TMI Blog2008 (4) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The High Court also erroneously held that there was a ban in granting bail in heinous crime. Though the High Court appears to have used the expression ban on the grant of bail in serious offences , actually it is referable to the decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr.[ 2004 (3) TMI 763 - SUPREME COURT] . It was also noted that the conditions laid down under Section 437 (1)(i) are sine qua non for granting bail even under Section 439 of the Code. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication 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 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted to find out the truth for which initially summons under Section 160 of the Code were issued. In response to it, the appellant appeared before the then investigating officer, Shri G.B. Padheriya and was not at all cooperating in disclosing the facts and was trying to avoid any question. It was apparent from the record that the appellant had already influenced the witnesses in whose statements his role had surfaced. His statement was recorded on 22.5.2007. The date of first statement of the appellant and the date of Shri Nathubha surrendering before the Chief Metropolitan Magistrate was the same. When Shri Nathubha appeared before the Chief Metropolitan Magistrate, IGP CID Crime submitted an affidavit dated 24.5.2007. The appellant was not available either at his residence or at the place where he was posted. Thereafter, by an order dated 8.6.2007 learned City and Sessions Court granted anticipatory bail against which Special Leave Petition was filed before this Court and the same was allowed on 13.8.2007 by quashing and setting aside the order of anticipatory bail granted by the learned City and Sessions Judge. Thereafter, charge sheet was filed on 16.7.2007. The appellant s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 to 29.11.2005. Though the accused was in no way concerned with the enquiry or investigation of ATS, mobile tracking indicated presence of the accused at the Disha Farm. It was pointed out that weekly diary shows his presence in the court during the period, but he was not actually in the court and some places were kept vacant in weekly diary and surprisingly during the entire operation mobile phone of the accused was switched off. The presence of appellant when corpse of Kausarbi was cremated has been established by the statement of witnesses. Stand of the accused before the High Court was that the parameters for cancellation of bail and grant of bail are entirely different. It was pointed out that some of the witnesses have also retracted from the statements allegedly made earlier. Therefore, the order granting bail should not be interfered with. The High Court noticed that the accused was charged with serious and heinous offences punishable under Sections 302 read with Section 120B IPC and while enlarging him on bail, the trial Court ought to have kept in view the seriousness of the offences, punishment prescribed for such offences and involvement of the accused, a high ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Though it was urged by learned counsel for the appellant that the 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. 7. The High Court also erroneously held that there was a ban in granting bail in heinous crime. 8. It has been fairly accepted by learned counsel for the parties that in some judgments the expression appeal in respect of an order of grant of bail has been used in the sense that the State can move the higher court. 9. Though the High Court appears to have used the expression ban on the grant of bail in serious offences, actually it is referable to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while applying for bail that the person whom he killed was hardened criminal. That certainly is not a factor which can be taken into account. Another significant factor which was highlighted by the State before the High Court was that an FIR allegedly was filed to divert attention from the fake encounter. The same was not lodged by the Gujarat Police. 14. Once it is found that bail was granted on untenable grounds, same can be cancelled. The stand that there was no supervening circumstance has no relevance in such a case. 15. We have only highlighted the above aspects to show that irrelevant materials have been taken into account and/or relevant materials have been kept out of consideration. That being so, the order of granting bail to the appellant was certainly vulnerable. The order of the High Court does not suffer from any infirmity to warrant interference. The appeal is dismissed. However, it is made clear that whatever observations have been made are only to decide the question of grant of bail and shall not be treated to be expressing any opinion on merits. The case relating to acceptability or otherwise of the evidence is the subject matter for the trial Court. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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