JUDGMENT 1. - This order will dispose of the above two criminal misc. petitions which have been filed under section 482 Cr.P.C. 2. I have heard the learned counsel for the parties at length. 3. Criminal Misc. Petition No. 246/97 has been filed by Ashwani Kumar Bhardwaj to set aside the order of learned Sessions Judge, Chittorgarh passed on 28.1.1997 by which he cancelled the bail of the petitioner. In the alternative it has been prayed that the petitioner may be granted bail by this Court. 4. Cr. Misc. Petition No. 331/97 has been filed by the State of Rajasthan to cancel the bail granted to Ashwani Kumar Bhardwaj by the Special Judge, SC/ST Act Court, Pratapgarh on 21.4.1997 under section 167(2) Cr.P.C. 5. It will be proper to mention the facts of the case in short. FIR No. 244/93 was registered at Police Station Kotwali Chittorgarh on 4.6.1993 against Ashwani Kumar Bhardwaj under section 364 IPC. During the course of investigation, Section 3(2)(5) of the SC/ST Act was added on 15.7.1993. The investigation of the case was transferred to Dy. S.P. (East), Udaipur City by the order of the DIG, Udaipur Range, Udaipur dated 26.6.1993. On 17.6.1995 final report was submitted in the Court of Chief Judicial Magistrate, Chittor garh for want of proof. Under the instructions from the Director General of Police, the case was recalled and the file was obtained on 19.6.1996 from the Court of Chief Judicial Magistrate, Chittorgarh for reinvestigation. During the course of reinvestigation Sections 302, 201/120-B IPC were added in July, 1996. Ashwani Kumar Bhardwaj submitted an application before the Special Judge, SC/ST Act Cases for anticipatory bail which was heard by Addl. Sessions Judge No. 2, Shri Siddharth Kumar Jain, as the Special Judge was on leave on that day and all other Additional Sessions Judges were on leave that day. The post of District and Sessions Judge, Pratapgarh was lying vancant. Anticipatory bail was granted to Ashwani Kumar Bhardwaj on 11.10.1994. The State filed an application for cancellation of anticipatory bail before the learned Sessions Judge, Pratapgarh which was registered as case No. 405/96. It may be stated that when this petition for cancellation was pending, Ashwani Kumar Bhardwaj moved a transfer petition No. 65/96 before this Court but the same was dismissed on 20.12.1996. One of the co-accused in C.R. No. 244/93 filed misc. It may be stated that when this petition for cancellation was pending, Ashwani Kumar Bhardwaj moved a transfer petition No. 65/96 before this Court but the same was dismissed on 20.12.1996. One of the co-accused in C.R. No. 244/93 filed misc. petition No. 453/96, Gurdayal Singh v. State for quashing the criminal proceedings in the case but on 23.9.1996 his petition was dismissed. After the transfer petition No. 65/96 filed before this Court was dismissed on 20.12.1996, the application for cancellation of bail under section 439(2) Cr.P.C. was heard by the learned Sessions Judge, Pratapgarh who rejected the anticipatory bail granted to Ashwani Kumar Bhardwaj on 28.1.1997 on the grounds that the Addl. Sessions Judge No. 2 committed an error in law in granting anticipatory bail as there was no provision for grant of anticipatory bail under the SC/ST Act, rather it was barred. 6. Ashwani Kumar Bhardwaj was legally arrested on 29.1.1997 in C.R. No. 244/97 and remained in police custody under the orders of the Court up to 3.2.1997 when he was sent to judicial custody. Ashwani Kumar Bhardwaj then moved an application under section 167(2) before the Chief Judicial Magistrate on 10.3.1997 alleging that he was arrested on 7.6.1996 in case No. 70/97 of Police Station Parsoli and remained in police custody for a long time and when he was in police custody, investigation relating to C.R. No. 244/93 was also made. he claimed that since he was in police custody since 7.6.1996 band no challan was filed in C.R. No. 244/93, he was entitled for bail under section 167(2) Cr.P.C. His application was rejected by learned Chief Judicial Magistrate, Chittorgarh. Thereafter Ashwani Kumar Bhardwaj moved an application before the Special Judge, SC/ST Act Cases, Pratapgarh under section 167(2) r/w Section 439 Cr.P.C. and the learned Special Judge by his order dated 21.4.1997 accepted the petition of the petitioner. Both the orders have been challenged before this Court as stated above. 