JUDGMENT 1. - The four accused-non-petitioners were ordered to be released on bail by the learned Sessions Judge, Alwar vide his order dated 28-4-1979 in a double murder case and Jagram, who lodged the F. I R. in the police station on the basis of which a case was registered, has moved an application u/s 439 (2), Cr. P. C. praying that the four accused-non-petitioners be arrested and committed to custody. The facts of the case out of which this application arises now may be stated in brief. 2. One Mst. Rajbala was married to Sohanpal of Village Baluda on the clear understanding that her brother Kirori shall be married to a girl in the family of Sohanpal in exchange. But, in spite of the fact that period of about three years elapsed, the members belonging to the family of Sohanlal, husband of Rajbala, did not fulfil their promise and Rajbala refused to return to Sohanpal, her husband. The mother of Mst. Rajbala gave her in Nata to one Ratiram of village Berawas. Pancbayats were held to settle the dispute and Sohanpal, former husband of Rajbala and others visited village Berawas to settle the dispute, but no settlement could be arrived at. The wife of accused Ghamandi, it is said, is from village Baluda, and perhaps she informed Sohanpal that Rajbala has come in Nata to Ratiram. It is alleged that in the night intervening 24/25th January, 79, the four accused-non-petitioners belonging to village Berawas and several others including Sohanpal of village Baluda came armed to the house of Ratiram and the common object of the accused persons was to take away Rajbala by force, and if any body intervened then to cause their death. The accused-non-petitioners and others gave beating to Ratiram and his father Chhitar, who later on died as a result of injuries and some of the accused persons also caused injuries to Jagram and Bhimsingh brothers of deceased Ratiram. 3. Post mortem examination on the dead bodies of Ratiram and Chhitar was conducted on 26. 1.79, and as many as 8 injuries were found on the person of Ratiram, who, in the opinion of the doctor died due to shock and haemorrhage as a result of injuries, all anti-mortem in nature. On examining the dead body of Chhitar. 3. Post mortem examination on the dead bodies of Ratiram and Chhitar was conducted on 26. 1.79, and as many as 8 injuries were found on the person of Ratiram, who, in the opinion of the doctor died due to shock and haemorrhage as a result of injuries, all anti-mortem in nature. On examining the dead body of Chhitar. as many as 12 injuries were found including 5 injuries by sharp weapon and there was fracture of both parietal and occipital bones. The injured persons Bhimsingh and Jagram also received injuries. 4. Two bail applications were moved on behalf of the accused-petitioners before the learned Sessions Judge, Alwar. who allowed bail to the four accused-non-petitioners vide his,order dated 20-4-79. 5. The submission of the learned Advocate for the .petitioner is that it has nowhere been observed, even prima facie, by the learned Sessions Judge that there are no reasonable chances of the accused persons having committed an offence punishable under S. 302/149. I. P. C., and the reasons which have been assigned by the learned Sessions Judge for releasing the accused persons on bail are nor based on record, and in these circumstances, the exercise of discretion u/s 439, Cr. P C. by the learned Sessions Judge is arbitrary and not judicious. He, therefore, submits that it is a fit case, in which this Court u/s 439 (2), Cr. P. C. should order that the accused persons be committed to custody. The learned Advocate for the accused-non-petitioners submits, on the other hand, that the learned Sessions Judge has exercised his discretion, which, he undoubtedly possesses and no case for interference u/s 439 (2), Cr. P. C. is made out, as there are no allegations that the accused non-petitioners will tamper with the witnesses or will abscond, so as not to face the trial. It is further submitted that though the accused-non-petitioners were released on bail on 20-4-79, but in spite of the fact that about six months have since elapsed, they have not 'misused the bail granted to them, and as such no case for cancellation of bail is made out. Both the learned Advocates have placed reliance on a number of authorities wherein guide lines have been laid down as to in what circumstances the discretion u/s 439 (1), Cr. Both the learned Advocates have placed reliance on a number of authorities wherein guide lines have been laid down as to in what circumstances the discretion u/s 439 (1), Cr. P. C. in enlarging the accused persons on trial in a case in which they are suspected of having committed an offence punishable with death or imprisonment for life should be exercised. 