DR. NARENDRA K AMINversusSTATE OF GUJARAT AND ANR.

                          [2008] 6 S.C.R. 1149


                       DR. NARENDRA KAMIN                           A
                                   v.
                   STATE OF GUJARAT AND ANR.
                  (Criminal Appeal No. 740 of 2008)
                           APRIL 28, 2008
                                                                    B
J.     (DR. ARIJIT PASAYAT, P. SATHASIVAM AND AFTAB
                         ALAM, JJ.)

          Code of Criminal Procedure, 1973:
            s. 439(2) - Cancellation of bail - HELD: Even though re- C
      appreciation of evidence as done by the court granting ball 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 - On facts,
      the court granting bail took into account irrelevant materials D
      and kept out of consideration relevant materials - Order of
     .High Court canceling bail of appellant does not suffer from
      any infirmity to warrant interference - Constitution of India,
      1950 - Article 136.
          The appellant was prosecuted for offences                 E
     punishable u/ss 302, 193, 201, 1208 IPC with the aid of
     s.34 IPC. He was granted bail by the Additional City and
     Sessions Judge. On an application by the State
     Governm.ent under s.439(2) of the Code of Criminai
     Procedure, 1973, the High Court cancelled the bail granted     F
     to the appellant.
          In the instant appeal filed by the accused it was
     contended for the appellant that parameters for grant of
     bail and cancellation of bail being entirely different, and G
     in the application for cancellation of bail there being no
     supervening circumstance, the bail should not have b~en
     cancelled only on analysis of the materials which were
     considered by the Additional City and Sessions Judge.
                                 1149                               H
    1150      SUPREME COURT REPORTS             [2008] 6 S.C.R.


A          Dismissing the appeal, the Court
        HELD: 1.1 It is true that the parameters for grant of
  bail and cancellation of bail are different. Even though re-
  appreciation of evidence as done by the Court granting
  bail is to be avoided, the Court dealing with an application.
B 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 irrelevant materials should be of a
C substantial nature and not of a trivial nature. [para 6,11
  and 13] [1157-B; 1159-E-F; 1160-E]
       Puran v. Rambilas and Anr. 2001 (6) SCC 338 and
  Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav
D and Anr. 2004 (7) SCC 528 - referred to.
       State of Karnataka v. L. Muniswamy (1977 (2) SCC 699),
  Babu Singh v. State of UP. 1978 (1) SCC 579; State (Delhi
  Adm.) V. Sanjay Gandhi 1978 (2) sec 411, Bhagirathsinh V.
  State of Gujarat 1984 (1) SCC 284, Aslam Baba/al Desai v.
E State of Maharashtra 1992 (4) SCC 272, Do/at 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; Jayendra Saraswati v. State
  of Tamil Nadu 2005 (2) SCC 13; Nityanand Rai v. State of
F Bihar 2005 (4) SCC 178; State of UP v. Amarmani Tripathi
  2005 (8) SCC 21; and Panchanan Mishra v. Digambar Mishra
  2005 (3) sec 143 - cited.
       1.2 In the instant case, the trial Court seems to have
  been swayed by the fact that one of the deceased had
G 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. Another significant factor which was
  highlighted by the State before the High Court was that
H an FIR allegedly was filed to divert attention from the fake
            DR. NARENDRA KAMIN v. STATE OF GUJARAT AND               1151
                     ANR. [DR. ARIJIT PASAYAT, J.]

            encounter. The same was not lodged by the Gujarat A
            Police. Thus, 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. [para 13
            and 15] [1160-E-G; 1161-A-B]                             B

      jl
                 1.3 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. The order of the High Court does not
            suffer from any infirmity to warrant interference. [para         c
            14-15] [1160-H; 1161-A, B]
                CRIMINAL APPELLATE JURISDICTION : Criminal
            Appeal No. 740 of 2008.
                 From the final Judgment and Order dated 25.01.2008 of D
            the High Court of Gujarat at Ahmedabad in Criminal Misc .
      ..;
            Application No. 12646 of 2007.
                 L.N. Rao, P.S. Patwalia, Vijay Nair, Nikhil Goel, Sheela
            Goel for the Appellant.
                                                                             E
                  Dushyant Dave, Mukul Rohtagi, Huzefa Ahmadi,
            Pradhuman Gohil, Amit S. Chauhan, Ejaj Maqbool, Saurav
            Kripal, Pinky, Jesal and Hemantika Wahi for the Respondents.
                 The Judgment of the Court was delivered by
                                                                             F
      _..        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 short the 'Code').          G
-I
                 3. The case numbered as Criminal Miscellaneous
      ..    Application No.12646/2007 was taken up alongwith Criminal
            Miscellaneous application No.12644/2007 filed in respect of a
            co-accused Dinesh the appellant in Criminal Appeal relating to
                                                                             H


~
  '
 ·~
    1152     SUPREME COURT REPORTS                  [2008] 6 S.C.R.


