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

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.12646/2007 was taken up alongwith Criminal Miscellaneous application No.12644/2007 filed in respect of a co-accused Dinesh the appellant in Criminal Appeal relating to Special Leave Petition (Crl.) No.867/2008. 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.2359/2007 qua FIR being CR No. 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 in a nutshell are as under :

One 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 charge sheet was filed on 16.7.2007. The appellant preferred a regular bail application being Criminal Misc. Application No.3459 of 2007 on 17.9.2007, which was allowed vide order dated 5.1.2007 by learned Additional City and Sessions Judge, Court No.6, Ahmedabad. While enlarging the appellant on regular bail in exercise of power under Section 439 of the Code, learned Additional City and Sessions Judge, relied on various circumstances, more particularly on three facets:- first facet is prior to 26.11.2005, second facet is dated 26.11.2005 and the third facet is post 26.11.2005. The first facet was about conspiracy part and bringing Sohrabuddin from Hyderabad to Ahmedabad. Second facet is the day on which alleged encounter of Sohrabuddin took place on 26.11.2005 and the third facet, i.e. post 26 11.2005 about death of Kausarbi and destroying evidence relating to her death.

According to the prosecution, role played by the appellant in the episode surfaced initially from the statements of Shri Nathubha Pravinsinh Jadeja who is a driver with ATS and Shri Vijay Arjun Rathod, Police Inspector relating to an alleged fake encounter. Therefore, process was started to find out the truth for which initially summons under Section 160 of th