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Dinesh M.N.(S.P.) Versus State of Gujarat

Whether bail can be cancelled? - Whether irrelevant materials have been taken into account and/or relevant materials have been kept out of consideration? - Whether the order of granting bail to the appellant was certainly vulnerable? - Appeal (crl.) 739 of 2008 - Dated:- 28-4-2008 - Dr. ARIJIT PASAYAT & P. SATHASIVAM & AFTAB ALAM, JJ. JUDGMENT 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 ba .....

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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 3 .....

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estigating 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 (Soh .....

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he 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 of .....

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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 .....

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11.2005 about death of Kausarbi and destroying evidence relating to her death. The evidence against the accused appellant revealed his presence as stated by one Nathubha Jadeja on 26.4.2007. As per the letter dated 7.5.2005 of Investigating Officer said Shri Nathubha Jadeja is shown as accused, but later on Smt. Gita Johri, a senior police officer declared in her affidavit before learned Chief Judicial Magistrate that Shri Nathubha Jadeja is a witness and on 25.5.2007 Shri Jadeja had stated in h .....

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nter. According to the trial Court these statements leave room for doubt about the involvement of the accused. At the same time, learned trial Judge observed that truthfulness of allegations levelled against the accused and the satisfaction of the ingredients of various sections applied are subject matter of appreciation of evidence and it can be considered at the time of trial. But it was concluded that sufficient evidence did not surface against the accused for having committed any heinous cri .....

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ed unless strong prima facie evidence or the material for committing a serious offence is found. Reliance was placed on a decision of this Court in Jayendra Saraswathi Swamigal v. State of T.N. (2005 (2) SCC 13). Several conditions were imposed to grant bail. Before the High Court the primary stands taken were that seriousness of the offences and the sentences to be imposed were not kept in view. Irrelevant factors were taken into consideration for granting bail. Stand of the applicant-State bef .....

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. He contacted Ahmedabad Police to trace out Sohrabuddin. When he was apprehended information was given to the accused and the accused informed his superior officers to send a team to Ahmedabad. He was leader of the team. Before any formal order came to be passed for forming a team, weapons were procured from Kotwali upon his arrival in Ahmedabad. He coordinated in the fake encounter alongwith ATS officers of the State of Gujarat. Therefore, it was contended that it was a clear case of conspirac .....

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tage for assessing the contradictions, if any, has not come. It is pointed out that as per the statement of Nathubha on 26.4.2007 presence of the respondent was shown at the place of encounter which was sufficient to deny the protection under Section 439 of the Code. A very significant factor was pointed out to falsify claim of encounter as narrated in C.R. I-5/2005 and creation of one FIR to falsify that fake encounter aspect itself amounted to misuse of power by the accused so as to misguide t .....

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on consideration of the rival submissions held that the learned trial Judge has not kept in view the seriousness of the offences, punishments prescribed for such offences and involvement of the accused, a high ranking officer when allegations or misuse of power necessary in law by registering false FIR has been lost sight of. The comparative past conduct and antecedents of Sohrabuddin by the so called good official record of the accused could not have been a ground for grant of bail. Accordingl .....

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ssible, once the bail has been granted, it should not be cancelled. Reliance is placed on decisions of this Court in State (Delhi Admn.) v. Sanjay Gandhi (1978 (2) SCC 411), Bhagirathsinh v. State of Gujarat (1984 (1) SCC 284), Aslam Babalal Desai v. State of Maharashtra (1992 (4) SCC 272), Dolat Ram v. State of Haryana (1995 (1) SCC 349), Ramcharan v. State of M.P. (2004 (13) SCC 617), Mehboob Dawood Shaikh v. State of Maharashtra (2004 (2) SCC 362), Nityanand Rai v. State of Bihar (2005 (4) SC .....

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etrack the investigation and threaten the witnesses. It is pointed out that as laid down by this Court in Sanjay Gandhi's case (supra) and Dolat Ram's case (supra) the bail granted should not have been cancelled by way of re- appreciating evidence. 7. In response, learned counsel for the State of Gujarat submitted that it has not been laid down by this Court that only if supervening circumstances are there, on assessing the same bail can be cancelled. He referred to findings of the High .....

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aspects to be dealt with while considering the application for cancellation of bail and on appeal against the grant of bail, it was fairly accepted that there is no scope of filing an appeal against the order of grant of bail. 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. 9. It has been fairly accepted by learned counsel for the parties that in some judgments the expression &q .....

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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 .....

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98) and Puran v. Rambilas (2001 (6) SCC 338). 11. 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. In para 14 it was noted as follows: "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 .....

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nt 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 .....

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he 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." 12. 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 c .....

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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 neces .....

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the subordinate position of the Court of Session vis-vis the High Court." 14. 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. In the instant case, the trial Court seems to have been swayed by the fact that Sohrabuddin had shady reputation and .....

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