7. So far as S.B. Criminal Misc. Petition No. 246/97 is concerned, it has been submitted by the counsel on behalf of Ashwani Kumar Bhardwaj that the learned Addl. Sessions Judge, Chittorgarh Shri Bhuvnesh Chandra Kulshresth, who was acting as District & Sessions Judge, Pratapgarh, cancelled the bail of the petitioner, erred in cancelling the bail because he did not look into the principles laid down for cancellation of bail. Sessions Judge, Chittorgarh Shri Bhuvnesh Chandra Kulshresth, who was acting as District & Sessions Judge, Pratapgarh, cancelled the bail of the petitioner, erred in cancelling the bail because he did not look into the principles laid down for cancellation of bail. From the order of Shri Bhuvnesh Chandra Kulshresth, I find find that the bail granted by Sidharth Kumar Jain has been cancelled on the grounds that Shri Jain had no power to grant bail on 11.10.1994 and that recovery was to be made under section 27 of the Evidence Act and that Nirmala was being threatened by the members of the gang of petitioner. 8. On the other hand, learned Additional Advocate General supported the order of Shri Kulshresth and drew my attention to the fact that an offence under section 3 of the SC/ST Act was also added, therefore, anticipatory bail could not have been granted. 9. I have perused the order of learned Sessions Judge, Shri Bhuvnesh Chandra Kulshresth. 10. Anticipatory bail as stated above was granted to the accused on 11.10.1994 by Shri Sidharth Kumar Jain as he was the only senior most Additional Sessions Judge present in district Chittorgarh on that date as admitted by both the parties. When Shri Sidharth Kumar Jain was posted in Chittorgarh District as Additional Sessions Judge No. 2 and no other Sessions Judge was available, he was exercising the powers of Sessions Judge on that date. In Vikramjit Singh v. State of M.P., AIR 1992 SC 474 , it has been observed by the Apex Court that when a bail was granted by one bench of the High Court, cancellation by co-ordinate bench of same Court on no new or additional grounds was justified. On this analogy I feel that it can safely be said that when Shri Sidharth Kumar Jain had granted bail to the petitioner under section 438 on 11.10.1994, Shri Bhuvnesh Chandra Kulshresth, who was having the same powers was not right in cancelling the bail by the impugned order. 11. On this analogy I feel that it can safely be said that when Shri Sidharth Kumar Jain had granted bail to the petitioner under section 438 on 11.10.1994, Shri Bhuvnesh Chandra Kulshresth, who was having the same powers was not right in cancelling the bail by the impugned order. 11. Even otherwise, as per the law, bail can be cancelled on the grounds if an accused misuses liberty by indulging in similar criminal activity or interferes with the course of investigation or attempts to tamper with the evidence or witnesses, threaten witnesses or indulges in similar activities which would hamper smooth investigation or there is likelihood of his fleeing away to another country or there is an attempt to make himself scare by going underground or become non-available to the investigating agency or attempts to place himself beyond the reach of sureties. These principles come out after reading Aslam Babalal Desai v. State of Maharashtra, AIR 1993 SC 1 which is relied upon by the learned counsel for the petitioner. He has also relied on Dolat Ram & Ors. v. State of Haryana, 1994 (3) Crimes 1013 wherein it has been observed that 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 accused to retain his freedom. He has also submitted that distinction between a pre-arrest bail and ordinary bail is that anticipatory bail is granted in anticipation of arrest and ordinary bail is granted after arrest. Apart from it there is no other distinction. He has relied on these observations from Gurbaksh Singh Sibbia etc. v. The State of Punjab, AIR 1980 SC 1632 . According to him, therefore, the principles governing the cancellation of bail in ordinary cases are also applicable to the order of anticipatory bail. He has submitted that the accused petitioner has been in custody even since he was first arrested and the high handedness of the police is shown by saying that a large number of first information reports have been registered against the petitioner and as soon as he is released in one case he is arrested in another. According to him in this way the accused petitioner has been harassed to the maximum by the District Police. 