- (1.) IN this petition, petitioner has challenged the order passed by learned Sessions Judge, Ajmer, dated August 28, 1989, setting aside the order passed by his predecessor-in-office, dated January 9, 1989, granting bail and further ordering the issuance of non-bailable warrants for arrest of the petitioner by cancelling the bail under Section 439 (2) Cr. P. C.
(2.) FACTS leading to this petition are that the petitioner is one of the accused in a Sessions case pending in the Court of Sessions Judge, Ajmer, being Sessions Case No. 634/1988, State Vs. Mahendra Singh and others. Besides the petitioner there are several other accused persons in this case. All the accused have been charged for an offences under Sections 147, 148, 302 read with Section 149 I. P. C. The petitioner moved a bail application before the learned Sessions Judge, which was allowed by Shri G. K. Israni, then Sessions Judge, Ajmer, vide his order dated January 9, 1989, after hearing learned counsel for the petitioner and the learned Public Prosecutor. A detail reasoned order was passed by the learned Sessions Judge. The learned Sessions Judge had also considered while granting the bail application, the fact that bail application of some other accused persons had been rejected even by the High Court but the court finding that the case of the petitioner is distinguishable, granted him indulgence. The learned Public Prosecutor, moved the cancellation of bail under Section 439 (2) Cr. P. C. after few months and the learned Sessions Judge cancelled the bail vide his order dated August 28, 1989, that is after practically seven months of the grant of the bail. The said order is challenged in this petition, where Hon'ble Kapur J. vide order dated September 14, 1989 stayed the execution of the warrant. However directed the petitioner to remain present in Court on all dates of hearing. Since then nine witnesses have been examined and it is not disputed that they have not supported the prosecution case. It is submitted by learned counsel for the petitioner that the learned Sessions Judge has cancelled the bail ignoring the principle laid down for cancelling the bail under Section 439 (2) Cr. P. C. It is further submitted that bail was granted after hearing both the sides and detailed arguments were made. If the Public Prosecutor at the time of arguments was unable to pursuade the Court with way of his arguments, resulting in grant of bail, it can not be a ground that subsequently, on his becoming wise, he should move the Court for change of the opinion as no bail can be cancelled for change of opinion on the merits of the case, much less by the Presiding Officer who is other than the one who had granted the Bail. In fact cancellation in such circumstances amounts to reviewing the earlier order which is barred by Code of Criminal Procedure. It is also submitted that the petitioner is a constable, against whom the evidence at best is that he was present in the police station. There is only one witness, who has stated in police station that he had also participated in beating and that too at three places, which statement is unbailable and besides that even this, 161, Cr. P. C. statement has been recorded after an inordinate delay of 11 days of the occurrence. Learned counsel has placed reliance on Bhagirath Singh Judeja V. State of Gujarat (1), State of Rajasthan Vs. Sanjay Singh (2), Ghan Shyam V. Bheru Lal (3), and Gheesya V. The State of Rajasthan (4 ). Shri M. I. Khan supported the judgment of the learned Sessions Judge and vehemently submitted that in this case, three persons have been murdered and the police officers of the Police Station not only remained contended by beating the three deceased to death but they also tried to cause the disappearance of the evidence of murder and showed false encounter to screen the offence. The petitioner being a party to all those cought not to have been granted bail his submission is that the learned Sessions Judge, who had granted the bail was under the orders of transfer and he should not have decided the bail application. He submits that there is over whelming evidence on record to substantiate the prosecution case that the accused petitioner participated in the crime. He has placed reliance on a decision of this Court given in S. B. Cr. Misc. Cancellation of Bail Application No. 117 of 1989, Man Singh V. Ganga Singh and anr. decided by Hon'ble Kapur J. decided on August 2, 1969, wherein the Court cancelled the bail which was granted by the learned Sessions Judge holding that the learned Sessions Judge acted in an illegal manner by giving more importance to negative evidence rather than the material placed in the challan papers. Shri Khan submits that in the instant case there is an evidence that one witness had seen the accused petitioner beating the deceased persons alongwith other persons. The another witness according to him has stated that this constable had stains of blood on his clothes and was seen cleaning the floor in the police station. His conduct was also said to be relevant in the instant case to connect him with the crime. I have given my thoughtful consideration to the rival contentions and perused the record. Before I proceed to examine the case, at the out-set I am unable to appreciate the arguments of learned counsel for the State that the learned Sessions Judge ought not to have passed the order when he was under the orders of transfer. There is no factual foundation made for this argument. Neither the learned! Judge, who has cancelled the bail has mentioned this fact nor even after repeatedly asking as to when the orders of transfer were received the learned counsel could not point out. A bail statement like this cannot pursuade the Court to infer the circumstances particularly when the bail has been cancelled by an order which is seven months subsequent to the passing of the order granting bail. Such an argument without making a proper foundation ought not to have been made as they amount to espersion against a judicial officer. As from the perusal of the order no such inference could be drawn that he had granted bail in hot-haste or by a perfunctory order. The argument, therefore, is wholly misconceived, which is rejected. It would be appropriate at this state to quote the law about cancellation of bail. Their lordships of the Supreme Court in Bhagirath Singh's Case (Supra) held as under: - "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 if the punishment before trial is being imposed. The only materials 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. If there is no prima facie case there is no question of considering other circumstances. But, even where a prima facie case is established, the approach of the court in the matter of bail is not that of the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial of that he is likely to abuse the discretion granted in his favour by tampering with evidence. "
