JUDGEMENT
FAROOQ HASAN, J. -
(1.)ON the basis of a report lodged by one, Kashiram a case was registered for the offences under sections 452 & 323, IPC against Santosh and Hetram which has subsequently been converted into one under Section 302, IPC, after the death of injured, Smt. Chanda, who happens to be mother of accused-non-petitioner No. 2 Santosh. The accused non-petitioner No. 2 moved an application for seeking anticipatory bail in the Court of Sessions Judge. Alwar. The learned Sessions Judge, Alwar, vide his order dated 25th March, 1987, allowed the application of the non-petitioner No. 2 granting anticipatory bail under Section 438, Cr. PC.
(2.)THE petitioner moved an application under section 439 (2), Cr. P. C. for cancellation of bail granted to the non-petitioner No. 2. THE learned Sessions Judge, Alwar, vide his order dated 15th July, 1987 dismissed the application of the petitioner declined to cancel the bail granted to the non-petitioner No. 2. Hence the petitioner has now moved this application for cancellation of bail under section 439 (2), Cr. P. C. Notice of this application was given to the non-petitioner No. 2.
Heard learned counsel for the parties. Learned counsel for the applicant submitted that the learned Sessions Judge has given unnecessary weight to the report lodged by the non-petitioner No. 2 and the injuries sustained by the accused; and that, the facts mentioned in the report lodged by the non-petitioner No. 2 were found to be false by the police and final report has been given and as accepted by the Court therefore, the learned counsel contended that there are compelling circumstances for cancellation of anticipatory bail granted to the non-petitioner No. 2 and on this ground, the learned counsel contended that the order for granting bail to the non-petitioner No. 2 deserves to be quashed. The bail order was also challenged on the ground that the non-petitioner No, 2 is a criminal offender and has been tampering with the prosecution witnesses, Shri Dhankar added.
Learned counsel for the accused non-petitioner No. 2, on the other hand, contended that the evidence collected by the Investigating Officer is dis-crepant; and because of the conflicting versions contained in the police state-ments, the learned Sessions Judge was justified in granting bail to the accused-non petitioner No. 2. Learned counsel for the accused-non-petitioner No. 2 further contended that in view of the objects and reasons with regard to section 438, Cr. P. C. the learned Sessions Judge was justified in granting bail to the accused-non-petitioner No. 2. The learned counsel also pointed out discrepancies and contradictions in the police statement of the witness. Learned counsel then argued that only two eye witness Padam and Pooran have been named in the first information report but, these two witnesses have been given, any positive evidence against the accused non-petitioner No. 2, in as much as according to the learned counsel, the injuries attributed to the non-petitioner No. 2 were not sufficient to cause death in the ordinary course, so the accused non-petitioner No. 2 cannot be held guilty for offence under section 302, IPC.
Learned counsel for the accused non-petitioner No. 2, then argued that in the aforesaid circumstances the bail granted to the accused non-petitioner No. 2 cannot be cancelled without any compelling circumstances.
I have given my thoughtful consideration to the arguments of both the learned counsel. The law is well settled that under Section 438 or 439, Cr. P. C. the Sessions Judge has a discretion to grant or refuse bail to a person accused of a non-bailable offence, but such discretion can only be exercised judicially for valid reasons and not arbitrarily or capriciously. Ordinarily, the High Court will not exercise its discretion under section. 439 (2) Cr. P. C. by cancelling a bail granted by the Sessions Judge in favour of an accused, but if bail has been granted to an accused of a non-bailable offence punishable with death or imprisonment for life in a manner which speaks of arbitrariness, capaciousness or perversity, on the part of the Court of Sessions granting such ball, the High Court has not merely the discretion but a duty laid on it under section 439 (2), Criminal Procedure Code to cancel the bail and order the accused to be re-arrested.
(3.)IN Pokar Ram v. State of Rajasthan (1) the Supreme Court cancelled the bail granted by the Sessions Judge to a person accused of non-bailable offence. Their Lordships of the Supreme Court while cancelling the bail, observed as under: "ordinarily, Supreme Court is not to interfere with the orders granting or refusing bail but it cannot be an instrumentable obstacle in the way of rectifying an order which tends to disclose miscarriage of justice. Relevant considerations governing the court's decision in granting anticipatory bail under section 438 are materially different from those when an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his appeal is pending before the higher court and bail is sought during the pendency of the appeal. Unlike a post-arrest order of bail, it is a pre-arrest legal process. which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. A direction under section 438 is intended to confer condi-tional immunity from the touch as envisaged by sec. 64 (1) or confinement. When a person is accused of an offence of murder by the use of a fire arm, the Court has to be careful and circumspect in entertaining an applica-tion for anticipatory bail. Status in life, affluence or otherwise, are hardly relevant considerations while examining the request for granting anticipatory bail. Anticipatory bail to some extent introduce in the sphere of investigation of crime and the court must be cautious and circumspect in exercising such power of a discretionary nature. When the power under section 438, Cr. P. C. was exercised sub-silento as to reasons or on considerations irrelevant or not germane to the determination, the Supreme Court to avoid miscarriage of justice, must interfere. Some very compelling circumstances must be made out for granting bail to a person accused of committing murder and that too when the investigation is in progress. IN such a case, therefore, the Supreme Court "has no option, but to cancel the order granting anticipatory bail. "
In view of the aforesaid principle laid down by the Apex Court that some very compelling circumstances must be made out for granting bail to a person accused of committing murder and that too, when the Investigation is in progress, in order to examine this case in the light of the principle laid down by the Supreme Court in Pokar Ram's case.
I would like to appreciate the evidence collected by the Investigating Agency in the present case so as to adjudge as to whether the learned Sessions Judge was justified in granting anticipatory bail to the accused-non-petitioner No. 2,