Holding

Bail may be cancelled when there are prima facie allegations of threat to witnesses, and the same‑judge requirement does not apply if the grounds for cancellation differ from those at the time of grant.

Summary

Mehboob Dawood Shaikh was accused of instigating a mob assault and murder during a communal riot in Solapur. After being denied bail by the Sessions Judge, the Bombay High Court granted him bail. The State later moved an application under Section 439(2) of the CrPC to cancel the bail, alleging that Shaikh threatened a witness, Sunil Yadav, in the court premises, supported by an affidavit of a police inspector and a case registered under Section 188 IPC. The High Court cancelled the bail, and Shaikh appealed to the Supreme Court, contending that cancellation should be heard by the same judge who granted bail and that mere allegations without enquiry should not suffice. The Supreme Court held that prima facie evidence of threat to a witness justifies cancellation of bail and that the same‑judge rule is not mandatory when the grounds differ from those considered at the time of grant. Consequently, the appeal was dismissed.

Issues considered

Whether bail can be cancelled on the basis of an alleged threat to a witness supported only by an affidavit without a separate enquiry.
Whether the cancellation of bail must be heard by the same judge who originally granted bail.

Legislation cited

Arms Act, 1959s. 25(4)
Code of Criminal Procedure, 1973s. 437(5), s. 439(2)
Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 188, s. 295A, s. 302, s. 307, s. 427

Subjects

bail cancellationthreat to witnessSection 439 CrPCSection 188 IPCsame judge principlecriminal procedure

Judgment

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l

)> -
A MEHBOOB DA WOOD SHAIKH
V.

STATE OF MAHARASHTRA

JANUARY 16, 2004
B
(DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]
-... "
Code a/Criminal Procedure, 1973-Section 439(2)-Bail- Cancellation
of-Considerations for-Bail granted to appellant, cancelled on ground that
c he had threatened the witnesses of dire consequences-Affidavit of Police
Inspector filed in Court indicating the threat given to complainant in court
premises and registration of case under Section 188 !PC in relation to the
threat-Held, nothing having been urged by way of reply to the affidavit,
appellant cannot make a grievance that no enquiry was made to find out the
truth or otherwise of the statement made in the affidavit-As there were
D allegations prima facie showing that the witnesses have been threatened, a
ground for cancellation of bail did exist.

Practice and Procedure:

Subsequent application for grant or cancellation of bail-Held, it is
E desircble that application be placed before the same Judge who had passed
the earlier order-However, where the cancellation is sought for on grounds
different from those which existed at the time ofgranting bail, the conventional
practice of placing the matter before the same Judge need not be followed

Precedent-What constitutes-Principles elucidated
F
Appellant was accused of instigating a mob to assault and murder
and was in custody for more than 7y, months. He moved an application
for grant of bail, which was rejected by the Sessions Judge. Thereafter, a
bail. application was moved before High Court, which was al.lowed.
G Subsequently, State filed an application for cancellation of bail on the
ground that the appellant misused the liberty earlier granted to him by
threatening the witness of dire consequences. The application was r,
supported by an affidavit of Police Inspector indicating the threat given
to complainant in court premises. The Single Judge hearing the said·

H 554
MEHBOOB DAWOOD SHAIKH 1·.STATE OF MAHARASHTRA 555
application cancelled the bail. Hence the present appeal. A
On behalf of appellant, it was submitted that bail granted should not
have been cancelled merely on the statement made by the counsel
appearing for the State about alleged threat and an enquiry as to the
correctness of the allegations ought to have been made; and that
cancellation of bail application should have been heard by the Judge who B
had earlier granted the bail.

It was submitted on behalf of State that this was a fit case for
cancellation of bail as the appellant tried to interfere with the course of
justice by threatening the witnesses; that a case had been registered on C
the basis of accusations made by one of the witnesses and proceedings
under Section 188 IPC had been initiated.

Dismissing the appeal, the Court

HELD: I.I. When a person to whom bail has been granted either D
tries to interfere with the course of justice or attempts to tamper with
evidence or witnesses or threatens witnesses or indulges in similar activities
which would hamper smooth investigation or trial, bail granted can be
cancelled. 1560-H; 561-AI

Aslam Baba/al Desai v. State of Maharashtra, 119921 4 SCC 272, E
referred to.

