JUDGMENT 1. - This is an application under Section 439(2) Cr.PC. for cancellation of bail granted to non-petitioner No. 1 accused Daya Ram vide order dated 20.12.97 passed by learned Additional Sessions Judge, Deeg in Bail Application No. 462/97 relating to F.I.R. No. 209/97, Police Station, Nagar under Section 302 read with 34 I.P.C. 2. Shri Ramswaroop applicant lodged a report on 21.8.97 that Raja Ram did not return to the house upto 8.00 PM. When he made inquiries, Radhey Lal told him that Raja Ram had gone from his room at 6.00 PM. to answer the call of nature, who was seen by Ganga Ram also passing near a Pipal tree. In the morning the dead body of Raja Ram was found in the field of one Hari Singh. The applicant revealed his suspicion in this incident over Daya Ram. non-petitioner. An altercation had taken place about 15 days back over the electic wire line. A case was registered F.I.R. No. 209/97 under Section 302 I.P.C. The Panchnama was made and it was found that blood was oozing from the ear and froth was coming out from the nose. There were abrasion marks of nails on the neck which lead to the conclusion that death of Raja Ram occurred due to strangulation. Statements of the witnesses were recorded on 14.9.97 and 10.10.97. Raja Ram had taken food at the house of Radhey Lal. Ganga Ram Saw him going for answering the natures call. One Attar Singh saw Raja Ram with Daya Ram entering in the house of Daya Ram at 7.00 P.M. Ganga Ram saw Raja Ram passing near the Pipal tree at 4.30 PM. going towards the jungle to answer the natures call. Radhey Lal states that Raja Ram took food with him and went away at about 6.00 PM. to answer the natures call. Bhima saw Daya Ram and Maya on 21.8.97 coming from the jungle at about 4.00 A.M. Daya Ram went out of the village on tractor after the dead body of Raja Ram was found in the field of Hari Singh. Daya Ram made extra judicial confession to Balram, Shivram and Bhagmal. Maya also made extra judicial confession on 18.9.97 that she with her husband killed Raja Ram and even then nothing happened against them. The charge sheet was submitted and the case was committed for trial. 3. Daya Ram made extra judicial confession to Balram, Shivram and Bhagmal. Maya also made extra judicial confession on 18.9.97 that she with her husband killed Raja Ram and even then nothing happened against them. The charge sheet was submitted and the case was committed for trial. 3. Daya Ram moved an application for bail under Section 439 Cr.P.C. which was registered at No. 462/97 in the Court of Additional District and Sessions Judge, Deeg. The application was opposed vehemently and it was also alleged that Daya Ram threatened the witnesses asking them to desist from giving evidence against him. Attar Singh son of Hari Ram, Bhim Singh son of Govind Singh, Shiv Ram son of Birbal and Ramswaroop informant submitted affidavits in which they stated that the relatives of Daya Ram had threatened them on 12.10.97 for dire consequences if they appeared as witness against accused Daya Ram. Copy of the complaint under Section 107, 116 filed by Shiv Ram witness on 25.11.97 against Data Ram father and Siya Ram brother of accused Daya Ram has been filed. Ramswaroop also filed a complaint on 26.9.97 in the court of Additional Collector & Magistrate, Nagar against Data Ram, Siya Ram, Smt. Dhupan, Smt. Maya Devi and Smt. Bhagwati. In both the complaints after receiving the repert after investigation the learned Magistrate after having satisfied issued show cause notices for requiring them to furnish bail bonds for keeping peace for a period of six months. A photo stat copy of the order was also placed in the file of the bail application before the learned Additional Sessions Judge, Deeg, which was heard and decided by him by the impugned order granting bail to non-petitioner accused Daya Ram as stated above. Aggrieved by the impugned order, Ramswaroop has filed this application for cancellation of bail. 4. I have heard the learned counsel for the parties and the learned Public Prosecutor for the State. It is vehemently contended on behalf of the petitioner that there is clinching evidence on record to connect the non-petitioner No. 1 with the crime. At about 7.00 PM. on 20.8.97 the deceased was seen accompanying the non-petitioner No. 1 accused and his wife entering in the house of accused non-petitioner. It is vehemently contended on behalf of the petitioner that there is clinching evidence on record to connect the