Judgment : The petitioner Christudas, the first informant in a triple murder case, has knocked at the doors of this Court seeking for cancellation of bail granted to the first accused one Thangasamy, the secondrespondent herein, by the learned Additional Sessions Judge-Cum-Chief Judicial Magistrate, Kanyakumari District at Nagercoil, who took in charge of the Principal Sessions Judge, by his order dated 11.4.1997, though the state has not endeavoured to do so. 2. Mr.Thangasamy, the second respondent herein is the President of Kanyakumari Hindu Munnani. He is also the proprietor of Thangam Pharmaceuticals, dealing in the manufacture of Arishtam. He would sell Arishtam to the retail vendors at wholesale rates. The petitioner Christudas, a resident of Nalloor Village in Kanyakumari District is one of those, who used to purchase Arishtam at a wholesale rate from the second respondent. The petitioner belongs to Christian Community and the second respondent Thangasamy belongs to Hindu Community. There was a difference of opinion between these two communities over the issue of renovation of a Church in Nalloor Village. Mr.Thangasamys group protested for the reno vation of the Church and ultimately he succeeded in stopping the renovation. Thereafter, the petitioner stopped purchasing Arishtam from the second respondent herein, as a result of which a mis-understanding developed between the petitioner and the second respondent. 3. On 9.10.1996 the local body elections were held. One Ratnasamy (A2), who is the brother of the second respondent Thangasamy (A 1) contested for the post of President as a B.J.P. candidate. The rival was one Bhagavathi Pillai, hailing from Eraviputhoor Village. After the elections were over on 9.10.1996, at about 10.30. p.m. when the petitioner and some others were returning back from the church after completing their regular Wednesday Mass Prayers, the second respondent Thangasamy along with 20 known persons and 20 unknown persons armed with deadly weapons suddenly appeared and waylaid them and attacked indiscriminately. As a result of the attack, the deceased 1 and 2 died at the spot. Several persons including the petitioner sustained grievous injures. The third deceased died at the hospital. Pursuant to the compliant given by the petitioner the first respondent police registered the case against the second respondent (A l) and others for the offences under Secs.147, 148, 307 and 302, I.P.C. 4. During the course of investigation, the accused persons were arrested and detained in jail. The third deceased died at the hospital. Pursuant to the compliant given by the petitioner the first respondent police registered the case against the second respondent (A l) and others for the offences under Secs.147, 148, 307 and 302, I.P.C. 4. During the course of investigation, the accused persons were arrested and detained in jail. The second respondent, the main accused, who is said to have inflicted very serious injuries on the two deceased, who died at the spot, filed applications for bail before the Sessions Court and after the dismissal, several applications before the High Court. Having regard to the gravity of the offence and the part played by the second respondent, both the forums, the Principal Sessions Judge, Kanyakumari as well as this Court dismissed all the applications. 5. On 7.4.1997 the second respondent filed an application in Crl.M.P. No.1241 of 1997 before the Principal Sessions Judge, Kanyakumari District, seeking for bail on the ground that already large sheet was filed. It was opposed by the Public Prosecutor Vehemently when the matter came up on 9.4.1997. Therefore, the Principal Sessions Judge dismissed the application on merits. 6. Strangely on the very same date, the second respondent filed another application in Crl.M.P. No.1280 of 1997 and the same came up before the Additional Sessions Judge-Cum-Chief Judicial Magistrate, since the Principal Sessions Judge was on leave. When this matter came up on 11.4.1997, the learned Additional Sessions Judge passed an order granting bail holding that he is entitled to bail. 7. This order if being challenged in this application filed by the first informant in Crl.O.P. No.5037 of 1997. However, the State has not chosen to prefer any application for cancellation. 8. The counsel for the petitioner would mainly contend that the Additional Sessions Judge has passed an order granting bail, which is illegal, to the second respondent, who is mainly responsible for the death of the deceased in this case of a treble murder without taking into consideration the gravity of the offence, the major part played by the second respondent, the earlier dismissal of the Principal Sessions Judge two days before and even without putting any condition on the second respondent. He would also refer some of the incidents in which, the witnesses were threatened by the accused persons. He would also refer some of the incidents in which, the witnesses were threatened by the accused persons. On the basis of these submissions, the counsel for the petitioner would request this Court to cancel the bail by quoting the various decisions of this Court as well as the other High Courts and the Apex Court. 9. Per contra, Mr.Gopinath, the learned senior counsel appearing for the second respondent Thangasamy (A 1) would contend that the lower court granted bail to the second respondent only after the final report was filed, and after having considered the application on merits. He would further submit that the second respondent being the President of Hindu Munnani and the Trustee of a Hindu Temple has been falsely implicated, that the State has not chosen to file any petition for cancellation of bail and that so it is not desirable to cancel the bail on accepting the petition for cancellation filed by an individual when there is bitter enmity between the parties. He would also quote several decisions to substantiate his contention that this is not a case for cancellation of bail. 10. Before adverting to the merits of the rival contentions, in order to decide about the issue as to whether bail could be cancelled in the facts and circumstances of the instant case, let me at the out set to refer to the relevant observations made by this Court, other High Courts and the Apex Court in various authorities cited by the counsel for both the parties relating to the guidelines and principles to be taken into account while considering cancellation of bail. 11. In N.K.S.Shahul Hameed v. Mohammed Ibrahim N.K.S.Shahul Hameed v. Mohammed Ibrahim , 1991 L.W. (Crl.) 473 Pratap Singh, J. (as he then was) has quoted as below: “Any way, considerations for cancellation of bail are different from considerations to be taken into account for grant of bail. In cases, where the accused is likely to tamper with the witnesses and tamper with the investigation, bail is cancelled.’ 