H.S.BEDI, J. - (1.) THE State has filed the present petition for cancellation of bail granted to respondent Dheeraj Pahwa by this Court vide order dated 10th of December, 1993, Annexure P-5 to the petition.
(2.) THE facts of the present case in so far as they are relevant for its disposal are as under. F.I.R. No. 44 dated 27th of February, 1993 under Section 302 of the Indian Penal Code was registered at Police Station, Ambala Cantt on the statement of Devinder Singh, an alleged eye-witness. The respondent was accordingly arrested for the aforesaid offence. The respondent, thereafter, applied for bail to the Additional Sessions Judge, Ambala, who vide his order dated 20th of May, 1993 appended as Annexure P-2 to the petition declined the application. Aggrieved thereby the respondent came to this Court in Criminal Misc. No. 8634-M of 1993 and the same was dismissed on 27th of July, 1993 on the ground that an earlier application had already been dismissed by this Court and no fresh ground for bail was made out. The respondent, thereafter, applied for bail in the Court of Shri K.K. Chopra, Additional Sessions Judge, Ambala, who vide his order dated 21st of October, 1993, granted interim bail to the respondent on the plea that he was required to look after his father, who was to undergo bypass surgery in Delhi. This interim bail was to be up to 31st of January, 1994. Instead of surrendering before the trial Court as directed by it, the respondent came to this Court in Criminal Misc. No. 16190-M of 1993 and the following order was passed on 10th December, 1993 : "The petitioner is already on interim bail. He is a young man of 21 years and is student. Without making further comments bail allowed by the Addl. Sessions Judge, Ambala, is confirmed. He shall remain on bail on the same bonds. With this direction, this petition stands disposed of." It appears that having succeeded in getting bail, the respondent chose to absent himself from the trial on one pretext or the other which led the learned Sessions Judge, to make an order Annexure P-6 dated 27th of May, 1994 directing the issuance of non-bailable warrant for the arrest of the respondent. The respondent has now been attending the trial. The State has filed the present application impugning the order Annexure P-5. A reply has been filed on behalf of the respondent and the preliminary objection raised is that an application for cancellation of bail moved by the complainant had already been dismissed by this Court on merits and as the State of Haryana a was a party thereto, the present application too merited dismissal. On facts, he has urged that the trial was almost concluded as all the material prosecution witnesses had already been examined and as such, the apprehension of a delayed trial had no foundation whatsoever.
(3.) AFTER hearing the learned counsel for the parties, I deem it appropriate that the present petition be allowed. It will be seen that bail on merits was declined to the petitioner twice by this Court and this Court vide Annexure P-5 passed an order granting regular bail to the respondent although interim bail had already been granted by the learned Sessions Judge, vide Annexure P-4. It also appears to me that the ground for interim bail too was non-existent as in the reply filed by the respondent, there is no reference as to whether the heart by-pass surgery on the father of the respondent was infact conducted or not. It is note worthy that when the Additional Sessions Judge, had declined bail on merits to the respondent, the very same argument with regard to the necessity of looking after the respondent's father during his sickness was noticed but the same was repelled. In this situation, it is, indeed, surprising that once having rejected the bail application of the respondent taking note of the sickness of his father, the Additional Sessions Judge yet chose to grant interim bail on the same ground vide Annexure P-4. A reading of Annexure P-6 also indicates, that the respondent has been guilty of absenting himself for no reason whatsoever and on each occasion, some application was filed in order to ensure that his presence was voided. The argument of Mr. Aggarwal, that this Court had declined to cancel the bail of the respondent on the application filed by the complaint, is to my mind, without basis and as in a prosecution of the present kind, it is the State which is the prime over against the accused, Mr. Aggarwal has also argued that the father of the deceased and the two other eye-witnesses had appeared before the Court and had not supported the prosecution and as such, no case for cancellation of bail was made out. This argument to my mind goes against the interest of the respondent as it indicates that he had used the time while on bail to interfere with the prosecution evidence.;