non-petitioner No. 1 with the crime. At about 7.00 PM. on 20.8.97 the deceased was seen accompanying the non-petitioner No. 1 accused and his wife entering in the house of accused non-petitioner. Thus the deceased was last seen in the company of the accused non-petitioner No. 1 and his wife and on the next day was found dead in the field of Hari Singh. Daya Ram and his wife were seen on 1.8.97 returning from the forest to their house by Bhim Singh and this fact goes to show that both of them dropped the dead body in the field of Hari Singh in the early hours. Therefore, the learned Sessions Judge has erred in granting the bail and the impugned order is illegal and preverse in view of this evidence also that both the accused made extra judicial confession of the murder committed by them. The learned Additional Sessions Judge has also completely failed to consider the fact that witnesses were threatened by Daya Ram and his relatives for which specific dates and facts have been given and after investigation by S.H.O. Nagar he filed reports under section 107/116 and on having satisfied, the learned Magistrate has issued show cause notices to require them to furnish bail bonds for keeping peace. The applicant had also moved an application for transfer of bail application from the court of Additional Sessions Judge, Deeg which has been consigned to record. 5. The non-petitioner accused has filed reply to the application denying all the allegations. The Investigating Officer recorded wrong statements with inordinate delay without plausible reason to implicate the non-petitioner and his wife in this case. It is highly improbable to say that the deceased would be last seen in the company of the accused and his wife and also entering in their house when according to the informant also there was a quarrel between the about 15 days back and they bore inimical relations. The accused persons were enlarged on bail because there was no evidence against them. The copy of the affidavits was not supplied to the non-petitioner accused by the trial court. The accused persons were enlarged on bail because there was no evidence against them. The copy of the affidavits was not supplied to the non-petitioner accused by the trial court. The affidavits contained vague allegations and show that the complainant is trying to create evidence and documents to have the bail of the petitioner cancelled because he knows that his case is false and the evidence collected by the police is a very week circumstantial evidence. The learned trial Judge has considered all the aspects of the case and delivered a detailed order. 6. I have perused the concerned Cr. Misc. Case No. 462/97. There are affidavits of Attar Singh, Bhim Singh, Shiv Ram and Ramswaroop in the file in which it is stated that they were threatened on 12.10.97 by the relatives and wife of the accused. I have also perused the complaints of Bhim Singh, Shiv Ram and Attar Singh and Ramswaroop and also the order sheets of the proceedings initiated by learned Executive Magistrate, Nagar under section 107 read with 116 Cr.PC. in File No. 69/97 (Bhim Singh v. Daya Ram) , 70/97 (Shiv Ram & Ors. v. Data Ram & Ors. ) and 55/97 (Ramswaroop v. Daya Ram) . All these papers have been numbered and are part of the file. But the order passed by the learned Additional Sessions Judge shows that all these documents have not been considered while deciding the bail application. It appears from the order sheets of the file that the copies of the affidavits were not furnished to the counsel for the accused applicant in order to afford an opportunity to file counter affidavits. It is also not clear from Form No. 3 that on which date these documents were filed. Be that as it may, the fact remains that the impugned bail order has been passed without considering the aforesaid documents. It is also not clear from Form No. 3 that on which date these documents were filed. Be that as it may, the fact remains that the impugned bail order has been passed without considering the aforesaid documents. I am also constrained to observe that the learned Additional Sessions Judge has discussed the statements of the witnesses and the incriminating circumstances and the alleged extra judicial confession by accused Daya Ram and Maya in a way expressing his opinion on merits that the circumstances and the extra judicial confession relied upon by the prosecution are highly improbable and not trustworthy which should have been avoided