IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1234 OF 2009
(Arising out of S.L.P. (Criminal) No. 4689 of 2007)
Subodh Kumar Yadav ... Appellant
Versus
State of Bihar and Anr. ... Respondents
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JUDGMENT
J.M. PANCHAL, J.
Leave granted.
2. This appeal is directed against judgment dated
May 2, 2007, rendered by learned Single Judge of
High Court of Judicature at Patna in Criminal
Miscellaneous No. 2790 of 2004 by which order
dated January 8, 2004, passed by learned Sessions
Judge, Purnia in Criminal Miscellaneous No. 13 of
2003 cancelling the bail granted to the appellant by
the learned S.D.J.M., Purnia vide order dated
October 19, 2002, passed in C.A. No. 1098 of 2001
with reference to the complaint filed by the
respondent No. 2 for alleged commission of offence
punishable under Section 498A IPC, is confirmed.
3. The marriage of the appellant was solemnized
with the respondent No. 2 on June 22, 1989. After
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the marriage, the respondent No. 2 started living
with the appellant at her matrimonial home.
During the subsistence of the marriage, the
respondent No. 2 gave birth to two daughters. It is
the case of the respondent No. 2 that the appellant
and his family members started subjecting her to
mental and physical cruelty for bringing insufficient
dowry and also because she objected to illicit
relations of the appellant with his sister-in-law Asha
Devi. The case of the respondent No. 2 is that not
only she was subjected to physical and mental
cruelty, but money was extorted from her in order
to get more dowry and an attempt to kill her was
made as well as her streedhan was not returned to
her in spite of several demands. Under the
circumstances, she filed complaint case No. 1098 of
2001 in the Court of learned Chief Metropolitan
Magistrate, Purnia and prayed to convict the
appellant and others for commission of offences
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punishable under Sections 498A, 384, 307 and 406
IPC.
4. The learned Magistrate examined the respondent
No. 2 on oath. The learned Magistrate thereafter
called upon the respondent No. 2 to offer other
witnesses for examination. Therefore, Bhageshwar
Prasad Yadav, who is father of the respondent No.
2, was examined as witness No. 1, Birendra Kumar,
an independent person, was examined as witness
No.2 and Ramanuj Kumar, who is cousin of the
respondent No. 2, was examined as witness No. 3.
The learned Magistrate perused the statements
made by the witnesses and was of the opinion that
prima facie commission of offence punishable under
Section 498A IPC was made out against the
accused. He, therefore, took cognizance of the said
offence and issued summons against the accused
including the appellant. On receipt of summons,
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the appellant and others filed Criminal Revision No.
233 of 2002 in the Court of learned Sessions Judge,
Purnia for quashing the same. Therefore, the
record of the case was called for by the Sessions
Court from the Court of learned Magistrate.
5. On October 19, 2002, the appellant surrendered
before the Court of learned Judicial Magistrate First
Class, Purnia and moved an application for bail.
Since the original record was not available as the
same was summoned by the Sessions Court, the
learned Judicial Magistrate passed an order calling
for the original record from the Court of learned
District and Sessions Judge, Purnia. Though the
copy of the application for bail was served on the
learned Advocate for the original complainant, the
learned Magistrate had not indicated in the order
summoning record of the case from the Sessions
Court that the bail application moved by the
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appellant would be heard on the same day. The
original case record of Complaint Case No. 1098 of
2001 was received in the Court of learned Judicial
Magistrate First Class on the same day, i.e., on
October 19, 2002. The learned Magistrate took up
the bail application for hearing on the same day.
The learned Magistrate took into consideration the
petition for divorce filed by the appellant against the
respondent No. 2 in the year 2002 as well as other
documents and without hearing either the
respondent No. 2 or her learned counsel, enlarged
the appellant on bail.
