Importent Point:
The Court dealing with an application for cancellation of bail under Section 439(2) can consider whether irrelevant materials were taken into consideration.

Headnote:(a) Code of Criminal Procedure, 1973 - Section 439 - The parameters for grant of bail and cancellation of bail are different - Conditions laid down under Section 437 (1)(i) are sine qua non for granting bail even under Section 439 - The Court dealing with an application for cancellation of bail under Section 439(2) can consider whether irrelevant materials were taken into consideration. (Para 8, 11 and 12)
       (2004)7 SCC 528; (2001)6 SCC 338 - Relied upon
       (2005)2 SCC 13: 2005(1) Supreme 82; (1978)2 SCC 411; (1984)1 SCC 284; (1992)4 SCC 272; (1995)1 SCC 349; (2004)13 SCC 617; (2004)2 SCC 362; (2005)4 SCC 178; (2005)8 SCC 21; (2005)3 SCC 143 - Referred
       (b) Code of Criminal Procedure, 1973 - Section 439 - The shady reputation and criminal antecedents of Sohrabuddin was not certainly a factor which was to be considered while granting bail - It was the nature of the acts which ought to have been considered - Once it is concluded that bail was granted on untenable grounds, the plea of absence of supervening circumstances has no leg to stand. (Para 14)
       Facts of the case:
       1. The application for cancellation of bail had matrix in FIR being CR No. I-5 of 2005 filed by one Abdul Rehman, a Police Officer, subordinate to the appellant and now an accused, who was a member of the Special Investigating Party formed at Udaipur, Rajasthan to investigate into various offences registered against one Sohrabuddin.
       2. As per the above FIR, said Sohrabuddin, son of Ahwaruddin Shaikh, resident of
       Zaraniya, Nagda, Madhya Pradesh, was accused of offences punishable under Sections 120(b), 121, 121-A, 122, 123, 307, 186, 224 of IPC, under Sections 25(1)(b) and Section 27 of the Arms Act and under Section 13 (1) of the Bombay Police Act. In the above FIR it was stated that the above accused (Sohrabuddin) was acting at the behest of ISI to spread terror and to disturb the unity and integrity of the country and also entered into conspiracy by possessing arms and ammunition so as to kill one of the big leaders of the State of Gujarat and when asked to surrender by the police party, fired from his revolver and attempted to kill them.
       3. Later on, Rubabuddin Shaikh, brother of Sohrabuddin, filed petition before this Court which was registered as Writ Petition (Crl.) No.6 of 2007.
       4. It was found by the Investigating Agency that death of Sohrabuddin and subsequently reported death of Kausarbi, wife of Sohrabuddin, was a result of fake encounters carried out by the then officers of the Anti-Terrorist Squad (for short `ATS ), State of Gujarat and senior IPS officers of State of Gujarat and State of Rajasthan are involved in the fake encounters. All those officers were arrested and appellant who is accused No.3 is one of such senior IPS officer belonging to the State of Rajasthan.
       5. Appellant was arrested on 24.4.2007, remanded to custody for 15 days and charge sheet was filed on 16.7.2007. The appellant preferred a regular bail application which was allowed.
       6. The High Court cancelled the bail.
       Findings of the Court:
        The order of the High Court does not suffer from any infirmity to warrant interference.
       Result:
       Appeal dismissed.

JUDGMENT

Dr. ARIJIT PASAYAT, J

1. Leave granted.

2. Challenge in this appeal is to the order passed by a learned Single Judge of the Gujarat High Court cancelling the bail granted to the appellant in terms of Section 439 (2) of the Code of Criminal Procedure, 1973 (in short the 'Code').

3. The case numbered as Criminal Miscellaneous Application No.12644/2007 was taken up alongwith Criminal Miscellaneous application No.12646/2007 filed in respect of a co-accused Narendra K Amin (the appellant in Criminal Appeal relating to Special Leave Petition (Crl.) No.788/2008). Both the matters were taken up in view of the order dated 12.12.2007 passed by this Court in Contempt Petition (Crl.) No.8/2007 in Writ Petition (Crl.) No. 6/2007.

