MOHINI KAPUR, J. - (1.) THIS case has a very chequered history. An incident took place on 30th June, 1988, about which cross complaints were lodged. On the side of the complainant four persons including one Mst. Manni were injured and the case against the accused persons was registered under sec. 452, 147 and 323 IPC. They were arrested and produced before the Additional Judicial Magistrate, Tonk who accepted their bail application and released them on bail.
(2.) ON 11. 7. 88, Mst. Manni died and the cause of her death was brain 'haemorrhage due to head injury. Because of this development, the offence u/s. 302 IPC was added. Thereafter the SHO, Police Station, Deoli moved before the Magistrate to cancel the bail already granted to the petitioners and prayed that they should be directed to be arrested. Due to this application, the petitioners applied before the Sessions Judge, Tonk for grant of anticipatory bail and also contested the application which was moved before the Magistrate. The Sessions Judge, Tonk dismissed the application for anticipatory bail on 20th July, 1988. The view of the learned Sessions Judge, Tonk was that the court which granted the bail can order the re-arrest of the accused if further offence was added to the already existing offences. The Chief Judicial Magistrate, Tonk ordered the rearrest of the accused petitioners. Thereafter, the petitioners came before this Court under Sec. 438 Cr. P. C. and while deciding the same on August 2nd, 1988 it was observed that the learned Chief Judicial Magistrate, Tonk while ordering re-arrest of the petitioners had ignored the provisions of sec. 437 (5) and 439 (2) Cr. P. C. and it was ordered that the petitioners could not be re-arrested unless the bail granted to them was cancelled by a competent court. It was further observed that it was not necessary to order the release of the petitioners on bail as they were already on bail. While arriving at this decision, reliance was placed on Motilal v. State of Rajasthan (1 ). It was after this, that the prosecution moved an application before the trial court with the prayer that the bail granted to the petitioners be cancelled. This application has been accepted by the learned Addl. Judicial Magistrate, Tonk vide order dated 25 8. 88 and the petitioners have been again approached this court under sec. 438 Cr. P. C. It may be stated that in the order of the learned Magistrate, certain rulings have been quoted and in the end it has been observed that sec. 437 (5) Cr. P. C. is not applicable as this matter does not arise because of the adding of non-bailable offence because in the post-mortem report the Doctor has mentioned that the death of Mst. Manni was caused due to the head injury, which is brain haemorrhage. Hence, it has a direct contact with the incident which occurred on 30th June, 1988. Again saying that the offence has been converted under sec. 302 IPC and the matter before the court was under sec. 437 (5) Cr. P. C , therefore, the application was accepted and the bail granted to the petitioners was cancelled. The above order had led the petitioners to move this second bail application under Sec. 438 Cr. P. C. I have heard learned counsel for the petitioners as well as the learned counsel for the complainant at length. At the outset it can be said that while dealing with the application under sec. 437 (5) Cr. P. C. the learned Magistrate has not considered the principles, governing the cancellation of bail already granted. The main ground of cancellation remains that the offences made out earlier have not been altered and section 302 IPC had been added. Even in the earlier order, this court had stated that it was not permissible to cancel bail merely because another offence has been added but the learned Magistrate has under the garb of sec. 437 (5) passed the same order by saying that there were grounds for cancelling the bail, already granted to the petitioners. Before coming to the contentions of both the sides, I may look into the decision which can be said to be relevant in this connection.
(3.) IN Khagendra Nath Bayan v. The State of Assam (2) it has been held that: "the power of cancellation of bail be exercised with care and circumspection. It was observed that it should be remembered 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 appropriate cases, when by a preponderance of probabilities, is clear that the accused is interfering with the course of justice by tempering with witnesses the court has to strike a balance between the necessities, namely necessity of not allowing the course of justice to be deflected and that of allowing liberty to the accused until he is found guilty. " As there was no discussion about any supervening circumstances like abuse of liberty, tempering with witnesses, likelihood of absconding etc. , the order of the Sessions Judge cancelling the bail is set-aside. The Supreme Court had occasion to deal with the ground for cancellation of bail in State through Delhi Administration v. Sanjay Gandhi (3) and it was observed that rejection of bail when bail is applied for is one thing and cancellation of bail already granted is quite another. It is easier to reject application, non-bailable case had to cancel a bail in such a case. Certain passages may be reproduced: - "cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over. " It was further stated - "in other words, the objective fact that witnesses have turned hostile must be shown to bear a casual connection with the subjective involvement therein of the respondent. Without such proof, a bail once granted can not be cancelled on the off chance or on the supposition that witnesses have been won over by the accused". Considering the nature of burden of proof, in the matter of cancellation of bail, it was observed that: - "every incidental matter has not been to be proved beyond reasonable doubt like the guilt of the accused. The prosecution may establish its case for cancellation of bail by showing only a preponderance of probabilities that the accused has attempted to temper with or has tempered with the prosecution witnesses. " In Gurucharan Singh v. State (Delhi Administration) and Raj Kumar v. State (Delhi Administration) (4) the High Court had cancelled the bail granted to the accused persons and they preferred an appeal before the Supreme Court. The learned Sessions Judge in this case had refused to cancel the bail. The order of the High Court was upheld and it was observed: - "we may repeat the two paramount consideration, viz. likelihood of the accused fleeing from justice and his tempering with prosecution evidence related to ensuring a fair trial of the case in a court of justice. It is essential that due and proper weight should be bestowed on these two factors apart from others. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail. " Relying upon the decision of the Madras High Court, in Public Prosecutor V. George Williams, (5 ). The Jammu & Kashmir High Court in Khaliq War v. State (6) has laid down the five sets of circumstances in which there can be cancellation of bail. These circumstances are as under: - (i) Where the person on bail, during the period of bail, commits the very same offence for which he is being tried or has been convicted and thereby proves his utter unfitness, to be on bail; (ii) if he hampers the investigation; (iii) if he tempers with the evidence; (iv) if he runs away to a foreign country, or goes underground or beyond the control of his sureties; and (v) if the committed acts of violence, is revengeful against the police and the prosecution witnesses and those who have booked him or are tying to book him. " The Supreme Court again had occasion to consider this question in Bhagirath Singh Judeja v. The State of Gujrat, (7) and it was observed that: - "very cogent and overwhelming circumstances are necessary for an order seeking cancellation of bail. It is now well settled by a catena of decision of the Supreme Court that the power to grant bail is not to be exercised as if punishment before trial is being imposed. The only material consideration is 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 tempering 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 the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tempering with evidence. " ;