ISRANI, J. - (1.) THESE two applications have been filed under sub-clause (ii) of Section 439, Cr. P. C, for cancellation of bails granted to accused-respondents Atma Ram and Gyan Chand.
(2.) AN FIR No. 100/85 was filed at Police Station Udaipurwati, under Sections 302,460,411 and 414 Iepc. Both the accused-respondents were arrested and have subsequently been released on bail. It is submitted by Mr. S. R. Bajwa, learned counsel, and Mr. C. K. Garg, learned Additional Advocate-General, that accused- respondents are leaving no stone un-turned, since they have been released on bail to harm and frighten the prosecution witnesses. They have filed several false criminal cases against the prosecution witnesses and also thereatened them with dire consequences, if the witnesses dare to testify against them in the Court. They are, thus, tampering with the prosecution witnesses and, even their family members. Many a times, accused-respondents and co- accused persons do not allow the witnesses to go to the Court. The details of such incidents have been given in para 3 of the application. It is submitted by Mr. M. M. Ranjan, learned counsel for the accused-respondents, that accused Gyan Chand has been charge- sheeted only under Section 411, IPC, under which the maximum punishment, which cound be awarded, is three years. It is further submitted that accused, Gyan Chand, is President of Co-operative Society and is also an Ex-Sarpanch. He is also office-bearer of some Educational Institutions. It is also submitted that only formal prosecution witnesses have filed affidavits in support of the application. Complaints have been made against Bhanu Prakash SHO, who has been suspended and an inquiry, under Rule 16 of the CCA Rules, is pending against him. It is pointed out that Gyan Chand is a witness in the said proceedings. About ten cases are pending against the prosecution witness, Madan Lal Bhavaria, who has long standing enmity with Gyan Chand, hence his affidavit has no value. Madanlal Bhavaria and Gyan Chand contest elections against each other for various Institutions. I have heard both the sides and gone through the documents on record. From the descriptions of the various complaints mentioned in the application, under consideration, it is evident that co-accused Radha filed an FIR No. 136/86 under Section 366, IPC, against several persons, which include some prosecution witnesses also. However, after investigation, FR was filed and proceedings under Section 182, IPC, have been initiated against Smt. Radha. An affidavit (Anx. 2) in support of the same has been filed by the prosecution witness, Gokul. The prosecution witness, Madanlal, on October 1, 1986, filed a report against accused, Gyan Chand, at Police Station, Udaipurwati. On the same day, he is said to have been attacked by accused, Gyan Chand and his associates, on account of which, FIR No. 155/86 under Section 323 and 147, IPC, was lodged. Accused Gyan Chand filed a report on October 31,1986, in which, after investigation, Final Report was given. It has further been mentioned that on November 26, 1990, both the accused-persons attacked Madanlal, on account of which, they were taken in custody under Section 151, Cr. P. C. and were bound-down to keep peace by the concerned Court. On February 27,1991, both the accused along with four other persons attacked Madanlal with lathies, on account of which, he was injured and could save himself by running in side the Police Chowki. About this incident, FIR No. 13/91 was filed on February 28, 1991, under Sections 323, 147 and 379, IPC. With a view to pressurise Madanlal, to withdraw the above-mentioned FIR, a report was lodged under Sections 147, 149, 354, 341, 343 and 453, IPC, at the instance of the accused-persons and he was also threatened of a criminal proceedings under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989. However, the police submitted FR and initiated proceedings under Section 182, IPC, against the complainant, Rampal. An affidavit in support of the same has been filed and marked as Anx. 3. Another prosecution witness, Deen Mohammed, has lodged several reports, which were entered into 'rojnamcha' and an FIR under Section 365, IPC, was lodged. Therefore, at the instance of the accused-persons and their associates, a false report under Section 397, IPC (FIR No. 159/86) was got registered at Police Station, Nayashahar, District Bikaner. After investigation, FR was given. An affidavit (Anx. 4) has been filed in support of the same. Both the accused-persons also threatened prosecution witness Bhanwarlal with dire consequences, if he dares to give evidence against them. A false case was initiated against him under Section 397/376, IPC, by co-accused, Radha, in which, FR has been submitted, after investigation. Another case under Section 376, IPC, was also registered against the prosecution witness, Bhanwarlal, by Mst. Ulfat, who filed a complaint in the Court