DINESH M.N. (S.P.)versusSTATE OF GUJARAT

                         [2008] 6 S.C.R. 1134


A                        DINESH M.N. (S.P.)
                                   II.
                        STATE OF GUJARAT
                 (Criminal Appeal No. 739 of 2008)
                           APRIL 28, 2008
B
    [ARIJIT PASAYAT, P. SATHASIVAM AND AFTAB ALAM]
                                                                       ...
        Code of Criminal Procedure, 1973: s.439 - Bail - Grant
  and cancellation of - Parameters for -Accused a high ranking
c police officer - Charged of fake encounters - Trial court
  granting bail on the ground that person killed in encounter
  was hardened criminal - Cancellation of bail by High Court
  holding that trial court did not keep in view seriousness of
  offences and involvement of accused - Justification of- Held:
  Justified - The court dealing with application for cancellation
0
  of bail can consider whether irrelevant materials were taken
  into consideration while granting bail - Irrelevant materials
  should be substantial in nature and not of a trivial nature -
  Comparative past conduct and antecedents of the person
  encountered and good official record of accused could not be
E ground to grant bail - Since trial court took irrelevant materials
  into consideration while granting bail and kept relevant
  materials out of consideration, High Court rightly ordered
  cancellation of bail.
F        The appellant was a member of a Special
  Investigating party which was formed to investigate into
  the various offences registered against one 'S' under IPC,
  Arms Act and Bombay Police Act. The FIR filed against 'S'
  stated that he was acting on behalf of 151 to spread terror
  and to disturb unity and integrity of the country and also
G had entered into conspiracy to kill one of the big leaders
  of Gujarat and when he was asked to surrender by the
  police party, he fired from his revolver and attempted to
  kill them.

H                                1134
             DINESH M.N. (S.P.) v. STATE OF GUJARAT            1135


            . Later on, brother of 'S' filed writ petition before this A
       Court. 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 'S' and subsequently reported death
       of his wife was a result of fake encounters carried out on B
       26.11.2005 by the then officers of the Anti-Terrorist Squad
       (ATS) and that senior IPS officers of State of Gujarat and
       State of Rajasthan were involved in the fake encounters.
       All those officers were arrested and appellant who was
       accused No.3 was one of such senior IPS officers c
       belonging to the State of Rajasthan.
              During the course of investigation, preliminary
       . inquiry was instituted by CID (Crime), and role of the
         appellant surfaced in the statement of one Police
         constable of ATS, Gujarat State. Considering the material D
i'.·     which had come on record, the Director General of Police
         ordered further investigation. Accordingly, the Magistrate
         was informed and the appellant was arraigned as
         accused. He was arrested. The appellant preferred a
         regular bail application.            ·                     E
              The trial court considered various circumstances for
        considering the bail application and held that sufficient
        evidence did not surface against the accused for having
        committed any heinous crime punishable with death or
        imprisonment for life. Further the trial court, after F
        discussing the credentials of 'S' that as many as 25 FIRs
        were lodged against him and considering the remarkable
        service record of the accused, observed that police
        officers like him should not be allowed to be harassed
        and humiliated unless strong prima facie evidence or the G
        material for committing a serious offence is found. The
        bail application was allowed. The State moved application
        for cancellation of bail.
            The High Court held that the trial court did not keep
                                                                      H
    1136       SUPREME COURT REPORTS              [2008] 6 S.C.R.
                                                                    li.

