Holding

The High Court’s cancellation of bail was improper as it was based on an irrelevant ground and lacked detailed consideration, and the matter must be remitted for fresh adjudication.

Summary

Ram Babu Tiwari was arrested along with two others for alleged murder under IPC sections 307 and 34. He obtained bail on 27 May 2008 from the Sessions Court. The State filed an application under CrPC s.439 seeking cancellation of bail, alleging that Tiwari fired the fatal shot, had threatened a witness, and that co‑accused were still at large. The Madhya Pradesh High Court cancelled the bail, partly on the ground that the co‑accused did not oppose the cancellation. Tiwari appealed, contending that the High Court had no valid reason to cancel bail and that the parameters for cancellation differ from those for grant. The Supreme Court held that the High Court’s order was sketchy, failed to consider the relevant factors, and that non‑opposition by co‑accused is not a proper ground for cancellation. Consequently, the order was set aside and the matter remitted to the High Court for fresh consideration, without expressing any view on the merits.

Issues considered

Whether the High Court correctly exercised its power under CrPC s.439 to cancel bail granted to the appellant.
Whether the non‑opposition of co‑accused can be a valid ground for cancellation of bail.
Whether the High Court considered the relevant parameters and irrelevant material in its cancellation order.

Legislation cited

Code of Criminal Procedure, 1973s. 437(1)(i), s. 439
Indian Penal Code, 1860s. 307, s. 34

Subjects

bailcancellation of bailCrPC s.439CrPC s.437irrelevant materialco‑accusedhigh courtmurderIPC 307witness threat

Judgment

:

(2009] 6 S.C.R. 1012
r
A RAM BABU TIWARI
v.
STATE OF M.P. & ANR.
(Criminal Appeal No. 829 of 2009)
-
APRIL 24, 2009
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANGULY, JJ.] ~

Code of Criminal Procedure, 1973 - s. 439 -
c Cancellation of grant of bail, by High Court - Correctness of
- Held: Order of High Court was sketchy - It did not consider
relevant aspect in detail - Bail could not be cancelled on the
ground that co-accused did not oppose prayer for cancellation
of bail - Matter remitted back to High Court for consideration
D afresh. _... -
In this appeal, order of High Court dir~cting
cancellation of bail granted to the appellant, is under
challenge.

E Disposing of the appeal, the Court

HELi): 1.1. The Parameters for grant of bail and
cancellati!on of bail are different. But the question is if the 1 - ,
trial court while granting bail acts on irrelevant materials
F or takes into account irrelevant materials •
whether bail can
be cancelled. Under the scheme of Cr.P.C., the application
for canc1~llation of bail can be filed before the court
granting the bail if it is a Court of Sessions, or the High
Court. Even though the re-appreciation of the evidence
as done by the court granting bail is to be avoided, the
G
court dealing with an application for cancellation of bail
.*.
. .-
uls. 439(2:1 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 1012
RAM BABU TIWARI v. STATE OF M.P. & ANR. 1013

with the court for accepting the prayer for bail. The A

-
' irrelevant materials should be of a substantial nature and
not of a trivial nature. It is nature of the acts which are to
be considered. [Paras, 6, 10 and 12) [1015-C-E; 1017-E-
F; 1018-E-F]
B
Ka/yan Chandra Sarkar v. Rajesh Ranjan @ Pappu
Yadav and Anr. 2004 (7) SCC 528; Puran v. Rambilas and
.,.. Anr. 2001 (6) SCC 338, referred to.

1.2. The order of the High Court was very sketchy.
The High Court did not consider the relevant aspect in C
detail. Only because the co-accused did not actually
oppose the prayer for cancellation of bail, that could not
have been a ground to cancel bail ·granted to the
appellant. In the circumstances, the impugned judgment
is set aside and the matter is remitted back to the High D
-- > Court for fresh consideration. [Paras 13 and 14) [1018-G-
H; 1019-A)

Case Law Reference:
2004 (7) SCC 528 Referred to. Para 7 E

2001 (6) SCC 338 Referred to. Para 11

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 829 of 2009.
F
From the Judgment & Order dated 12.11.2008 of the High
Court of M.P. at Jabalpur in Misc. Crl. C. No. 8760 of 2008.

R.P. Gupta, J. Bey and Parmanand Gaur for the Appellant.

Vibha Datta Makhija for the Respondent. G

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J.1. Leave granted.

2. Challenge in this appeal is to the order passed by a H
1014 SUPREME COURT REPORTS [2009] 6 S.C.R.

A learned Single Judge of the Madhya Pradesh High Court, y-
Jabalpu1· Bench, directing cancellation of bail granted to the
appellart '

3. Background facts are as follows:
---
8 ThE! present appellant along with two others was arrested
in conm~ction with Crime no.149/2008 registered at KotWali
Sehore, for alleged commission of offence punishable under
Section:; 307 read with Section 34 of the Indian Penal Code, .
1860 (ir sh.ort the 'IPC').
c '·
Appellant
J
prayed for bail in terms of Section 439 of the
Code of Criminal Procedure, 1973 (in short 'the Code'), which
was allciwed by order dated 27.5.2008 passed by learned 1st
Additional Sessions Judge, Sihore. An application for
D cancell~ttion for bail was filed by the present respondent no.2.
*'. ...
Prosecution version is that in the wake of a property
dispute present appellant had hired with the assistance of one
Deepak Harnath Singh, respondent nos. 2 and 3 for killing
Shyam Tiwari who is his real brother. The shot fired by the
E present appellant hit one Ravi @ Rinku in his neck. .
Thi~ cancellation was prayed on the following grounds:

(a) There is specific allegation against appellant that i .
it was he who had fired the shot.
F
(I:) The respondent nos. 2 and 3 have consistent
criminal antecedent.

