SAT PAL, J. - (1.) THIS petition has been filed by the petitioner-complainant under Section 439(2) of Code of Criminal Procedure (in short, the Code) for cancellation of bail of respondent Nos. 1 and 2.
(2.) BRIEFLY stated, the facts of the case are that respondent Nos. 1 and 2 were arrested in the case FIR No. 135, dated 4th July, 1994, registered under Sections 323/324/325/326/506/34, Indian Penal Code, at Police Station Khol, Tehsil and District Rewari. The respondents filed an application for grant of bail in the Sessions Court which was rejected by the learned Additional Sessions Judge, Rewari on 18th August, 1994. Thereafter, the respondent No. 1 (Kamlesh) filed a bail application bearing Criminal Misc. No. 14594-M of 1994 under section 439 of the Code in this Court which was dismissed by a learned Single Judge of this Court on 6th October, 1994. While dismissing the said bail application, the following orders were passed :- "No ground to grant bail. Dismissed." On 13th December, 1994, both the respondent Nos. 1 and 2 filed another application of grant for bail in the Court of Shri Virender Singh, Additional Sessions Judge, Rewari. In this a application, inter alia it was stated that the applicants had been in custody since 16th July, 1994 and the earlier application filed on behalf of the applicants was declined at that stage vide order, dated 18th August, 1994, passed by the learned ASJ (1) Rewari. The material fact regarding the rejection of bail petition filed by respondent, Kamlesh was, however, not stated in this application. In Para 8 of the application, it was stated that co-accused Ramesh Punam had already been enlarged on bail by the High Court vide order, dated 13th September, 1994. In Para 9 it was stated that despite several opportunities the prosecution had not examined its witnesses and the trial of the case would take sufficiently long time. The learned Additional Sessions Judge, Rewari vide his orders, dated 14th December, 1994, allowed the said application for bail. In his order, the learned Additional Sessions Judge, stated that "it is conceded that the trial shall take a long time to conclude. No PW has been recorded as yet. There is no likelihood of the accused misusing the concession of bail by tampering with evidence etc." Thereafter, the complainant (the petitioner herein) filed an application (copy of which is Annexure P-5) in the court of Additional Sessions Judge, Rewari for cancellation of the bail of respondent No. 1 (Kamlesh). It was stated in this application that the accused had got bail by false representation and concealed the material fact from the Court, regarding the rejection of the bail by the High Court, in the Court of Additional Sessions Judge. The said application was, however, rejected by the learned Additional Sessions Judge, vide his order, dated 13th January, 1995. In this order, it was stated that "It goes without saying that the accused had committed grave impropriety by not mentioning in the bail application about the rejection of his bail plea by the Hon'ble High Court on 6.10.94. However, it was mentioned in the application that application for bail filed before the court of Shri V.P. Agarwal, Addl. Sessions Judge-I, Rewari had been already dismissed in the month of August, 1994." It was also stated in this order that between October 6, 1994 and December 14, 1994 the case had come up for recording evidence on two occasions but no witness was examined by the prosecution and in these circumstances, it would not be advisable to withdraw the concession and cancel the bail of the accused Kamlesh. Aggrieved by this order, the present petition has been filed by the complainant under section 439 of the Code for cancellation of the bail of both the respondents, namely Kamlesh and Babu Lal.
(3.) MR . Panwar, learned counsel appearing on behalf of the petitioner submitted that respondent No. 1 had concealed the material fact regarding rejection of his bail application by the High Court when he filed an application before the Sessions Court for bail on 13th December, 1994, and as such, the bail granted to the said respondent should be cancelled. He further submitted that in case the fact regarding cancellation of bail by the High Court had been brought to the notice of the learned Additional Sessions Judge, he would not have granted the bail to both the respondent Nos. 1 and 2. In support of his submissions, the learned counsel placed reliance on the following judgments : (1) Smt. Bimla Devi v. State of Bihar, 1994(1) RecentCR 509. (2) Dharam Vir Khosla v. SSP. Hoshiarpur, 1994(1) RecentCR 120. (3) Shahzad Hasan Khan v. Ishtiaq Hasan Khan, AIR 1987 SC 1613. ;