1.2. It is trite law that the considerations for grant of bail and
cancellation of bail stand on different footings. Cancellation of bail is a
harsh order beca.use it takes away the liberty of an indil'idual granted to
him and is not to be lightly resorted to. Mere assertion of an alleged threat F
to witnesses should not be utilized as a ground for cancellation of bail,
routinely. The Court before which such allegations are made should in
each case carefully weigh the acceptability of the allegations and pass
orders as circumstances warrant in law. Such matters should be dealt with
expeditiously so that actual interference with the ordinary and normal
course of justice is nipped at the bud and an irretrievable stage is not G
reached. 1559-E; 560-G, 561-F, GI

1.3. In the instant case it is undisputed that an affidavit of Police
Inspector was filed which indicated the threat gi,·en to the complainant
in the court premises. In the affidavit it has been clearly mentioned that H
556 SUPREME COURT REPORTS [2004] I S.C.R.

A a case was registered under Section 188 IPC in relation to the threat. )> /

Nothing seems to have been urged by way of reply to the affidavit or the
truth or otherwise tu the contents thereof before the High Court. That
being so, the appellant cannot make a grievance that no enquiry was made
to find out the truth or otherwise of the statement made in the affidavit.
As there were allegations primafacie showing that the witnesses have been
B threatened, a ground for cancellation of bail did exist. [561-B, D, El

2. There is a long standing convention and requirement of judicial ......
discipline that subsequent application for grant or cancellation of bail
should be placed before the same Judge who had passed the earlier order.

c This certainly is a desirable course. But at the same time the party who
makes a grievance that ihe course has not been followed has to indicate
as to in what manner he was prejudiced by the deviation. The question of
prejudice arises only when on the same set of facts, a different order is
passed by another Judge cancelling the bail or granting the bail as the
case may be. But where the cancellation is sought for on grounds different
D from those which existed at the time of granting bail, the conventional
practice of pl~cing the matter before the same Judge need not be followed
as if it is a statutory requirement. In the case at hand, the cancellation
has been done on a ground other than those which weighed with the Single
Judge for grant of bail. Besides, no submission in this regard appears to
have been made before the High Court. 1562-A-Dl
E
Harjeet Singh v. State of Punjab and Anr., [20021 1 SCC 649, held
inapplicable.

3. A decision is available as a precedent only if it decides a question
oflaw. A judgment should be understood in the light of facts of that case
F
and no more should be read into it than what it actually says. It is neither
desirable nor permissible to pick out a word or a sentence from the
judgment of this Court divorced from the context of the. question under
consideration and treat it to be complete law decided by this Court. The
judgment must be read as a whole and the observations from the judgment
G have to be considered in the light of the questions which were before this
Court. 1562-F, GI

Willie (Willaim) Claney \'.The State of Madhya Pradesh, 1195512 SCR T,
I 140 and Commissioner of Income Tax v. Sun Engineering Works (P) ltd.,
119921 4 sec 363, referred to.
H
MEHBOOB DAWOOD SHAIKH r.STATEOF MAHARASHTRA [PASAYAT, l] 557
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 64 A
"" of 2004.

From the Judgment and Order dated 11.8.2003 of the Bombay High
Court in Cr. A. No. 2335 of 2003 in Crl Appln. No. 1012 of 2003.

P. Chidambaram Raja Venkatappa Naik and Rameshwar Prasad Goyal B
for the Appellant.
) '>'-
Mukesh K. Giri and Ravindra Keshavrao Adsure for the Respondent.

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. Leave granted.
c
By the impugned judgment the Bombay High Court directed cancellation
of bail which was granted earlier to the appellant.

In a nutshell, the accusations against the appellant and the background D
scenario so far as relevant for the disposal of this appeal are as follows:

On 11.10.2002 a complaint was lodged by one Sun ii Nyaneshwar Yadav
alleging that while he had gone'to Solapur there was communal riot. In the
evening he had gone to Vishnu Nagar for witnessing installation of Shakti
Idol along with five others. They were sitting on the stage in the evening. At E
about 5.00 p.m. a group of persons came there and removed the idol of
Shakti. At that time one Chanderkant Arjun had come by a motorcycle.
When the offenders learnt that the police had come they started fleeing. The
said Chanderkant was chasing the offenders. There was scuffle between
. Chanderkant and the offenders. One of the offenders pierced the knife in the
stomach of Chanderkant and he was lying in the pool of blood and was taken F
to the hospital. On the date of incident, two other persons were assaulted by .
the five named offenders. The first information report was registered. The
accusations so far as the appellant is concerned, were that he had instigated
. the mob to assault and murder. Learned Single Judge took note of the fact
that persons who were named as accused persons were already released on G
bail, on the basis of the statement made by the learned APP. Accusations
against the appellant were also that he was responsible for the riots at different
,.,, places at Solapur. Taking note of the circumstances and the only allegation
against him was of instigation, bail was granted since the charge sheets were
placed and he was in custody for more than 7 and 1/2 months. On 18.6.2003
H
558 SUPREME COURT REPORTS (2004] I S.C.R.

A an application for cancellation of bail was filed by the State of Maharashtra
under Section 439(2) of the Code of Criminal Procedure, 1973 (in short the
'Code') alleging that there was suppression of material facts from the Court.
It was not a fact that all the co-accused persons were released on bail. The
application was numbered as Criminal Application No. 2335 of 2003. When
the matter was taken up, an affidavit was filed by one Gajanan Rajaram
B Huddedar, the Inspector of Police, stating that that appellant had threatened
the complainant of dire consequences in the court premises of learned Sessions
Judge during trial on 16.7.2003 at 2.30. P.M. when the matter was fixed for
evidence. Complaint was lodged with the Police Inspector, Begumpeth Police
Station, Solapur by one Sunil Yadav that he had appeared before the Sessions
C Judge pursuant to summons issued by the Court. During lunch time, when he
was going towards the Court he was threatened by three persons including
the appellant and he was told that dire consequences would follow if he
would depose against the appellant and other accused. The place where the
threat was made also indicated. The appellant filed application under Section
439 of the Code for bail in connection with the case which was in relation
D to offences punishable under Sections 302, 307, 147, 148, 149, 295A, 427,
-BS of the Indian Penal Code, 1860 (in short the '!PC') and Section 25(4) of
the Arms Act. 1959 (in short the 'Arms Act'). The learned Sessions Judge
who heard the bail application rejected the same by on~er dated 21.2.2003.
A bail application was moved before the Bombay High Court which was
E registered as Criminal Bail Application No. 1012/2003 dated 7.3.2003. The
learned Single Judge (Justice S.S. Parkar) allowed the application for bail by
order dated 4.6.2003.

Learned counsel appearing for the State brought this fact to the notice
of the Court and learned Single Judge (Smt. V.K. Tahilramani) who was
F hearing the cancellation of bail application took note of the fact that the
appellant has misused the liberty earlier granted to him by threatening the
witnesses of dire consequences. Taking fu1ther note of the fact that the cross
examination of the complainant was yet to be completed, the !earned judge
cancelled the bail and directed the appellant to surrender before Vijapur Naka
G Police Station.

Learned counsel for the appellant submitted that the order cancelling
bail cannot be maintained on more grounds than one. Firstly, the cancellation
of bail application should have been heard by the learned Judge who had
earlier granted the bail. It was not desirable and proper for another learned
r, -
H Singie Judge to take up the cancellation of bail application. Further, merely
MEHBOOB DAWOOD SHAIKH 1·.STATEOF MAHARASHTRA [PASAYAT. J.] 559
<I.
on the statement made by the learned counsel appearing for the State about A
alleged threat, the bail granted should not have been cancelled. An enquiry
as to the correctness of the allegations ought to have been made and in the
absence of that the bail should not have been cancelled for mere asking.
Otherwise, it would be a routine matter to make allegations of tampering with
the evidence and get the bail cancelled and thereby affecting the liberty of
a person. The consideration for grant of bail and cancellation of bail stand on
B
I 'I' different footings. Stand of the learned APP was that matter had been reported
to learned Sessions Judge, who had called for a report. But the order-sheet
or the evidence recorded on the relevant date makes no mention of the alleged
threat. Since these relevant aspects have not been taken note of by the High
Court, the cancellation of bail should be nullified and the bail granted earlier c
shou Id be made operative.