6. The learned Advocate for the petitioner has placed reliance on State-Appellant v. Captain Jagjit Singh Respondent, ( AIR 1962 SC 253 ) Gurcharan Singh and others v. State, Delhi Administration, ( AIR 1978 SC 179 ) Rajkumar Sharma and others v. State, Delhi Administration, (Cr.L.R. SC 1975) and Santram petitioner v. Kalicharan & others, Respondents. (1977 Cri. L.J. 486(Delhi H.C.)) The learned Advocate for the accused-non-petitioners has placed reliance on the State, through Delhi Administration, Appellant v. Sanjay Gandhi, Respondent, ( AIR 1978 SC 961 ) and Devilal v. Ganpat. ( AIR 1951 Raj. 94 ) 7. In Captain Jagjit Singh's (1) case, which was a case under Sections 3 and 5 of the Official Secrets Act, 1953, punishable upto 14 years, bail had been granted to the accused u/s 498. Cr. P. C. (old) by the High Court and an application was moved in the Supreme Court. It was observed as follows : "It is true that under S. 498, of the Code of Criminal Procedure, the powers of the High Court in granting bad are very vide : even so where the offence is non-bailable, various considerations such as those indicated above have to be taken into account before bail is granted in a non-bailable offence." 8. Amongst the various considerations, which should be considered while dealing with the case of the accused u/s 48, Cr. P. C. (1895). One of the considerations as per their Lordships of the Supreme Court in nature and seriousness of the offence. In that case, apart from holding that the offence Was of a serious nature, it was also considered that if the respondent is convicted, he would be liable upto 14 years imprisonment, and the bail was cancelled. 9. In Gurcharan Singh's case (supra), it has been held that though the jurisdiction of the Sessions Court, as well as the High Court, under S. 439, Cr P. C. is unfettered but while exercising the same principles underlying under S. 437, Cr. 9. In Gurcharan Singh's case (supra), it has been held that though the jurisdiction of the Sessions Court, as well as the High Court, under S. 439, Cr P. C. is unfettered but while exercising the same principles underlying under S. 437, Cr. P. C. have to be kept in view and unless the Court can prima facie hold that there are reasonable grounds of believing that the accused is not guilty of an offence, punishable with death or imprisonment for life, the discretion under S 439, Cr. P. C. should not be used It will be useful to extract the relevant observations of their Lordships of the Supreme Court : "Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under S. 459 (1), of the New Code. The over-riding considerations in granting bail to which we adverted to earlier and which are common both in the case of S. 437 (1) and S. 439 (1) of the New Code, arc the nature and gravity of the circumstances in which the offence is committed , the position and status of the accused with reference to the victim and the witnesses , the likelihood of the accused fleeing from justice : repeating the offence of zeopardtsing his own life, being faced with a glim prospect or conviction in the case , of tampering with the witnesses , the history of the case as well as of its investigation and other ralevant grounds which in view of so many variable facts cannot be exceptionally set out." 10. It has further been observed that the question of cancellation of bail under S. 439 of the New Code is certainly different from admission to bail under S. 439, (1) Cr. P, C., and in considering the question of bail, justice to both sides governs the judicious exercise of the Court's judicial discretion, and ordinarily the High Court will not exercise its discretion to interfere with an order of bail granted by the learned Sessions Judge in favour of an accused unless the Sessions Judge has fallen into some basic error while granting the bail to the accused. Their Lordships have also laid down that if the Court of Session admits an accused person on bail, the State has two options , it may move the Sessions Judge, if certain new circumstances have arisen, which were not earlier known to the State and may as well approach the High Court being the superior court under S. 439 (2), Cr. P. C, to commit the accused to custody. 11. It can, therefore, be said on the above victim of their Lordships of the Supreme Court that while exercising the unfettered discretion under S. 439, Cr. P. C., the Sessions Judge of this Court has to take into consideration the various matters contained in S. 437, Cr. P. C. and if there appear reasonable grounds of believing that the accused who applies for bail has been guilty of an offence punishable with death or imprisonment for life, the court should not exercise its discretion u/s 439, Cr. P. C. which discretion is to be exercised judiciously and not arbitrarily. The submission of the learned Advocate for the non-petitioners is that unless there are some supervening circumstances and compelling circumstances which have arisen after the grant of bail, the powers u/s 439 (2), Cr. P. C. ordering commitment of the accused to custody ordinarily be not exercised. 