A 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
B antecedents of 'S' 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. Hence
  the present appeal.
           Dismissing the appeal, the Court
c
        HELD: 1. The parameters for grant of bail and
  cancellation of bail are different. But the question is if the
  trial Court while granting bail acts on irrelevant materials
  or takes into account irrelevant materials whether bail can
  be cancelled. Under the scheme of the Cr.P.C., the
D
  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. [Para 8] [1144-B-D]
       Jayendra Saraswathi Swamigal v. State of TN. 2005 (2)
E SCC 13; State (Delhi Admn.) v. Sanjay Gandhi 1978 (2) SCC
  411; Bhagirathsinh v. State of Gujarat 1984 (1) SCC 284;
  As/am Baba/al Desai v. State of Maharashtra 1992 (4) SCC
  272; Do/at Ram v. State of Haryana 1995 (1) SCC 349;
  Ramcharan v. State of MP 2004 (13) SCC 617; Mehboob
F 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; Panchanan
  Mishra v. Digambar Mishra 2005 (3) SCC 143 - referred to.
       2. Even though the re-appreciation of the evidence
G as done by the Court granting bail is to be avoided, the
  Court dealing with an application for cancellation of bail
  under s.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
H with ,the Court for accepting the prayer for bail. The
                DINESH M.N. (S.P.) v. STATE OF GUJARAT                1137


          irrelevant materials should be of a substantial nature and         A
          not of a trivial nature. The trial Court seemed to have been
          swayed by the fact that 'S' haa shady reputation and
          criminal antecedents. That was not certainly a factor which
          vvas to be considered while granting bail. It was nature of
          the acts which ought to have been. considered. The                 B
    ,.+   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        c
          was not lodged by the Gujarat Police. The accused was
          the leader of the Rajasthan team and there were other
          officials. It is pointed out from the General Diary in respect
          of entry on 26.11.2005 that accused was present. In FIR
          also the presence of accused has been noted. The                   D
    i     relevance of these factors do not appear to have been
          noticed by the Trial 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               E
          no leg to stand. [Paras 12, 14] [1146-E,F; 1147-D-H;
          1148~A-B]

               Ka/yan Chandra Sarkar v. Rajesh Ranjan @ Pappu
f         Yadav and Anr. 2004 (7) SCC 528; Ouran v. Rambi/as and
    -t    Anr. 2001 (6) SCC 338- referred to.                                F
                                                                 I'
              CRIMINAL APPELLATE JURISDICTION : Criminal
          Appeal No. 739 of 2008.
               Frol)'l the final Judgment and Order dated 25.01.2008 of
          the High Court of Gujarat at Ahmedabad in Criminal Misc. G
          Application No. 12644 of 2007.
               Soli J. Sorabjee, U.U. Lalit, Aishwarya Bhati, M.N:
          Seshadri, P.S. Dinesh, T.V. Ratnam, Abhishek Gautam, Rekha,
          Kashi Vishweshwar, Prabodh Kumar and Gp. Capt. Karan Singh
          Bhati for the Appellant.                                           H
    1138       SUPREME -COURT REPORTS               (2008] 6 S.C.R.


A        Dushyant Dave, Mukul Rohtagi, Huzefa Ahmadi,
    Pradhuman Gohil, Amit .s. Chauhan, Ejaz Maqbool, Saurav
    Kripal, Pinky, Jesal and Hemantika Wahi for the Respondent.
           The Judgment of the Court was delivered by
B          DR. ARIJIT PASAYAT, J. 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 ~hort the 'Code').
c
          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 .
0
    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
E State of Gujarat through Investigating Officer, C.1.0. (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. 1-5/2005 registered with
F 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').
G         5. Background facts sans unnecessary details are as
    follows:
        The application for cancellation of bail had matrix in FIR
  being CR No. 1-5 of 2005 filed by one Abdul Rehman, a Police
H Officer, subordinate to the appellant and now an accused, who
                     DINESH M.N. (S.P.) v. STATE OF GUJARAT                 1139
                            [DR. ARIJIT PASAYAT, J.)
        ):
               was a member of the Special Investigating Party formed at            A
               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, 123, 307,         B
               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       c
               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    D
               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         E
               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       F
        ....   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 G
               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 H
    1140     SUPREME COURT REPORTS                  [2008] 6 S.C.R.