(3.) THIS judgment has been followed in several decisions subsequently by this Court and the other High Courts. In Gheesya (Supra), Hon'ble Mrs. Kapur J. dealt with several cases of the Supreme Court and other High Courts including this Court and held that on the basis of the various decisions it can be said that principles governing the bail under Sec. 437 (1) and 439 (1) Cr. P. C. are different from the principles governing the cancellation of bail u/s 437 (5) & 439 (2) Cr-P. C. For the purpose of cancellation of the bail, the prosecution has to make certain allegations which should show that the accused is a person not fit to remain on bail. In other words after grant of bail, there must be some effect which should go to show that either he has tampered with the investigation or tampered with the evidence or committed some faults or remained under-groud or has repeated the offence. Circumstances existing at the time of grant of bail, cannot be reconsidered for the purpose of cancelling the bail itself. It is only the circumstance after the grant of bail, which would govern the question of cancellation of the bail. Hon'ble Mr. M. C. Jain J. in Ghan Shyam Vs. Bheru Lal (supra) considered the aspect that the accused was on bail for nine months when the bail application came up for consideration and held that there is no specific act attributed to the accused during this period, it would no be legal and proper to cancel the bail of the accused. The Court relied upon couple of decisions of their lordships of Supreme Court. In the same volume, Hon'ble Justice I. S. Israni relying on Bhagirath's case (supra) held that if the bail is granted after hearing both the parties, merely because the prosecution failed in its duty to point out certain statements which it thought proper to be considered at the time of consideration of bail application of the accused, it cannot be made a ground for cancellation of the bail. It was further held in the circumstances of the case that prosecution failed to point out any incident showing that the accused have tried to tamper with the evidence of prosecution. Even in State through Delhi Administration V. Sanjay Gandhi (5), their lordships of Supreme Court observed as under: - "the power to take back in custody an accused who has been enlarged on bail, has to be exercised with care and circumspection. " In Man Singh's case (supra) decided by Hon. Kapur J. and relied by Shri M. I. Khan, the Court considered the entire back ground of the case and the law and came to the conclusion that the order passed by the learned Sessions Judge granting bail was arbitrary, illegal and perverso because the Court had given importance to the negative evidence to brush-aside the evidence of the eye-witnesses and did not consider the material placed by prosecution in challan papers and besides this, there were affidavits and evidence to suggest that after grant of interim bail to the accused, the accused had made efforts to influence the investigation and mis-use his liberty as well as the discretion of grant of bail. This case, therefore, is totally distinguishable and has been decided on facts else the principle laid down even in this case is the same which has been laid down in ail the aforesaid cases. To summarise the position of law, bail should sparingly be cancelled and while cancelling, circumstances subsequent to grant of bail should normally be considered except in exceptional circumstance where arbitrariness or perversity is writ large from the order of the lower Court. In the instant case on perusal of the order passed by Shri G. K. Israni, Sessions Judge, granting bail. I do not find that his or dens either illegal, arbitrary or peiverse. On the Contrary, he has discussed the question of distinguishing the case with that of the other accused and had passed a reasoned order. It was not the case of the Public Prosecutor before the Judge, who cancelled the bail that he had not made the submission which has been noted by Shri Israni. in fact the learned Sessions Judge in all propriety ought to have asked the Public Prosecutor to have approached this Court in the application for cancellation rather than entertaining himself on the ground that his predecessor-in-office had not properly appreciated the evidence. The learned Sessions Judge, who decided the subsequent application cancelling the bail, has decided as if he was reviewing the judgment of his predecessor-in-office or sitting in appeal which was beyond his jurisdiction to have done. He has transgressed the jurisdiction vested in him by law in making a review of the order of his predecessor-in-office, as no ground has been mentioned by him, which might have taken place subsequent to the grant of bail. What cannot be particularly done under the provisions of law, cannot be circumvented by resorting to provisions under Section 439 (2) Cr. P C. Their lordships of Supreme Court in catena of cases questioned the Courts in this respect and have categorically laid down that very cogent and overwhelming circumstances are necessary for an order cancelling the bail The circumstances quoted by Shri M. J. Khan could have, if argued properly pursuaded the earlier Sessions fudge to have rejected the bail but having granted it was not open for the same Court to have cancelled the same on reappraisal of the evidence. Change of opinion on reappraisal of evidence is not permissible. It may also be observed here that the facts and circumstances of the case, indicated the evidence involving this accused, who is merely a constable in the Police Station, has come on record after considerable delay. There is neither any argument, made nor there is any evidence, nor any affidavits have been filed that the accused had abused the concession of bail or has attempted to tamper with the evidence. He has been attending the Court on all dates of hearing and nine witnesses have already been examined. None of them have supported the prosecution case and yet it is not the allega-tion of the prosecution that it was the accused who has either tampered or attempting to tamper with these witnesses. In this view of the matter, I am inclined to accept this petition. The petition is allowed. The order cancelling the bail, dated August 28, 1989, is set-aside. The warrant issued by the learned Sessions Judge is cancelled. The accused shall continue to remain on bail, which was granted on January 9 1989. . ;