4. The application under Section 439(2) was filed by the State of Gujarat through Investigating Officer, C.I.D. (Crime), Gandhinagar for cancellation of bail granted to the appellant by order dated 5.10.2007 by learned Additional City and Sessions Judge, Ahmedabad in Criminal Miscellaneous Application No.3459/2007 qua FIR being CR No. I-5/2005 registered with ATS Police Station for the offences punishable under Sections 302, 364, 365, 368, 193, 197, 201, 120B, 420, 342 read with Section 34 of the Indian Penal Code, 1860 (in short the 'IPC') and under Sections 25 (1)(b)(a) and 27 of the Arms Act, 1950 (in short the 'Arms Act').

5. Background facts sans unnecessary details are as follows:

The application for cancellation of bail had matrix in FIR being CR No. I-5 of 2005 filed by one Abdul Rehman, a Police Officer, subordinate to the appellant and now an accused, who was a member of the Special Investigating Party formed at Udaipur, Rajasthan to investigate into various offences registered against one Sohrabuddin. As per the above FIR, said Sohrabuddin, son of Ahwaruddin Shaikh, resident of Zaraniya, Nagda, Madhya Pradesh, who was accused of offences punishable under Sections 120(b), 121, 121-A, 122, 123, 307, 186, 224 of IPC, under Sections 25(1)(b) and Section 27 of the Arms Act and under Section 13 (1) of the Bombay Police Act. In the above FIR it was stated that the above accused (Sohrabuddin) was acting at the behest of ISI to spread terror and to disturb the unity and integrity of the country and also entered into conspiracy by possessing arms and ammunition so as to kill one of the big leaders of the State of Gujarat and when asked to surrender by the police party, fired from his revolver and attempted to kill them.

Later on, Rubabuddin Shaikh, brother of Sohrabuddin, filed petition before this Court which was registered as Writ Petition (Crl.) No.6 of 2007. Pursuant to the directions issued from time to time, the Investigation Agency of the State of Gujarat carried out investigation and it was found by the Investigating Agency that death of Sohrabuddin and subsequently reported death of Kausarbi, wife of Sohrabuddin, was a result of fake encounters carried out by the then officers of the Anti-Terrorist Squad (for short `ATS'), State of Gujarat and senior IPS officers of State of Gujarat and State of Rajasthan are involved in the fake encounters. All those officers were arrested and appellant who is accused No.3 is one of such senior IPS officer belonging to the State of Rajasthan. During the course of investigation, preliminary inquiry being Inquiry No.66 of 2006 was instituted by CID (Crime), Gujarat State, role of the appellant surfaced in the statement of one Ajay Parmar, Police Constable of ATS, Gujarat State. Considering the material which had come on record, the Director General of Police ordered further investigation under Section 173(8) of the Code on 6.3.2007. Accordingly, the Metropolitan Magistrate was informed and the appellant therein was arraigned as accused. He was arrested on 24.4.2007, remanded to custody for 15 days and ch

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2008 Supreme(SC) 709

Dr. ARIJIT PASAYAT & P. SATHASIVAM & AFTAB ALAMDinesh M.N. (S.P.) - PETITIONERVersusState of Gujarat - RESPONDENTCRIMINAL APPEAL NO 739 OF 2008(Arising out of SLP (Crl.) No. 867 of 2008)Decided On : 28/04/2008

Importent Point: The Court dealing with an application for cancellation of bail under Section 439(2) can consider whether irrelevant materials were taken into consideration.

Cases Referred (12)

Dr. ARIJIT PASAYAT & P. SATHASIVAM & AFTAB ALAM
Dinesh M.N. (S.P.) - PETITIONER
Versus
State of Gujarat - RESPONDENT
CRIMINAL APPEAL NO 739 OF 2008
(Arising out of SLP (Crl.) No. 867 of 2008)
Decided On : 28/04/2008

Importent Point:
The Court dealing with an application for cancellation of bail under Section 439(2) can consider whether irrelevant materials were taken into consideration.