MANU/SC/0255/2009

Equivalent/Neutral Citation: 2009(2)AC R1443(SC ), AIR2009SC 1341, 2009 (67) AC C 863, 2009((2))ALT(C ri)50, III(2011)C C R269(SC ),
C LT(2009)Supp.C rl.833, 2009C riLJ1887, (2009)3GLR2099(SC ), ILR[2010]MP11, 2008/INSC /222, 2010(1)JLJ1(SC ), JT2009(3)SC 26,
2009(4)MPHT1(SC ), 2009(IV)MPJR(SC )373, 2009MPLJ412(SC ), 2009(II)OLR30, 2009(II)OLR(SC )30, 2009(2)PLJR148, 2009(2)RC R(C riminal)161,
RLW2009(1)SC 580, 2009(3)SC ALE9, (2009)4SC C 446, [2008]3SC R75, [2009]2SC R795

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 343 of 2009 (Arising out of SLP (Crl.) No. 4008 of 2008
Decided On: 20.02.2009
Rasiklal Vs. Kisore
Hon'ble Judges/Coram:
R.V. Raveendran and J.M. Panchal, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Harish Salve, Sushil Kumar, Sr. Advs., Ankur Chawla,
Abhishek Singh, Rahul Pratap and Siddhartha Chowdhury, Advs
For Respondents/Defendant: Abhishek Manu Singhvi, Sr. Adv., Sanjeev Sachdeva,
Saurabh Sharma and Amit Bhandari, Advs.
Case Category:
CRIMINAL MATTERS - CRIMINAL MATTERS RELATING TO BAIL/INTERIM
BAIL/ANTICIPATORY BAIL AND AGAINST SUSPENSION OF SENTENCE
JUDGMENT
J.M. Panchal, J.
1. Leave granted.
2. The appellant is accused in Criminal Complaint No. 1604 of 2005 filed in the court of
learned Judicial Magistrate First Class, Indore, M.P., for alleged commission of offences
punishable under Sections 499 and 500 of the Indian Penal Code and assails the order
dated March 24, 2008, rendered by the learned Single Judge of High Court of Madhya
Pradesh, Bench at Indore, in Criminal Revision No. 1362 of 2006 by which bail granted
to the appellant by the learned Judicial Magistrate First Class, Indore, M.P. on December
1, 2006 is cancelled on the ground that the order granting bail was passed by the
learned Judicial Magistrate First Class, Indore, without hearing the original complainant
and was, therefore, bad for violation of principles of natural justice.
3. It is the case of the respondent that the appellant gave an interview on December 15,
2004 on Star News TV Channel and defamed him. The respondent, therefore, filed a
Criminal Complaint No. 1604 of 2005 in the court of learned Judicial Magistrate First
Class, Indore, M.P. on January 27, 2005 for alleged commission of offences punishable
under Sections 499 and 500 of the Indian Penal Code. The learned Judicial Magistrate
examined the respondent on oath as required by Section 200 of the Code of Criminal
Procedure, 1973 and issued summons to the appellant for commission of alleged
offences under Sections 499 and 500 of the Indian Penal Code vide order dated May 9,
2006. The appellant appeared before the court on November 20, 2006 and submitted an
application under Section 317 of the Code of .Criminal Procedure, 1973 seeking

20-03-2024 (Page 1 of 5) www.manupatra.com Fairfield Institute of Management & Technoloy School of Law
 exemption for personal appearance along with vakalatnama of his counsel. In the said
application prayer for grant of bail was also made. The application was fixed for hearing
on December 26, 2006. However, on December 1, 2006 the appellant filed an
application mentioning his appearance before the court and to consider his prayer for
grant of bail under Section 436 of the Code of Criminal Procedure, 1973 as offences
alleged to have been committed by him under Sections 499 and 500 of the Indian Penal
Code are bailable. The application was heard on the day on which it was filed. The
learned Magistrate noticed that the offences alleged to have been committed by the
appellant were bailable. Therefore, the appellant was admitted to bail on his furnishing
a surety in the sum of Rs. 5,000/- and also furnishing a bond of the same amount.
While enlarging the appellant on bail the learned Magistrate imposed a condition on the
appellant that he would appear before the court on each date of hearing or else he
would be taken into custody and sent to jail. The order dated December 1, 2006 passed
by the learned Judicial Magistrate further indicates that in compliance of the direction
issued by the court the appellant furnished a bail bond in the sum of Rs. 5,000/- and
also executed a bond for the said amount and that the bail bonds were accepted by the
court after which the appellant was released on bail.
4 . The respondent, who is original complainant, filed Criminal Revision No. 1362 of
2006 in the High Court of Madhya Pradesh, Bench at Indore, on December 26, 2006 for
cancelling the bail granted to the appellant by the learned Judicial Magistrate First
Class, Indore, on the ground that he was not heard and, therefore, the order was
violative of principles of natural justice. The learned Single Judge, before whom the
revision application was notified for hearing, had issued notice to the appellant but the
appellant did not remain present before the High Court. The revision application filed by
the respondent was taken up for final disposal on March 24, 2008. The learned Single
Judge, by order dated March 24, 2008, has cancelled the bail granted to the appellant
by the learned Judicial Magistrate on the ground that the respondent, who was original
complainant, was not heard and, therefore, the order granting bail violates the
principles of natural justice. After cancelling the bail granted to the appellant the
learned Single Judge remitted the matter to the court below with a direction that the
matter be taken up according to law between the parties relating to the grant of bail to
the appellant. Feeling aggrieved the appellant has invoked appellate jurisdiction of this
Court under Article 136 of the Constitution.
5. This Court has heard the learned Counsel for the parties and taken into consideration
the documents forming part of the appeal.
6 . As is evident, the appellant is being tried for alleged commission of offences
punishable under Sections 499 and 500 of the Indian Penal Code. Admittedly, both the
offences are bailable. The grant of bail to a person accused of bailable offence is
governed by the provisions of Section 436 of the Code of Criminal Procedure, 1973. The
said section reads as under:
436 - In what cases bail to be taken - (1) When any person other than a
person accused of a non-bailable offence is arrested or detained without
warrant by an officer in charge of a police station, or appears or is brought
before a Court, and is prepared at any time while in the custody of such officer
or at any stage of the proceeding before such Court to give bail, such person
shall be released on bail:
Provided that such officer or Court, if he or it thinks fit, may, and shall, if such
person is indigent and is unable to furnish surety, instead of taking bail from

