JUDGEMENT - A.D. MANE, J. :---Rule is made returnable forthwith on the request of the learned Counsel for the parties. 2.This criminal application is filed on 17-10-1995 by the petitioner S. Niranjan Singh Punjabi, Advocate, in person under section 439(1) read with section 482 of the Code of Criminal Procedure for cancellation of bail granted to the respondents in Criminal Application Nos. 1246 and 1248 of 1995 on 4-10-1995. 3.In his application the petitioner claims to be an eye-witness and real brother of the deceased Ranjit Singh. While narrating the incident it is stated that the respondents No. 2, 3, 4 and one Dattu Shinde beat the deceased with sticks and fists when accused No. 1 Rashid whose bail application was rejected, instigated them by saying " lkys dks ekj Mkyks] >ksMuk er ". It has been pointed out that as per the inquest and medical evidence there were 17 injuries on the person of the deceased and injury Nos. 1 to 5, 7 to 9 and 12 to 15 were incised wounds caused by hard and blunt object. It is, therefore, submitted that by misrepresentation, the respondents No. 1 to 4 obtained the bail on 4-10-1995. In para 6 of the application the petitioner further comes out with the case that the respondents No. 1 to 3 misused their liberty in giving threats to the petitioner in the event he gives evidence in the Court against them. Secondly the petitioner also points out that the petitioner moved the Apex Court for transfer of the Sessions case from Ahmednagar (Maharashtra) to other Sessions Court in other State and the Supreme Court granted stay to further proceedings in the Sessions case on 18-9- 95. It is therefore submitted that the respondents No. 1 to 4 obtained bail by suppressing the order of the Apex Court. Thus, the petitioner seeks cancellation of bail on either of these two grounds. 4.On behalf of the respondents No. 1 to 4, Bhausaheb Ratan Shinde (original accused No. 5) filed his reply specifically denying the contents of the petitioner's application in regard to the alleged threats and in regard to the suppression of the facts before this Court when their bail application was granted. According to him, they had no knowledge of passing of the stay order by the Apex Court until they were released on bail on 6-10-1995. According to him, they had no knowledge of passing of the stay order by the Apex Court until they were released on bail on 6-10-1995. It is further stated in para 6 of the reply that prior to 6-10-1995 none of the respondents met the petitioner nor threatened him. On 13-10-1995 the respondents No. 1 to 3 came from Pune to Ahmednagar to attend the Sessions Court and after attending the Court they immediately left Nagar city. It is also stated that on a false complaint made by the petitioner that the police recorded their statements and they have denied the truthfulness of the statements in the complaint made by the petitioner before the police. They therefore submit that the application filed by the petitioner is made only with a view to harass them and therefore, to be dismissed. 5.Mr. Patil, learned Additional Public Prosecutor, for the respondent No. 5 does not support the application for cancellation of bail of the respondents No. 1 to 4. 6.It may be stated that the petitioner filed his additional affidavit on 23-11-1995, inter alia stating that after the threats were given by the respondents No. 1 to 3 on 3-11-1995 he could not regularly attend the Courts matters due to fear till 8-11-1995 on the day when the Sessions case was fixed in the Sessions Court. Only once he attended the Sessions Court for making arrangement of his cases pending before the Ahmednagar Court. On 8-11-1995 when he was present in this Court he came to know that the notices were issued to the respondents and they were not received back. The Court directed the Police Sub-Inspector of M.I.D.C. Police Station to serve the notices by 20-11-1995. He, therefore, wants to suggest that from 8-11-1995 till 20-11-1995 he could not attend the Court but on 9-11-1995 one of his clients, Shaikh Mustafa in Civil Suit No. 292 of 1988 which was pending before the Nagar Court had taken back his file on account of his inability to attend his matter due to fear of the respondents No. 1 to 3 and their relatives. It is further stated that on 13-11-1995 he was required to take his brother Gurucharan Singh with him to Delhi to attend the matter in the Supreme Court. Even thereafter he could not attend the Court at Nagar till 23-11-1995 even though the Sessions case was fixed on 17-11-1995. It is further stated that on 13-11-1995 he was required to take his brother Gurucharan Singh with him to Delhi to attend the matter