http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6

CASE NO.:

Appeal (crl.) 64 of 2004

PETITIONER:

Mehboob Dawood Shaikh

RESPONDENT:

State of Maharashtra

DATE OF JUDGMENT: 16/01/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT:

J U D G M E N T

(Arising out of SLP (Crl.)No. 3606/2003)

ARIJIT PASAYAT,J

Leave granted.

By the impugned judgment the Bombay High Court directed

cancellation of bail which was granted earlier to the

appellant.

In a nutshell, the accusations against the appellant

and the background scenario so far as relevant for the

disposal of this appeal are as follows:

On 11.10.2002 a complaint was lodged by one Sunil

Nyaneshwar Yadav alleging that while he had gone to Solapur

there was communal riot. In the evening he had gone to

Vishnu Nagar for witnessing installation of Shakti Idol

along with five others. They were sitting on the stage in

the evening. At about 5.00 p.m., a group of persons came

there and removed the idol of Shakti. At that time one

Chanderkant Arjun had come by a motorcycle. When the

offenders learnt that the police had come they started

fleeing. The said Chanderkant was chasing the offenders.

There was scuffle between Chanderkant and the offenders. One

of the offenders pierced the knife in the stomach of

Chanderkant and he was lying in the pool of blood and was

taken to the hospital. On the date of incident, two other

persons were assaulted by the five named offenders. The

first information report was registered. The accusations so

far as the appellant is concerned, were that he had

instigated the mob to assault and murder. Learned Single

Judge took note of the fact that persons who were named as

accused persons were already released on bail, on the basis

of the statement made by the learned APP. Accusations

against the appellant were also that he was responsible for

the riots at different places at Solapur. Taking note of the

circumstances and the only allegation against him was of

instigation, bail was granted since the charge sheets were

placed and he was in custody for more than 7 and = months.

On 18.6.2003 an application for cancellation of bail was

filed by the State of Maharashtra under Section 439(2) of

the Code of Criminal Procedure, 1973 (in short the 'Code')

alleging that there was suppression of material facts from

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6

the Court. It was not a fact that all the co-accused persons

were released on bail. The application was numbered as

Criminal Application No.2335 of 2003. When the matter was

taken up, an affidavit was filed by one Gajanan Rajaram

Huddedar, the Inspector of Police, stating that that

appellant had threatened the complainant of dire

consequences in the court premises of learned Sessions Judge

during trial on 16.7.2003 at 2.30 p.m. when the matter was

fixed for evidence. Complaint was lodged with the Police

Inspector, Begumpeth Police Station, Solapur by one Sunil

Yadav that he had appeared before the Sessions Judge

pursuant to summons issued by the Court. During lunch time,

when he was going towards the Court he was threatened by

three persons including the appellant and he was told that

dire consequences would follow if he would depose against

the appellant and other accused. The place where the threat

was made was also indicated. The appellant filed application

under Section 439 of the Code for bail in connection with

the case which was in relation to offences punishable under

Sections 302, 307, 147, 148, 149, 295A, 427, 435 of the

Indian Penal Code, 1860 (in short the 'IPC') and Section

25(4) of the Arms Act, 1959 (in short the 'Arms Act'). The

learned Sessions Judge who heard the bail application

rejected the same by order dated 21.2.2003. A bail

application was moved before the Bombay High Court which was

registered as Criminal Bail Application No.1012/2003 dated

7.3.2003. The learned Single Judge (Justice S.S. Parkar)

allowed the application for bail by order dated 4.6.2003.

Learned counsel appearing for the State brought this

fact to the notice of the Court and learned Single Judge

(Smt. V.K. Tahilramani) who was hearing the cancellation of

bail application took note of the fact that the appellant

has misused the liberty earlier granted to him by

threatening the witnesses of dire consequences. Taking

further note of the fact that the cross examination of the

complainant was yet to be completed, the learned judge

cancelled the bail and directed the appellant to surrender

before Vijapur Naka Police Station.

Learned counsel for the appellant submitted that the

order cancelling bail cannot be maintained on more grounds

than one. Firstly, the cancellation of bail application

should have been heard by the learned Judge who had earlier

granted the bail. It was not desirable and proper for

another learned Single Judge to take up the cancellation of

bail application. Further, merely on the statement made by

the learned counsel appearing for the State about alleged

threat, the bail granted should not have been cancelled. An

enquiry as to the correctness of the allegations ought to

have been made and in the absence of that the bail should

not have been cancelled for mere asking. Otherwise, it would

be a routine matter to make allegations of tampering with

the evidence and get the bail cancelled and thereby

affecting the liberty of a person. The consideration for

grant of bail and cancellation of bail stand on different

footings. Stand of the learned APP was that matter had been

reported to learned Sessions Judge, who had called for a

report. But the order-sheet or the evidence recorded on the

relevant date makes no mention of the alleged threat. Since

these relevant aspects have not been taken note of by the

High Court, the cancellation of bail should be nullified and

the bail granted earlier should be made operative.