of the learned Chief Judicial Magistrate, Jhunjhunu, on which, this witness was tried for offence under Section 376/447, IPC. However, he was acquitted by the learned Sessions Judge, Jhunjhunu by his judgment dated May 25, 1990, as Mst. Ulfat deposed in the Court that she lodged this false report against Bhanwarlal, at the instance of Gyanchand. An affidavit in support of the same has been filed by Bhanwarlal and marked as Anx. 5. On account of constant harassment, a complaint was made by Bhanwarlal to the Collector by way of Filing an affidavit on March 19,1991. But, on the next day, he was threatened by both the accused-persons and was also given beating. A report regarding this incident has been filed, which is registered as FIR No. 43/91 under Section 341/147, IPC. The prosecution witnesses -Sant Bux, Ramsahai and Madan Kumawal have also been threatened by both the accused-persons and affidavits (Anxs. 6 & 7) have been filed in support of the same. Proceedings under Section 110, Cr. P. C, were initiated against both the accused-persons in the year, 1987-88 and, now again, in the year, 1990-91. It is submitted by Mr. M. M. Ranjan, learned counsel for the accused-respondents, that Final Reports in the FIRs. filed against several prosecution witnesses have been wrongly given by SHO, Bhanuprakash, who has been acting against the accused- respondents. It is further submitted that cases under Section 109/110, Cr. P. C. have been falsely fabricated. It is also submitted that Atmaram is a Medical Officer and a Government servant. He was arrested under Section 151, Cr. P. C, without any basis or evidence.
(3.) IT may be pointed out that while granting bail under the provisions of Section 439 (1), Cr. P. C, apart from several other factors, two paramount considerations are kept in view, i. e. , likelihood of the accused fleeing from justice and his tampering with the prosecution evidence. From the brief facts and incidents, mentioned above, there seems to be grave apprehension that the accused-persons, who are quite influential and well-placed in life, have been making constant efforts to tamper with the prosecution witnesses by harassing them in all possible ways. IT seems to be incumbent to give proper weight to the affidavits filed in support of the incidents mentioned in the application. The Court has to appreciate correctly the entire position. When the accused-persons are released on bail, they are expected to behave in an exemplary way and should not indulge in influencing the prosecution witnesses in any way. IT is well settled that in an application filed for cancellation of bail, the prosecution agency is not required to prove the same by mathematical certainty or what is called as beyond reasonable doubt. In Delhi Administration v. Sanjay Gandhi (1), it was observed by the Apex Court that "the same standard of proof as in a civil case applies to proof of incidental issues involved in a criminal trial like the cancellation of bail of an accused. The prosecution, therefore, can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses. Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail". Applying the above principles, laid down by the Apex Court, I am of considered opinion that there is reasonable apprehension that the accused-respondents have been interfering with the course of justice and will continue to do so, if they remain enlarged on bail. The submission of the learned counsel for the accused- respondents that the prosecution witnesses, who have filed affidavits, are more or less formal witnesses and most of them are regarding recovery from the accused-persons, is not correct. IT may be pointed out that as given out by Shri Bajwa, 146 Tolas of gold and 50 kgms. of silver ornaments have been recovered from accused, Gyanchand; and 15 Tolas of gold and 50 Kgms. of silver ornaments were recovered from accused, Atmaram. The above-mentioned gold and silver is said to be belonging to the deceased lady, who was murdered. Therefore, these witnesses cannot be termed to be formal witnesses. The learned counsel for the respondents has relied upon Chandan Singh and Another vs. Slate of Rajasthan (2), in which it was observed that bail should not be cancelled on vague allegations. This authority is of no help to the accused-respondents, since specific allegations regarding specific acts of the accused-respondents have been mentioned in the application, which cannot be termed to be vague. In the result, both the applications for cancellation of bail of the accused-respondents Gyanchand and Atmaram are partly allowed and their bails are cancelled for a period of three months. It is directed that they be taken into custody immediately. However, in the normal course, the accused-respondents will be entitled to be released on fresh bails, on expiry of the aforesaid period. The learned Sessions Judge will be at liberty to fix the amount and conditions of the bails. .;