12. It cannot be disputed that if the discretion u/s 439 (2), Cr. P. C. has been exercised arbitrarily and not judiciously by the Sessions Judge, the powers u/s 439 (2) Cr. P. C. can be exercised by this Court and it can be ordered that the accused, who has been released on bail be arrested and committed to custody. It is not necessary in every case that there should be allegations that it is apprehended that the accused persons who have been released on bail will tamper with the witnesses. I have already referred to Captain Jagjit Singh's case and Gurcharan Singh's case (Supra) in which the guide lines u/s 439 (1), Cr. It is not necessary in every case that there should be allegations that it is apprehended that the accused persons who have been released on bail will tamper with the witnesses. I have already referred to Captain Jagjit Singh's case and Gurcharan Singh's case (Supra) in which the guide lines u/s 439 (1), Cr. P. C. have been laid down and to my mind, if in a given case the nature of the offence is grave and the offence is of serious nature punishable with death or imprisonment for life, unless the Court can prima facie come to a conclusion that there are no reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life, normally the Court should refrain from exercising its discretion under S. 439 (1), Cr. P. C., which it undoubtedly possesses in releasing the accused on bail. 13. It is, therefore, to be seen as to whether there is any infirmity in the order of the learned Sessions Judge ordering the release of the accused-non-petitioners on bail u/s 439 (1), Cr. P C. A look at the order of the learned Sessions Judge will show that two grounds have prevailed with him and they are : (1) that it is not mentioned in the F. I. R. as to which specific injury as caused by the four accused to the two deceased persons, Ratiram and Chhitar, and (2) that in the statement of Mst. Rajbala recorded u/s 164, Cr. P. C., it is not mentioned as to on which part of the body of the deceased persons the accused-non-petitioners caused injuries, The learned Sessions Judge has nowhere observed that there appears no reasonable ground for believing that the accused have been guilty of an offence punishable with death or imprisonment for life and simply on the two grounds, noted above, the distinction has been made in the case of accused and they have been ordered to be released an bail. It can therefore, hardly be disputed that there is an infirmity in the order of the learned Sessions Judge that while ordering the release of the accused on bail, he has not taken into consideration the various matters contained in S. 437, Cr. P. C , the matters which are to be taken into consideration while exercising discretion u/s 439 (1), Cr. P. C. 14. P. C , the matters which are to be taken into consideration while exercising discretion u/s 439 (1), Cr. P. C. 14. The F. T. R. was not lodged by an eye-witness and was lodged by Moharsingh Sarpanch of Gram Panchayat Reuwas, and the names of the four accused are mentioned therein along with others. Merely because, it was not mentioned in the F. I. R. as to on which part of the body the four accused caused injuries, it cannot be said to be such a circumstances which should have been taken into consideration by the learned Sessions Judge in releasing the accused persons on bail. Taking up the statement of Rajbala recorded u/s 164, Cr. P. C. she has clearly stated that these four accused also gave lathi blows to the two deceased along with others. Merely because it was not mentioned as to on whieh part of the body the blows were given by the accused, at the stage of considering the application for bail, it can hardly be possible for a court when the occurrence took place admittedly at the house of deceased persons Chhitar and Ratiram, that there are no reasonable chances of the accused persons having committed an offence punishable with death or imprisonment for life. In Gurcharan Singh's case (supra), it has been clearly observed that the law requires that in non-bailable offences punishable with death or imprisonment for life, reasons have to be recorded for releasing a person on bail clearly disclosing bow discretion has been exercised in that behalf. Besides considering the statement of Mst. Rajbala, the other evidence on record was not even considered by the learned Sessions Judge and a reference be made to the statement of Bhimsingh u/s 164. Cr. P. C. where he himself, an injured and brother of deceased Ratiram, has clearly stated that Omprakash accused and others gave lathi blows to Ratiram deceased on the