Holding

A superior court may cancel bail if the lower court exercised its discretion arbitrarily, considered irrelevant material, or acted with manifest impropriety, and such cancellation is therefore justified.

Summary

The appellant, Subodh Kumar Yadav, was charged under Section 498A IPC and other offences. He surrendered before a Judicial Magistrate First Class and was granted bail on the same day, without the complainant’s counsel being heard and after the magistrate called for the case record from the Sessions Court. The Sessions Judge cancelled the bail, finding the magistrate’s discretion exercised arbitrarily, with haste, and based on irrelevant documents. The High Court upheld the cancellation. On appeal, the Supreme Court held that a superior court may cancel bail not only on post‑release conduct but also when the lower court acted on irrelevant material, failed to apply its mind, or displayed manifest impropriety. Consequently, the cancellation was justified and the appeal was dismissed.

Issues considered

Whether a superior court can cancel bail on grounds other than post‑release conduct and supervening circumstances, such as arbitrariness, consideration of irrelevant material, or failure to apply mind.
Whether the Judicial Magistrate’s grant of bail was vitiated by procedural irregularities, including failure to hear the complainant’s counsel and reliance on irrelevant documents.
Whether the Sessions Judge and High Court were correct in cancelling the bail.

Legislation cited

Code of Criminal Procedure, 1973s. 437, s. 439
Indian Penal Code, 1860s. 307, s. 384, s. 406, s. 498A

Subjects

bailcancellation of bailCrPC Section 437CrPC Section 439arbitrarinessirrelevant materialprocedural fairness498A IPCsuperior court powers

Judgment

[2009) 10 S.C.R. 574

A SUBODH KUMAR YADAV
v.
STATE OF BIHAR & ANR.
(Criminal Appeal No. 1234 of 2009)
JULY 15, 2009
B
[R.V. RAVEENDRAN AND J.M. PANCHAL, JJ.]

Code of Criminal Procedure, 1973 - s. 439 - Bail -
Cancellation of - Relevant factors to be considered -
c Sessions judge canceling bail granted to applicant by
Magistrate - High Court upholding the same - Held: Justified
- Magistrate exercised discretion vested in him u/s.437
Cr.P.C. with oblique motive and in an arbitrary manner- He
took into consideration irrelevant documents which were never ~

D referred to in the complaint - Sessions Judge justified in
drawing adverse inferences against Magistrate and holding
that the said order was passed for considerations other than
judicial.

Respondent no. 2 filed complaint u/s. 498A IPC
E
against the appellant and others. Appellant surrendered
before the court and filed application for bail. The
Magistrate granted bail. However, the Sessions Judge
cancelled the bail granted to the appellant. Single Judge
of the High Court upheld the order. Hence the present
F appeal.

Dismissing the appeal, the Court

HELD: 1. While considering the factors relevant for
consideration of bail already granted vis-a-vis the factors
G
relevant for rejection of bail, for cancellation of bail, "
conduct subsequent to release on bail and supervening
circumstances will be relevant. It is not intended to restrict
the power of a superior court to cancel bail in appropriate "
H 574
SUBODH KUMAR YADAV v. STATE OF BIHAR & 575
ANR.
+ cases on other grounds. If a superior court finds that the A
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, an order for cancellation of bail can in fact
be made. [Paras 9) [581-B-D] B
2.1. Appellant himself and others had moved the
Sessions Court by way of filing revision for quashing
' summons issued by the Magistrate and, therefore, the
Sessions Judge had called for the record from the court
"' of Judicial Magistrate. On October 19, 2002, the appellant c
had, all of a sudden decided to surrender before the
Judicial Magistrate and presented a bail'application. The
~ .....
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 Magistrate did not D
think it proper to wait at .-:II and by passing a judicial order
called for the record pending in a superior court. In view
of the judicial order passed by the Magistrate, the
Registry of the Sessions Court forthwith sent the record
of the case to the court of Judicial Magistrate. Thereafter, E
the Magistrate proceeded to hear the bail application
submitt~d by the appellant. In the order summoning the
record, it was nowhere indicated by the Magistrate that
'·
the application submitted by the appellant would be
heard on the same day-October 19, 2002. The advocate F
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 Magistrate
considered the documents produced by the counsel for
the appellant. Admittedly those documents· were G
subsequent in point of time to taking of cognizance. After
......... considering those documents, the Magistrate enlarged
the appellant on bail. The undue haste exhibited by the
Magistrate as well as his decision to hear the bail
.... application on the same day without hearing the counsel
H
576 SUPREME COURT REPORTS [2009] 10 S.C.R.

