Supreme Court of India
MANJIT PRAKASH & ORSversusSHOBHA DEVI & ANR.
- Citation
- 2008 INSC 843
- Decided
- 18 July 2008
- Disposal
- Case Allowed
- Bench
- ARIJIT PASAYAT
Holding
A cancellation of bail order that does not state reasons is invalid and must be set aside.
Summary
The respondent filed a criminal case against her husband and his family. The accused were granted provisional bail on 3 May 2006, which was confirmed on 7 September 2006. The Patna High Court later cancelled the bail of three appellants without recording any reasons. The appellants appealed to the Supreme Court, contending that the cancellation order was invalid for lack of reasons. The Supreme Court held that cancellation of bail under Section 439(2) CrPC is a harsh order and must be supported by reasons; an order devoid of such reasons cannot stand. Consequently, the High Court’s order was set aside and the matter was remitted to the High Court to reconsider the cancellation afresh. The appeal was allowed.
Issues considered
- Whether a High Court can cancel bail under Section 439(2) of the Code of Criminal Procedure, 1973 without recording reasons.
- What are the proper grounds and procedural requirements for cancellation of bail under Section 439(2).
Legislation cited
- Code of Criminal Procedure, 1973s. 167, s. 437, s. 439(2)
Subjects
bailcancellation of bailSection 439(2) CrPCreasons for ordercriminal procedurehigh court orderSupreme Court
Judgment
[2008] 10 S.C.R. 1141
MANJIT PRAKASH & ORS. A
v.
SHOBHA DEVI & ANR.
CRIMINAL APPEAL NO. 1113 OF 2008
JULY 18, 2008
B
[DR. ARIJIT PASAYAT AND HARJIT SINGH BEDI, JJ]
Code of Criminal Procedure, 1973:
s. 439(2) - Cancellation of bail - HELD: Since High
Court has not indicated any reasons for cancellation of baif. c
its order cannot be maintained - Matter remitted to High Court
to decide and dispose of the application afresh.
Respondent no. 1 filed a criminal case against her
husband and four of his family members. All the accused
D
were granted provisional bail on 3.5.2006. The order was
confirmed on 7 .9.2006. However, the High Court can-
celled the bail granted to the three appellants.
In the instant appeal it was contended for the appel-
lants that no reasons were given by the High Court for E
cancellation of bail.
Allowing the appeal, the Court
HELD: 1.1 It is trite law that considerations for graht
of bail and cancellation of bail stand on different footings. F
Cancellation of bail is a harsh order and is not to be lightly
resorted to because it takes away the liberty granted to
an individual. But, when a person to whom bail has beeh
granted either tries to interfere with the course of justice
or attempts to tamper with evidence or witnesses or threat- G
ens witnesses or indulges in similar activities which would
..A hamper smooth investigation or trial, bail granted can be
cancelled. [para 6-7] [1143-G, 1145-D,E]
Aslam Baba/al Desai v. State of Maharashtra 1992(1)
1141 H
1142 SUPREME COURT REPORTS [2008] 10 S.C.R.
A Supp. SCR 545; Ka/yan Chandra Sarkar v. Rajesh Ranjan
@ Pappu Yadav and Anr. 2004 (7) SCC 528 - relied on.
1.2 Even though 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 ~
B Section 439(2) of the Code of Criminal Procedure, 1973
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. [para 11] [1147.;.E,F]
c
Puran v. Rambilas and Anr. 2001 (6) SCC 338 - referred to.
1.3 In the instant case, since the High Court has not
indicated any. reasons for directing cancellatio.n of bail,
the impugned order cannot be maintained and.is set a~ide.
D J'he matter is remitted to the High Court. to. decide ,.the
matter afresh and. dispose of the application filed. [para
14] [1148-F,G] .