in the Supreme Court. Even thereafter he could not attend the Court at Nagar till 23-11-1995 even though the Sessions case was fixed on 17-11-1995. The petitioner, therefore, wants to say that due to fear from the respondents he was prevented to appear in the courts in his private matters and/or Sessions case in which he is an eye-witness till 17-11-1995. The petitioner also relies on the affidavit of witness Narendra Kumar s/o. Fakirchand Rajput filed on 22-11-1995, wherein he states that on 21-11-1995 at about 6 p.m. when he was going out of Aurangabad S.T. stand, the respondents No. 2 and 3 Hanif Rashid and Bhausaheb with 2/3 others met him threatened him by telling that they will kill him if he deposes evidence in the murder case of Ranjit Singh. They also told him that their relatives are spread over in the whole of Maharashtra and due to that threatening the witness was frightened and he was compelled to return from Aurangabad. 7.The respondent No. 2 Hanif filed his reply on 22-11-1995 denying each and every allegation made in the affidavit of witness Narendrakumar Rajput, for himself and co-accused Bhausaheb Shinde. It is stated that none of them gave any threat to the witness in any manner, more so when the witness was unkown to them. The affidavit of the witness Narendrakumar is totally false and bogus and it is intended to create evidence against the respondents. 8.The petitioner further relies on the affidavit of Gurucharan Singh - a driver, filed on 23-11-1995 who supports the petitioner stating that due to fear of the respondents No. 1 to 3 and their relatives that the petitioner came to Delhi on 11-11-1995 by Zhelum Express and on 14-11-95 at night they came to Ahmednagar. The petitioner did not attend the Court matters nor Sessions case till 17-11-1995 due to fear of the respondents. It is stated that the respondents No. 1 to 3 were searching the petitioner throughout the Court and they were telling "we will see how the petitioner will come to Khandwa Sessions Court, we will kill him. The petitioner did not attend the Court matters nor Sessions case till 17-11-1995 due to fear of the respondents. It is stated that the respondents No. 1 to 3 were searching the petitioner throughout the Court and they were telling "we will see how the petitioner will come to Khandwa Sessions Court, we will kill him. " 9.That affidavit has also been replied by the respondent No. 2, on 17-11-1995 denying each and every allegation made in the aforesaid affidavit by the petitioner's brother Gurucharan Singh. It is submitted that this is a belated afterthought attempt to strengthen false-hood already stated with the sole object to get the bail order cancelled. It is a device only at the instance of the petitioner when the affidavit of witness Narendrakumar was found to be not helpful to the present proceedings. It may be stated that alongwith his affidavit in reply he has annexed xerox copies of the charge-sheets and F.I.R. filed against the petitioner in the past for cognizable offences punishable under the Indian Penal Code to show that the petitioner himself is involved in such cases of committing dacoity, rioting being member of the unlawful assembly. 10.In the first place it is necessary to point out that one of the points raised by the petitioner is that the respondents obtained bail order by suppressing the fact of stay by the Supreme Court to proceedings in the Sessions Court on 18-9-1995 and therefore, the proceedings of the Sessions case were called for. It is seen that in the Transfer Petition (Criminal) No. 9192 of 1995 filed by the petitioner the notice was issued returnable on 13-10-1995 by the order passed on 18-9-1995. On the same day the Supreme Court ordered that "........further proceedings in Sessions Case No. 138/1995 pending in the Court of Sessions Judge, Ahmednagar, are stayed....". That order of 18-9-95 was received by the Sessions Court on 26-9- by Hamdust and on 29-9-1995 by post. It is urged by the petitioner that for appearance of the accused the case was fixed on 29-9-1995 and therefore, wants to suggest that the accused have had knowledge of the stay of the proceedings. It may be stated that this fact is not mentioned in the application for cancellation of bail. It is urged by the petitioner that for appearance of the accused the case was fixed on 29-9-1995 and therefore, wants to suggest that the accused have had knowledge of the stay of the proceedings. It may be stated that this fact is not mentioned in the application for cancellation of bail. Moreover, it may be stated that on 10-11-1995 the Assistant Registrar, Supreme Court, made a office report and it shows that no notice was served on the respondents No. 1 to 5 when Dasti notice was received back as 'unclaimed'. It may be recalled that one of the accused Bhausaheb in his affidavit stated that the respondents No. 1 to 3 came out of jail on 6-10-1995 and the respondent No. 4 is yet to be released. They were served with the notice after they were released on bail after 6-10-1995. 