-, Per contra, learned counsel for the State submitted that the cancellation
has been done correctly. In granting bail the courts repose a confidence on
the accused that he would not tamper with the course of justice. Since that
trust has been betrayed and the appellant tried to interfere with the course of D
'j. justice by threatening the witnesses, this was a fit case for cancellation of
bail. It was pointed out that a case has been registered on the basis of
accusations made by Sunil Yadav and proceedings under Section 188 !PC
had been initiated. According to him this was not a fit case for interference.
E
It is trite law that the considerations for grant of bail and cancellation
of bail stand on different footings. By a majority judgment in Aslam Baba/al
> Desai v. S1ate of Maharashtra, (1992] 4 SCC 272 the circumstances when
bail granted can be cancelled were highlighted in the following words:

"On a conjoint reading of Sections 57 and 167 of the Code it is F
clear that the legislative object was to ensure speedy investigation
after a person has been taken in custody. It expects that the
investigation should be completed within 24 hours and if this is not
possible within 15 days and failing that within the time stipulated in
clause (a) of the proviso to Section 167 (2) of the Code. The Jaw
expects that the investigation must be completed with dispatch and G
the role of the Magistrate is on oversee the course of investigation
,°':¥
and to prevent abuse of the law by the investigating agency. As stated
earlier, the legislative history shows that before the introduction of
the proviso to Section 167(2) the maximum time allowed to the
investigating agency was 15 days under sub-section (2) of Section H
560 SUPREME COURT REPORTS [2004] I S.C.R.

A 167 failing which the accused could be enlarged on bail. From
experience this was found to be insufficient particularly in complex
case and hence the proviso was added to enable the Magistrate to
detain the accused in custody for a period exceeding 15 days but not
exceeding the outer limit fixed under the proviso (a) to that sub-
section. We may here mention that the period prescribed by the proviso
B has been enlarged by State amendments and wherever there is such
enlargement, the proviso will have to be read accordingly. The purpose .., '
and object of providing for the release of the accused under sub-
section (2) of Section 167 on the failure of the investigating agency
completing the investigation within the extended time allowed by the
c proviso was to instill a sense of urgency in the investigating agency
to complete the investigation promptly and within the statutory
timeframe. The deeming fiction of corelating the release on bail under
sub-section (2) of Section 167 with Chapter XXXlll, i.e. Sections
437 and 439 of the Code, was to treat the order as one passed under
the latter provisions. Once the order of release is by fiction of law an
D
order passed under Section 437(1) or (2) or Section 439(1) it follows
as a natural consequence that the said order can be cancelled under
sub-section (5) of Section 437 or sub-section (2) of Section 439 on
considerations relevant for cancellation of an order thereunder. As
stated in Raghubir Singh v. State of Bihar, [I 986] 4 SCC 481 the
E grounds for cancellation under Sections 437(5) and 439(2) are
identical, namely, bail granted under Section 43 7( I) or (2) or Section
439(1) can be cancelled were (i) the accused misuses his liberty by
indulging in similar criminal activity, (ii) interferes with the course of
investigation (iii) attempts to tamper with evidence or witnesses, (iv)
F threatens witnesses or investigation, (v) there is likelihood of his
fleeing to another country, (vii) attempts to make himself scarce by
going underground or becoming unavailable to the investigating
agency, (vii) attempts to place himself beyond the reach of his surety.
etc. These grounds are illustrative and not exhaustive. It must also be
remembered that rejection of bail stands on one footing but cancellation
G of bail is a harsh order because it interferes with the liberty of the
individual and hence it must not be lightly reso11ed to."

It is, therefore. clear that when a person to whom bail has been granted 'f.
either tries to interfere with the course of justice or attempts to tamper with
evidence or witnesses or threatens witnesses or indulges in similar activities
H which would hamper smooth investigation or trial, bail granted can be
MEHBOOB DAWOOD SHAIKH v.STATEOF MAHARASHTRA [PASAYAT,J.] 56 J

-"( cancelled. Rejection of bail stands on one footing, but cancellation of bail is A
a harsh order because it takes away the liberty of an individual granted and
is not to be lightly resorted to.

It is undisputed that an affidavit of Police lnspector attached to Control
Room, Solapur was filed which indicated the threat given to the complainant
in the court premises on 16.7.2003. Merely because in the evidence recorded B
there is no reference to the threat, that does not go to prove the negative or
.~ ~ sufficient to infer that there was no such threat. Learned counsel for the
appellant submitted that at least some reference should have been made to the
threat. That there was no such reference, according to us, is really of no
consequence. The evidence was being recorded with regard to the incident C
dated 11.10.2002 and not in relation to a subsequent event which is the
subject matter of consideration in the case registered in relation to the alleged
threat. In the affidavit it has been clearly mentioned that a case (CR No.3097/
2003) was registered under Section 188 IPC in relation to the threat.