Case .Law Reference
E · 1992 Supp1 SCR 545 relied on [para 6]
2004 (7)SCC 528 relied on [para 7]
2001 (6) sec 328 referred to [para 12]
.,
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
F No. 1113 of 2008
From the final Order dated 12.7.2007 of the High Court of
Judicature at Patna in Crl. Misc. No·48109 of 2006
. . Gaurav Agrawal for the Apellants .
G ,'
Gopal Singh, Manish Kumar, Rajnish Prasad and Amit
Pawan for the Respondents. ......
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted.
H
MANJIT PRAKASH .& ORS. v. SHOBHA DEVI 1143
& ANR. [DR. ARIJIT PASAYAT, J.]
2. Appellants challenge the order passed by a learned A
Single Judge of the Patna High Court cancelling the bail granted
to them by order dated 7.9.2006 in Criminal Miscellaneous No.
10719 of 2006. The application for cancellation of bail was filed
by the respondent No.1. Appellants 1, 2 & 3 are arrayed as
accused Nos. 1, 2 & 4. Five persons were granted bail by or- B
der dated 7.9.2006 in Criminal Misc. Case No. 10719 of 2006.
By the impugned order the learned Single Judge directed can-
cellation of bail granted to the present appellants while holding
that the two others being ladiHs there was no need to cancel the
bail granted to them. c
2. Though various points were urged in support of the ap-
peal primarily it was submitted that no reasons have been given
for canceling the bail.
3. Learned counsel for the respondent No.1-complainant
submitted that though the order canceling bail has not elabo- q
rately dealt with the circumstances to warrant cancellation of
bail, the same is in ordr.ff.
4. The appellants and the other two in respect of whom the
High Court has not interfered, were granted provisional bail by E
order dated 3.5.2006 which came to be confirmed on 7.9.2006.
It was stated that the husband and wife have been residing to-
gether in the matrimonial home. Earlier there was a suit for
restitution of conjugal rights filed by appellant No. 2 who with-
drew the same after the provisional bail was confirmed and in- f'
stituted Matrimonial case No. 34 of 2006 for divorce. Accord-
ing to the complaint on 10.10.2006, there was an incident and
therefore the bail was to be cancelled. The High Court, as rightly
contended by learned counsel for the appellants, has not indi-
cated the reasons for directing cancellation of bail. G'
6.' It is trite law that the considerations for grant of bail and
.cancellation of bail stand on different footings. By a majority
judgment in Aslam Baba/al Desai v. State of Maharashtra the
circumstances when bail granted can be cancelled were high- I
lighted in the following words: (SCC pp. 289-90, para 11 ): H
1144 SUPREME COURT REPORTS [2008] 10 S.C.R.
-f
A "11. Ori a conjoint reading of Sections 57 and 167 of the
Code it is clear that the legislative object was to ensure
speedy investigation after a person has been taken in
custody. It expects that the investigation should be
completed within 24 hours and if this is not possible within
\..
8 15 days and failing that within the time stipulated in clause
(a) of the proviso to Section 167(2) of the Code. The law
expects that the investigation must be completed with
dispatch and the role of the Magistrate is to oversee the
course of investigation and to prevent abuse of the law by
the investigating agency. As stated earlier, the legislative
c
history shows that before the introduction of the proviso to ,"
Section 167(2) the maximum time allowed to the
investigating agency was 15 days under sub-section (2)
of Section 167 failing which the accused could be enlarged
on bail. From experience this was found to be insufficient
D - particularly in complex case and hence the proviso was
added to enable the Magistrate to detain the accused .in
custody for a period exceeding 15 days but not exceeding
the outer limit fixed under the proviso (a) to that sub-section.
We may here mention that the period prescribed by the
E proviso has been enlarged by State amendments and
wherever there is such enlargement, the proviso will have
to be ,read accordingly. The purpose and object of
providing for the release of the accused under sub-section
(2) of Section 167 on the failure of the investigating agency
F completing the investigation within the extended time
allowed by the proviso was to instil a sense of urgency in
the investigating agency to complete the investigation
promptly and within the statutory time frame. The deeming
fiction of correlating the release on bail under sub-section
G (2) of Section 167 with Chapter XXXlll i.e. Sections 437
and 439 of the Code, was to treat the order as one passed
~·
under the latter provisions. Once the order of release is by
fiction of law an order passed under Section 437(1) or (2)
or Section 439(1) it follows as a natural consequence that
H the said order can be cancelled under sub-section (5) of
MANJIT PRAKASH & ORS. v. SHOBHA DEVI 1145
+- & ANR. [DR ARIJIT PASAYAT, J.]