11.The Investigating Officer, who was specially present before this Court informed through the Additional Public Prosecutor on 22-12-1995 that at no point of time the petitioner had informed about the stay of the proceedings by the Supreme Court either to the Public Prosecutor of the Sessions Court or the High Court or the Police authorities before presentation of the present application for cancellation of the bail. It was submitted that the petitioner at no point of time also approached the police for protection except filing one non-cognizable case by the petitioner and that too in Kotwali Police Station which has no jurisdiction over the alleged offence. It was also informed that the petitioner has also not taken any pains to approach the office of the Public Prosecutor for taking assistance with more particulars for cancellation of the bail. 12.Having said so, now the question arises whether it will be appropriate to deal with the question whether by reason of the stay in the transfer application before the Supreme Court the order passed by this Court in granting bail to the respondents No. 1 to 3 was a nullity. In order to appreciate this contention I must say that on request Mr. A.G. Godhamgaonkar, Senior Advocate, assisted the Court on the legal point whether the order of granting bail becomes nullity by reason of the stay to further proceedings in the Sessions Court by the Supreme Court on 18-9-1995. Mr. In order to appreciate this contention I must say that on request Mr. A.G. Godhamgaonkar, Senior Advocate, assisted the Court on the legal point whether the order of granting bail becomes nullity by reason of the stay to further proceedings in the Sessions Court by the Supreme Court on 18-9-1995. Mr. Godhamgaonkar rendered great assistance to the Court in pointing out that in a given case the order will not be a nullity and in view of the decision of the Apex Court in (Mulraj v. Murti Raghunathji Mahara)1, A.I.R. 1967 S.C. 1386 the order is saved. 13.In Mulraj's case the respondent filed the suit for eviction of the premises which the appellants had taken on monthly rent from the respondent. It was contended by the appellant and one of the points raised before the trial Court was that as the permission to sue had been granted at the time when there was stay order the Magistrate granting permission had no jurisdiction to do so and therefore, the permission was nullity. On that basis it was contended that the suit should fail for no such suit can continue under the Act without such permission. The Munsif decreed the suit. The respondent then went in appeal and the appellate Court upheld the order taking the view that the permission granted after the stay order had been passed was a nullity. The respondent then came in second appeal to the High Court and the only point considered there was whether the permission granted by the Magistrate was a nullity or not. It may be mentioned that though the stay order was passed on September 29, 1961, by the District Magistrate, the Magistrate dealing with the case of the permission had no knowledge of it when he granted the permission on October 4, 1961. The question that arose before the High Court was, therefore, whether the permission granted in these circumstances could be said to be a nullity. The High Court held that the stay order would not and did not take away the jurisdiction of the Magistrate from the moment it was passed and that as the Magistrate had no knowledge of or information about the stay order when he granted the permission on October 4, 1961 and that permission was with jurisdiction and the suit is, therefore, maintainable. In appeal by special leave against the judgment of the High Court, the Supreme Court distinguishing the order of stay from the order of injunction held that : "As the stay order is addressed to the Court, as soon as the Court has knowledge of it, it must stay its hand; if it does not do so, it acts illegally. Therefore, in the case of a stay order as opposed to an order of injunction, as soon as the Court has knowledge of it, it must stay its hand and further proceedings are illegal; but so long as the Court has no knowledge of the stay order it does not lose the jurisdiction to deal with the execution which it has under the Code of Civil Procedure." The