(c) After being released on bail, appellant by making
G a telephonic call to Nikhlesh Tiwari, nephew of
Shyam Tiwari, had threatened to kill him in case he
does not resile from his case diary statement. * ... '

(cl) Co-accused Deepak Harnath Singh is still
absconding.
H
I
-':,
RAM BABU TIWARI v. STATE OF M.P. & ANR. 1015
[DR. ARIJIT PASAYAT, J.]

. · - Accordingly, the High Court cancelled the bail granted. It A

- was noted that since the other co-accused h~ve not opposed
the prayer for cancellation of bail that was also a factor so far
as the· ~ppellant is concerned. -. -

4. Learned counsel for the appellant submitted that no B
reason has been indicated to cancel the bail. The parameters
fOr grant of bail and for cancellation of bail operate in different
· fields. Therefore: the High Court on tHe irrelevant reason that
co-accused did not oppose the prayer should not have ·
cancelled t~e ba!I g'ranted to tti~.a~pell~n,t. ~;-. . ,' ' , .···. :C

·s. Learned counsel for the respondent nC?.2. on the other
hand, supported t~~'order. ,·.

- ~ 6. The pa.rameters for grant of bail and cancellation of bail
are°' different. 'There ·is·no disputi{to' this':position. But the
... ) question is if the trial cou'rt whil~ granting bail acts~on irrelevant .P
materials or takes into accountirrelevant materials whether bail
\ ·: can be cancelled. Under the. sch~rrie
1
of
the. Code the
application for cancellation of ba:I can be fil~~·_before the Court
granting the bail if it is a Court of Sessions,,or t~eHigh Court. E
• .__.·-:,. ~ ·'~,,. -., 1 ..,_,c::_,';3 ·:F'' ,..., t __ ~
1
. 7. This Court in· Kalyan Chandra Sarkar v. ,Rajesfi Ranjan
@ Pappu Yadav and Anr. (2004 (~) 'ss¢;52a), in_ para 11
noted as follows: ·
'
I·~;;.

"11. The law in regard to grant or refusal of bail is very well F
settled. The court granting bail should exercise its
· ' discretion· in a judicious manner and 'riot '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 G
- ' need to indicate' in such orders reasons for prim a facie
·.~, concluding why bail was being·granted particularly where
· the accused is charged of haying·corr\mitted ·a serious
· offence. ''Any order devoid of such reasons would suffer
· froin nori~application ofmind. It is also necessary for the H
1016 SUPREME COURT REPORTS [2009) 6 S.C.R.

A court uranting bail to consider among other circumstances,
the following factors also before granting bail; they are: __,

(a) Thi~ nature of accusation and the severity of punishment
in cai;e of conviction and the nature of supporting
-
evidence.
B
(b) R1:lasonable apprehension of tampering with the
witne~•s or apprehension of threat to the complainant.

(c) Prma facie satisfaction of the court in support of the
c charge. (See Ram Govind Upadhyay v. Sudarshan
Singh (2002 (3) SC 598) and Puran v. Rambilas (2001 I-

(6) sec 338).

8. It was also noted in the said case that the conditions
laid down under Section 437 (1)(i) are sine qua non for granting
0 bail even under Section 439 of the Code.

9. In para 14 it was noted as follows:

"14. 'Ne 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
allowed by the High Court, the same was challenged
F before this Court and this Court accepted the said
challeinge 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
Appeial No. 745 of 2001 dated 25-7-2001. While
G 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
H
RAM BABU TIWARI v. STATE OF M.P. & ANR. 1017
[DR. ARIJIT PASAYAT, J.]
• ~ grounds envisaged under Section 437(1 )(i) of the Code. A
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 hab given the period
of incarceration already undergone by the accused and the B
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 c
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 wouiM be
D
- .~
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."

10. 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 F
for accepting the prayer for bail.

11. 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.
H
1018 SUPREME COURT REPORTS [2009] 6 S.C.R.

A This position is made clear by this Court in Gurcharan r
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
8 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)
c 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
D 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-a-vis the High Court."

E 12. 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

F
should be of a substantial nature and not of a trivial nature. It is
nature of the acts which are to be considered. By way of
illustration, it can be said that the accused cannot take a plea
-I •
..
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.
G 13. The order of the High Court is very sketchy. The High
Court has not considered the relevant aspect in detail. Only ~
because the co-accused did not actually oppose the prayer for
cancellation of bail, that could not have been a ground to cancel
bail granted to the appellant.
H
/
RAM BABU TIWARI v. STATE OF M.P. & ANR. 1019
[DR. ARIJIT PASAYAT, J.]

14. In the circumstances we set aside the impugned A
judgment and remit the matter to the High Court for fresh
consideration. We make it clear that we have not expressed
any opinion on the merits of the case. The High Court shall
examine the matter afresh keeping in view the parameters
indicated above. The appeal is accordingly disposed of. B

N.J . Appeal disposed of.
. _.