head and other parts of the body. Similar statement has been made by Jagram, another brother of deceased Ratiram and the injured himself. Therefore, it can be said that the case of the prosecution is that the four accused along with others formed an unlawful assembly and in the night intervening 24/25th January, 79 went to the house of the deceased persons armed with lathis and sharp weapons in order to abduct Mst. Therefore, it can be said that the case of the prosecution is that the four accused along with others formed an unlawful assembly and in the night intervening 24/25th January, 79 went to the house of the deceased persons armed with lathis and sharp weapons in order to abduct Mst. Rajbala and, if necessary, to cause the death of any body if he or they intervened. During the course of abduction of Mst. Rajbala, beating was administered to Chhitar and Ratiram who died as a result of multiple injuries. In a case where as many as 12-15 persons armed with weapons give beating, perhaps it may not be possible for the witnesses to say as to on which part of the body the accused caused injuries and therefore merely on the ground that Rajbala in her statement did not state as to on which part of the body the injuries were caused by the four accused it could not have been said at that stage that there are no reasonable grounds for believing that the accused are guilty of an offence punishable with death or imprisonment for life and as already observed above, without considering these matters also, in a case punishable with death or imprisonment for life, the learned Sessions Judge should not have exercised his discretion u/s 439 (1), Cr. P. C. and should not have released the accused on bail. The discretion to be exercised is to be judicious and not arbitrary and, to my mind, if the learned Sessions Judge without taking into consideration the matters simply ordered the release of the accused on bail, then the order of the Sessions Judge suffers from infirmity and notwithstanding the fact that there is no allegation of tampering with the witnesses, u/s 439 (2), Cr. P. C. this Court can in a proper case order that the accused persons be arrested and committed to custody. 15. I am, therefore, of the opinion that the exercise of the discretion by the learned Sessions Judge u/s 439 (1), Cr. P. C. this Court can in a proper case order that the accused persons be arrested and committed to custody. 15. I am, therefore, of the opinion that the exercise of the discretion by the learned Sessions Judge u/s 439 (1), Cr. P. C. in this case does not appear to be judicious and he has failed to take the evidence on record into consideration and has not even observed that there are no reasonable grounds for believing that the accused persons are not guilty of an offence punishable with death or imprisonment for life It is not necessary for me to discuss the other authorities, as they are all with regard to the tampering of witnesses and the application is only based on the ground that the case was such in which the learned Sessions Judge should not and could not have exercised his discretion u/s 439 (1), Cr. P. C. 16. No doubt the State has not moved for cancellation of the bail, and it is the son and brother of the deceased persons who was himself injured and who has moved this application. A look at S. 439 (2), Cr. P. C. will show that this Court can order that a person who has been released on bail under Chapter XXIII, Cr. P. C. may be arrested and committed to custody. Therefore, if a proper case is made out or exercising of the powers u/s 439 (2), Cr P. C., even on an application of a relation of the deceased persons. This Court can exercise its powers. Moreover, in this case, the learned P. P. has supported the application for cancellation of bail. I may here refer to Santram's case (supra). So far as Devilal's case is concerned it was a case in which the question was whether powers of revision should be exercised or not at the instance of a private party and it was not an application u/s 439 (2), Cr. P. C. which Section did not exist on the statute book then. 17. In view of the fact that I have held above that the various considerations necessary for exercise of discretion u/s 439 (1), Cr. P.C. were not even considered by the learned Sessions Judge, the exercise of discretion cannot be said to be judicious. 18. I accept this application under S. 439 (2), Cr. 17. In view of the fact that I have held above that the various considerations necessary for exercise of discretion u/s 439 (1), Cr. P.C. were not even considered by the learned Sessions Judge, the exercise of discretion cannot be said to be judicious. 18. I accept this application under S. 439 (2), Cr. P. C. and order that the accused non-petitioners be arrested and committed to custody.Application allowed. *******