12. In cases, where the accused is likely to tamper with the witnesses and tamper with the investigation, bail is cancelled.’ 12. In N.K.S.M.Shahul Hameed and another v. Mohammed Ibrahim N.K.S.M.Shahul Hameed and another v. Mohammed Ibrahim , 1991 L.W. (Crl.) 369 Janarthanam,J., while considering the similar situation on cancelling the bail, observed as follows: “Even assuming for arguments sake that learned Public Prosecutor consented for grant of such anticipatory bail, judicial propriety demands learned Sessions Judge is to take into consideration the serious nature of the accusation, gravity of the commission of the offences of doubles murder, the incriminating materials collected during the course of investigation till then including their arrest the possibility to their making a fervent attempt in defacing or tampering with the evidence available on record in a bid to escape from the clutches of law, which would hamper the further progress of investigation; the other possibility of their feeling away from justice by jumping bail by going to foreign shores and such other allied matters at the time of grant or otherwise of the anticipatory bail to them and the absence of such factors in the orders as passed by him is proof positive of the fact that matters irrelevant and not germane has been prevailed in his mind in granting favourable orders of anticipatory bail, of course, attached with certain conditions, which has ultimately resulted in miscarriage of justice requiring to be necessarily rectified by the interference of this Court in cancelling such orders of anticipatory bail.” 13. In State v. Adi Rajaram State v. Adi Rajaram , (1996) 2 L.W. (Crl.) 482 Shivappa, J. would observe as follows: “But in order to succeed in an application for concellation of bail, the prosecution has to show by preponderance of probabilities that there is reasonable apprehension that he will interfere with the course of justice. The reasonable apprehension must be based on fact situation in each case. It is neither necessary to prove the fact of tampering with mathematical certainty nor beyond. reasonable apprehension. Sometimes, the incident by itself is sufficient to justify the states view that there is reasonable apprehension in the mind of the prosecution that the respondent is likely to tamper with the witnesses in the event of release. It is neither necessary to prove the fact of tampering with mathematical certainty nor beyond. reasonable apprehension. Sometimes, the incident by itself is sufficient to justify the states view that there is reasonable apprehension in the mind of the prosecution that the respondent is likely to tamper with the witnesses in the event of release. Refusal to exercise the power wherever there is reasonable apprehension in the mind of the prosecution will make the Courts silent spectators to the subversion of the judicial process. If by the facts and circumstances in a given case, there is likelihood of interference by intimidating the witnesses with the aid of State Police or an attempt to evade due course of justice or likelihood of abuse of liberty or likelihood of indulging in criminal activities, in which event there may not be fair and proper atmosphere for further investigation or proper trial and these circumstances exists in a given case, is sufficient to cancel the bail”. 14. In Prafulla Kumar v. Pabaneswar Subudhi Prafulla Kumar v. Pabaneswar Subudhi , 1989 Crl.L.J. 2016 the Orissa High Court while considering the competence of the private party to move an application for cancellation of bail, has observed as follows: “Admittedly the State has not moved for cancellation of bail. Though there is no absolute bar against an informant to move for cancellation of bail, under Sec.439(2), Cr.P.C, Yet the considerations which weigh with the court to exercise powers at the instance of a private person are, besides the factors necessary to be considered when the application is made by the State, the additional factors of whether the order granting bail has resulted in gross miscarriage of justice, is wholly an abuse of the process of law and whether there is any real threat or risk to the informant or his party due to the accused being at large.” 15. In Bhagirathsingh Judeja v. State of Gujarat Bhagirathsingh Judeja v. State of Gujarat 1984 Crl.L.J. 160 the Apex Court has held as follows: “Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. And the trend today is towards granting bail because it is now well-settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed.” 16. And the trend today is towards granting bail because it is now well-settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed.” 16. In Dolat Ram v. The State of Haryana Dolat Ram v. The State of Haryana , 1995 MLJ. (Crl.) 211 the Apex Court would hold as follows: “Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.” 17. In Delhi Administration v. Sanjay Gandhi Delhi Administration v. Sanjay Gandhi , A.I.R. 1978 S.C. 961: 1978 Crl.L.J. 952: (1978)2 S.C.C. 411 : (1978)2 S.C.J. 159: 1978 MLJ. (Crl.) 500: (1978)2 S.C. W.R. 175 the Supreme Court would observe: “Rejection of bail when bail is applied for is one thing., but cancellation of bail already granted is quite another thing. It is easier to reject a bail application in a non-bailable case than to cancel the bail granted in such a case. Cancellation of bail necessarily involves the review of 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.” 18. Cancellation of bail necessarily involves the review of 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.” 18. In Aslam Babalal Desai v. State of Maharashtra Aslam Babalal Desai v. State of Maharashtra , A.I.R. 1993 S.C. 1 the Apex Court would hold thus: “Once the order of release is by fiction of law an order passed under Sec.437(1) or (2) or 439(1) it follows as a natural consequence that the said order can be cancelled under sub-sec.(5) of Sec. 437 or sub-Sec.(2) of Sec. 439 on considerations relevant for cancellation of an order thereunder. As stated in A.I.R. 1987 S.C. 149, the grounds for cancellation under Secs. 437(5) and 439(2) are identical, namely, bail granted under Sec. 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 or 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 rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to.” 19. These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to.” 19. In State v. Jaspal Singh Gill State v. Jaspal Singh Gill , A.I.R. 1984 S.C. 1503: (1984)3 S.C.C. 555 Justice E.S.Venkataramiah (Apex Court) while cancelling the bail granted by the High Court would make the following observations: “I am of the view that the Court before granting bail in cases involving non-bailable offences particularly where the trial has not yet commenced should take into consideration various matters such as the nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State and similar considerations. On going through the order passed by the High Court, I feel that its decision that the material collected by the prosecution and the evidence to be adduced at the trial would not be sufficient to sustain a conviction appears to be a premature one, in the circumstances of the case/. Some of the observations made by the High Court against the sustainability of the case of criminal conspiracy alleged by the prosecution at the stage were not called for/.. In the circumstances, I am of the view that the High Court should not have enlarged the respondent on bail in the larger interests of the state.” 