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Narendra K Amin (Dr.) Versus State Of Gujarat & Anr.

2008 (4) TMI 779 - SUPREME COURT OF INDIA

CRL.A. 740 Of 2008 (Arising out of SLP (Crl.) No.788 of 2008) - Dated:- 28-4-2008 - Dr. Arijit Pasayat, P. Sathasivam And Aftab Alam, JJ. JUDGMENT: Dr. ARIJIT PASAYAT, 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 .....

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ncellation 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. Backg .....

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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 .....

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ion 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 conspi .....

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n alleged fake encounter. Therefore, process was started 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 recorde .....

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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 bail application was accepted by the trial Judge and was the subject matter of challenge as noted above before the High Court. According to the trial Court the accused had served the department with sincerity and dedication to curb the antisocial and .....

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tements of witnesses namely, Nathubha-driver and Vijay Rathod-Police Inspector and, therefore, the grant of bail is illegal. It was pointed out that accused was not cooperating with the investigation. He did not respond to the notice in terms of Section 160 of the Code. It was pointed out that the date of statement of the accused and the date of Nathubha surrendering before the Chief Metropolitan Magistrate are the same and even during that period only Nathubha tried to retract from the statemen .....

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the prosecution case. In other words, he had written indirectly an order of acquittal even before the trial was concluded. Reference was made also to the fact that accused was in no way connected with ATS of the Gujarat police but his presence at the scene of offence where the body of Kausarbi was burnt was sufficient enough to deny the discretionary relief under Section 439 of the Code. With reference to the statement of owner of Disha Farm where the victims were illegally confined it is submit .....

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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. T .....

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d his characteristics as that was of no relevance. The bail, therefore, was cancelled. In support of the appeal, learned counsel for the appellant submitted that the parameters for grant of bail and cancellation of bail are entirely different as has been laid down by this Court in several cases. In the application for cancellation of bail there was no reference to any supervening circumstance and only analysis of the materials which were considered by the trial Court to grant bail were highlight .....

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an v. State of M.P. (2004 (13) SCC 617), Mehboob Dawood Shaikh v. State of Maharashtra (2004 (2) SCC 362), Jayendra Saraswati v. State of Tamil Nadu (2005 (2) SCC 13), Nityanand Rai v. State of Bihar (2005 (4) SCC 178), State of U.P. v. Amarmani Tripathi (2005 (8) SCC 21) and Panchanan Mishra v. Digambar Mishra (2005 (3) SCC 143). It is pointed out that the common thread passing through the aforesaid decisions is that there is no scope for cancellation of bail on re-appreciation of evidence. It .....

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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. 6. As is evident from the rival stands one thing is clear that 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. Tho .....

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t 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 the decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yad .....

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ranted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from nonapplication 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. (b) Reasonable apprehension of tampering with the witness or apprehen .....

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at 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 this Court also. It is seen from the records that when the fifth application for grant of bail was allowed by the High Court, the same was challenged before this Court and this Court accepted the said challenge by allowing the appeal filed by the Union of India and another and cancelled the bail granted by the High Court as per the orde .....

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er 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 t .....

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bail." 11. 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 for bail. 12. In Puran v. Rambilas and Anr. (2001 (6) SCC 338) it was noted as follows: "11. Fu .....

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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 necessarily, therefore, to that court. The State may as well approach the High Court being the superior court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existing, it is .....

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