Per contra, learned counsel for the State submitted

that the cancellation has been done correctly. In granting

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6

bail the courts repose a confidence on the accused that he

would not tamper with the course of justice. Since that

trust has been betrayed and the appellant tried to interfere

with the course of justice by threatening the witnesses,

this was a fit case for cancellation of bail. It was pointed

out that a case has been registered on the basis of

accusations made by Sunil Yadav and proceedings under

Section 188 IPC had been initiated. According to him this

was not a fit case for interference.

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 (1992(4)SCC 272) the circumstances when bail

granted can be cancelled were highlighted in the following

words:

"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 on 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 instill a

sense of urgency in the investigating agency

to complete the investigation promptly and

within the statutory timeframe. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6

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 Bihar (1986 (4) SCC 481)

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 were (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

investigation, (v) there is likelihood of

his fleeing to another country, (vii)

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."

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.

It is undisputed that an affidavit of Police Inspector

attached to Control Room, Solapur was filed which indicated

the threat given to the complainant in the court premises

on 16.7.2003. Merely because in the evidence recorded there

is no reference to the threat, that does not go to prove the

nagative or sufficient to infer that there was no such

threat. Learned counsel for the appellant submitted that at

least some reference should have been made to the threat.

That there was no such reference, according to us, is really

of no consequence. The evidence was being recorded with

regard to the incident dated 11.10.2002 and not in relation

to a subsequent event which is the subject matter of

consideration in the case registered in relation to the

alleged threat. In the affidavit it has been clearly

mentioned that a case (CR No.3097/2003) was registered under

Section 188 IPC in relation to the threat.

It is fairly accepted by learned counsel for the

appellant that nothing seem to have been urged by way of

reply to the affidavit or the truth or otherwise to the

contents thereof before the High Court, as the order

impugned shows. That being so, the appellant cannot make a

grievance that no enquiry was made to find out the truth or

otherwise of the statement made in the affidavit. As there

were allegations prima facie showing that the witnesses have

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6

been threatened, a ground for cancellation of bail did

exist.

Learned counsel for the appellant is correct on

principles that mere assertion of an alleged threat to

witnesses should not be utilized as a ground for

cancellation of bail, routinely. Otherwise, there is ample

scope for making such allegation to nullify the bail

granted. The Court before which such allegations are made

should in each case carefully weigh the acceptability of the

allegations and pass orders as circumstances warrant in law.

Such matters should be dealt with expeditiously so that

actual interference with the ordinary and normal course of

justice is nipped at the bud and an irretrievable stage is

not reached.

The other aspect which was emphasized with some amount

of vehemence was that the learned Judge who had granted bail

should have heard the application for cancellation of bail.

Observations made in Harjeet Singh v. State of Punjab and

Anr. (2002 (1) SCC 649) was relied upon for that purpose. As

noted above, in the said judgment there is a long standing

convention and requirement of judicial discipline which has

held the field for a long period that subsequent application

for grant or cancellation of bail application should be

placed before the same learned Judge who had passed the

earlier order. This certainly is a desirable course. But at

the same time the party who makes a grievance that the

course has not been followed has to indicate as to in what

manner he was in prejudice by the deviation. The question of

prejudice arises only when on the same set of facts, a

different order is passed by another learned Judge

cancelling the bail or granting the bail as the case may be.

But where the cancellation is sought for on grounds

different from those which existed at the time of granting

bail, the conventional practice of placing the matter before

the same learned Judge need not be followed as if it is a

statutory requirement. It does not appear from the order of

the High Court that any submission was made before the

learned Single Judge who passed the impugned order to place

the matter before the same learned Judge who had passed the

earlier order. In any event, in the case at hand, the

cancellation has been done on a ground other than those

which weighed with learned Single Judge for grant of bail.

Though initially the application for cancellation of bail

was founded on the alleged misrepresentation or suppression

of facts, but what weighed with the learned Single Judge who

dealt with the application for cancellation of bail was the

conduct of the accused in threatening the witnesses. That

being so, the judgment in Harjeet Singh's case (supra) does

not in any assist the appellant. There is no such thing as a

judicial precedent on facts though counsel, and even Judges,

are sometimes prone to argue and to act as if they were,

said Bose J. about half century back in Willie (William)

Slaney v. The State of Madhya Pradesh (1955 (2) SCR 1140 at

page 1169). A decision is available as a precedent only if

decides a question of law. A judgment should be understood

in the light of facts of that case and no more should be

read into it than what it actually says. It is neither

desirable nor permissible to pick out a word or a sentence

from the judgment of this Court divorced from the context of

the question under consideration and treat it to be complete

law decided by this Court. The judgment must be read as a

whole and the observations from the judgment have to be

considered in the light of the questions which were before

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6

this Court. (See Commissioner of Income Tax v. Sun

Engineering Works (P) Ltd. (1992 (4) SCC 363).

The learned Single Judge has given cogent reasons for

passing the order of cancellation of bail granted earlier.

We find no merit in this appeal which is accordingly

dismissed. However, we find from the records that the trial

was in progress when bail was cancelled. It would be

appropriate if the trial Court completes the trial as early

as practicable, if not already completed, keeping in view

the mandate of Section 309 of the Code. If appellant makes

any fresh application for bail, the same, it goes without

saying, shall be dealt with in accordance with law.