Ram Babu Tiwari - State of M.P., (SC) BS187882
SUPREME COURT OF INDIA

Before:- Dr. Arijit Pasayat and Asok Kumar Ganguly, JJ.

Criminal Appeal No. 829 of 2009 (Arising out of S.L.P. (Crl.) No. 9410 of 2008). D/d. 24.4.2009.

Ram Babu Tiwari - Appellant

Versus

State of M.P. & Anr. - Respondents

For the Appellant :- R.P. Gupta, Sr. Advocate with J. Bey and Parmanand Gaur, Advocates.

For the Respondents :- Ms. Vibha Datta Makhija, Advocate.

NOTE

Bail Cancellation- The bail granted cannot be cancelled merely because the co-accused did not oppose the Cancellation of bail.

A. Criminal Procedure Code, Section 439 - Grant of bail in murder case - Bail cannot be granted to accused on the ground that the person whom he killed was a hardened criminal - That certainly is not a factor which can be taken into account.

[Para 12]

B. Criminal Procedure Code, Section 439(2) - Cancellation of bail - Application for cancellation of bail - Court can cancel the bail if granted on irrelevant material - The irrelevant materials however, should be of a substantial nature and not of a trivial nature - It is nature of the acts which are to be considered.

[Paras 10 and 12]

C. Criminal Procedure Code, Section 437(1) - Criminal Procedure Code, Section 439 - Grant of bail - Conditions laid down under Section 437(1)(i) are sine qua non for granting bail even under Section 439 of the Code. 2004(2) RCR (Criminal) 254 : 2004(2) Apex Criminal 553 (SC) relied.

[Para 8]

Cases Referred :-

Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, 2004(2) RCR (Criminal) 254 : 2004(2) Apex Criminal 553 : (2004(7) SCC 528).

Ram Govind Upadhyay v. Sudarshan Singh, 2002(2) RCR (Criminal) 250 : (2002(3) SC 598).

Puran v. Rambilas, 2001(2) RCR (Criminal) 801 : (2001(6) SCC 338).

JUDGMENT

Dr. Arijit Pasayat, J. - 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 :

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:

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., 2004(2) RCR (Criminal) 254 : 2004(2) Apex Criminal 553 : (2004(7) SCC 528), in para 11 noted as follows :

8. 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.

9. In para 14 it was noted as follows :

10. 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.

11. In Puran v. Rambilas and Anr., 2001(2) RCR (Criminal) 801 : (2001(6) SCC 338) it was noted as follows :

12. 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. It is nature of the acts which are to be considered. By way of illustration, it can be said that the accused cannot take a plea while applying for bail that the person whom he killed was a hardened criminal. That certainly is not a factor which can be taken into account.

13. The order of the High Court is very sketchy. The High Court has not considered the relevant aspect in detail. 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.

14. In the circumstances we set aside the impugned judgment and remit the matter to the High Court for fresh consideration. We make it clear that we have not expressed any opinion on the merits of the case. The High Court shall examine the matter afresh keeping in view the parameters indicated above. The appeal is accordingly disposed of.

Order accordingly.