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2009 Supreme(SC) 827
2009(3) Supreme 668
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
Dr. Arijit Pasayat and Asok Kumar Ganguly, JJ.
Ram Babu Tiwari — Appellant
versus
State of M.P. & Anr. — Respondents
Criminal Appeal No. 829 of 2009
(Arising out of S.L.P. (Crl.) No.9410 of 2008)
Decided on : 24-04-2009
For the Appellant :R.P. Gupta, Sr. Adv., J. Bey, Parmanand Gaur, Advocates.
For the Respondents:Ms. Vibha Datta Makhija, Advocate.
IMPORTANT POINT
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.
Headnote:(a) Code of Criminal Procedure, 1973 – Section 439(2) – Even though re-appreciation of the evidence is to be avoided, the Court dealing with an application for cancellation of bail can consider whether irrelevant materials were taken into consideration. (Para 10)
(2004)7 SCC 528; (2001)6 SCC 338 – Relied upon.
(b) Code of Criminal Procedure, 1973 – Section 439(2) – 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. (Para 13)
Facts of the case :
1. 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.
2. The shot fired by the present appellant hit one Ravi @ Rinku in his neck.
3. The present appellant along with two others was arrested.
4. Appellant prayed for bail which was allowed by learned 1st Additional Sessions Judge, Sihore.
5. An application for cancellation for bail was filed by the present respondent no.2.
6. High Court cancelled the bail granted.
Finding of the Court :
Impugned judgment is too sketchy to be sustained.
Result : Appeal disposed of. Matter remitted back.
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 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 1st Additional Sessions Judge, Sihore. An application for cancellation for bail was filed by the present respondent no.2. 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.
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.1 (2004 (7) SCC 528), in para 11 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 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 la