12. According to him in this way the accused petitioner has been harassed to the maximum by the District Police. 12. On the other hand, learned Additional Advocate General has tried to support the order of Shri Bhuvnesh Chandra Kuishresth dated 28.1.1997 by saying that Shri Sidharth Kumar Jain had no power to grant anticipatory bail to the petitioner as Section 3 of the SC/ST Act was also added during the investigation. 13. The facts are that Smt. Nirmala, who is a member of Scheduled Caste, reported to S.P. Chittorgarh on 4.6.1993 that it was in May, 1992 that her husband was working with the accused petitioner in a firm named as Bhardwaj & Sons which was manufacturing narcotic drugs. On 9.12.1992 petitioner and Bheru Singh came to her house and her husband was asked to accompany them to Neemuch. Her husband replied that he was not keeping well but then her husband was assured that a sum of Rs. 18,47,470/-would he returned to him in the meeting of the company and that they would come back in the morning. Smt. Nirmala then kept Rs. 30,000/- as well as a revolver in the bag of her husband. Nirmala's husband (deceased Ashok) went with the petitioner and Bheru Singh. On 10.12.1992 an information was received that her husband died in an accident and was taken to Jhunjhnun. Nirmala went to Jhunjhnun with her husband's younger brother. The dead body of her husband was brought to Jhunjhnun on 11.12.1992. After 12th day of his death, Nirmala sent her father-in-law Mamchand to Neemuch stating all the above facts to him. There, it was revealed that petitioner, Bheru Singh, Gurudayal, Darshan Singh, Ashok were involved in smuggling of narcotic drugs and that her husband was murdered but a case of accident was falsely made. She was pregnant at that time and ultimately she delivered a child on 18.3.1993. On the basis of this report, FIR No. 944/92 was registered under section 364 IPC. On 15.7.1993 Section 3(2) of the SC/ST Act was also added. 14. The case of the accused petitioner was that on 9.12.1992 the deceased had come to him at Neemuch and went back by a truck. The truck was being driven by Gurudayal. While on way, deceased Ashok discended from the moving truck and while doing so he fell down and died. FIR No. 626/92 under section 304-A was registered at Neemuch. The case of the accused petitioner was that on 9.12.1992 the deceased had come to him at Neemuch and went back by a truck. The truck was being driven by Gurudayal. While on way, deceased Ashok discended from the moving truck and while doing so he fell down and died. FIR No. 626/92 under section 304-A was registered at Neemuch. After investigation challan was submitted and Gurdayal was convicted by the Additional Chief Judicial Magistrate, Neemuch on 19.4.1993 and sentenced to six months imprison ment and a fine of Rs. 5,000/-. Appeal was filed by Gurudayal before the Additional Sessions Judge, Neemuch who decided it on 31.5.1994 and maintained the conviction of Gurudayal but reduced the sentence to two months' imprisonment and a fine of Rs. 5,000/-. Since Ashok was a friend of the petitioner, dead body of Ashok was taken by him to Jhunjhnun which was the ancestral home of Ashok. Ashok was cremated there on 12.12.1992. It has also come on record that Mamchand, who is the father of deceased, filed a petition under Motor Vehicles Act in MACT Court at Neemuch on 15.4.1993 to obtain compensation. Thus Nirmala tried to give an explanation of delay. However, it is clear from the record that when FIR was lodged by Smt. Nirmala, there was no allegation that Ashok was murdered because he was a member of Scheduled Caste. Even when a case under section 304-A was registered at Neemuch, offence under section 3 of the SC/ST Act was not added by