A 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 of2007 on 17.9.2007,
  which was allowed vide order dated 5.1.2007 by learned
B 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,
C 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
D 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
E 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
F 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
G 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
H truthfulness of allegations levelled against the accused and the
                   DINESH M.N. (SP) v. STATE
                                          . .
                                              OF
                                               .
                                                 GUJARAT
                                                   .                         1141
                          [DR. ARIJIT PASAYAT, J.]
        ),
             satisfaction of the ingredients of' various .sections applied are       A
             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.                                                  B
                                      •              I
                 · So far as the possibility of ta'mpering with evidence is
        ~-
             concerned, the trial Court observed that charge sheet was
             submitted. By imposing strict conditions, the above aspects can
             be taken care ot After discussing the credentials of Sohrabuddin
             that as many as 25 FIRs were lodged against him and                     c
             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               D
             Jayendra Saraswathi Swamigal v. State of TN. (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              E
              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         F
             based on presumptions of exercise of power under Section 439
        -1
             of the Code and should nothave 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 HathipolePolice Station, Udaipur. It was G
             under his jurisdiction the role of the accused surfaced. He
             contacted Ahmedabad Police. to trace out Sohrabuddin. When
             he was appreh~nded information was.given to the accused and
             the accused informed his superior officers to send a team to
             Ahmedabad. He was le(lder" o{ the team, Before any formal H
    1142      SUPREME COURT REPORTS                  (2008] 6 S.C.R.


A   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 1208 IPC.
s   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
c   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
D 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
  out to falsify claim of encounter as narrated in C.R. 1-5/2005
  and creation of one FIR to falsify that fake encounter aspect
E 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
F Johri on 25.4.2007.                                                       i

          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.
G
       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
H when allegations or misuse of power necessary in Jaw by
      DINESH M.N. (S.P.) v. STATE OF GUJARAT                  1143
             [DR. AR!JIT PASAYAT, J.]

registering false FIR has been lost sight of. The comparative         A
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 forthe appellant
submitted that the parameters for grant of bail and cancellation B
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 C
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
Baba/a/ Desai v. State of Mahar.ashtra (1992 (4) SCC 272), D
Do/at Ram v. State of Haryana ( 1995 ( 1) SC C 349), .
Ramcharan v. State of MP (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 E
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 F
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
Do/at Ram's case (supra) the bail granted should not have been G
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      H.
    1144       SUPREME COURT REPORTS                     [2008] 6 S.C.R.


A   as to how appellant has tried to divert attention and thereby
    defeat the course of justice.

           8. As is evidentfrom 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 question is
B   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
c   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.
D
          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.

E          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 Ka/yan Chandra
    Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr. (2004 (7)
    sec 528) In para 11 it was noted as follows:
F          "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
G          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
H          from non-application of mind. It is also necessary for the
            DINESH M.N. (S.P.) v. STATE OF GUJARAT                   1145
                   [DR. ARIJIT PASAYAT, J.]

           court granting bail to consider among other circumstances,       A
           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
_.,        (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            c
           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.
                                                                            D
           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
                                                                             E
           were rejected by the High Court and some such 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 F
           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 G
           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
           envisage~ under Section 437(1 )(i) of the Code. This Court
           also in specific terms held that the condition laid down H
    114:6       SUPREME COURT REPORTS                    [2008] 6 S.C.R.


A        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
B        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
c        in this case) by itself would not entitle the accused to bein.g
         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
D
         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
E 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.
F        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
G
            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)
H
            DINESH M.N. (S.P.) v. STATE OF GUJARAT                  1147
).'
                   [DR. ARIJIT PASAYAT, J.]

           "If, ho.wever, a Court of Session had admitted an accused        A
           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            B
           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         c
           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-a-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           D
      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           E
      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          F
4
      certainly is not a factor which ca.n 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
                                                                            G
      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
                                                                            H
      1148      SUPREME COURT REPORTS                  [2008] 6 S.C.R.


 A    has been noted. The relevance of these factors does not appear
      to have been noticed by the Trial 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.
. B      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
 C 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
 D the subject matter for the trial Court.
      D.G.                                        Appeal dismissed.