Supreme Court further observed that : "Though the Court which is carrying on execution is not deprived of the jurisdiction the moment a stay order is passed, even though it has no knowledge of it, this does not mean that when the Court gets knowledge of it, it is powerless to undo any possible injustice that might have been caused to the party in whose favour stay order was passed during the period till the Court has knowledge of the stay order." I think that the aforesaid ruling squarely applies to the facts of the case. 14.The petitioner, Shri Punjabi as well as Mr. Kakde, learned Counsel for the respondents No. 1 to 4 and Mr. Patil, learned Additional Public Prosecutor, for the State, agree that the order granting bail to the respondents No. 1 to 4 on 4-10-1995 is not affected by the stay of the proceedings in Sessions case by the Apex Court, inasmuch as, it is admitted position that this Court had no knowledge of the order of the Apex Court until the petitioner filed the application for cancellation of bail. The petitioner, however, made great emphasis that this Court will not be powerless to correct the order of granting bail when it was obtained either by suppression of the facts or by misrepresentation of the facts on the record. Not only that but it is also urged that having regard to the gravity of the charge and the manner in which the incident has occurred, this is a fit case to cancel the bail. Not only that but it is also urged that having regard to the gravity of the charge and the manner in which the incident has occurred, this is a fit case to cancel the bail. 15.In the first place, it may be stated that I find that no material on the basis of which an inference can be drawn that the bail order was obtained by the respondents No. 1 to 4 either by suppression of the material facts or by misrepresentation of facts is shown by the petitioner. It is true that the order passed by this Court is a judicial order and if it is shown that its process is abused in obtaining an order by practising fraud on the Court, obviously this Court alone can correct such an order. But as said above, there is no material on the basis of which it can be said that the respondents No. 1 to 4 obtained bail by practising fraud on the Court. It is, therefore, necessary to see if the case is made out for cancellation of bail under the provisions of section 439(2) read with section 482 of the Code of Criminal Procedure. 16.The law on the point of cancellation of bail is well- settled. In (Aslam Babalal Desai v. State of Maharashtra)2, A.I.R. 1993 S.C. 1 the Apex Court observed as follows : "The grounds for cancellation of bail under section 437(5) and 439(2), are identical, namely, bail granted under section 437(1) or (2) or 439(1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence of witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc." These grounds are illustrative and not exhaustive. It must also be remembered that the rejection of the bail stands on one footing but the cancellation of bail is harsh because it interferes with liberty of the individual and hence it should not be lightly resorted to. In the present case Mr. It must also be remembered that the rejection of the bail stands on one footing but the cancellation of bail is harsh because it interferes with liberty of the individual and hence it should not be lightly resorted to. In the present case Mr. Punjabi invited my attention to the statements of three witnesses before the police (1) Nathu (2) Nadrendra and (3) Trilokchand Singh. The witnesses whose statements are referred to by the petitioner are the persons from Punjab. Their statements that they had by accident went to the hotel where the original accused in group were discussing the plan to kill the deceased Ranjit Singh unless tested on evidence are difficult to believe. Similarly the affidavit about the threats filed by Narendrakumar who is unknown to the accused is difficult to rely on at this stage. It addition the petitioner also invited my attention to the affidavits of Rajput and Gurucharan Singh. At the out set it may be stated that the statements of these witnesses before the police were read over with a view to impress the gravity of the offences with which the respondents are charged. The petitioner also emphasised that the medical evidence shows that the deceased had sustained 17 injuries out of which 10 were incised. In case of the respondents No. 1 to 3 it is submitted that these respondents were equally liable as they were members of the unlawful assembly and even on the question whether bail should be granted or not specific overt acts by these accused need not be attributed as laid down in (Behram v. State of Haryana)3, A.I.R. 1980 S.C. 957. Next, Mr. Punjabi also invited my attention to the decision in A.I.R. 1958 S.C. 701 to show that if threat is given it is a sufficient ground for cancellation of bail even in bailable offence. He also invited my attention to the decision reported in (Shahzed Hasan Khan v. Istidiaq Hasan Khan)4, A.I.R. 1987 S.C. 1613 to show that where in the affidavit filed by the complainant there is allegation of tampering evidence on behalf of the accused persons, the order of granting bail was liable to be set-aside. 