REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 829 OF 2009

(Arising out of S.L.P. (Crl.) No.9410 of 2008)

Ram Babu Tiwari ..Appellant

Versus

State of M.P. & Anr. ..Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.Leave granted.

2.Challenge in this appeal is to the order passed by a learned Single

Judge of the Madhya Pradesh High Court, Jabalpur Bench, directing

cancellation of bail granted to the appellant.

3.Background facts are as follows:

The present appellant along with two others was arrested in

connection with Crime no.149/2008 registered at Kotwali Sehore, for

alleged commission of offence punishable under Sections 307 read with

Section 34 of the Indian Penal Code, 1860 (in short the ‘IPC’).

Appellant prayed for bail in terms of Section 439 of the Code of

Criminal Procedure, 1973 (in short ‘the Code’), which was allowed by order

dated 27.5.2008 passed by learned 1

st

Additional Sessions Judge, Sihore.

An application for cancellation for bail was filed by the present respondent

no.2.

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Prosecution version is that in the wake of a property dispute present

appellant had hired with the assistance of one Deepak Harnath Singh,

respondent nos. 2 and 3 for killing Shyam Tiwari who is his real brother.

The shot fired by the present appellant hit one Ravi @ Rinku in his neck.

The cancellation was prayed on the following grounds:

(a)There is specific allegation against appellant that it was he who

had fired the shot.

(b)The respondent nos. 2 and 3 have consistent criminal

antecedent.

(c)After being released on bail, appellant by making a telephonic

call to Nikhlesh Tiwari, nephew of Shyam Tiwari, had

threatened to kill him in case he does not resile from his case

diary statement.

(d)Co-accused Deepak Harnath Singh is still absconding.

Accordingly, the High Court cancelled the bail granted. It was noted

that since the other co-accused have not opposed the prayer for cancellation

of bail that was also a factor so far as the appellant is concerned.

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4.Learned counsel for the appellant submitted that no reason has been

indicated to cancel the bail. The parameters for grant of bail and for

cancellation of bail operate in different fields. Therefore, the High Court on

the irrelevant reason that co-accused did not oppose the prayer should not

have cancelled the bail granted to the appellant.

5.Learned counsel for the respondent no.2, on the other hand, supported

the order.

6.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. 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.This Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu

Yadav and Anr. (2004 (7) SCC 528), in para 11 noted as follows:

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“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.

(a) Reasonable apprehension of tampering with the

witness or apprehension of threat to the complainant.

(a) 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).

8.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.

9.In para 14 it was noted as follows:

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“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 bail.”

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10.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.

11.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 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

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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-à-vis the High

Court.”

12.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. It is

nature of the acts which are to be 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 a hardened criminal. That certainly is not a

factor which can be taken into account.

13.The order of the High Court is very sketchy. The High Court has not

considered the relevant aspect in detail. Only because the co-accused did

not actually oppose the prayer for cancellation of bail, that could not have

been a ground to cancel bail granted to the appellant.

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14.In the circumstances we set aside the impugned judgment and remit

the matter to the High Court for fresh consideration. We make it clear that

we have not expressed any opinion on the merits of the case. The High

Court shall examine the matter afresh keeping in view the parameters

indicated above. The appeal is accordingly disposed of.

………… ……………………….J.

(Dr. ARIJIT PASAYAT)

………… ……………………….J.

(ASOK KUMAR GANGULY)

New Delhi,

April 24, 2009

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