20-03-2024 (Page 2 of 5) www.manupatra.com Fairfield Institute of Management & Technoloy School of Law
 such person, discharge him on his executing a bond without sureties for his.
appearance as hereinafter provided:
Explanation. - Where a person is unable to give bail within a week of the date
of his arrest, it shall be a sufficient ground for the officer or the Court to
presume that he is an indigent person for the purposes of this proviso.
Provided further that nothing in this section shall be deemed to affect the
provisions of Sub-section (3) of Section 116 or Section 446A.
(2) Notwithstanding anything contained in Sub-section (1), where a person has
failed to comply with the conditions of the bail-bond as regards the time and
place of attendance, the Court may refuse to release him on bail, when on a
subsequent occasion in the same case he appears before the Court or is brought
in custody and any such refusal shall be without prejudice to the powers of the
Court to call upon any person bound by such bond to pay the penalty thereof
under Section 446.
There is no doubt that under Section 436 of the Code of Criminal Procedure a person
accused of a bailable offence is entitled to be released on bail pending his trial. As soon
as it appears that the accused person is prepared to give bail, the police officer or the
court before whom he offers to give bail, is bound to release him on such terms as to
bail as may appear to the officer or the court to be reasonable. It would even be open
to the officer or the court to discharge such person on his executing a bond as provided
in the Section instead of taking bail from him. The position of persons accused of non-
bailable offence is entirely different. The right to claim bail granted by Section 436 of
the Code in a bailable offence is an absolute and indefeasible right. In bailable offences
there is no question of discretion in granting bail as the words of Section 436 are
imperative. The only choice available to the officer or the court is as between taking a
simple recognizance of the accused and demanding security with surety. The persons
contemplated by Section 436 cannot be taken into custody unless they are unable or
willing to offer bail or to execute personal bonds. There is no manner of doubt that bail
in a bailable offence can be claimed by accused as of right and the officer or the court,
as the case may be, is bound to release the accused on bail if he is willing to abide by
reasonable conditions which may be imposed on him.
7. There is no express provision in the Code prohibiting the court from re-arresting an
accused released on bail under Section 436 of the Code. However, the settled judicial
trend is that the High Court can cancel the bail bond while exercising inherent powers
under Section 482 of the Code. According to this Court a person accused of a bailable
offence is entitled to be released on bail pending his trial, but he forfeits his right to be
released on bail if his conduct subsequent to his release is found to be prejudicial to a
fair trial. And this forfeiture can be made effective by invoking the inherent powers of
the High Court under Section 482 of the Code. See: Talab Haji Hussain v. Madhukar
Purushottam Mondkar and Anr. MANU/SC/0028/1958 : 1958CriL J701 reiterated by a
Constitution Bench in Ratilal Bhanji Mithani v. Asstt. Collector of Customs and Anr.
MANU/SC/0077/1967 : 1967CriLJ1576 .
8 . It may be noticed that Sub-section (2) of Section 436 of the 1973 Code empowers
any court to refuse bail without prejudice to action under Section 446 where a person
fails to comply with the conditions of bail bond giving effect to the view expressed by
this Court in the above mentioned case. However, it is well settled that bail granted to
an accused with reference to bailable offence can be cancelled only if the accused (1)