20. All these decisions quoted above would indicate that under circumstances, bail could be cancelled. In these decisions, the main consideration for the cancellation of the bail was the supervening circumstances in which the privilege of bail has been invariably misused while on bail. 21. I would now consider the powers of this Court to go into the question of impropriety reflected in the order of the lower Court granting bail. This application for cancellation of bail has been filed under Sec.439(2) read with Sec.482, Crl.P.C. 22. 21. I would now consider the powers of this Court to go into the question of impropriety reflected in the order of the lower Court granting bail. This application for cancellation of bail has been filed under Sec.439(2) read with Sec.482, Crl.P.C. 22. Sec.439, Crl.P.C. envisages as follows: “(1) A High Court or Court of Session may direct- (a) that if any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-Sec.(3) of Sec.437, may impose any condition which it considers necessary for the purposes mentioned in that section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified; Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the court of session or which, though not to triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. (2) A HighCourt 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.” From the perusal of this section, it is clear that the order of the respective courts could be sought to be set aside before the same courts. However, on the question of impropriety or illegality in the order of the Court of Session it cannot be moved before the same Court and it could be done only by approaching the High Court under Sec.439(2), Crl.P.C. In other words, the very same Court which granted bail could be approached for cancellation of bail, only when there are supervening circumstances or subsequent development, which would show that the freedom of bail granted to a person has been misused or it would affect the fair conduct of trial. However, the High Court could be moved against the order of Sessions Court either on the ground of impropriety or illegality in the order of Sessions Court or on the ground of supervening circumstances occurred subsequent to the bail order by the Sessions Court. However, the High Court could be moved against the order of Sessions Court either on the ground of impropriety or illegality in the order of Sessions Court or on the ground of supervening circumstances occurred subsequent to the bail order by the Sessions Court. So, bearing in mind this proposition it is relevant, to refer some of the decisions of this Court as well as the other High Courts and the Apex Court, in order to know the scope of the powers of this Court to go into the propriety or legality and merits of the order of bail with the view to deciding the issue whether the order of cancellation of bail could be passed by this Court. Some of the decisions touching this aspect are as follows: 23. In State v. Adi Rajaram State v. Adi Rajaram , (1996)2 L. W. (Crl.) 482 Shivappa, J. would hold as follows: “The application for cancellation has been filed under Sec.439(2) read with Sec.482, Crl.P.C. I see no reason to hold that it is not maintainable and the contention deserves to be rejected. In State v. Mahinder Singh State v. Mahinder Singh , (1994)1 Crimes 56 and Jayanti Prasad Goel v. Sumitra Jain and others Jayanti Prasad Goel v. Sumitra Jain and others , (1994)1 CCR 174 the High Court of Delhi has held that if it is found that bail has been granted improperly, can always be cancelled. The propriety and illegality of the order passed by the Court of Session can be examined by the High Court. Therefore, I see no merit in the contention that the petition is not maintainable.” 24. In Padam Chand Jain v. State of Rajasthan Padam Chand Jain v. State of Rajasthan , 1991 Crl.L.J. 736 the Rajasthan High Court, while dealing with the application for cancellation of bail under Sec.439(2), Crl.P.C, which bail was granted by the Sessions Judge, Jaipur, would observe the following reasoning and cancel the bail: “The question is as to whether it on certain material without any change of circumstances, and it may be stated that filing of charge-sheet cannot be considered to be a change of circumstance, this Court had disallowed bail, whether the propriety demands and whether it was proper for the learned Sessions Judge to allow the bail to the accused. I have no doubt in my mind that on the same material if this Court has already dismissed an application for bail filed by an accused, the learned Sessions Judge should not allow that bail application. I am therefore of the opinion that in the fact situation of the present case where the earlier bail application had been dismissed by this Court, the judicial propriety demanded that the learned Sessions Judge should not have allowed the bail to the accused- non-petitioner. 25. In Gam v. State of U.P. Gam v. State of U.P. , 1987 Crl.L.J. 242 the Allahabad High Court would hold that subsequent application for bail could not be maintained, if matter was already considered in the previous application. The relevant observation is given below: “The right of bail is a statutory right, rather it is a constitutional right. Even though it may be second or third bail application, but unless it is apparent from a reading of the first bail order that the point urged in the subsequent bail application was also considered and rejected, it cannot be said that the point urged in the second or third bail application would be deemed to have been considered in the first bail application just by implication/ Unless the point argued in the subsequent bail application appears to have been considered, and discussed in the first order itself, the same cannot be deemed to have been considered under the analogy of constructive res judicata.” 