- (1.) S. K. Verma, J. Complainant Purshottam Lal has applied for cancella tion of bail granted to Kishan Kishore accused in case crime No. 49 of 1991 under Sections 306/498,1. P. C. Police Station Nanakmatta, district Nainital.
(2.) KISHAN Kishore was admitted to bail by 1st Additional Sessions Judge, Nainital on 24-12-1991 although the same presiding officer had rejected the bail application of the accused on 29-6-1991. The allegations are that a false affidavit was sworn by one Virendra Tiwari on behalf of KISHAN Kishore on 24-12-1991 before the 1st Additional Sessions Judge Nainital that no bail application of the said accused was pending before the High Court although Criminal Misc. Bail application No. 15772 of 1992 record of which is before me shows that notice of that bail application moved before this court was given on 4-7- 1991 to the State and thereafter it was moved on 18-12-1991 in this court and was, ultimately, listed for hearing on 6-1-1992. A photostat of an affidavit dated 13-11-1991 of one Dr. Suresh Kumar witness in favour of the accused was filed on 23-12-1991 before the 1st Additional Sessions Judge, Nainital in the second bail application pending before him the genuineness of which was verified by the counsel for the said accused though the said affidavit had not been filed before the Magistrate con cerned or before the 1st Additional Sessions Judge, Nainital till then. As appears from the order of the Sessions Judge, Nainital dated 15-6- 1992, the affidavit, in fact, was filed before the learned Magistrate on 6-1-1992. It also appears that there is no allegation from the side of the complainant Purshottam Lal that the said affidavit was actually not sworn by the said deponent on the date on which it purported to be sworn. Learned 1st Additional Sessions Judge, Nainital heard the second bail application on 24-12-1991 and allowed the same. The application of complainant Purshottam Lal for cancellation of bail (Criminal Misc. Case No. 7 of 1992 of the Court of Sessions Judge Nainital) was rejected by the Sessions Judge, Nainital vide order dated 15-5-1992. This application for cancellation. of bail has been moved under the aforesaid circumstaaces on 26-11-1992 on the ground that fraud was committed by concealing the fact before the Sessions Judge that the bail application was already pending and was under consideration of this court and also on the ground that one of the prosecution wipnesses Vipin Gupta was threatened on 28-8-1992 and the complainant Purshottam Lal was threatened and beaten on 26-10-1992 and, therefore, the bail allowed to the accused is liable to be cancelled,
(3.) SRI Murlidhar jmisra, learned counsel for the complainant SRI Purshottam Lal and SRI P. N. Misra. Senior counsel assisted by SRI Sanjiv Ratna and SRI Atul Misra, Advocates have been heard and counter affidavit and rejoinder 'affidavit alongwith bail cancellation application have also been perused. Learned counsel for the applicant Purshottam Lal has placed reliance on the decision of the Supreme Court in Baij Nath v. Prem Chand, 1990 ACC 79 wherein it was decided that the degradation of society due to the pervious system of dowry and the unconscionable demands made by greedy and unscrupulous husband and their parents and relatives resulting in an alarming number of suicidal and dowry deaths by woman has shocked the legislative conscience to such an extent that the legislature has deemed it necessary to provide additional provisions of law, procedural as well as substantive, to combat the evil and has, consequently, introduced Sections 113-Aand 113-B in the Indian Evidence Act and Sections 498-A and 304-B in the Indian Penal Code. Further reliance has also been placed on Guru Charan Singh v. State, AIR 1978 SC 1979 wherein the Hon'ble Supreme Court held that| two para mount considerations viz. likelihood of the accused fleeing from justice and his tempering with prosecution witness relate to ensuring a fair trial of the case in a court of justice. It is essential that due and proper weight should be bestowed on these two factors apart from others. On the other hand, learned counsel for the accused Kishan Kishore has cited the decision of the Hon'ble Supreme Court in Mohan Singh v. Union Territory Chandigarh, 1978 Cr LJ 844 where the accused had failed to disclose to the Sessions Court that he had moved for bail in the High Court also and it was held that reversal of bail already granted was improper if no interference was done with the course of justice or there were no other well established grounds for refusal of bail. Reliance has also been placed on the decision of the Hon'ble Supreme Court in Aslam Babu Lal Desai v. State of Maharashtra, 1992 Cr. LJ 3712 : 1993 JIG 14 (SC) wherein seven grounds for cancellation of bail have been enumerated as grounds illustrative and not exhaus tive on which bail can be cancelled. Further reliance has been placed on the Hon'ble Supreme Court's decision in Bhagirath Singh v. State of Gujarat, (1984) ACC 3 where it was held that "very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail and the trend today is towards granting bail because it is now well settled by a cantena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence".;