Supreme Court of India

Subodh Kumar Yadav vs State Of Bihar & Anr on 15 July, 2009

Equivalent citations: AIR 2010 SUPREME COURT 802, 2009 (14) SCC 638, 2009 AIR SCW 7299, 2010 (2) AIR JHAR R 254, (2010) 1 ALLCRILR 555, (2009) 80 ALLINDCAS 74 (SC), 2009 (9) SCALE 621, (2010) 2 MAD LJ(CRI) 348, (2010) 1 RECCRIR 600, 2010 (2) SCC(CRI) 200, (2009) 3 UC 1377, (2009) 2 CRILR(RAJ) 931, (2009) 3 EASTCRIC 304, (2009) 2 MADLW(CRI) 1399, (2009) 66 ALLCRIC 657, (2009) 3 CURCRIR 489, (2009) 2 DMC 341, (2009) 44 OCR 217, 2009 CRILR(SC&MP) 931, 2009 CRILR(SC MAH GUJ) 931, (2009) 9 SCALE 621

Author:
J.M. Panchal

Bench:
J.M. Panchal
,
R.V. Raveendran

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
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
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
punishable under
Sections 498A
,
,
and
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,
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
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
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
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.
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
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
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
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
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: -
"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
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
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.