ORDER R.C. Lahoti, J. 1. This order shall also dispose of Criminal Revision No. 30/85. The two revisions have been preferred by the two accused against an order dated 30-12-84 passed in S. T. No. 134/84 whereby, in exercise of the powers conferred by Section 439 (2) Cr. P. C., the liberty of bail extended earlier to the accused applicants, has been ordered to be recalled. Criminal Revision No. 4/85 is by Arun Kumar Dixit and Criminal Revision No. 30/85 is by Suresh. I have heard the learned Counsel Sarvashri J.P. Gupta and P.N. Sharma, Advocates for the two applicants as also Shri R. C. Pandey, Govt. Advocate, for the State. 2. A little detailed statement as to factual back-drop appears not only apposite but a must. On 29-7-83, Virendrasingh, resident of Ramkala Nagar, Murar locality of the city of Gwalior, had a casual verbal exchange with one of the accused at about 4 p.m. At about 11 p. m. when Virendrasingh was sitting outside his house, Arun Dixit armed with a sword and Suresh armed with a chain, reached him. Without a word Arun Dixit dealt a single blow by sword on the head of Virendrasingh and Suresh dealt a blow by chain. Virendrasingh fell down unconscious. Arun Dixit dealt a second blow by the sword but on Shantidevi, wife of Virendrasingh, landing on her left hand. Within 15 minutes of the incident, F. I. R. was lodged at the nearby Police Station. Virendrasingh was rushed to the hospital only to be declared dead on account of sword injury on the head, which had caused syncope and haemorrhage. Shantidevi was found to have suffered a fracture of the humerus shaft. On completion of investigation, a challan was filed implicating the accused applicants under Ss. 302/324/34 I.P.C. On 14-12-83, accused Arun Kumar was produced before the Court, but accused Suresh could not be produced, as he was absconding. Proceedings under Section 299 Cr. P.C. were taken. However, he was apprehended later on and a supplementary charge-sheet was drawn up on 15-1-84 and filed in the Court. It is not disputed that both the accused-applicants were enlarged on bail by the Sessions Judge, Gwalior. 3. On the case being committed to the Court of Session, charges under Ss. 302, 325 and 302/325/34 I.P.C. were framed against the accused applicants. On 17-9-84, a calendar for trial was drawn up. It is not disputed that both the accused-applicants were enlarged on bail by the Sessions Judge, Gwalior. 3. On the case being committed to the Court of Session, charges under Ss. 302, 325 and 302/325/34 I.P.C. were framed against the accused applicants. On 17-9-84, a calendar for trial was drawn up. The evidence was to commence on 19-12-84. On this day, the accused Arun Kumar Dixit was absent, though his counsel was present and accused Suresh was present with his counsel. Anandsingh and Shantidevi, respectively the son and widow of the victim, the most material eye-witnesses, were present to be examined. On behalf of Arun Dixit, an application was filed to the effect that he was suffering with pain in stomach and was not present therefor. The Court expressed an opinion that the application was a lame excuse for avoiding the trial and directed the hearing to be adjourned to the following day. On 20-12-84, the accused Arun Kumar continued to be absent by filing an application that he was admitted in Civil Hospital Morar on account of sickness. An affidavit by Jagdish Narayan, father of the accused, was also filed, without stating the nature of sickness. The trial Court expressed an opinion that the application and the affidavits were not sufficient to condone the default in appearance of accused Arun Dixit. Incidentally, it may be stated that the affidavit filed by Jagdish Narayan was not an affidavit in the eye of law because of defective verification wherein Jagdish Narayan had verified the contents of the affidavit both on 'personal knowledge' and also as 'believed to be true', without indicating how much of the contents of the affidavit were based on his personal knowledge and how much of it were believed to be true. An additional fact which prevailed with the trial Court was an affidavit filed by one Dinesh Singh, son of the deceased Virendrasingh, wherein he had stated on oath that the accused Arun Dixit was seen by him moving opposite the Court building during Court hours. 4. What transpired further on 20-12-84 is to be gathered from the statement of facts recorded in the order of the trial Court. 4. What transpired further on 20-12-84 is to be gathered from the statement of facts recorded in the order of the trial Court. The case was initially taken up at 11-30 a.m. At that time accused Suresh Sharma was personally present in the Court, but his counsel requested the case to be taken up at 3 p.m. When the case was again taken up, accused Suresh Sharma was also absent and an application was moved through his counsel stating that the accused Suresh Sharma had developed fever during Court hours and, therefore, had left the Court. The fact remains that when the case was called for hearing ultimately, both the accused applicants were absent, though the witnesses were present. 