26. In Baikunthanath Dalai v. Digambar Jena Baikunthanath Dalai v. Digambar Jena , 1991 Crl.L.J. 203 the Orissa High Court would observe as follows: “It is not in dispute that in the present case there is no allegation that the accused-opp. Parties have committed any overt act after they were admitted to bail. The question therefore is whether in such a case the order granting bail can be cancelled under Sec.439(2), Crl.P.C. No doubt, while considering an application for cancellation of bail the court ordinarily looks for some supervening circumstances indicating that the accused has misultilised the liberty granted to him by being admitted to bail, but that is neither a statutory sine quo non a rule of universal application. The position has to be taken as well settled that bail granted illegally or improperly by a wrong and arbitrary exercise or judicial decision can be cancelled even if there is absence of supervening circumstances against the accused after grant of bail.(See Chhaila Pradhan v. Bansidhar Pradhan Chhaila Pradhan v. Bansidhar Pradhan , (1986) 62 Cut.L.T. 699; Pitambar Swain v. Ainthu alias Ashok Kumar Sabu Pitambar Swain v. Ainthu alias Ashok Kumar Sabu [1988] 66 Cut.L.T. 820 Prasanta Kumar Dhal v. State Prasanta Kumar Dhal v. State [1989] 67 Cut.L.T. 272 It is also a well accepted principle that successive applications for bail by the same accused should not be entertained unless the court is satisfied that in the meantime there has been a material change in the circumstances which warrants reconsideration of the matter. (See Kumar Mohapatra v. Abhina Mallick alias Abhimanyu Mallick Kumar Mohapatra v. Abhina Mallick alias Abhimanyu Mallick , (1989) 2 Orissa L.R. 373.” 27. Kamud Mahapatra v. Abhina Mallick Kamud Mahapatra v. Abhina Mallick , 1990 Crl.L.J. 2646 is also a case where the Orissa High Court cancelled the bail granted in a murder case by the Sessions Court under Sec.439(2), Crl.P.C. on the ground that the judicial discretion has been exercised arbitrarily and improperly. The relevant observation is as follows: “A bench of this Court in Chhaila Pradhan v. Bansidhar Pradhan Chhaila Pradhan v. Bansidhar Pradhan , (1986) 62 Cut.L.T. 699 after review of a large number of decisions of the Supreme Court and different High Courts laid down that if bail has been rejected earlier on merit, the grant of bail subsequently in the absence of new or additional circumstances to justify the order can be said to have been passed improperly and arbitrarily warranting cancellation. In my judgment, therefore, the impugned order of bail was passed illegally by wrong and arbitrary exercise of judicial discretion and according to the accepted principle of this Court is liable to be cancelled.” 28. In Baldev Singh v. Durga Prasad Baldev Singh v. Durga Prasad , 1989 Crl.L.J. (Noc.) 94 (Delhi) 43 it is held thus: “It is the common practice in courts that in every bail application moved, the person moving the application for bail is supposed to mention as to whether any previous bail application has been moved or not and if moved, what has been the fate of that bail application. Some cogent reasons have to be given to the Court if such material fact is omitted from the new bail application. It is possible that if some good reasons are ”given for failure to mention the fate of the previous bail application, the Court may not be inclined to cancel the bail application on this fact alone but where the court finds that the material facts have been suppressed intentionally in order to obtain a favourable bail order, the Court would be failing in its duty if such an order is not struck down as such an act of the accused or any person moving bail application on his behalf would amount to playing fraud on the court and also the same would be an abuse of the process of the Court.” 29. In Daini alias Raju v. State of M.P Daini alias Raju v. State of M.P , (1989) Crl.L.J. (Noc.) 149 it is observed as follows: “Experience shows that discretion of a Judge while granting bail happens to be guided by several such considerations as would be totally irrelevant at the trial. Facts and circumstances, irrelevant and insignificant at the trial assume decisive rule and significance at the hearing of bail petition. At times, the Courts are called upon to take into consideration such material as may not be on record strictly speaking, and at times such material as would never constitute legal evidence at the trial. Parts of case diary not available to the accused and incapable of consideration at the trial may be looked into by the Court in deciding a question as to grant of bail. Statements at Bar, some times incorporated in the order and sometimes not, nevertheless play a persuasive role. Not only the nature of accusation, the nature of evidence in support thereof, the severity of punishment which the conviction might entail but even the character, behaviour, means and standing of the accused may have to be taken into state, the question of the interest of the society at large, law and order situation, etc. might have to be kept in view. The family condition and the family history of the applicant may be required to be assigned weight.” 30. In Gurcharan Singh v. State (Delhi Administration) Gurcharan Singh v. State (Delhi Administration) A.I.R. 1978 S.C.179, : (1978) 1 S.C.C. 118 : (1978) 1 S.C.J. 338: (1978) MLJ. might have to be kept in view. The family condition and the family history of the applicant may be required to be assigned weight.” 30. In Gurcharan Singh v. State (Delhi Administration) Gurcharan Singh v. State (Delhi Administration) A.I.R. 1978 S.C.179, : (1978) 1 S.C.C. 118 : (1978) 1 S.C.J. 338: (1978) MLJ. (Crl.) 261: (1978) 2 S.C.R. 358 the Apex Court, while confirming the order of the High Court cancelling the bail granted by the Sessions Judge, would quote as follows, after taking into consideration of the reasonings given in the respective orders: The learned Sessions Judge ended his long discussion as follows: “To sum up, after reviewing the entire material including the inquest proceedings held by the Sub-Divisional Magistrate statements recorded by the C.B.I, during the preliminary enquiry and under Sec.161, Crl.P.C. and the statements recorded under Sec.164, Crl.P.C. and having regard to the inordinate delay in registering this case and to the circumstances that there is little probability of the petitioners flying from justice or tampering with the witnesses, and also having regard to the character of evidence, I am inclined to grant bail to the petitioners.” The High Court, on the other hand, set aside the orders of the Sessions Judge observing as follows: “Considering the nature of the offence, character of the evidence including the fact that some of the witnesses during preliminary inquiry did not fully support the prosecution case; the reasonable apprehension of witnesses being tampered with and all other factors relevant for consideration, while considering the application for grant or refusal of bail in a non-bailable offence punishable with death or imprisonment for life, I have no option but to cancel the bail. I am of the considered view that the learned Sessions Judge did not exercise his judicial discretion on relevant well recognised principles and factors which ought to have been considered by him.” We are satisfied