A for the complainant, compelled the Sessions Judge to ...
draw adverse inferences against the Magistrate. On facts
and in the circumstances of the case, Sessions Judge ' ...
was justified in drawing adverse inferences against the
Magistrate and holding that the order granting bail was
B passed by the Judicial Magistrate for considerations
other than judicial. This finding of fact has been
confirmed by the High Court. [Para 11] [581-F-H; 582-A-
F] ~

2.2. The findings recorded by the Sessions Judge ''
c and the High Court make it clear that the Magistrate had
exercised discretion vested in him u/s. 437 Cr.P .C. with
oblique motive. The Magistrate was apparently bent upon
granting bail to the appellant and, therefore, not only
decided to hear the bail application presented by the
D appellant on the same day, but had also called for record
from the superior court anc: granted bail to the appellant
without hearing the counsel for the complainant. As the
judicial discretion was exercised by the Judicial
Magistrate in an arbitrary manner and with oblique
E motives, the Sessions Court was justified in setting aside
the order granting bail to the appellant. The order passed
by the Magistrate was the result of arbitrary exercise of
discretion vested in him. Further the Magistrate had taken ·'
into consideration totally irrelevant documents which
F were never referred to in the complaint at all. By taking
into consideration those documents the Magistrate
exhibited his anxiety to release the appellant anyhow on
bail. On the facts and in the circumstances of the case,
High Court did not commit any error in confirming the
order of the Sessions Judge cancelling the bail which
G
was arbitrarily granted to the appellant by Judicial
Magistrate and, thus, the appeal is liable to be dismissed.
.........
[Para 12] [583-B-E]

State of UP. v Amarmani Tripathi (2005) 8 SCC 21;
H Gajanand Agarwal v. State of Orissa 2006 (9) SCALE 378;
~·
SUBODH KUMAR YADAV v. STATE OF BIHAR & 577
ANR.
'i Rizwan Akbar Hussain Syyed v. Mehmood Hussain 2007 A
(10) sec 368, re!ied on.
Case Law Reference:
(2005) 8 sec 21 Relied on. Para 9
B
2006 (9) SCALE 378 Relied on. Para 9
2001 (10) sec 368 Relied on. Para 9
f
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
~
' No. 1234 of 2009. c
c
From the Judgment & Order dated 2.5.2007 of the High
Court of Judicature at Patna in Criminal Misc. No. 2790 of 2004.
Anukul Raj and R. Nedumaran for the Appellants.
Manish Kumar and Gopal Singh for the Respondents. D
The Judgment of the Court was delivered by
J.M. PANCHAL, J. 1. Leave granted.

... 2. This appeal is directed against judgment dated May 2,
2007, rendered by learned Single Judge of High Court of E
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 F
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 G
~ . respondent No. 2 on June 22, 1989. After the marriage, the
j
= 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
H
578 SUPREME COURT REPORTS [2009] 10 S.C.R.

....
A 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
B 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
,.
'I'!!!

c 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.
D Therefore, Bhageshwar Prasad Yadav, who is father of the
respondent No. 2, was exar· ined 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
~
E 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
F
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.
G 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
H original record from the Court of learned District and Sessions
..
SUBODH KUMAR YADAV v. STATE OF BIHAR & 579
ANR. [J.M. PANCHAL, J.)
-t- Judge, Purnia. Though the copy of the application for bail was A

-
"'
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. B
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 weil as other
c
. 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 D
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 E
/ ' 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 F
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
G
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
,•.,_ .... H
580 SUPREME COURT REPORTS [2009] 10 S.C.R.

.,_
A 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
B 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
c 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.·
D
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
E 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 Do/at Ram v. State of Haryana [1995
F ( 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 rnlease on bail and
G 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
H accused has been at large for a considerable time, the
SUBODH KUMAR YADAV v. STATE OF BIHAR & 581
ANR. [J.M. PANCHAL, J.]
-;..
post-bail conduct and supervening circumstances will also A

.. 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]
8
A careful reading of the said observations shows that while
considering the factors relevant for consideration of bail already
granted vis-a-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 c
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 D
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
E
Akbar Hussain Syyed v. Mehmood Hussain [2007 (10) SCC
368).

10. 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. F
11. 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 G
. 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 H
582 SUPREME COURT REPORTS [2009] 10 S.C.R.

A 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
B the court of learned Judicial Magistratr 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
c 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
-
D
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
E 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
F 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
G
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
H

t·
SUBODH KUMAR YADAV v. STATE OF BIHAR & 583
ANR. [J.M. PANCHAL, J.]
't of granting bail was also passed on the same day behind A
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." B
12. 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 C
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 D
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 E
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 F
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. G
13. For the foregoing reasons the appeal fails and is
dismissed.
N.J. Appeal dismissed.