5. On this very day, Anandsingh, the son of the deceased, moved an application under Section 439 (2) Cr. P. C duly subscribed and presented before the Court by the Public Prosecutor that on the previous night, the two accused accompanied by a few anti-social elements and armed with weapons gave threats to him that he should not depose in the Court against the accused persons, otherwise not only he would be done away with his life, but his sister would be kidnapped. Anandsingh also alleged that earlier also such threats had been given and a report to that effect had also been made by him on 19-12-1984, at the Police Station. This application was accompanied by photo copy of the complaint dated 19-12-84 made to the Police with an endorsement under seal of the Police Station acknowledging receipt of this complaint. The widow, Shantidevi, also filed an affidavit stating that she was similarly threatened by the two accused persons on 19-12-84 and earlier also. She expressed positively that she was terrorised and was under serious apprehensions. The trial Court gave an opportunity of hearing to the accused persons. The accused Suresh filed a reply with an affidavit of himself controverting the allegations made by Anandsingh and Shantidevi. A similar reply was filed by the counsel for Arun Dixit. It appears that accused Suresh absented himself after filing the abovesaid reply. 6. The trial Court heard the parties in the matter. The accused Suresh filed a reply with an affidavit of himself controverting the allegations made by Anandsingh and Shantidevi. A similar reply was filed by the counsel for Arun Dixit. It appears that accused Suresh absented himself after filing the abovesaid reply. 6. The trial Court heard the parties in the matter. Taking all the facts and circumstances of the case into consideration and carefully applying its mind to the material available, the trial Court recorded a finding as to its satisfaction that the two accused were making a misuse of the liberty given to them. The trial Court also held that the witnesses were being threatened so as not to speak the truth and depose against the accused persons and that it was necessary to cancel the bail of the accused persons in the interest of fair and expeditious trial. All these proceedings took about one and a half hour and the order could be passed at about 4.30 p. m. Since the accused persons were absent by that time, the bail was directed to be cancelled and non-bailable warrants for apprehending the accused persons were directed to be issued. 7. The two accused persons secured certified copies of the order dated 20-12-84 of the trial Court. In Criminal Revision No. 4/85 preferred by Arun Kumar, this Court issued a show cause notice to the State and also passed a Stay order in the following terms: It is directed that the warrant of arrest against the applicant, Arun Kumar, issued as per order of the Court below, shall not be executed until further orders." In Criminal Revision No. 30/85 by Suresh Kumar, this Court passed a stay order on 16-3-85 in the following terms; It is ordered that the operation of the impugned order shall remain stayed and the execution of the warrant of arrest shall also remain stayed until further orders. 8. The effect of the stay orders, giving a most liberal interpretation, would be that the accused applicants could not be apprehended and they would remain on bail as before i. e. prior to the passing of the impugned order. But the accused persons conveniently absented thereafter. The case was taken up by the trial Court on 24-12-84, 8-1-85, 21-1-85, 31-1-85, 4-3 85, 5-4-85, 22-4-S5 and 23-4-85. But the accused persons conveniently absented thereafter. The case was taken up by the trial Court on 24-12-84, 8-1-85, 21-1-85, 31-1-85, 4-3 85, 5-4-85, 22-4-S5 and 23-4-85. On all these dates, the accused were absent and no application was filed before the trial Court assigning any cause for their absence. Since 4-7-85 and thereafter there is no order-sheet recorded by the trial Court presumably because by this time the Registry had requisitioned the record of the trial Court. I have looked into the proceedings of the office as well. This Court had never ordered requisitioning of the records from the trial Court in any of the revisions. Even the Additional Registrar did not order summoning of the record. But someone in the office issued a requisition and the record reached the office of this Court, resulting into suspension of trial though the Court never desired the trial to be