Narendra K Amin Vs. State of
Gujarat and ANR
 INSC 715 (28 April 2008)
Dr. ARIJIT PASAYAT & P. SATHASIVAM & AFTAB ALAM
J U D G M E N T REPORTABLE CRIMINAL APPEAL NO. 740 OF 2008 (Arising out of
SLP (Crl.) No.788 of 2008) 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
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
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 State of Gujarat through
Investigating Officer, C.I.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 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').
5. Background facts in a nutshell are as under:
One Rubabuddin Shaikh, 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 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 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
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 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 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, 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 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 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 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 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 investigating officer,
Shri G.B. 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 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 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 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.
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
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 302, 193, 201, 120B 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 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 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 and without any material concluded that the
nature and gravity of the offence alleged is serious but as emerges from the
record, 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 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 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 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 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. Therefore, the order granting bail should not be
The High Court noticed that the accused was charged with serious and heinous
offences punishable under Sections 302 read with Section 120B IPC and while
enlarging him on bail, the trial Court ought to have kept in view the
seriousness of the 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 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 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
views are possible, once the bail has been granted, it should 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.
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 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 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 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.
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.
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 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 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 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.
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:
"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 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 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 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 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 laid down under
Section 437 (1)(i) are sine qua non for granting bail even under Section 439 of
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 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 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 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 envisaged under Section 437(1)(i) of
the Code. 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 has
given the period of incarceration already undergone by the accused and 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 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 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
11. Even though the 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 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.
12. In Puran v. Rambilas and Anr. (2001 (6) SCC 338) it was noted as
"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 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) "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 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 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 vis-`-vis the High
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 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 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 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 grounds, same can be
cancelled. The stand that there was no supervening circumstance has no
relevance in such a case.
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 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 subject matter for the trial Court.