17.It may be recalled that the bail was granted to the respondents No. 1 to 4 original accused Nos. 3 to 7 and bail was refused to the original accused Nos. 1 and 2. 17.It may be recalled that the bail was granted to the respondents No. 1 to 4 original accused Nos. 3 to 7 and bail was refused to the original accused Nos. 1 and 2. Respondent No. 2 is the son of the original accused No. 1, whereas, the respondent Nos. 1, 3 and 4 are the servants of the original accused No. 1. It is appropriate to mention at this stage that so far as the respondent No. 1 original accused No. 5 is concerned he is now dead and therefore, his case does not require any consideration. Similarly the respondent No. 4 Dattu Shinde, though granted bail could not furnish security and therefore, he continued to be in jail. Therefore, his case also does not require any consideration. Therefore, the case of the petitioner will have to be considered as against the respondents No. 2 and 3. 18.If regard be had to the allegations in the first information report lodged immediately after the occurrence, it is quite clear that the allegations against these respondents is to the effect that they were given fists and kicks. The presence of these respondents in the house of original accused Nos. 1 and 2 was natural. If they had intervened in the scuffle that took place suddenly in the house of the original accused Nos. 1 and 2 it cannot be said that there was common intention which is sought to be suggested in the arguments of the petitioner at this stage of the proceedings. I am not impressed by the arguments that the release of the accused on bail was by misrepresentation. It is pointed out that blood stain clothes were recovered but the blood could have sprinkled on their clothes during the scuffle with the injured person. That can only be considered as a natural circumstance. I do not think that any assistance can be had to the petitioner from the decision reported in A.I.R. 1980 S.C. 957 in the circumstances of the case. 19.Now, coming to the allegations of the threats in the affidavit of the petitioner and his witnesses which are specifically denied by the respondents, I do not think that the instances quoted suggesting threats by the respondents to the petitioner can be accepted without any doubt. 19.Now, coming to the allegations of the threats in the affidavit of the petitioner and his witnesses which are specifically denied by the respondents, I do not think that the instances quoted suggesting threats by the respondents to the petitioner can be accepted without any doubt. It cannot be forgotten that according to the learned Additional Public Prosecutor at no point of time the petitioner sought any Police help. There is heardly any explanation from the petitioner why he could not get assistance from the Police really when he was given threats in attending the matters. A sole instance of filing non-cognizable complaint with the police station not concerning with the jurisdiction is also a circumstance suggesting that there is no element of truthfulness in the statement made by the petitioner in his application. Quite apart it is common ground that the case has since been transferred to the Sessions Court, at Khandwa in Madhya Pradesh and the charge-sheet has also been filed and there would therefore arise no ground even to suspect about the misuse of bail by the respondents. Here is an application for cancellation made within about 2 weeks from the date of grant of bail but in the view that I take there is no material to show that the respondents No. 2 and 3 had been misusing their liberty. Moreover, there is also no material to show that the respondents No. 2 and 3 by the time when the application came up for hearing after about 5 months had lapsed since grant of bail that the accused had been misusing their liberty, I think that the application deserves to be rejected. 20.In the result, the application for cancellation of bail of the respondents No. 2 and 3 i.e. original accused Nos. 4 and 5 is rejected. Rule is discharged. Petition dismissed. *****