stayed. The fact remains that after passing of the impugned order, the accused persons have not appeared before the trial Court for a single day. 9. Section 397 of the Code of Criminal Procedure, 1973, vests the Court of Revision with a discretion in the matter of calling for the records of any inferior criminal Court. It follows that record of the inferior Court's proceedings is to be called for only if the revisional Court feels the necessity of doing so. It has been the practice of this Court, so far as I am aware, that while hearing criminal revisions specially against such orders which have not finally disposed of the proceedings in the inferior Court the record is not ordinarily sent for because it has the effect of suspending the proceedings in the Court below. It is only when the Court feels the necessity of calling for the records, it makes a specific order for requisitioning the records of the Court below. I have made enquiry from the office and I am informed that a loose practice is prevailing in the office and in such revisions sometimes the record has been called for and sometimes not. The office has referred to the provisions contained in Clause (xix) of Part I of Chapter II and sub-para (2) of para 10 of Chapter v. of High Court Rules and Orders (See, page 8 and page 21 of M. P. High Court Manual, 1987 edn. edited by Shri S N. Bhagwat, Advocate). The office has referred to the provisions contained in Clause (xix) of Part I of Chapter II and sub-para (2) of para 10 of Chapter v. of High Court Rules and Orders (See, page 8 and page 21 of M. P. High Court Manual, 1987 edn. edited by Shri S N. Bhagwat, Advocate). I have considered the two provisions and I do not think that they spell out requisitioning records at the instance of any official of the High Court without a Court Order. However, the facts of this case disclose the necessity of making a suitable provision in the Rules and Orders so that the office docs not requisition the records of inferior Courts in Criminal revisions where the Court has not felt the necessity of perusing the record for disposing of the revision. 10. How the two revisions swinged is also to be noticed. Criminal Revision No. 4/85 was admitted for hearing parties on 19-4-85, but there was a default in payment of process-fee though the Court had fixed 3 days limit for such payment. The default having been made good, on 7-8-85 the Court directed the revision to be heard in the next week. On 19-8-85 and 26-6-85, It could not be heard because none appeared for the applicant. On 9-9-85, the case was adjourned because an affidavit was filed. Criminal Revision No. 30/85 had to be adjourned on 19-8 85, 26-8-85 and 19-11-85 and also on 9-9-85 because of prayers for adjournment made on behalf of the applicant. On 16-9-85, both the revisions had to be adjourned because on behalf of the applicants such a prayer was made for answering a querry raised by the Court during hearing. On 24-9 85, the matter was partly heard, but could not be heard on the following day as it could not reach for hearing On 19-11-85, the Court released the revisions with a direction not to treat the same as part-heard because the hearing was not being completed and the Court was left with no other choice. After this day both the revisions were lost into oblivion of the office records or the office people and could see the light of the day only after lapse of 2 years and 9 months (approximately) i e. on 4-8-88. After this day both the revisions were lost into oblivion of the office records or the office people and could see the light of the day only after lapse of 2 years and 9 months (approximately) i e. on 4-8-88. On 26-11-87, the State had filed an application for early hearing of the revisions stating that the accused persons were delaying the trial and at the same time pressurising the eye witnesses and hence the revisions deserved an expeditious disposal. This application too was posted before the Court for orders for the first time on 9-8-88 i. e. after lapse of more than 9 months. It is mockery of justice that criminal revision against an interlocutory order directed to be heard in the 'next week' on 7-8-85, could not be heard until 30-8-88. I consciously abstain from drawing conclusion of cause for the delay and leave the facts to speak for themselves. 11. Now the merits. The learned Counsel for the applicants have vehemently contended that the order of the trial Court cancelling the bail of the accused-applicants suffers from serious illegality and is liable to be set aside forthwith, because the averments made in the application under Section 439 (2) Cr. P. C. were disputed claiming an inquiry and so the Court should have posted the case for an inquiry into the averments made and in any case should at least have given the accused an opportunity of cross-examination on Anandsingh and Shanti Devi. It is also submitted that the State being the prosecutor, the Court should not have acted on the application of Anandsingh and the State or the concerning Police Station could only have moved for cancellation of bail. 12. Section 439 (2) of the Code of Criminal Procedure, 1973 reads as under: 439. Special powers of High Court or Court of Session regarding bail- (1)............ ...... (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. 12. Section 439 (2) of the Code of Criminal Procedure, 1973 reads as under: 439. Special powers of High Court or Court of Session regarding bail- (1)............ ...... (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. A bare look at this provision shows that the Legislature has deliberately abstained from laying down a detailed procedure in the matter of cancellation of bails and has chosen to leave the matter at sound judicious discretion of the Courts placed in the heirarchy above the Magistrate Presumably this has been done because situations and circumstances demanding cancellation of bail may be innumerable and so varied as to deny enumeration and the degree of urgency with which the Court might be required to act in individual cases could not possibly be all forecontemplated but at the same time such higher Courts can safely be trusted to act with care and circumspection. The High Court of Gujrat in State of Gujrat v. Hirasingh 1977 Cri. L. J. 104, observed "No fetter is put on powers of the Sessions Court to cancel the bail order by the statutory language employed in the section." As to the locus in moving an application if any authority is needed, it is to be found in a Division Bench decision of the High Court of Allahabad in Bohre Singh v. State through Dharam Pal Singh AIR 1956 All. 671 , where their Lordships observed: 'It is the duty of the Court to cancel bail in proper circumstances under Section 497 (5), Criminal P.C. No application is required on behalf of any party. If the matter is brought to the notice of the Sessions Judge by the complainant it is open to the Sessions Judge to pass an order under Section 497 (5).' Observations of this Court in Badri Prasad v. Bala Prasad 1985 J. L. J. 414, Pr. 4, and of High Court of Punjab & Haryana in Ranjit Singh v. Nandlal 1975 Cri. L. J. 1416 may also be noticed. The contention that the application to be entertainable should and could have been moved only by the State or the Police, must, therefore, fail. 13. Strong reliance has been placed by the learned Counsel for the applicants on Santram and Ors. L. J. 1416 may also be noticed. The contention that the application to be entertainable should and could have been moved only by the State or the Police, must, therefore, fail. 13. Strong reliance has been placed by the learned Counsel for the applicants on Santram and Ors. v. State AIR 1952 J. & K. 28, Khagendra Nath Bayan and Anr. v. State of Asam 1982 Cri. L.J. 2109, both single Bench decisions, and also on the observations of their Lordships of the Apex Court in Bhagirath Singh Judeja v. State of Gujrat AIR 1984 SC 372 and State through Delhi Admit, v. Sanjay Gandhi AIR 1978 SC 961 , to contend that an order for cancellation of bail without holding an enquiry is vitiated. I have carefully gone through the cited authorities, but I regret to find anything therein which may support the contention raised. 14. In Santram (supra), the application for cancellation of bail was accompanied by two affidavits and the Magistrate also recorded the statement of the Court Sub-Inspector as a witness. Para 3 of the report shows that the Magistrate entertaining the application for cancellation of bail had himself ordered that evidence in support of the allegations be produced before him. After passing that order, the Magistrate acted on affidavits which was held to be illegal. The statement of the Court Sub-Inspector was discarded because it was based on hearsay. In this background there is a sentence occurring in the report at para 4, which reads-"Now in this case the fact that the witnesses were intimidated by the accused persons ought to have been proved by such evidence as could be te ted on the touchstone of cross-examination." This observation has to be read in the background that the Magistrate having not satisfied with the material available in the shape of affidavits had ordered recording of evidence in support of the application which naturally could not be read uncross-examined. However, if the observation is taken to mean that legal evidence as is acceptable in a criminal trial must exist to avail the power of cancellation of bail than with respect I express my dissent with the view. 15. In Khagendra Nath (supra) the facts were quite different. The Magistrate granted bail to the accused holding him to be infirm, but the Sessions Judge cancelled the bail taking a different view. 15. In Khagendra Nath (supra) the facts were quite different. The Magistrate granted bail to the accused holding him to be infirm, but the Sessions Judge cancelled the bail taking a different view. It was the interpretation of the word 'infirm' that faced the learned Single Judge of Gauhati High Court. 