20-03-2024 (Page 3 of 5) www.manupatra.com Fairfield Institute of Management & Technoloy School of Law
 misuses his liberty by indulging in similar criminal activity, (2) interferes with the
course of investigation, (3) attempts to tamper with evidence of witnesses, (4)
threatens witnesses or indulges in similar activities which would hamper smooth
investigation, (5) attempts to flee to another country, (6) attempts to make himself
scarce by going underground or becoming unavailable to the investigating agency, (7)
attempts to place himself beyond the reach of his surety, etc. These grounds are
illustrative and not exhaustive. However, a bail granted to a person accused of bailable
offence cannot be cancelled on the ground that the complainant was not heard. As
mandated by Section 436 of the Code what is to be ascertained by the officer or the
court is whether the offence alleged to have been committed is a bailable offence and
whether he is ready to give bail as may be directed by the officer or the court. When a
police officer releases a person accused of a bailable offence, he is not required to hear
the complainant at all. Similarly, a court while exercising powers under Section 436 of
the Code is not bound to issue notice to the complainant and hear him.
9 . The contention raised by the learned Counsel for the respondent on the basis of
decision of this Court in Arun Kumar v. State of Bihar and Anr. MANU/SC/7168/2008 :
2008CriL J1924 , that the complainant should have been heard by the Magistrate before
granting bail to the appellant, cannot be accepted. In the decision relied upon by the
learned Counsel for the respondent challenge was to the order passed by a learned
Single Judge of the Patna High Court quashing the order passed by the learned Fast
Track Court holding that the respondent No. 2 therein was not juvenile and, therefore,
there was no need to refer his case to the Juvenile Justice Board for ascertaining his age
and then for trial. The High Court was of the view that the prayer was rejected only on
the ground that two or three witnesses were examined and though the accused was in
possession of school leaving certificate, mark sheet, etc. to show that he was a juvenile,
the prayer could not have been rejected. This Court found that the High Court in a very
cryptic manner had observed that the application of the accused deserved to be allowed
and directed the court below to consider the accused as a juvenile and proceed
accordingly. Before this Court it was submitted by the learned Counsel for the informant
that the documents produced had been analysed by the trial court and it was found at
the time of framing charge that he was major' without any doubt. The grievance was
made on behalf of the informant before this Court that the High Court did not even
consider as to how the conclusions of the trial court suffered from any infirmity and
merely referring to the stand of the accused and even without analyzing the correctness
or otherwise of the observations and conclusions made by the trial court the learned
Single Judge came to the conclusion that the accused was a juvenile. This Court
concluded that the High Court had failed to notice several relevant factors and no
discussion was made as to how the conclusions of the trial court suffered from any
infirmity. It was also noticed by this Court that no notice was issued to the appellant
before the matter was disposed of. In view of the above position the order impugned in
the appeal was set aside by this Court. To say the least, the facts of the present case
are quite different from those mentioned in the above reported decision. Therefore the
ratio laid down in the said decision cannot be applied to the fact of the instant case.
1 0 . Even if notice had been issued to the respondent before granting bail to the
appellant, the respondent could not have pointed out to the court that the appellant had
allegedly committed non-bailable offences. As observed earlier, what has to be
ascertained by the officer or the court is as to whether the person accused is alleged to
have committed bailable offences and if the same is found to be in affirmative, the
officer or the court has no other alternative but to release such person on bail if he is
ready and willing to abide by reasonable conditions, which may be imposed on him.
Having regard to the facts of the case this Court is of the firm opinion that the bail

20-03-2024 (Page 4 of 5) www.manupatra.com Fairfield Institute of Management & Technoloy School of Law
 granted to the appellant for alleged commission of bailable offence could not have been
cancelled by the High Court on the ground that the complainant was not heard and,
thus, principles of natural justice were violated. Principles of natural justice is not a
'mantra' to be applied in vacuum in all cases. The question as to what extent, the
principles of natural justice are required to be complied with, will depend upon the facts
of the case. They are not required to be complied with when it will lead to an empty
formality See State Bank of Patiala v. S.K. Sharma MANU/SC/0438/1996 :
(1996)IILL J296SC andKarnataka State Road Transport Corporation v. S.G. Kotturappa
MANU/SC/0177/2005 : (2005)IILL J161SC . The impugned order is, therefore, liable to
be set aside.
11. For the foregoing reasons the appeal succeeds. The order dated March 24, 2008,
passed by the learned Single Judge of High Court of Madhya Pradesh, Bench at Indore,
in Criminal Revision No. 1362 of 2006 cancelling the bail granted to the appellant by
the learned Judicial Magistrate is hereby set aside and order dated December 1, 2006,
passed by the learned Judicial Magistrate First Class, Indore, M.P., in Criminal
Complaint No. 1604 of 2005 is hereby restored.
12. The appeal accordingly stands disposed of.
© Manupatra Information Solutions Pvt. Ltd.

20-03-2024 (Page 5 of 5) www.manupatra.com Fairfield Institute of Management & Technoloy School of Law