007 Shri Jadeja had stated in his
affidavit before the learned CJM that his statement dated
26.4.2007 was recorded under duress. The other statements of
the driver Puranmal Prabhudayal Mina clearly indicate that
the accused had come alongwith other police officers from
Udaipur to Ahmedabad on 24.11.2005. He stated that he was
not present at the time of alleged encounter and he had no
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personal knowledge. Another statement of Shri Bhailal K
Rathod does not also specifically indicate presence of the
accused at the place of encounter. According to the trial Court
these statements leave room for doubt about the involvement
of the accused. At the same time, learned trial Judge observed
that truthfulness of allegations levelled against the accused
and the satisfaction of the ingredients of various sections
applied are subject matter of appreciation of evidence and it
can be considered at the time of trial. But it was concluded
that sufficient evidence did not surface against the accused
for having committed any heinous crime punishable with
death or imprisonment for life.
So far as the possibility of tampering with evidence is
concerned, the trial Court observed that charge sheet was
submitted. By imposing strict conditions, the above aspects
can be taken care of. After discussing the credentials of
Sohrabuddin that as many as 25 FIRs were lodged against
him and considering the remarkable service record of the
accused, it was observed that police officers like him should
not be allowed to be harassed and humiliated unless strong
prima facie evidence or the material for committing a serious
offence is found. Reliance was placed on a decision of this
Court in Jayendra Saraswathi Swamigal v. State of T.N. (2005
(2) SCC 13). Several conditions were imposed to grant bail.
Before the High Court the primary stands taken were
that seriousness of the offences and the sentences to be
imposed were not kept in view. Irrelevant factors were taken
into consideration for granting bail.
Stand of the applicant-State before the High Court was
that very approach of the trial Court in weighing evidence even
prima facie is contrary to the law laid down by this Court, and
based on presumptions of exercise of power under Section 439
of the Code and should not have been exercised.
Highlighting the definite role of the accused, it was
pointed out that Sohrabuddin was a wanted accused involved
in an offence registered with Hathipole Police Station, Udaipur.
It was under his jurisdiction the role of the accused surfaced.
He contacted Ahmedabad Police to trace out Sohrabuddin.
When he was apprehended information was given to the
accused and the accused informed his superior officers to
send a team to Ahmedabad. He was leader of the team. Before
any formal order came to be passed for forming a team,
weapons were procured from Kotwali upon his arrival in
Ahmedabad. He coordinated in the fake encounter alongwith
ATS officers of the State of Gujarat. Therefore, it was
contended that it was a clear case of conspiracy attracting
ingredients of Section 120B IPC. It was pointed out that the
whole case is based on circumstantial evidence and from the
charge sheet, needle of suspicion unerringly pointed out at the
accused and the circumstantial evidence even the form of
statements of witnesses and in view of the role played by
accused as afore-noted, the trial Court should not have
granted bail.
So far as the alleged discrepancies in the evidence of
different witnesses are concerned, it was submitted that the
stage for assessing the contradictions, if any, has not come. It
is pointed out that as per the statement of Nathubha on
26.4.2007 presence of the respondent was shown at the place
of encounter which was sufficient to deny the protection under
Section 439 of the Code. A very significant factor was pointed
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out to falsify claim of encounter as narrated in C.R. I-5/2005
and creation of one FIR to falsify that fake encounter aspect
itself amounted to misuse of power by the accused so as to
misguide the investigating agency, though such incident as
narrated in the FIR never took place. It was also pointed out
that the retraction of the statement made by Nathubha on
25.5.2007 has to be viewed in the background of the affidavit
by Smt. Gita Johri on 25.4.2007.
It was also pointed out that by comparing the
antecedents of Sohrabuddin and the alleged bright career of
the accused, the trial Judge mis-directed himself and acted on
irrelevant materials which made his order vulnerable.
The High Court on consideration of the rival submissions
held that the learned trial Judge has not kept in view the
seriousness of the offences, punishments prescribed for such
offences and involvement of the accused, a high ranking officer
when allegations or misuse of power necessary in law by
registering false FIR has been lost sight of. The comparative
past conduct and antecedents of Sohrabuddin by the so called
good official record of the accused could not have been a
ground for grant of bail. Accordingly, the bail granted was
cancelled.
6. In support of the appeal, learned counsel for the
appellant submitted that the parameters for grant of bail and
cancellation of bail are entirely different as has been laid down
by this Court in several cases. In the application for
cancellation of bail there was no reference to any supervening
circumstance and only analysis of the materials which were
considered by the trial Court to grant bail were highlighted. It
is submitted that even if two views are possible, once the bail
has been granted, it should not be cancelled. Reliance is
placed on decisions of this Court in State (Delhi Admn.) v.
Sanjay Gandhi (1978 (2) SCC 411), Bhagirathsinh v. State of
Gujarat (1984 (1) SCC 284), Aslam Babalal Desai v. State of
Maharashtra (1992 (4) SCC 272), Dolat Ram v. State of
Haryana (1995 (1) SCC 349), Ramcharan v. State of M.P.
(2004 (13) SCC 617), Mehboob Dawood Shaikh v. State of
Maharashtra (2004 (2) SCC 362), Nityanand Rai v. State of
Bihar (2005 (4) SCC 178), State of U.P. v. Amarmani Tripathi
(2005 (8) SCC 21) and Panchanan Mishra v. Digambar Mishra
(2005 (3) SCC 143). It is pointed out that the common thread
passing through the aforesaid decisions is that there is no
scope for cancellation of bail on re-appreciation of evidence. It
is pointed out that in Mehboob’s case (supra) and Amarmani’s
case (supra) the bail was cancelled as it was established that
there were serious attempts to tamper with the evidence and
to interfere and sidetrack the investigation and threaten the
witnesses. It is pointed out that as laid down by this Court in
Sanjay Gandhi’s case (supra) and Dolat Ram’s case (supra) the
bail granted should not have been cancelled by way of re-
appreciating evidence.