at the stage of considering the bail application because such expression of opinion at the stage of hearing of bail application may prejudice the trial of the case. Therefore, the least which can be observed,by me is that the learned Sessions Judge has not properly considered the facts and circumstances and unnecessarily embarked upon the application of the evidence. However, the bail was granted to non-petitioner Daya Ram. 7. Now the important question which falls for consideration is whether in view of the allegations levelled against accused Daya Ram and the various documents, affidavits filed by the complainant and the witnesses, this application under section 439(2) Cr.PC. should be allowed or not. I will not express opinion about the evidence collected by the investigation as to whether the incriminating circumstances pointed out against the nonpetitioner form a continuous and complete -(Illegible) and lead to irresistible conclusion and complicity of the accused in the crime. I do not deem it necessary to discuss the various judgments relied upon by the learned counsel for the non-petitioner accused to show about the weakness and incredibility of the evidence because the main thrust of the arguments on behalf of the petitioner for cancellation of bail is upon the alleged misuse of the liberty and the right of bail by the non-petitioner accused Daya Ram. The learned counsel for the non- petitioner referred to 1984 Cr.L.R. (SC) 296 (Sharad Birdhichand Sarda v. State of Maharashtra) , 1995 Cr.L.R. (Raj.) 680 (Nathu Ram v. State of Rajasthan) , 1988 R.C.C. 186 (Kesharam v. State) , 1995 Cr.L.R. (SC) 738 (Balwinder Singh v. State of Punjab ) and AIR 1977 SC 1116 (Vidya Sagar v. State of U.R) . In all these cases the principles and guide lines have been provided for appreciation of circumstantial evidence to hold conviction of the accused. The learned Additional Sessions Judge has exercised his jurisdiction to release the non-petitioner accused on bail considering the facts and circumstances of the case. But the allegations of threatening and tampering with the evidence during investigation do not appear to have been considered by him. However, we have to consider next contention of the petitioner that the non-petitioner has misused his right of bail. 8. Learned counsel for the non-petitioner No. 1 has placed reliance on the following decisions-In Chandan Singh and Anr. v. The State of Rajasthan (1978 The Rajasthan High Court Report 1) and Prabhu v. State & Anr. (1986 R.C.C. 474) , it has been laid down that the bail should not be cancelled on vague .allegations and it would be shown beyond all doubt that accused threatened and tampered with prosecution witnesses. Their lordships of Orissa High Court observed in State of Orissa v. Md. Abdul Karm (1984 Cr.LR. 905 ) that bail should be cancelled only on establishing compelling and substantial reasons. In Karan Singh v. The State of Rajasthan & Ors. (1993 Cr.LJ. 251 ), this court declined to interfere with the order granting bail for absence of strong and compelling circumstances because specific instances of threatening and tampering with the evidence were not mentioned. It was also held "The bail granted to an accused can be cancelled if the accused, after his release on bail, tries to tamper with the evidence or hampers the trial or investigation, committing an act of violence or commits the same offence again. The powers vested with the court for cancellation of the bail have to be exercised with care and circumspection." 9. In the instant case, the petitioner has submitted before us affidavits and the documents to substantiate his allegations against the non-petitioner Daya Ram regarding threatening and tampering with the evidence and interfering and hampering the administration of justice by further committed assault on the witnesses. In the instant case, the petitioner has submitted before us affidavits and the documents to substantiate his allegations against the non-petitioner Daya Ram regarding threatening and tampering with the evidence and interfering and hampering the administration of justice by further committed assault on the witnesses. (a) Ramswaroop, Bhim Singh have submitted affidavits in which they have stated that the non-petitioner Daya Ram even in judicial custody threatened them at the Bus Stand on 6.11.97 while going to the court of Judicial Magistrate, Deeg and on a complaint under section 107/116 Cr.PC., the learned Collector and Executive