16. In Bhagirath Singh (supra), the Sessions Judge granted bail and the State moved the High Court for cancellation of the order of the Sessions Judge simply on the ground that looking to the facts and circumstances of the case, bail should not have been granted by the Sessions Judge. In this background their Lordships observed that very cogent and overwhelming circumstances are necessary for an order seeking cancellation of bail. However, read as a statement of law, there cannot be an occasion for disputing the same The question is, how does this advance the argument on behalf of the applicants ? 17. It will be useful and instructive to quote several observations from Sanjay Gandhi (supra) which was a case wherein the bail was granted to the accused but was sought to be cancelled on development of subsequent events. To quote: The issue of cancellation of bail can only arise in criminal cases, but that does not mean that every incidental matter in a criminal case must be proved beyond a reasonable doubt like the guilt of the accused. 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. The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extraordinary nature, is meant to be exercised in appropriate cases when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. Refusal to exercise that whole some power in such cases, few though they may be, will reduce it to a deat letter and will suffer the Courts to be silent spectators. We might as well wind up the Courts and bolt their doors against than permit a few to ensure that justice shall not be done. The power to cancel bail was exercised by the Bombay High Court in Madhukar Purushottam Mondkar v. Talab Haji Hussain 60 Bom. LR. 465: AIR 1958 Bom. 406 , where the accused was charged with a bailable offence. The test adopted by that Court was whether the material placed before the Court was" such as to lead to the conclusion that there is a strong prima facie case that if the accused were to be allowed to be at large he would tamper with the prosecution witnesses and impede the course of justice. "An appeal preferred by the accused against the judgment of the Bombay High Court was dismissed by this Court. In Gurucharan Singh v. State (Delhi Administration) 1978 Cri. L J. 129 at p. 137 : AIR 1978 SC 179 at p. 187, while confirming the order of the High Court cancelling the bail of the accused, this Court observed that the only question which the Court had to consider at that stage was whether " there was prima facie case made out, as alleged, on the statements of the witnesses and on other materials", that "there was a likelihood of the Appellants tampering with the prosecution witnesses". It is by the application of this test that we have come to the conclusion that the Respondent's bail ought to be cancelled. (Emphasis supplied) 18 What follows from Sarjay Gandhi (supra), may be recapitulated even at the risk of repetition. The power, to be exercised with care and circumspection, must be exercised and has to be exercised in appropriate cases. (Emphasis supplied) 18 What follows from Sarjay Gandhi (supra), may be recapitulated even at the risk of repetition. The power, to be exercised with care and circumspection, must be exercised and has to be exercised in appropriate cases. 'A strong prima facie case', 'on material available', applying the test of preponderance of probabilities, is enough if the Judge seized of the matter is satisfied that the accused does not deserve continuation of liberty. To my mind, the nearest situation available in civil case can be one where the Court is disposing of an injunction matter and has to record a finding as to the availability of a strog prima facie case, based on material available, before granting an injunction in favour of the Plaintiff. 