A Special Leave Petition (Crl.) No.867/2008. 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
B State of Gujarat through Investigating Officer, C.l.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.2359/2007 qua FIR being CR No. 5/2005 registered with
c ATS Police Station for the offences punishable under Sections
  302, 364, 365, 368, 193, 197, 201, 1208, 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').
D
        5. Background facts in a nutshell are as under:
         One Rubabuddin sraikh, 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
E 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
F 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.
G      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
H General of Police ordered further investigation under Section
         DR. NARENDRA KAMIN v. STATE OF GUJARAT AND                   1153
                  ANR. [DR. ARIJIT PASAYAT, J.]
"
    >    173(8) of the Code on 6.3.2007. Accordingly, the Metropolitan        A
         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,       B
         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            c
         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 toAhmedabad. Second
         facet is the day on which alleged encou·nter of Sohrabuddin took     D
         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.
               According to the prosecution, role played by the appellant
         in the episode surfaced initially from the statements of Shri E
         Nathubha Pravinsinh Jadeja who is a driver with ATS and Shri
         Vijay Arjun Rathod, Police Inspector relating to an alleged fake
         encounter. Therefore, process was started to find out the truth
         for which initially summons under Section 160 of the Code were
         issued. In response to it, the appellant appeared before the then F
    ..   investigating officer, Shri G.8. Padheriya and was not at all
         cooperating in disclosing the facts and was trying to avoid any
         question. It was apparent from the record that the appellant had
         already influenced the witnesses in whose statements his role
         had surfaced. His statement was recorded on 22.5.2007. The G
         date of first statement of the appellant and the date of Shri
         Nathubha surrendering before the Chief Metropolitan Magistrate
"
    •    was the same. When Shri Nathubha appeared before the Chief
         Metropolitan Magistrate, IGP CID Crime submitted an affidavit
         dated 24.5.2007. The appellant was not available either at his H
    1154      SUPREME COURT REPORTS                   [2008] 6 S.C.R.

                                                                               "'"
                                                                           ~
A residence or at the place where he was posted. Thereafter, by
  an order dated 8.6.2007 learned City and Sessions Court
  granted anticipatory bail against which Special Leave Petition
  was filed before this Court and the same was allowed on
  13.8.2007 by quashing and setting aside the order of
B anticipatory bail granted by the learned City and Sessions
  Judge. Thereafter, charge sheet was filed on 16. 7 .2007.

         The appellant's bail application was accepted by the trial
    Judge and was the subject matter of challenge as noted above
    before the High Court.
c
       According to the trial Court the accused had served the
  department with sincerity and dedication to curb the anti-social
  and anti-national element. Persons like him should not be
  subjected to unnecessary harassment and humiliation when
  there is possibility of securing the persons by imposing
D
  appropriate conditions.
        Stand of the State before the High Court was that role of
  accused No.12 the appellant was narrated in the charge sheet
  and he was charged with offences punishable under Sections
E 302, 193, 201, 1208 read with Section 34 IPC. It was pointed
  out that presence of the accused is very much evident as per
  the statements of witnesses namely, Nathubha-driver and Vijay
  Rathod-Police Inspector and, therefore, the grant of bail is illegal.
  It was pointed out that accused was not cooperating with the
F investigation. He did not respond to the notice in terms of
  Section 160 of the Code. It was pointed out that the date of
  statement of the accused and the date of Nathubha surrendering
                                                                          ..
  before the Chief Metropolitan Magistrate are the same and even
  during that period only Nathubha tried to retract from the
  statement earlier recorded and requested the Magistrate to join
G
  him as an accused and protection in terms of Section 438 of
  the Code was granted on 4.6.2007 and this Court by order dated
                                                                               •
  13.8.2007 set aside the order passed by the learned Judge. It           ~
  was pointed out that the trial Judge came to an abrupt conclusion

H                          .
  and without any material concluded that the nature and gravity
          DR. NARENDRA KAMIN v. STATE OF GUJARAT AND                   1155
                   ANR. [DR. ARIJIT PASAYAT, J.]

