Holding

The Sessions Court erred in granting anticipatory bail without considering the risk of witness tampering and the need for custodial interrogation, so the anticipatory bail order is set aside.

Summary

In a murder case, the Sessions Court granted anticipatory bail under Section 438 of the CrPC to Deputy Superintendent of Police Narendra K. Amin. The State of Gujarat appealed, contending that the court failed to consider the prosecution’s apprehension that the accused could influence or coerce witnesses and that custodial interrogation was essential. The Supreme Court held that such apprehensions are not imaginary and must be seriously examined before granting anticipatory bail. Consequently, the Court set aside the anticipatory bail order, directing the trial court to decide the bail application under Section 439 in accordance with law. The appeal was allowed, but the Court refrained from deciding the merits of the regular bail application, which remains pending.

Issues considered

The appropriateness of granting anticipatory bail under Section 438 when there is a real risk of the accused influencing witnesses.
Whether the Sessions Court erred by not considering the need for custodial interrogation before granting anticipatory bail.
Whether the Supreme Court can set aside an anticipatory bail order while a regular bail application is pending.

Legislation cited

Code of Criminal Procedure, 1973s. 438, s. 439
Constitution of Indias. 136

Subjects

anticipatory bailSection 438Section 439witness tamperingcustodial interrogationbail jurisprudencecriminal procedureSupreme CourtGujarat murder case

Judgment

STATE OF GUJARAT A
v.
NARENDRA K. AMIN

AUGUST 13, 2007
I
[TARUN CHATTERJEE AND P.K. BALASUBRAMANYAN, JJ.] B

Code of Criminal Procedure, 1973:

s. 438-Anticipatory bail-Allowed by Sessions Court without
considering apprehension of prosecution that accused would get opportunity C
to influence witnesses and that his custodial interrogation was must-
Propriety of-Held: Not proper-Hence, order of anticipatory bail interfered
with to a limited extent of setting it aside-Sessions Court directed to deal
with bail application in accordance with law.

In a murder case, Sessions Court granted anticipatory bail to respondent,
D

•• a Deputy Superintendent of Police. The appellant-State challenged the said
order before this Court on the ground that the Sessions Court had travelled
beyond the scope of an enquiry under s.438 Cr.P.C. and had rather dealt with
a matter that it appeared almost like passing of an order of acquittal. The
appellant contended that there was no proper application of mind by Sessions E
Judge to all the facts available and considering the gravity of the offence, the
. circumstances surrounding the transaction and position occupied by the
respondent, it was a fit case for refusing anticipatory bail; that this was a
case where custodial interrogation was a must and the Sessions Judge has
also completely ignored the apprehension clearly expressed by the prosecution F
that the respondent, if granted bail, would be in a position to influence and
coerce the witnesses into retracting statements already made and in not
disclosing relevant information to the prosecution.

Allowing the appeal, the Court

HELD: I. The apprehension that the respondent is in a position to G
influence, induce or coerce witnesses to desist from furnishing relevant
information to the investigating agency cannot be considered to be imaginary
and the court ought to have considered that aspect seriously before granting
anticipatory bail. The court also should have considered the need put forward
1009 H
r~
1010 SUPREME COURT REPORTS [2007) 8 S.C.R.

A for custodial interrogation of the respondent for finding out what exactly -f,
happened to the deceased or how she met with her end. In the circumstanceS,
the order granting anticipatory bail to the respondent is interfered but only
to the limited extent of setting it aside and leaving the bail application of the
appellant to be dealt with by the trial court in accordance with law and after
taking note of all the relevant aspects. This course, will sub-serve the interests
B of justice and prejudice neither. The Sessions Court is directed to deal with
the application for bail made by the respondent under s. 439 Cr.P.c;. in
accordance with law. (Paras 5 and 6) (1012-B-E) '•
'
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CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1065 of
c 2007.
From the Interim Order dated 08.06.2007 of the Addi. City Sessions .
Judge, Court No. 6, Ahmedabad in Criminal Misc. Application No. 2019 of
2007.

.
K.T.S. Tulsi, Ranjit Kumar, Hemantika Wahi, Shivangi, Pinky for the
D
Appellant.

Milon K. Banerji , A.G.I., Mohan Parasaran, ASG, H. Rawal, Asst. S.G., ~
Gaurav Agrawal, Sushma Suri, Sheela Goel for the Respondent.

The Order of the Court was delivered by
E
P.K. BALASUBRAMANYAN, J. I. Leave granted.