Magistrate, Nagar has issued notice against him and now warrant of arrest have been issued on 21.2.98 because Daya Ram did not appear despite service of notice. He was not found by the police to serve the bailable warrant. Certified copy of the order sheets dates 17.1.98 and 21.2.98 have been submitted before us. (b) Shiv Ram and Attar Singh have stated in their affidavits that they were threatened on 12.10.97 and 24.11.97 for not appearing as witnesses against Daya Ram by his relatives. Data Ram father of the non-petitioner and Siya Ram surrounded them but they were rescued by Harbans Singh and Ganga Ram of village Sekhpura. They lodged a complaint in the court of Assistant Collector and Executive Magistrate and notices were issued. (c) On 11.2.98 at 5.00 P.M. Ramswaroop and Bhim Singh witness with Batto wife of Bishram, Moti were going on tractor to Rajaheda Kishore son of Pritam resident of R.C. was driving the tractor. Non-petitioner accused Daya Ram with his companions Bachu, Roop Ram, Surgyani, Jai Singh, Ghasi, Gopal, Poplal, Suji armed-with lathis and gun attacked them and Bachu stopped Kishore driver from driving the tractor at the point of gun. Daya Ram, Surgyani and Jai Singh inflicted injuries by lathies to Ramswaroop. The ladies and other persons from Khabawali namely Nemi, Nenu, Bhim, Haret, Ramswaroop saved them from further beating. Bachu fired the gun towards Bhim Singh, but luckily he was not hit. Daya Ram and Bachu threatened them to see again and they will teste the consequences of giving evidence against them. Ramswaroop lodged a F.I.R. on the same day at Police Station, Nagar and a case under Section 147, 323, 341 I.P.C. F.I.R. No. 26/98 was registered. 10. Bachu fired the gun towards Bhim Singh, but luckily he was not hit. Daya Ram and Bachu threatened them to see again and they will teste the consequences of giving evidence against them. Ramswaroop lodged a F.I.R. on the same day at Police Station, Nagar and a case under Section 147, 323, 341 I.P.C. F.I.R. No. 26/98 was registered. 10. The copies of the affidavits were given to the counsel for the non-petitioner on 23.4.98 and despite taking time on 28.4.98 all the above allegations have not been controverted by filing counter affidavits or documents. All the above mentioned allegations and the incident cannot be termed as vague because specific allegations and overt acts have been assigned with all necessary details. I am inclined to accept the contention of the learned counsel on behalf of the petitioner that the allegations are not vague or concocted and improbable. 11. It is established on the basis of the above allegations and the incident that the non-petitioner is threatening the witnesses and he is desperately trying to tamper with the evidence against him and on the complaint under section 107, 116 Cr.PC. after investigation on police report the learned Executive Magistrate on being satisfied issued notice against the non-petitioner and bailable warrant has been issued against him. In the facts and circumstances given above the judgments relied on behalf of the non-petitioner do not support his contention. The petitioner has succeeded in establishing beyond reasonable doubt that the witnesses have been threatened and the non-petitioner hampered the investigation and now he is hampering the trial. The powers under Section 439(2) Cr.PC. undoubtedly should be exercised by the court with due care and circumspection, but on applying ail the relevant tests. I am satisfied that the non-petitioner accused Daya Ram has misused the discretion of granting bail to him by the court. In the instant case, I am of the view that there are compelling and substantial reasons to cancel the bail granted to the non-petitioner accused Daya Ram. 12. Consequently the bail granted to non-petitioner No. 1 Daya Ram by order dated 20.12 97 passed by learned Additional Sessions Judge, Deeg is hereby cancelled. The bail bonds furnished by him also stand cancelled. 12. Consequently the bail granted to non-petitioner No. 1 Daya Ram by order dated 20.12 97 passed by learned Additional Sessions Judge, Deeg is hereby cancelled. The bail bonds furnished by him also stand cancelled. It is hereby ordered that non-petitioner No. 1 Daya ram shall surrender himself before the trial court/Additional Sessions Judge, Deeg to send him to judicial custody, failing which the learned Additional Sessions Judge, Deeg shall issue warrant of arrest against him.Petition allowed. *******