that the High Court has correctly appreciated the entire position and the Sessions Judge did not at the stage the case was before. We will not, therefore, be justified under Art.136 of the Constitution in interfering with the discretion exercised by the High Court in cancelling the bail of the appellants in this case.” 31. We will not, therefore, be justified under Art.136 of the Constitution in interfering with the discretion exercised by the High Court in cancelling the bail of the appellants in this case.” 31. In State of Maharashtra v. Buddhikota Subha Rao State of Maharashtra v. Buddhikota Subha Rao , A.I.R. 1989 S.C. 2292 the Apex Court cancelled the bail granted by the High Court by making some important observation that this is a case where some bail applications were filed in the High Court, one set of bail applications was dismissed by the learned Judge of High Court, other applications made thereafter to the other Judge, who was in charge for bail cases, only after two days after the dismissal of the earlier application. The relevant observations are as follows: “Before the ink was dry on Puranik, J.‘s order, it was upturned by the impugned order. It is not as if the Court passing the impugned order was not aware of the decision of Puranik,J. ; in fact there is a reference to the same in the impugned order. Could this be done in the absence of new facts and changed circumstances. What is important to realise is that in Criminal Application No.375 of 1989, the respondent had made an identical request as is obvious from one of the prayers (extracted earlier) made therein. Once that application was rejected there was no question of granting a similar prayer. That is virtually overruling the earlier decision without there being a change in the fact-situation. And, when we speak of change, we mean a substantial, one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or he consequence. Between the two orders there was a gap on only two days and it is nobodys case that during these two days drastic changes had taken place necessitating the release of the respondent on bail. Judicial discipline, propriety and comity demanded that the impugned order should not have been passed reversing all earlier orders including the one rendered by Puranik, J. only a couple of days before, in the absence of any substantial change in the fact-situation. Judicial discipline, propriety and comity demanded that the impugned order should not have been passed reversing all earlier orders including the one rendered by Puranik, J. only a couple of days before, in the absence of any substantial change in the fact-situation. In such cases it is necessary to act with restraint and circumspection so that the process of the court is not abused by a litigant and an impression does not gain ground that the litigant has either successfully avoided one Judge or selected another to secure an order which had hitherto eluded him.” 32. In Shahzad Hasan Khan v. Ishtiaq Hasan Khan Shahzad Hasan Khan v. Ishtiaq Hasan Khan , A.I.R. 1987 S.C. 1613 the Apex Court cancelled the bail granted by the High Court of Allahabad. This is a case where the accused in a case of murder committed in a broad day light in the presence of number of witnesses applied for bail before the Session Judge. The same was rejected on 22.4.1985. On 18.9.1985 the similar prayer before the Allahabad High Court also was rejected. Again, on 21.1.1986 an application was moved before Justice Kamleshwar Nath, who rejected the same. Within a few days thereafter, the accused made another application before Justice P.Deyal. The learned Judge directed that the bail application be placed before Justice Kamleshwar Nath, who had earlier passed orders rejecting the bail. In pursuance of that order, the bail application was placed before the other Judge. Howeveron 24.3.1986 the application was dismissed as withdrawn. On 3.6.1986, again an application was moved for bail before Justice D.S.Bajpai, Vacation Judge. The learned Judge directed that the application be placed before Justice Kamleshwar Nath, who earlier dealt with similar applications. Two days later, another application was filed before Justice D.S.Bajpai, who this time recalled his earlier order and the application was directed to be posted before him on June 7, 1986. On that date the complainants Counsel objected to this course and requested time for filing counter. However, Justice D.S.Bajpai did not grant time. Instead, the learned Judge enlarged the accused on bail. On that date the complainants Counsel objected to this course and requested time for filing counter. However, Justice D.S.Bajpai did not grant time. Instead, the learned Judge enlarged the accused on bail. When this order was challenged before the Apex Court, the order of the High Court was set aside by the Apex Court by making the following observations: “We are of the opinion that Justice D.S. Bajpai should not have recalled his order dated June 3, 1986 keeping in view the judicial discipline and the prevailing practice in the High Court/. Long standing convention and judicial discipline required that respondents bail application should have been placed before Justice Kamleshwar Nath who had passed earlier orders, who was available as vacation Judge. The convention that subsequent bail application should be placed before the some Judge who may have passed earlier orders has its roots in principle. It prevents the abuse of process of court inasmuch as an impression is not created that a litigant is shunning or selecting a court depending on whether the court is to his liking or not, and is encouraged to file successive applications without any new factor having cropped up. If successive bail applications on the some subject are permitted to be disposed of by different Judges, there would be conflicting orders and a litigant would be pestering every Judge till he gets on order to his liking resulting in the credibility of the court and the confidence of the other side being put in issue and there would be wastage of Courts time. Justice D.S.Bajpai should have respected his own order dated June 3, 1986 and that order ought not to have been recalled, without confidence of the parties in the judicial process being rudely shaken/. No doubt liberty of a citizen must be jealously safeguarded by court, nonetheless when a person is accused of a serious offence like murder and his successive bail applications are rejected on merit there being prima facie material, the prosecution is entitled to place correct facts before the court/. We are of the opinion that the learned Judge committed serious error in recalling his order dated June 3, 1986 and enlarging the respondent on bail. We are of the opinion that the learned Judge committed serious error in recalling his order dated June 3, 1986 and enlarging the respondent on bail. The occurrence took place, in the broad day light, in a busy market place and there are a number of eye witnesses to support the case against the respondent who was named as an assailant in the First Information Report/..In view of the facts and circumstances the respondent was not entitled to bail if the seriousness of the matter was realised and a judicious approach was made. We had accordingly set aside the order the High Court and directed that respondent No.1, Ishtisq Hssan Khan shall be taken into custody forthwith and the trial shall proceed in accordance with law expeditiously.” 