2. In Writ Petition (Criminal) 6 of 2007 praying for the issue of a writ
of habeas corpus, while monitoring the investigation into the alleged killing
of Sohrabuddin Sheikh and the disappearance of his wife, the learned amicus
F
curiae brought to our notice an order of the Sessions Court granting anticipatory
bail to Dr. Amin, a Deputy Superintendent of Police. He submitted that the --,.
said order was unsupportable and had an impact on the investigation itself.
When the learned amicus curiae pointed out that the State of Gujarat has not
even appealed against that order, learned Senior Counsel appearing for the
G State of Gujarat sought permission of this Court to challenge the said order
directly in this Court in view of the fact that this Court was already in seisin .I

of the matter relating to the concerned crime and that in his view also, the
order required to be challenged. Thereupon, we granted permission to the
learned Senior Counsel for the State of Gujarat to file a Petition for Special ~·

Leave to Appeal against that order. When such a petition, the present one,
H
.
STA TE OF GUJARAT 1·. NARENDRA K. AMIN [BALASUBRAMANY AN, J.) 10} }
.. was tiled, we issued notice on the same in spite of the request of learned A
Senior Counsel for the respondent who had appeared on caveat, that notice
need not be issued and the matter itself may be heard finally. Today, we heard
learned Senior Counsel for the State of Gujarat, learned Senior Counsel
appearing for the respondent and the learned amicus curiae.

3. Learned Senior Counsel for the State of Gujarat submitted that the B
learned judge has travelled beyond the scope of an inquiry under Section 438
of the Code of Criminal Procedure and that he had dealt with the matter in
such a way that it was almost like passing an order of acquittal. This was
exactly the submission that the learned amicus curiae made the other day,
which induced us to entertain this petition directly in this Court. Learned C
Senior Counsel for the State of Gujarat also submitted that there was no
. proper application of mind by the learned Sessions Judge to all the facts
..
· available and considering the gravity of the offence, the circumstances
surrounding the transaction and the position occupied by the respondent, it
was a fit case for refusing anticipatory bail. This was a case where custodfal
interrogation was a must. The Sessions Judge has also completely ignored D
the apprehension clearly expressed by the prosecution that the respondent,
if granted bail, would be in a position to influence and coerce the witnesses
into retracting statements already made and in not disclosing relevant
information to the prosecution. This aspect has been totally ignored by the
court while granting bail. E
4. Learned Senior Counsel for the respondent subrriitted in answer, that
the learned Sessions Judge has only gone by the parameters drawn for an
inquiry into an application under Section 438 of the Code and the observations
made by him are in connection with that inquiry and it was not correct to
characterise the order as almost amounting to an order of acquittal. Learned p
counsel submitted that the extraordinary jurisdiction of this Court under
Article 136 of the Constitution of India is exercised by this Court only based
on the circumstances available in a case and in the case on hand, the
circumstances available and the materials available, did not justify interference
by this Court. He referred to the charge sheet to plead that the grant of bail
was justified. He also pointed out that subsequent to the order impugned G
herein, the respondent has been arrested and enlarged on bail pursuant to the
order and he has made ari application for regular bail in the concerned court
anci it would be appropriate to leave the matter to be decided by that court
while entertaining the application under Section 439 of the Code.
H
1012 SUPREME COURT REPORTS (2007) 8 S.C.R.

A 5. We think that in view of the fact that the application for regular bail
made by the respondent is pending before the concerned court, it would not
be appropriate for us to go into the various aspects projected before us. All
the same, we think that the approach made by the Sessions Court in granting
anticipatory bail to the respondent, leaves much to be desired. The
B apprehension that the respondent is in a position to influence, induce or
coerce witnesses to desist from furnishing relevant information to the·
investigating agency cannot be considered to be imaginary and the court
ought to have considered that aspect seriously before granting anticipatory
bail. The court also should have considered the need put forward for custodial
interrogation of the respondent for finding out what exactly happened to
C Kausarbi or how she met with her end. Suffice it to say that in the
circumstances, we are inclined to interfere with the order granting anticipatory
bail to the respondent but only to the limited extent of setting it aside and
leaving the bail application of the appellant to be dealt with by the trial court
in accordance with law and after taking note of all the relevant aspects. Thus,
even though we set aside the order, we do not think it proper to go into the
D question on merits and to pass a final order on that application. This course,
we think, will sub-serve the interests of justice and prejudice neither.

6. Thus, we allow this appeal, set aside the order of the court below
granting anticipatory bail to the respondent but consider it not necessary to
E deeide that application at this stage since in a sense, the said order has
worked itself out. We direct the Sessions Court to deal with the application
for bail made by the respondent under Section 439 of the Code in accordance
with law, consider that application totally uninfluenced by anything contained
in the order challenged before us and by anything we have said in this order
vacating it.
F
D.G. Appeal allowed.

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