the police at that time. It is for the first time on 9.7.1993 that the prosecution added Section 3 of the SC/ST Act. Gurdayal was already convicted for causing death of Ashok in a road accident in Neemuch area. The accused has not challenged before me the FIR lodged by Smt. Nirmala on this ground. He has simply challenged the order of learned Sessions Judge passed on 28.1.1997. Thus addition of Section 3 of SC/ST Act is an after thought. There is no allegation that Ashok was murdered because he belonged to Scheduled Caste. This Court has taken view in many cases, that when a case under SC/ST Act is not made out, anticipatory bail can be granted. In my view Shri S.K. Jain while granting anticipatory bail did not commit error on this count. The second ground on which the learned Addl. This Court has taken view in many cases, that when a case under SC/ST Act is not made out, anticipatory bail can be granted. In my view Shri S.K. Jain while granting anticipatory bail did not commit error on this count. The second ground on which the learned Addl. Sessions Judge No. 1, Shri Bhuvnesh Chandra Kulshresth cancelled the bail of the petitioner, was that some incriminating articles were to be recovered from the accused petitioner. It may be stated that even in cases where recovery is to be made at the instance of the accused, anticipatory bail is no bar. 15. The third ground for cancellation of the bail was that there was apprehension of tampering with the prosecution witnesses. It may be stated that Smt. Nirmala submitted an affidavit stating that she had apprehensions from the gang of the petitioner. She filed an affidavit before Shri Bhuvnesh Chandra Kulshresth on 16.7.1996 wherein she stated that she came to Chittorgarh where she stayed in the house of her husband. In the night she was threatened by some persons who are said to be the members of the gange of the petitioner that she would be killed if she would come to Chittorgarh. She also stated that when she was in Jhunjhnun these persons had threatened her even there. 16. Learned Additional Advocate General has drawn my attention to a letter of Additional Sessions Judge, Nimbahera written to S.P. Chittorgarh on 24.4.1997 wherein she has requested him to provide security guard. He has also drawn my attention to the letter of Additional Public Prosecutor, Nimbahera which he wrote on 24.4.1997 to the S.P. Chittorgarh that Ashwani Kumar Bhardwaj may be transferred from Sub-jail, Nimbahera to some other jail and to another affidavit of Smt. Nirmala dated 25.4.1997 wherein she stated that on 23.4.1997 when she was at Jodhpur residing in a housing board house, two members of the gang of Ashwani Kumar Bhardwaj came to her and asked her to change her statement. From all these papers, learned Additional Advocate General wanted to pursuade me that the petitioner was a threat to witnesses and therefore order by which anticipatory bail of the petitioner was cancelled, was right. But I am of the view that it is not so. No affidavit of Smt. Nirmala shows the names of the persons who had come to her. But I am of the view that it is not so. No affidavit of Smt. Nirmala shows the names of the persons who had come to her. There is no such evidence that the persons who had come to her were in any way connected with Ashwani Kumar Bhardwaj. Such a bald affidavit would not help the prosecution. Thus there was no threat to witnesses. The letters of learned Additional Sessions Judge and of the Additional Public Prosecutor also do not help the prosecution. 17. In view of above discussion, the impugned order dated 28.1.1997 should be set aside and petition should be allowed. 18. So far as S.B. Cr. Misc. Petition No. 331/97, State of Rajasthan v. Ashwani Kumar Bhardwaj is concerned, it has no force in view of the fact that S.B. Cr. Misc. Petition No. 246/97, Ashwani Kumar Bhardwaj v. State of Rajasthan , is being allowed. 19. Consequently, S.B. Cr. Misc. Petition No. 246/97, Ashwani Kumar Bhardwaj v. State of Rajasthan , is allowed and the impugned order dated 28.1.1997 is set aside. S.B. Cr. Misc. Petition No. 331/97, State v. Ashwani Kumar Bhardwaj , is dismissed.Petition allowed and State appeal dismissed. *******