State
of Gujarat Vs. Narendra K. Amin [2007] Insc 821 (13 August 2007)
Tarun
Chatterjee & P.K. Balasubramanyan
ORDER
CRIMINAL APPEAL NO. 1065 OF 2007 (Arising out of SLP(Crl.) No.4294 of 2007)
P.K. BALASUBRAMANYAN, J.
1.
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 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 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 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, was
filed, we issued notice on the same in spite of the request of learned 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 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
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 custodial interrogation was a must. The Sessions Judge
has also completely ignored 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.
4.
Learned Senior Counsel for the respondent submitted 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 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 herein, the respondent
has been arrested and enlarged on bail pursuant to the order and he has made an
application for regular bail in the concerned court and it would be appropriate
to leave the matter to be decided by that court while entertaining the
application under Section 439 of the Code.
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
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 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
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 decide
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.
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