TaxTMI 
TaxTMI 
2008 (4) TMI 779
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....tion 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 ....
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....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 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 anti-national element. Persons like him should not be subjected to unnecessary harassment and humiliation when there is possibility of securing the persons by imposing appr....
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....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 ranking official against whom grave and serious offences have been made. It was pointed out that there was no question for referring to the antecedents of Sohrabuddhin and 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 b....
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....inst 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 the decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr. (2004 (7) SCC 528) In para 11 it was noted as follows: "11. The law in regard to grant or refusal of bail is very well settled. The court granting 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....
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....ar 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. 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 n....