Akbar Hussain Syyed Vs. Mehmood Hussain and Anr  Insc 640 (18 May 2007)
Dr. ARIJIT PASAYAT & S.H. KAPADIA
CRIMINAL APPEAL NO. 768 OF 2007 (Arising out of SLP (Crl.) No.2371 of 2006)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a learned Single Judge
of the Bombay High Court cancelling the bail granted to the appellant, by
exercising power under Section 439(2) of the Code of Criminal Procedure, 1973
(for short the 'Code').
3. The facts as projected by the appellant in a nutshell are as follows:
4. On 4th February, 2006 First Information Report was lodged by the
respondent No.1 alleging that he and his friend named Girish Shetty, were
attacked by the appellant and some other unidentified persons, resulting in
injuries. The appellant was arrested on 4th February, 2006. He filed an
application for grant of bail. By order dated 10th February, 2006 learned
Additional Chief Metropolitan Magistrate 4th Court, Girgaum, Mumbai, directed
release of the appellant on bail on his furnishing a surety for a sum of
Rs.10,000/-. According to the appellant, respondent No.1 was not happy with the
grant of bail and wanted to scare the appellant and, therefore, on various
occasions threatened him. The appellant had lodged report with the police and
on 21st February, 2006, his complaint was registered as N.C. complaint. Again
on 4th April, 2006, the appellant was threatened by respondent No.1.
Subsequently, on 19th April, 2006, appellant was served through an official
of the V.P. Road Police Station a notice relating to an application for
cancellation of bail which was registered as Criminal Application No.780/2006
before the Bombay High Court. According to the appellant, he was present on the
date fixed for hearing, that is, 24th April, 2006.
His case was listed as item No.52 in Court Room No.9 and by about 5.00 p.m. only 30 matters had been heard. On enquiry from an official of the court, he was
told that his matter may be listed next week and, therefore, he left the court
premises at about 5.15 p.m. On 25th April, 2006, the impugned order has been
passed. In fact, believing the statement of the court official, appellant, had
engaged a counsel who made enquiries in the Registry on 28th April, 2006 and was told that bail was cancelled by order dated 25th April, 2006.
5. In support of the appeal. learned counsel for the appellant submitted
that this is a case involving alleged commission of offence punishable under
Section 324 of the Indian Penal Code, 1860 (in short the 'IPC'). The case of
respondent No.1 appears to be that the case ought to have been registered under
Section 307 IPC. Even if conceding for sake of arguments that it is so,
considering the nature of injuries allegedly suffered by respondent No.1 and his
friend, there was no reason to refuse bail. Hence the court had rightly granted
bail. In any event, the learned Single Judge has not indicated any reason for
cancellation of bail. No condition was stipulated by the trial court while
granting bail. Surprisingly, learned Single Judge has observed that the
appellant has violated the conditions imposed and has threatened the
complainant after he was released on bail. The facts point to the contrary. In
fact, the appellant has lodged complaint before the police about the threats
given by respondent No.1.
6. In response, learned counsel for the State of Maharashtra and the
complainant submitted that though it was not so specifically spelt out in the
order granting bail, it is inherent in every grant of bail that there shall not
be any misuse thereof.
Since the appellant threatened respondent No.1, therefore, the cancellation
of bail is in order.
7. The order of learned Single Judge, so far as relevant, reads as follows:
"3. It is submitted though an offence punishable under Section 307 was
clearly made out, the V.P. Road Police Station registered the offence under
Section 324 read with Section 34 of the I.P.C. It is alleged that after
Respondent No.1 was released on bail, thereafter he was started threatening the
Applicant and has informed him that if he does not withdraw the complaint, he
will have to face dire consequences. Two N.C. complaints have been filed by the
present Applicant after the Respondent No.1 was released on bail.
4. Notice was issued and permission was given to serve the respondent
through V.P. Road Police Station.
5. Learned A.P.P. on instructions from the office who is present in the
Court submitted that Respondent No.1 was served on l9th April, 2006 and his
signature was obtained on the writ which was issued by this Court. Yet, none
appears on behalf of Respondent No. 1.
With the result, there is no other option but to cancel the bail which was
granted by the trial Court since he has not complied with the conditions which
are imposed by the Court and has threatened the Complainant after he was
released on bail."
8. Learned Single Judge seems to have taken exception for non-appearance of
the appellant at the time of hearing of the application for cancellation of
bail. The reason for non- appearance has been explained by the appellant. It is
true that in the order granting bail, there was no specific stipulation of any
condition. In fact, in the petition for cancellation of bail, the respondent
No.1 has stated that while granting bail, no conditions were imposed. In that
sense, the appellant is right that the High Court has erroneously observed that
the conditions for grant of bail were violated. There was no specific condition
imposed and, that was one of the grievances of the respondent No.1. But learned
counsel for the respondents rightly submitted that even if no condition is
specifically stipulated, the accused, while on bail, is not supposed to tamper
with evidence. There is no specific observation in this regard in the impugned
order. Cancellation of bail should not be done in a routine manner. Where it
appears to the superior Court that the Court granting bail acted on irrelevant
materials or there was non-application of mind or where Court does not take
note of any statutory bar to grant of bail, order for cancellation of bail can
be made. These circumstances are illustrative and not exhaustive. The Court
considering the application for cancellation of bail has to take note of all
9. In the circumstances of the case, we deem it proper to remand the matter
to the High Court for fresh consideration of the application for cancellation
of bail. To avoid unnecessary delay, let the parties appear before the
concerned court on 14th June, 2007. Learned Chief Justice of the High Court is
requested to direct listing of the case before an appropriate Court.
10. The interim order dated 12th May. 2006 passed by this Court shall
continue to be operative till the matter is disposed of afresh by the High
Court. It is made clear that by giving this direction, it shall not be
construed as if we have expressed any opinion on the merits of the case.
11. Accordingly, the impugned order is set aside and the appeal is allowed
to the aforesaid extent.