6. Thereupon, the respondent No. 2 moved Criminal
Miscellaneous No. 13 of 2003 in the Court of
learned District and Sessions Judge, Purnia for
cancellation of bail. The learned Session Judge
heard both the parties. It was noticed by him that
the bail application was submitted by the appellant
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on the same day on which he had surrendered
before the Court of learned Judicial Magistrate First
Class. It was further observed that after learning
that the original record was lying in Sessions Court,
Purnia in connection with Criminal Revision No.
233 of 2002, filed by the appellant and others for
quashing issuance of summons, the learned
Magistrate had passed an order calling for the
record of the case from the Sessions Court. It was
also noticed that the learned Magistrate did not
hear the learned counsel of the complainant and no
order was passed by him fixing hearing of the bail
application, but bail was granted on the same day.
It was noted by the learned Sessions Judge that
though the complaint was filed by the respondent
No. 2 on October 9, 2002, the learned Magistrate
had taken into consideration divorce proceedings
initiated by the appellant in the year 2000, i.e., after
taking cognizance of the offence and had also relied
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upon other documents. Having taken into
consideration relevant circumstances emerging
from the record of the case, the learned Sessions
Judge concluded that the learned Magistrate had
enlarged the appellant on bail on considerations
other than judicial. Therefore, the learned Sessions
Judge, by order dated January 8, 2004, allowed the
application filed by the respondent No. 2 and
cancelled the bail granted to the appellant.
7. Feeling aggrieved, the appellant moved High
Court of Judicature at Patna by way of filing
Criminal Miscellaneous Application No. 2790 of
2004. The learned Single Judge of the High Court
has rejected the application filed by the appellant
vide judgment dated May 2, 2007, giving rise to the
instant appeal.
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8. This Court has heard the learned counsel for the
parties and taken into consideration the documents
forming part of the appeal.
9. Learned counsel for the appellant contended that
cancellation of bail can be only with reference to conduct
subsequent to release on bail and the supervening
circumstances. According to him an application for
cancellation will not be maintainable with reference to
what transpired prior to the grant of bail. He relied upon
the following observations in State of U.P. vs. Amarmani
Tripathi [(2005) 8 SCC 21], in support of the said
contention: –
“The decisions in Dolat Ram v. State of
Haryana [1995 (1) SCC 349] and
Samarendranath Bhattacharjee v. State of West
Bengal [2004 (11) SCC 165] relate to
applications for cancellation of bail and not
appeals against orders granting bail. In an
application for cancellation, conduct
subsequent to release on bail and the
supervening circumstances alone are
relevant. But in an appeal against grant of
bail, all aspects that were relevant under
Section 439 read with Section 437, continue to
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be relevant. We, however, agree that while
considering and deciding the appeals against
grant of bail, where the accused has been at
large for a considerable time, the post-bail
conduct and supervening circumstances will
also have to be taken note of. But they are not
the only factors to be considered as in the case
of applications for cancellation of bail.”
[emphasis supplied]
A careful reading of the said observations shows that
while considering the factors relevant for consideration of
bail already granted vis-`-vis the factors relevant for
rejection of bail, this Court pointed out that for
cancellation of bail, conduct subsequent to release on
bail and supervening circumstances will be relevant. The
said observations were not intended to restrict the power
of a superior court to cancel bail in appropriate cases on
other grounds. In fact it is now well settled that if a
superior court finds that the court granting bail had
acted on irrelevant material or if there was non-
application of mind or failure to take note of any
statutory bar to grant bail, or if there was manifest
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impropriety as for example failure to hear the public
prosecutor/complainant where required, an order for
cancellation of bail can in fact be made. (See Gajanand
Agarwal v. State of Orissa [2006 (9) SCALE 378] and
Rizwan Akbar Hussain Syyed v. Mehmood Hussain [2007
(10) SCC 368).
2. Further, while cancelling bail, the superior Court
would be justified in considering the question
whether irrelevant material were taken into
consideration by the court granting bail.