7. In response, learned counsel for the State of Gujarat
submitted that it has not been laid down by this Court that
only if supervening circumstances are there, on assessing the
same bail can be cancelled. He referred to findings of the High
Court as to how appellant has tried to divert attention and
thereby defeat the course of justice.
8. 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. But the
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question is if the trial Court while granting bail acts on
irrelevant materials or takes into account irrelevant materials
whether bail can be cancelled. 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.
9. It has been fairly accepted by learned counsel for the
parties that in some judgments the expression "appeal in
respect of an order of bail" has been used in the sense that
one can move the higher court.
10. 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 (7) SCC 528) In para 11 it was noted as follows:
"11. The law in regard to grant or refusal of
bail is very well settled. The court granting bail
should exercise its discretion in a judicious
manner and not as a matter or course. Though
at the stage of granting bail a detailed
examination of evidence and elaborate
documentation of the merit of the case need
not be undertaken, there is a need to indicate
in such orders reasons for prima facie
concluding why bail was being granted
particularly where the accused is charged of
having committed a serious offence. Any order
devoid of such reasons would suffer from non-
application of mind. It is also necessary for the
court granting bail to consider among other
circumstances, the following factors also
before granting bail; they are:
(a) The nature of accusation and the severity
of punishment in case of conviction and the
nature of supporting evidence.
(b) Reasonable apprehension of tampering
with the witness or apprehension of threat to
the complainant.
(c) Prima facie satisfaction of the court in
support of the charge. (See Ram Govind
Upadhyay v. Sudarshan Singh (2002 (3) SC
598) and Puran v. Rambilas (2001 (6) SCC
338).
11. It was also noted in the said case that the conditions laid
down under Section 437 (1)(i) are sine qua non for granting
bail even under Section 439 of the Code.
In para 14 it was noted as follows:
"14. We have already noticed from the
arguments of learned counsel for the appellant
that the present accused had earlier made
seven applications for grant of bail which were
rejected by the High Court and some such
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rejections have been affirmed by this Court
also. It is seen from the records that when the
fifth application for grant of bail was allowed
by the High Court, the same was challenged
before this Court and this Court accepted the
said challenge by allowing the appeal filed by
the Union of India and another and cancelled
the bail granted by the High Court as per the
order of this Court made in Criminal Appeal
No. 745 of 2001 dated 25-7-2001. While
cancelling the said bail this Court specifically
held that the fact that the present accused was
in custody for more than one year (at that
time) and the further fact that while rejecting
an earlier application, the High Court had
given liberty to renew the bail application in
future, were not grounds envisaged under
Section 437(1)(i) of the Code. This Court also
in specific terms held that the condition laid
down under Section 437(1)(i) is sine qua non
for granting bail even under Section 439 of the
Code. In the impugned order it is noticed that
the High Court has given the period of
incarceration already undergone by the
accused and the unlikelihood of trial
concluding in the near future as grounds
sufficient to enlarge the accused on bail, in
spite of the fact that the accused stands
charged of offences punishable with life
imprisonment or even death penalty. In such
cases, in our opinion, the mere fact that the
accused has undergone certain period of
incarceration (three years in this case) by itself
would not entitle the accused to being enlarged
on bail, nor the fact that the trial is not likely
to be concluded in the near future either by
itself or coupled with the period of
incarceration would be sufficient for enlarging
the appellant on bail when the gravity of the
offence alleged is severe and there are
allegations of tampering with the witnesses by
the accused during the period he was on bail."
12. 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.
13. In Puran v. Rambilas and Anr. (2001 (6) SCC 338) it was
noted as follows:
"11. Further, it is to be kept in mind that the
concept of setting aside the unjustified illegal
or perverse order is totally different from the
concept of cancelling the bail on the ground
that the accused has misconducted himself or
because of some new facts requiring such
cancellation. This position is made clear by
this Court in Gurcharan Singh v. State (Delhi
Admn.). In that case the Court observed as
under: (SCC p. 124, para 16)
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"If, however, a Court of Session had
admitted an accused person to bail, the
State has two options. It may move the
Sessions Judge if certain new
circumstances have arisen which were
not earlier known to the State and
necessarily, therefore, to that court. The
State may as well approach the High
Court being the superior court under
Section 439(2) to commit the accused to
custody. When, however, the State is
aggrieved by the order of the Sessions
Judge granting bail and there are no new
circumstances that have cropped up
except those already existing, it is futile
for the State to move the Sessions Judge
again and it is competent in law to move
the High Court for cancellation of the
bail. This position follows from the
subordinate position of the Court of
Session vis-‘-vis the High Court."
14. The perversity as highlighted in Puran’s case (supra) can
also flow from the fact that as noted above, 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 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 a
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. The accused
was the leader of the Rajasthan team and the other officials
were Abdul Rehman, Himanshu Singh, Mohan Singh, Shyam
Singh and Jai Singh. The first named Abdul Rehman had
lodged the FIR. It is pointed out from the General Diary in
respect of entry on 26.11.2005 that accused Dinesh was
present. In FIR CR-I 5/2005 also the presence of Dinesh has
been noted. The relevance of these factors does not appear to
have been noticed by the High Court. In other words, relevant
materials were kept out of consideration. Once it is concluded
that bail was granted on untenable grounds, the plea of
absence of supervening circumstances has no leg to stand.
15. We have only highlighted the above 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 expression of any
opinion on merits. The case relating to acceptability or
otherwise of the evidence is the subject matter for the trial
Court.