19. No doubt, in appropriate cases the Court may consider the propriety, feasibility and/or necessity of holding a summary inquiry into the allegations and counter allegations made in the context of the prayer for cancellation of bail if delay necessarily involved in holding such an inquiry, might not entail destruction of the prayer itself. If the Court is convinced that the prayer for cancellation of bail is prima facie frivolous or vexatious, it may reject the application forthwith, after hearing the accused or even without calling upon him to answer. On the contrary, if the Court is convinced that continuance of the accused on bail any further would be destrictive of an expeditious and/or fair trial, (which fairness includes fairness both to the prosecution and to the accused) it may cancell the bail because there is material before it enabling formation of that opinion. As to the nature of material that would be enough to form such an opinion no limits can be laid for the obvious reasons. Situations cannot be beyond contemplation where a Judge trying a case may feel convinced that circumstances exist warranting an immediate action. Imagine a case where a material eye-witness entering the Court building is assaulted by the accused on bail at the door-steps of the building because he has refused to turn hostile and the witness enters the Court room shouting for help, may be bleeding, and narrates his plight. This would itself constitute material enabling formation of opinion that a strong prima facie case for cancellation of bail was made out. This would itself constitute material enabling formation of opinion that a strong prima facie case for cancellation of bail was made out. If the Court does not act immediately the witness would never be able to dispose or reach home safely after deposing to the truh. 20. In my opinion, there was adequate material before the trial Court to found an order cancelling the bail. There was an affidavit, and a copy of the complaint made to police. The game of hide and seek being played by the accused persons lent support to the allegations made. The finding that the two accused were making a misuse of liberty given to them by threatening the eye-witnesses so as to deter them from deposing to the truth before the Court and that in the interest of expeditious and fair trial, the cancellation of bail was a must are findings of fact recorded by the learned Sessions Judge based on material and this Court sitting in revision, would not ordinarily disturb the same, is a well settled rule of law which hardly requires to be supported by any precedent. This Court cannot enter into the question whether the material was sufficient or not 10 form the opinion. I find no fault with the impugned order. It has to be maintained. In addition to what has been stated above, it may also be noticed that on the date fixed for trial there was default in appearance of the accused and bond for appearance stands forfeited with such default entailing cancellation of bail unless the Court may condone the absence or accept fresh bail bonds. Since I am called upon to exercise my revisional jurisdiction, which can be exercised only ex debito justitiae, an additional factor which I have taken into consideration for dismissing the revision is the conduct of the accused-applicants subsequent to the filing of the revision emerging from the facts already enumerated above. If the only grievance of the applicant was that their bail was not liable to be cancelled, there was nothing which prevented them from appearing before the trial Court and co-operating in the progress of trial. Nay, it was their duty to have so appeared. By placing a wrong interpretation on the stay order granted by this Court which interpretation was repeated at the hearing before this Court also, they have successfully absented from the Court. Nay, it was their duty to have so appeared. By placing a wrong interpretation on the stay order granted by this Court which interpretation was repeated at the hearing before this Court also, they have successfully absented from the Court. The trial Court was helpless in procuring their attendance because the arrest warrants were stayed by this Court. This Court while granting the stay order never meant the trial to be stayed nor gave a licence to the accused-applicants for remaining absent at the hearing before the trial Court. That the trial would be stayed was neither a prayer made in the revision nor in the application for stay, nor did this Court say so. 21. The revision petitions are dismissed. The accused-applicants are directed through their respective counsels to appear and surrender before the trial Court on or before 9-9-88. The record of the trial Court along with a copy of this order shall be despatched post-haste to the trial Court by the Registry Because of delay that has already taken place, it is directed that the Courts below shall give priority to this Sessions Trial over other trials and try to conclude the same within a period of 3 months as far as practicable. 22. It is, however, observed that the accused-applicants shall be free to move an application for their enlargement on bail, if so advised, but only when the examination of the principal witnesses for the prosecution is over. If such an application is moved, the trial Court shall hear and dispose of the same on its own merits. 23. A copy of this order shall be placed before May Lord the Chief Justice inviting attention to para 9 of the order.