- (1.) S. K. Verma, J. Through the impugned order dated 14-5-1992 learned Sessions Judge, Aligarh granted bail to opposite party No. 2 in case crime No. 35-A of 1991 under Sections 436/302, I. P. C. Police Station Gandhi Park, Aligarh. The present application has been moved for cancellation of that order on the ground that although the bail application of the opposite party No. 2 was rejected by the High Court, the Sessions Judge granted the bail to the opposite party No. 2 on frivolous grounds although he has no jurisdiction to entertain the application or to pass the impugned order.
(2.) I have heard the learned counsel for the parties and have gone through the record carefully. It is true that the application of the opposite party No. 2 had been rejected by the High Court and the second bail applica tion moved by the opposite party No. 2 before the Sessions Judge was rejected by the Sessions Judge vide order dated 11-9-1991 which had been moved on the ground of illness of the wife of opposite party No. 2. Thereafter, a third bail application was moved before the Sessions Judge on the ground that there had been considerable delay in the trial because the case had not yet been com mitted. On this ground the Sessions Judge granted bail vide the impugned order. In a decision of the Supreme Court Delhi Administration v. Sanjay Gandhi, AIR 1978 SC 961, the power to cancel bail was considered and the apex Court held that: "the power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extraordinary nature, is meant to be exercised in appropriate cases, when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. Refusal to exercise that wholesome power in such cases, few though they may be, will reduce it to a dead letter and will suffer the courts to be silent spectators to the subversion of the judicial process. " In Shambhunath Bhattacharjee v. State of Sikkim, 1980 Cr LJ 785 (Single Judge), it was decided that: "though the fact that a co-accused in respect of the same offence is released on bail may be a factor which a Court may, in the circumstances of a case take into consideration in considering the ques tion of granting or refusing bail to the other co-accused, the converse is not true and the fact that scorn of the accused persons are in custody and/or have been reused bail can, by itself, never be a ground for canceling the bail already granted to another co-accused, even though the allegations against all of them are same or similarly grave. " In Khagendra Nath v. State of Assam, 1982 Cr LJ 2109, the same question was considered and it was held that: "the power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection in appro priate cases, when by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice fay tamper ing with witnesses. The Court has to strike a balance between two necessities, namely, necessity of not allowing the course of justice to be deflected and that of allowing liberty to the accused until ho is found guilty. " In Bhagirath Singh Judeja v. State of Gujarat, AIR 1984 SC 372, the apex Court held that : "very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. It is now well settled by a catena of decisions of the Supreme Court that the power to grant bail is not to be exercised as of 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. " In Shahzad Hasan Khan v. Ishtiaq Hasan Khan, (1987) 2 SCC 684, the apex Court decided that, no doubt : "liberty of a citizen must be zealously safeguarded by Court, none theless when a person is accused of a serious offence like murder and his successive bail applications are rejected on merit there being prima facie material, the prosecution is entitled to pi ace correct facts before the Court. Liberty is to be secured through process of law, which is administered keeping in mind the interest of the accused, the near and dear one of the victim who lost his life and who feel helpless and believe that there is no justice in the world as also the collective interest of the com munity so that parties do not lose faith in the institution and indulge in private retribution. " In Attar Singh v. State, 1991 (28) ACC 83, Single Judge, this Court held that Section 439 of the Cr. P. C. confers concurrent power of granting bail both on the High Court as well as on the Court of Sessions. The correct position of law is that even after rejection of a bail by the High Court the Court of Sessions may entertain and consider an application for bail of the same accused provided new substantial grounds for bail have arisen since the last order of rejection of bail and reasonably long interval has also. elapsed. In Bimla Devi v. State of Bihar, 1994 (2) SCC 8, the apex Court, relying on Shahzad Hasan Khan's case (supra), has observed that: "the disturbing feature of the case is that though two successive applications of the accused for grant of bail were rejected by the High Court yet the learned Magistrate granted provisional bail. The course adopted by the learned Magistrate is not only contrary to settled principles of judicial discipline and propriety but also contrary to the statutory provisions. " From a perusal of the law discussed above it would appear that even though the High Court has rejected bail application of the accused on merits, the learned Sessions Judge who has concurrent power to grant bail under Section 439, Cr. P. C. can entertain the bail application of the accused provided new substantial ground for bail has arisen since last order of rejection of bail and reasonably long interval has also elapsed.
(3.) IN the present case the learned Sessions Judge did not consider the bail application of opposite party No. 2 on merits but considered the same on the ground of delay in trial and the delay in committal proceedings. The Sessions Judge had rejected bail application on merit on 29-3-1991. Thereafter, the bail application of the opposite party No. 2 had been rejected by the High Court and thereafter the second bail application of the opposite party No. 2 was again rejected by the Sessions Judge vide order dated 11-9-1991. However, when a third bail application was moved in May, 1992 on the ground that the first information report was lodged on 4-2-1991 and the charge sheet was submitted on 26-2-1991 but the case has not yet been committed even after 14 months, the Sessions Judge granted the bail. This is certainly a new ground and it has been taken after lapse of considerably long time of the rejection of the bail by the High Court. Learned counsel for the applicant has filed copy of the order-sheet indicating that the case could not be committed because of the absence of co-accused who had been granted bail. I have gone through the order-sheet from 29-3-1991 to 18-5-1992. The same indicates that till opposite party No. 2 was granted bail on 14-5-1992 he remained in jail and appeared on each date. Hence if other co-accused we had been granted bail did not appeal it was no fault of the opposite party No. 2 and the case could have been committed earlier by treating the co-accused as absconders but the order sheet indicates that on 20-5-1992 co-accused Sanjai, Kanhaiyalal and Sunil had appeared and had requested for recall of warrant which was allowed and 24-2-1992 was fixed for committal. Thereafter on 16-3-1992, 23-3-1992, 6-4-1992, 30-4-1992, 4-5-1992 opposite party No. 2 and the other co-accused appeared but the case was not committed and then the application for bail was moved on the ground of delay in committal. It would, thus, be apparent that the Sessions Judge passed the impugned order exercising his jurisdiction on a new ground after a lapse of substantially long period on the rejection of bail by the High Court.;