It is fairly accepted by learned counsel for the appellant that nothing D
seem to have been urged by way of reply to the affidavit or the truth or
otherwise to the contents thereof before the High Court, as the order impugned
shows. That being so, the appellant cannot make a grievance that no enquiry
was made to find out the truth or otherwise of the statement made in the
affidavit. As there were allegations prima facie showing that the witnesses E
have been threatened, a ground for cancellation of bail did exist.

Learned counsel for the appellant is correct on principles that mere
assertion of an alleged threat to witnesses should not be utilized as a ground
for cancellation of bail, routinely. Otherwise, there is ample scope for making
such allegation to nullify the bail granted. The Court before which such F
allegations are made should in each case carefully weigh the acceptability of
the allegations and pass orders as circumstances warrant in law. Such matters
should be dealt with expeditiously so that actual interference with the ordinary
and normal course of justice is nipped at the bud and an irretrievable stage
is not reached.
G
The other aspect which was emphasized with some amount of vehemence
.. was that the learned Judge who had granted bail should have heard the
application for cancellation of bail. Observations made in Hwjeet Singh v.
State of Punjab and Anr., [2002] 1 SCC 649 was relied upon for that purpose.
As noted above, in the said judgment there is a long standing convention and H
\

562 SUPREME COURT REPORTS [2004] I S.C.R.

A requirement of judicial discipline which has held the field for a long period
that subsequent application for grant or cancellation of bail application should
be placed before the same learned Judge who had passed the earlier order.
This certainly is a desirable course. But at the same time the party who makes
a grievance that the course has not been followed has to indicate as to in what
B manner he was in prejudice by the deviation. The question of prejudice arises
only when on the same set of facts, a different order is passed by another,
learned Judge cancelling the bail or granting the bail as the case may be. But
where the cancellation is sought for on grounds different from those which
existed at the time of granting bail, the conventional practice of placing the
matter before the same learned Judge need not be followed as if it is a
C statutory requirement. It does not appear from the order of the High Court
that any submission was made before the learned Single Judge who passed
the impugned order to place the matter before the same learned Judge who
had passed the earlier order. In any event, in the case at hand, the cancellation
has been done on a ground other than those which weighed with learned
D Single Judge for grant of bail. Though initially the application for cancellation
of bail was founded on the alleged misrepresentation or suppression of facts,
but what weighed with the learned Single Judge who dealt with the application
for cancellation of bail was the conduct for the accused in threatening the
witnesses. That being so, the judgment in Harjeet Singh 's case (supra) does
not in any assist the appellant. There is no such thing as a judicial precedent
E on facts though counsel, and even Judges, are sometimes prone to argue and
to act as if they were, said Bose J. about half century back in Willie (William)
Slaney v. The State of Madhya Pradesh, [I 955] 2 SCR 1140 at page 1169.
A decision is available as a precedent only if decides a question of law. A
judgment should be understood in the light of facts of that case and no more
F should be read into it than what it actually says. It is neither desirable nor
permissible to pick out a word or a sentence from the judgment of this Court
divorced from the context of the question under consideration and treat it to
be complete law decided by this Court. The judgment must be read as a
whole and the observation from the judgment have to be considered in the
light of the questions which were before this Court. (See Commissioner of
G Income Tax v. Sun Engineering Works (P) ltd., [1992] 4 SCC 363).
The learned Single Judge has given cogent reasons for passing the
order of cancellation of bail granted earlier.

We find no merit in this appeal which is accordingly dismissed. However,
H we find from the records that the trial was in progress when bail was cancelled.
MEHBOOB DA WOOD SHAIKH 1•. STA TE OF MAHARASHTRA [PASA Y AT, J.] 563

It would b~ appropriate if the trial Court completes the trial as early as . A
practicable, if not already completed, keeping in view the mandate of Section
309 of the Code. If appellant makes any fresh application for bail, the same,
it goes without saying, shall be dealt with in accordance with law.

M.P. Appeal dismissed.
B

,.