33. In the light of the aforesaid authorities, let me once again reiterate the relevant facts, in order to enter into area of discussion relating to the care of the issue. 34. On 9.10.1996 at about 11.30 p.m. when the first informant, the petitioner along with the deceased 1 to 3 and few others were returning back from the Church after completing their regular Mess Prayers, the second respondent Thangasamy (A1) along with others out of enmity way laid the deceased and others and attacked them with dangerous weapons, as a result of which three persons died and nine persons sustained injuries. The petitioner gave a complaint to the Police. Who in turn, registered the case against the second respondent and others for the offences under Secs.147, 148, 307 and 302, I.P.C. As far as the second respondent is concerned, even in the F.I.R. all the details have been mentioned by the first informant relating to the previous motive, which the second respondent had against the deceased party. The weapons with which the injuries were inflicted, the over acts attributed against the second respondent, all have been mentioned. The second respondent was remanded to the judicial custody on 10.10.1996 and the other accused were arrested during the course of investigation on various subsequent dates. The second respondent filed several bail applications before the Sessions Court as well as the High Court and the same were dismissed by both the forums. The second respondent was remanded to the judicial custody on 10.10.1996 and the other accused were arrested during the course of investigation on various subsequent dates. The second respondent filed several bail applications before the Sessions Court as well as the High Court and the same were dismissed by both the forums. Even when the second respondent was in judicial custody there was an attempt made by the relatives and friends of the second respondent to attack the witnesses and they were threatened not to depose evidence against the second respondent party. With reference to these incidents, it is submitted that several petitions have been sent to the Police and higher officials. After finishing investigation, the investigating agency filed a charge-sheet against the second respondent and others before Judicial Magistrate No.3, Nagercoil, and the same was taken on file as P.R.No.4 1997. 35. At this point of time, the second respondent Thangasamy (A l) filed a petition for bail, under Sec.439, Crl.P.C. before the Principal District and Sessions Judge, Kanyakumari at Nagercoil, in Crl.M.P. No.1241 of 1997. The court seal affixed on the petitioner would show that this application was entertained by the court on 4.4.1997. The perusal of the original, which has been called for by this Court, also would make it clear that the copy of the petition was received by the Public Prosecutor on 4.4.1997. This matter came up on 9.4.1997 before the Principal Sessions Judge. The counsel for the second respondent Thangasamy (A l) and the Public Prosecutor were heard. The learned Principal Sessions Judge on the basis of objection raised by the Public Prosecutor felt that since in the charge-sheet it was mentioned that A l Thangasamy had attacked two deceased persons and that there was a continued tension prevailing in the village, dismissed the bail application holding that there was no ground to grant bail. The order is as follows: “Heard both sides. Offences are under Secs. 147, 148, 307 and 302, I.P.C It is a case of treble murder. In the “charge sheet it was mentioned that the petitioner has attacked two deceased persons. P.P. represents that there is tension in the village. There is no ground to grant bail to the petitioner. Petition is dismissed.” The original order would show that both the hearing and the dismissal of the order was on the same day, i.e. on 9.4.1997. 36. P.P. represents that there is tension in the village. There is no ground to grant bail to the petitioner. Petition is dismissed.” The original order would show that both the hearing and the dismissal of the order was on the same day, i.e. on 9.4.1997. 36. Curiously the very same counsel filed another application for bail on 9.4.1997 itself after giving notice copy to the Public Prosecutor, which was numbered as Crl.M.P. No.12830 of 1997. The original of the application would go to show that the Court seal was affixed on 9.4.1997 and the Public Prosecutor received the copy of the application on the same day. This matter came up before the Principal Sessions Judge (in charge) on 11.4.1997 and bail was granted on the same day. The learned Principal Sessions Judge (in charge) himself has written in his own handwriting in the following words: “Heard. The petitioner was in custody for 185 days. It seems that charge sheet filed. Hence petitioner is entitled to release on bail on executing bond for Rs.15,000 with two sureties for like sum.” So, on the basis of this order, the second respondent came out on bail on the same date, i.e. on 11.4.1997. This order is challenged as indicated earlier before this Court. 37. While narrating the above facts, the following questions would emerge for a deep probe and for proper consideration: (1) The learned Principal Sessions Judge (in charge) in his order dated 11.4.1997 has merely mentioned that the petitioner is entitled to release on bail as he is custody for 185 days and it seemed that charge sheet was filed. Whether he is legally right to say that the petitioner is entitled to bail on this reason. (2) Only two days ago, i.e. on 9.4.1997 the very same Court, of course, the Principal Sessions Judge dismissed the petition on the ground that it was case of treble murder, that in the charge-sheet filed in the Court it is mentioned that the accused attacked two deceased persons and that there was tension continued to prevail in the village. The learned Principal Sessions Judge also mentioned that there was no ground to grant bail. The learned Principal Sessions Judge also mentioned that there was no ground to grant bail. When such an order has been passed by the predecessor on 9.4.1997, is it legally right on the part of the Principal Sessions Judge (in charge), who is a temporary successor to pass an order of bail, even without referring the earlier order and change of circumstances. (3) In the order dated 11.4.1997 the learned Principal Sessions