Section 437 or sub-section (2) of Section 439 on A
considerations relevant for cancellation of an order
thereunder. As stated in Raghubir Singh v. State of Biha~
the grounds for cancellation under Sections 437(5) and
439(2) are identical, namely, bail granted under Section
437(1) or.(2) or Section 439(1) can be cancelled where (1) B
the accused misuses his liberty by indulging in similar
criminal activity, (it) interferes with the course of investigation,
(iii) attempts to tamper with evidence or witnesses, (iv)
threatens witnesses or indulges in similar activities which
would hamper smooth investigation, (v) there is likelihood C
of his fleeing to another country, (v1) attempts to make himself
scarce by going underground or becoming unavailable to
the investigating agency, (vii) attempts to place himself
beyond the reach of his surety etc. These grounds are
illustrative and not exhaustive. It must also be remembered
0
that rejection of bail stands on one footing but cancellation
of bail is a harsh order because it interferes with the liberty
of the individual and hence it must not be lightly resorted to."
7. It is, therefore, clear that when a person to whom bail
has been granted either tries to interfere with the course of jus- E
tice or attempts to tamper with evidence or witnesses or threat-
ens witnesses or indulges in similar activities which would ham-
per smooth investigation or trial, bail granted can be cancelled.
Rejection of bail stands on one footing, but cancellation of bail
is a harsh order because it takes away the liberty of an indi- F
vidual granted and is not to be lightly resorted to.
8. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu
Yadav and Anr. (2004 (7) sec 528) In para 11 it was noted as
follows:
G
"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
H
1146 SUPREME COURT REPORTS [2008] 10 S.C.R.
-+
A 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
~
B 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
c 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
D charge. (See Ram Govind Upadhyay v. Sudarshan
Singh· (2002 (3) SC 598) and Pu ran· v. Rambilas
(2001 (6) sec 338).
9. It was also noted in the said case that the conditions
laid down under Section 437 (1 )(i) are sine qua non for granting
E
bail even under Section 439 of the Code.
10. ln 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
F 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
allowed by the High Court, the same was challenged before
G this Court and this Court accepted the said challenge by
allowirrn 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 I
of 2001 d~ted 25-7-2001. While cancelling the said bail
H this Court specifically held that the fact that the present
MANJIT PRAKASH & ORS. v. SHOBHA DEVI · 1147
& ANR. [DR ARIJIT PASAYAT, J.]
accused was in custody for more than one year (at that A
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 B
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 c
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
0
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 E
accused during the period he was on bail."
11. Even though the re-appreciation of the evidence as
done by the Court granting bail is to be avoided, the Court deal-
ing with an application for cancellation of bail under Section F
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 ac-
cepting the prayer for bail.
12. In Puran v. Rambilas and Anr. (2001 (6) SCC 338) it G
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 H
1148 SUPREME COURT REPORTS [2008] 10 S.C.R.
-+
A 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)
\-·
B "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
c 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
D 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
E 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 !'!late-
rials have been taken into consideration adding vulnerability to
the order granting bail. The irrelevant materials should be of a·
F substantial nature and not of a trivial nature. -'.
14. Since the High Court has not indicated any reasons.
for directing cancellation of bail, the impugned order cannot be
maintained and is set aside. The matter is remitted to the High
Court to decide the matter afresh and dispose of the applica-
G
tion filed. We make it clear that we have not expressed any
opinion on the merits of the case.
"'-
14. The appeal is allowed to the aforesaid extent.
R.P. Appeal allowed.
H
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