          of the offence alleged is serious but as emerges from the record, A
          there is no cogent, sufficient and reliable evidence to support
          the prosecution case. In other words, he had written indirectly
          an order of acquittal even before the trial was concluded.
                Reference was made also to the fact that accused was in
          no way connected with ATS of the Gujarat police but his B
          presence at the scene of offence where the body of Kausarbi
          was burnt was sufficient enough to deny the discretionary relief
          under Section 439 of the Code. With reference to the statement
          of owner of 'Disha Farm' where the victims were illegally
          confined it is submitted that his role is clear. Reference was       c
          also made to the telephonic conversation of the accused with
          Shri D.G. Vanzara between 25.11.2005 to 29.11.2005. Though
          the accused was in no way concerned with the enquiry or
          investigation of ATS, mobile tracking indicated presence of the
          accused at the Disha Farm. It was pointed out that weekly diary D
    -I
          shows his presence in the court during the period, but he was
          not actually in the court and some places were kept vacant in
          weekly diary and surprisingly during the entire operation mobile
          phone of the accused was switched off. The presence of
          appellant when corpse of Kausarbi was cremated has been E
          established by the statement of witnesses.
                Stand of the accused before the High Court was that the
          parameters for cancellation of bail and grant of bail are entirely
          different. It was pointed out that some of the witnesses have
          also retracted from the statements allegedly made earlier.           F
          Therefore, the order granting bail should not be interfered with.
                 The High Court noticed that the accused was charged with
          serious and heinous offences punishable under Sections 302
          read with Section 1208 IPC and while enlarging him on bail,
                                                                            G
          the trial Court ought to have kept in view the seriousness of the
    j..   offences, punishment prescribed for such offences and
          involvement of the accused, a high ranking official against whom
•         grave and serious offences have been made. It was pointed
          out that there was no question for referring to the antecedents
                                                                            H
    1156      SUPREME COURT REPORTS                    [2008] 6 S.C.R.


A   of Sohrabuddhin and his characteristics as that was of no
    relevance. The bail, therefore, was cancelled.
          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
8   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 we~ highlighted. It is submitted that even if two
    views are possible, once the bail has been granted, it should
C   not be cancelled. Reliance is placed on decisions of this Court
    in State of Karnataka v. L. Muniswamy (1977 (2) SCC 699),
    Babu Singh v. State of U.P. (1978 (1) SCC 579), State (Delhi
    Adm.) v. Sanjay Gandhi (1978 (2) SCC 411), Bhagirathsinh v.
    State of Gujarat (1984 (1) SCC 284), Aslam Babalal Desai v.
D   State of Maharashtra (1992 (4) SCC 272), Dolat Ram v. State
    of Haryana (1995 91) SCC 349), Ramcharan v. State of M.P.
    (2004 (13) SCC 617), Mehboob Dawood Shaikh v. State of
    Maharashtra (2004 (2) SCC 362), Jayendra Saraswati v. State
    of Tamil Nadu (2005 (2) SCC 13), Nityanand Rai v. State of
E   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
F   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 with and sidetrack the investigation and threaten the
    witnesses. It is pointed out that as laid down by this Court in
G   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.                                                A

       In response, learned counsel for the State of Gujarat
  submitted that it has not been laid down by this Court that only if
H supervening circumstances are there, on assessing the same
      DR. NARENDRA KAMIN v. STATE OF GUJARAT AND                     1157
)>             ANR. [DR. ARIJIT PASAYAT, J.]

     bail can be cancelled.                                                  A
            6. 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 question is
     if the trial Court while granting bail acts on irrelevant materials
     or takes into account irrelevant materials whether bail can be          8
     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          c
     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.
          7. The High Court also erroneously held that there was a
                                                                   D
     ban in granting bail in heinous crime.
           8. It has been fairly accepted by learned counsel for the
     parties that in some judgments the expression "appeal in respect
     of an order of grant of bail" has been used in the sense that the
     State can move the higher court.                                        E
            9. 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:                            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
                                                                          G
          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
                                                                             H
    1158       SUPREME COURT REPORTS                      [2008] 6 S.C.R.


A          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
B          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          (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).

          10. It was also noted in the said case that the conditions
0
    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
E          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 rejections
           have been affirmed by this Court also. It is seen from the
           records that when the fifth application for grant of bail was
F          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
G          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
H          renew the bail application in future, were not grounds
 DR. NARENDRA KAMIN v. STATE OF GUJARAT AND                   1159
          ANR. [DR. ARIJIT PASAYAT, J.]

     envisaged under Section 437(1 )(i) of the Code. This Court A
     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 B
     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 c
     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 D
     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."
      11. Even though the re-appreciation of the evidence as          E
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            F
accepting the prayer for bail.
     12. 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 G
     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 H
    1160       SUPREME COURT REPORTS                  (2008] 6 S.C.R.


A          Singh v. State (Delhi Admn.). In that case the Court
           observed as under: (SCC p. 124, para 16)

           "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
B          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
c          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
D          position of the Court of Session vis-a-vis the High Court."
           13. 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
E 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
F 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
G 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.
       14. Once it is found that bail was granted on untenable
H grounds. same can be cancelled. The stand that there was no
DR. NARENDRA KAMIN v. STATE OF GUJARAT AND                    1161
         ANR. [DR. ARIJIT PASAYAT, J.]

supervening circumstance has no relevance in such a case.             A

      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      8
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         C
subject matter for the trial Court.

R.P.                                          Appeal dismissed.




                                          "