Judge (in charge) has mentioned that the charge-sheet has been filed, whereas filing of the charge-sheet was also considered by the Principal Sessions Judge in his order dated 9.4.1997 while dismissing the application. Therefore, is it proper on the part of the learned Principal Sessions Judge (in charge) to consider the filing of the charge-sheet as a ground for bail. (4) The first order dated 9.4.1997 shows “heard both sides“ the objection raised by the Public Prosecutor has also been considered; the gravity of the offence also was taken into account by the Principal Sessions Judge and the application was dismissed. But, 11.4.1997 order only would show “Heard”. There is no reference about the representation made by the Public Prosecutor. There is also no other condition imposed on the accused except the execution of bond with two sureties. Therefore, is it proper on the part of the learned Principal Sessions Judge (in charge) to pass an order of bail in a treble murder case, without hearing the Public Prosecutor. If the Public Prosecutor was present and heard, why there is no reference about his presence or his representation in the order. (5) The petition for bail in Crl.M.P. No.1241 of 1997 filed before the Sessions Court and the order would give the following details: (i) The counsel for the petitioner has signed in the petition. (ii) The case has been charge-sheeted as P.R.C. No. 4/97 on the file of J.M.3, Nagercoil. (iii) The petition was presented by the Advocate on 4.4.1997 before the Court after serving the copy on Public Prosecutor on the some date, (iv) On 9.4.1997, the learned Principal Sessions Judge heard both the counsel for the petitioner and the Public Prosecutor and dismissed the application. The subsequent application for bail in Crl.M.P. No.1280 of 1997 would give the following particulars: (i) The said petition was presented before the Court on 9.4.1997. The Court seal was affixed on that date. The subsequent application for bail in Crl.M.P. No.1280 of 1997 would give the following particulars: (i) The said petition was presented before the Court on 9.4.1997. The Court seal was affixed on that date. Public Prosecutor received the copy on the same date. The same counsel signed in the petition. (ii) In the petition it is stated that after investigation the case has been charge-sheeted in P.R.C.No. 4 of 1997. (iii) The details with reference to the earlier application and its dismissal on 9.4.1997 are conspicuously absent in this petition. In the light of the above facts, some embarrassing questions crop up such as; as to why the counsel for the petitioner filed another application on the some date, that is, on 9.4.1997 on which date the earlier application was dismissed, as to why he has not cared to mention about the moving of the earlier application and its dismissal in the successive application in Crl.M.P. No.1280 of 1997: and as to why he had not brought to the notice of the Principal Sessions Judge (in charge) on 11.4.1997, while he made submissions, any of circumstances warranting for the review of the earlier order passed on 9.4.1997. (6) The second original application filed on 9.4.1997 would show that the copy had been received by the Public Prosecutor on 9.4.1997, which came up for disposal on 11.4.1997. As indicated earlier, there is no reference about the representation made by the Public Prosecutor in the said order. It is not known as to whether the Public Prosecutor was really present and made representation and despite that the Principal Sessions Judge (in charge) has not referred about the said representation in his order or if the Public Prosecutor was not present, it is not known as to why he was not present despite that: he received the notice on 9.4.1997 to be moved before the Principal Sessions Judge (in charge) on 11.4.1997. If actually, the Public Prosecutor was present on 11.4.1997, it is not known as to why the Public Prosecutor has not objected to the petition, particularly, when the earlier petition was dismissed on 9.4.1997 on his objection. These are all the disturbing features, which this Court has to bear in mind while going to the question whether it is a fit case for cancellation of bail. 38. These are all the disturbing features, which this Court has to bear in mind while going to the question whether it is a fit case for cancellation of bail. 38. Mr.Gopinath, the learned senior counsel appearing for the second respondent neither in the counter nor in his submission would make any attempt to explain the above disquieting features. However, he would vehemently contend that in the absence of any application by the State requesting for cancellation, this Court may not interfere with” the impugned order, which was said to be passed after due consideration. 39. I am unable to accept the said contention in view of the following circumstances: The learned Principal Sessions Judge dismissed the petition for bail in Crl.M.P. No.1241 of 1997 on 9.4.1997 on the basis of the representation made by the learned Public Prosecutor that it is a case of treble murder and tension is still prevailing in the village. On the very same date, that is, after the pronouncement of the order, the second respondent Thangasamy (A l) filed another application for bail in Crl.M.P. No.1280 of 1997 and the same came up before the Additional Sessions Judge cum C.J.M. who was in charge of the Principal Sessions Judge, on 11.4.1997, who granted bail on the ground that already charge-sheet has been filed and the respondent No.2 was in jail for about 185 days. The reading of the petitions in Crl.M.P. No.1241 of 1997 disposed of on 9.4.1997 and Cr.M.P.No. 1280 of 1997 disposed of on 11.4.1997 would make is clear that the wordings contained in these petitions are verbatim same. It is agonising to see that even the dismissal of the earlier application for bail on 9.4.1997 was not mentioned in the application which was disposed of on 11.4.1997. This would show that the bail was granted on 11.4.1997 on the very same materials, which were considered by the learned Principal Sessions Judge for declining bail. As such, the order passed in Crl.M.P. No.1280 of 1997 is not in accordance with law and the same is liable to be set aside. 40. This would show that the bail was granted on 11.4.1997 on the very same materials, which were considered by the learned Principal Sessions Judge for declining bail. As such, the order passed in Crl.M.P. No.1280 of 1997 is not in accordance with law and the same is liable to be set aside. 