3. The facts of the present case indicate that the
appellant himself and others had moved the Sessions
Court by way of filing revision for quashing summons
issued by the learned Magistrate and, therefore, the
learned Sessions Judge had called for the record from
the court of learned Judicial Magistrate First Class. On
October 19, 2002, the appellant had, all of a sudden
decided to surrender before the learned Judicial
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Magistrate First Class, Purnia and presented a bail
application. The learned Magistrate found that the
record of the case was lying in Sessions Court with
reference to the revision, which was filed by the appellant
and others. The learned Magistrate did not think it
proper to wait at all and by passing a judicial order
called for the record pending in a superior court. In view
of the judicial order passed by the learned Magistrate,
the Registry of the Sessions Court forthwith sent the
record of the case to the court of learned Judicial
Magistrate First Class. Thereafter, the learned
Magistrate proceeded to hear the bail application
submitted by the appellant. In the order summoning the
record, it was nowhere indicated by the learned
Magistrate that the application submitted by the
appellant would be heard on the same day, i.e., on
October 19, 2002. The learned advocate for the
complainant was not put on notice at all and, therefore,
could not remain present at the time when the bail
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application was taken up for hearing. The learned
Magistrate considered the documents produced by the
learned counsel for the appellant. Admittedly those
documents were subsequent in point of time to taking of
cognizance. After considering those documents, the
learned Magistrate enlarged the appellant on bail. The
undue haste exhibited by the learned Magistrate as well
as his decision to hear the bail application on the same
day without hearing the learned counsel for the
complainant, compelled the learned Sessions Judge to
draw adverse inferences against the learned Magistrate.
On the facts and in the circumstances of the case, this
Court is of the opinion that the learned Sessions Judge
was justified in drawing adverse inferences against the
learned Magistrate and holding that the order granting
bail was passed by the learned Judicial Magistrate for
considerations other than judicial. This finding of fact
has been confirmed by the High Court in the following
terms: –
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“Heard the learned counsel for both the
parties. Perused the complaint petition as well
as the order of both the courts. There is no
doubt that the bail of the petitioner was
granted in a very mysterious circumstances.
The entire office as well as the Presiding
Officer was so in haste that all formalities
including calling of the record from the
Sessions Court were done on the same day
and the order of granting bail was also passed
on the same day behind the back of
complainant’s lawyer. The order of the learned
lower court which runs in so many pages is
sufficient to show how much the Presiding
Officer was interested to grant bail to the
petitioner who is husband of the opposite part
no. 2.”
2. The findings recorded by the learned Sessions
Judge and the High Court make it clear that the
learned Magistrate had exercised discretion vested
in him under Section 437 with oblique motive. The
learned Magistrate was apparently bent upon
granting bail to the appellant and, therefore, not
only decided to hear the bail application presented
by the appellant on the same day, but had also
called for record from the superior court and
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granted bail to the appellant without hearing the
learned counsel for the complainant. As the
judicial discretion was exercised by the learned
Judicial Magistrate First Class in an arbitrary
manner and with oblique motives, the learned
Sessions Court was justified in setting aside the
order granting bail to the appellant. To say the
least, the order passed by the learned Magistrate
was the result of arbitrary exercise of discretion
vested in him. Further the learned Magistrate had
taken into consideration totally irrelevant
documents which were never referred to in the
complaint at all. By taking into consideration those
documents the learned Magistrate exhibited his
anxiety to release the appellant anyhow on bail. On
the facts and in the circumstances of the case, this
Court is of the opinion that the High Court did not
commit any error in confirming the order of the
Sessions Judge cancelling the bail which was
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arbitrarily granted to the appellant by the learned
Judicial Magistrate First Class and, therefore, the
instant appeal is liable to be dismissed.
3. For the foregoing reasons the appeal fails and is
dismissed.
…………………………J.
[R.V. Raveendran]
…………………………J.
[J.M. Panchal]
New Delhi;
July 15, 2009.