Manjit Prakash &
Ors. Vs. Shobha Devi & ANR [2008] INSC 1175 (18 July 2008)
Judgment
CRIMINAL APPELLATE
JURISDICTION CRIMINAL APPEAL NO. 1113 OF 2008 (Arising out of S.L.P. (Crl.) No.
4205 of 2007) Manjit Prakash & Ors. ... Appellants Shobha Devi & Anr.
... Respondents
DR. ARIJIT PASAYAT,
J.
1. Leave granted.
2. Appellants
challenge the order passed by a learned Single Judge of the Patna High Court
cancelling the bail granted to them by order dated 7.9.2006 in Criminal
Miscellaneous No. 10719 of 2006. The application for cancellation of bail was
filed by the respondent No.1. Appellants 1, 2 & 3 are arrayed as accused
Nos. 1, 2 & 4. Five persons were granted bail by order dated 7.9.2006 in
Criminal Misc. Case No. 10719 of 2006. By the impugned order the learned Single
Judge directed cancellation of bail granted to the present appellants while
holding that the two others being ladies there was no need to cancel the bail
granted to them.
2. Though various
points were urged in support of the appeal primarily it was submitted that no
reasons have been given for canceling the bail.
3. Learned counsel
for the respondent No.1-complainant submitted that though the order canceling
bail has not elaborately dealt with the circumstances to warrant cancellation
of bail, the same is in order.
4. The appellants and
the other two in respect of whom the High Court has not interfered, were
granted provisional bail by order dated 3.5.2006 which came to be confirmed on
7.9.2006. It was stated that the husband and wife have been residing together
in the matrimonial home.
Earlier there was a
suit for restitution of conjugal rights filed by appellant No. 2 who withdrew
the same after the provisional bail was confirmed and instituted Matrimonial
case No. 34 of 2006 for divorce. According to the complaint on 10.10.2006,
there was an incident and therefore the bail was to be cancelled. The High
Court, as rightly contended by learned counsel for the appellants, has not
indicated the reasons for directing cancellation of bail.
6. It is trite law
that the considerations for grant of bail and cancellation of bail stand on
different footings. By a majority judgment in Aslam Babalal Desai v. State of
Maharashtra the circumstances when bail granted can be cancelled were
highlighted in the following words: (SCC pp. 289-90, para 11):
3 "11. On a
conjoint reading of Sections 57 and 167 of the Code it is clear that the
legislative object was to ensure speedy investigation after a person has been
taken in custody. It expects that the investigation should be completed within
24 hours and if this is not possible within 15 days and failing that within the
time stipulated in clause (a) of the proviso to Section 167(2) of the Code. The
law expects that the investigation must be completed with dispatch and the role
of the Magistrate is to oversee the course of investigation and to prevent
abuse of the law by the investigating agency. As stated earlier, the
legislative history shows that before the introduction of the proviso to
Section 167(2) the maximum time allowed to the investigating agency was 15 days
under sub-section (2) of Section 167 failing which the accused could be
enlarged on bail. From experience this was found to be insufficient
particularly in complex case and hence the proviso was added to enable the
Magistrate to detain the accused in custody for a period exceeding 15 days but
not exceeding the outer limit fixed under the proviso (a) to that sub-section.
We may here mention that the period prescribed by the proviso has been enlarged
by State amendments and wherever there is such enlargement, the proviso will
have to be read accordingly. The purpose and object of providing for the
release of the accused under sub-section (2) of Section 167 on the failure of
the investigating agency completing the investigation within the extended time
allowed by the proviso was to instil a sense of urgency in the investigating
agency to complete the investigation promptly and within the statutory time
frame. The deeming fiction of correlating the release on bail under sub-
section (2) of Section 167 with Chapter XXXIII i.e. Sections 437 and 439 of the
Code, was to treat the order as one passed under the latter provisions. Once
the order of release is by fiction of law an order passed under Section 437(1)
or (2) or Section 439(1) it follows as a natural consequence that the said
order can be cancelled under sub-section (5) of Section 437 or sub-section (2)
of Section 439 on considerations relevant for cancellation of an order
thereunder. As stated in Raghubir Singh v. State of Bihar2 the grounds for
cancellation under Sections 437(5) and 439(2) are identical, namely, bail
granted under Section 437(1) or (2) or Section 439(1) can be cancelled where
(i) the accused misuses his liberty by indulging in similar criminal activity,
(ii) interferes with the course of investigation, (iii) attempts to tamper with
evidence or witnesses, (iv) threatens witnesses or indulges in similar
activities which would hamper smooth investigation, (v) there is likelihood of
his fleeing to another country, (vi) attempts to make himself scarce by going
underground or becoming unavailable to the investigating agency, (vii) attempts
to place himself beyond the reach of his surety etc. These grounds are
illustrative and not exhaustive. It must also be remembered that rejection of
bail stands on one footing but cancellation of bail is a harsh order because it
interferes with the liberty of the individual and hence it must not be lightly
resorted to."
7. It is, therefore,
clear that when a person to whom bail has been granted either tries to
interfere with the course of justice or attempts to tamper with evidence or
witnesses or threatens witnesses or indulges in similar activities which would
hamper smooth investigation or trial, bail granted can be cancelled. Rejection
of bail stands on one footing, but cancellation of bail is a harsh order
because it takes away the liberty of an individual granted and is not to be
lightly resorted to.
8. 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 6 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).
9. 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 the Code.
10. 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 8 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."
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 follows:
"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 9 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 Court."
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.
14. Since the High
Court has not indicated any reasons for directing cancellation of bail, the
impugned order cannot be maintained and is set aside. The matter is remitted to
the High Court to decide the matter afresh and dispose of the application
filed. We make it clear that we have not expressed any opinion on the merits of
the case.
14.The appeal is
allowed to the aforesaid extent.
.................................J.
(Dr.
ARIJIT PASAYAT) ..................................J.
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