40. When the learned Public Prosecutor chose to appose the application before the learned Principal Sessions Judge on 9.4.1997, though received the notice in the bail application in Crl.M.P.No. 1280 of 1997 on the very same date, that is, on 9.4.1997, did not object to the bail on 11.4.1997, nor chose to file any counter to the second bail application so as to intimate to the court that the earlier bail application was dismissed, on 9.4.1997 just two days ago. As indicated earlier, the lower, Court did not even care to observe in the order that the Public Prosecutor also was heard. Though the impugned order in Crl.M.P. No.1280 of 1997 does not refer about the presence of the learned Public Prosecutor not about his representation, it may be taken that the order has been passed in the said application by the learned Additional Sessions Judge only after hearing both the parties. Had Public Prosecutor not been heard, the learned Public Prosecutor would have certainly taken steps to file application for cancellation before the appropriate forum on the ground that he was not heard. The very fact that the Public Prosecutor did not choose to file any application for cancellation before this Court and the first informant only filed the instant application seeking for cancellation of bail would clearly show that the order of bail was hurriedly passed by the learned Additional Sessions Judge after making a formal hearing of both the parties, even without imposing usual conditions, though it is a case of treble murder. So, on this ground also the impugned order is liable to be set aside. 41. No doubt it is true, the State has not moved for cancellation of bail. So, on this ground also the impugned order is liable to be set aside. 41. No doubt it is true, the State has not moved for cancellation of bail. However, it is to be noted that there is no absolute bar against the first informant to move for cancellation of bail under Sec.439 (2) and 482, Crl.P.C. Therefore, this Court has powers to consider the question whether the lower Court while granting bail, has taken into account the gravity of the offence, nature of the evidence available against the accused, the circumstances under which the offence was committed, the apprehension of the accused of fleeing from justice, if enlarged on bail, the apprehension of his tampering with the evidence, if he is at large, and the larger interest of the public and the State. The perusal of the impugned order would go to show that these factors have not at all been considered. 42. As often held by this Court, the mere submission of the charge sheet is not a factor for release of the accused on bail since such step taken by the prosecution is only a factor against the accused and in no way advances his cause to remain free. In the instant case, as stated earlier, the filing of the charge-sheet was also considered while dismissing the first application on 9.4.1997. Therefore, when an application for bail was rejected on merits one occasion, there should be some development and additional factors to justify an order admitting the accused in bail. Unless there are fresh materials to justify grant of bail, it is not open to the learned Additional Sessions Judge to enlarge the accused on bail on the very same materials which had been earlier considered and bail refused. Therefore it must be held that the grounds relied upon by the learned Additional Sessions Judge to pass an order of bail are not sustainable in law, thereby the learned Additional Sessions Judge has grossly failed to keep the well-settled principal of law in view, in passing the impugned order. 43. Between these two orders there is a gap of only two days. It is nobodys case that during these two days drastic change had taken place necessitating the release of the second respondent on bail. The counsel, appeared in both the applications is the same. 43. Between these two orders there is a gap of only two days. It is nobodys case that during these two days drastic change had taken place necessitating the release of the second respondent on bail. The counsel, appeared in both the applications is the same. It cannot also be disputed that the Public Prosecutor appeared in both these applications is the same. The only circumstance is the Principal Sessions Judge, who passed the first order went on leave from 10.4.1997 and the Additional Sessions Judge-cum-Chief Judicial Magistrate took charge as Principal Sessions Judge on 10.4.1997. Probably, this might be a factor as to why the second application has been filed even on 9.4.1997 knowing the fact that the Principal Sessions Judge would proceed to go on leave on 10.4.1997 and the matter could be brought up before the Additional Sessions Judge, who took charge as Principal Sessions Judge. Thus, as observed by the Apex Court, before the ink was dry on the order passed by the learned Principal Sessions Judge, the same was upturned by the impugned order by the Additional Sessions Judge. Once the application was rejected, there is no question of granting similar prayer within two days. This is virtually amounting to the learned Additional Sessions Judge overruling the earlier decision rendered by the Principal Sessions Judge, without there being a change in the fact-situation. I could say with great anguish that the judicial discipline has been sacrified by the learned Additional Sessions Judge at the altar of judicial discretion. Judicial restraint demands that I say no more about the conduct of the learned Additional Sessions Judge. 44. In the earlier paragraphs I have discussed about the guidelines given in the judgments by this Court, the other High Courts and the Apex Court for cancelling the bail, as detailed above the bail could be cancelled either on the reason that the order of bail suffers with illegality of on the ground that the accused after his release on bail has misused his liberty. Even though there are some instances quoted in the affidavit filed by the petitioner in this application for cancellation of bail to show that the witnesses were threatened by the accused persons. Even though there are some instances quoted in the affidavit filed by the petitioner in this application for cancellation of bail to show that the witnesses were threatened by the accused persons. I do not think that it can be of any use for considering the cancellation of bail on that ground, since it was not well brought out through the clear details or through the supporting affidavits. Therefore, I mainly consider this application for cancellation only on the first ground, namely, the infirmity in the impugned order. 45. For all these reasons, in my considered view, the reasons assigned by the learned Additional Sessions Judge-cum-Chief Judicial Magistrate, Nagercoil, for granting bail to the second respondent Thangasamy (A l) are not in conformity with the well-settled principles enunciated by the Apex Court and this Court. Therefore, I consider it proper to cancel the bail granted to the second respondent herein. Accordingly, the petition is allowed. The bail granted to the second respondent herein on 11.4.1997 by the learned Additional Sessions Judge, Nagercoil, is cancelled and I direct that the second respondent be arrested and taken into custody forthwith.