JUDGMENT - B.B. VAGYANI, J.:---Heard Shri V.D. Sapkal, learned A.P.P. for the State, Shri R.R. Mantri, learned Counsel for the first informant and Shri S.C. Chaudhari, learned Counsel for he original accused Santosh, Anand and Madhav. 2. The first informant who happens to be the father of deceased Ramesh, has filed Criminal Application No. 2312 of 1999 for cancellation of bail granted to the original accused Santosh, Anand and Madhav. Similarly, the State has filed Criminal Application Nos. 2364 of 1999 and 2365 of 1999 under section 439(2) of Criminal Procedure Code, 1973 for cancellation of bail granted to the original accused Santosh, Anand and Madhav. All these criminal applications for cancellation of bail are in respect of Crime No. 179 of 1999 registered by Bhokar Police Station for the offences punishable under sections 302, 323 r/w 34 of Indian Penal Code and, therefore, all the three applications were being disposed of by this common order. 3. The first informant Say Gaud Bhurewar is the Proprietor of Shivneri Bar. The original accused Santosh is the proprietor of Chandra Bar. Because of business rivalry, both the proprietors did not pull on well. On the fateful day i.e. on 27-9-1999 at about 10 to 10.15 p.m., deceased Ramesh along with his friends, left Shivneri Bar and was on his way to Pan Shop. The deceased Ramesh and his friends reached near the square. It is prosecution version that in all six persons including accused Santosh, Anand and Madhav pounced upon Ramesh. Accused Santosh had knife with him. Accused Madhav had also knife with him. Accused Anand had stick with him. Non applicant accused Keshav had a stick with him. Non applicant Prakash and Ashok caught hands of Ramesh. Accused Santosh caused a stab wound under the right arm pit of Ramesh. Accused Madhav caused incised wound on the right cheek of Ramesh. Accused Anand gave a stick blow on the waist of Ramesh. Ramesh was immediately shifted to the Government hospital. However, he succumbed to the injuries sustained by him at the hands of the assailants. 4. Say Gauda Bhurewar reported the matter to police on the basis of which Crime No. 179 of 1999 has been registered. Thereafter the accused were arrested. 5. Accused Santosh and Anand moved the learned 2nd Additional Sessions Judge, Nanded for grant of regular bail by filing Misc. Criminal Application No. 957 of 1999. 4. Say Gauda Bhurewar reported the matter to police on the basis of which Crime No. 179 of 1999 has been registered. Thereafter the accused were arrested. 5. Accused Santosh and Anand moved the learned 2nd Additional Sessions Judge, Nanded for grant of regular bail by filing Misc. Criminal Application No. 957 of 1999. The accused Madhav filed Misc. Criminal Application No. 916 of 1999 before the 2nd Additional Sessions Judge, Nanded for grant of regular bail. The State opposed both the criminal application for grant of regular bail very stoutly. The learned 2nd Additional Sessions Judge, Nanded by his order dated 22-11-1999, allowed both the criminal applications and consequently released accused Santosh, Anand and Madhav on bail. Certain conditions are imposed on them. They are directed not to tamper with the prosecution evidence and to attend the Police Station Bhokar on every 'Wednesday and Sunday between 9 a.m. to 11 a.m. till filing of the charge sheet. The charge-sheet is already filed in the Court. 6. The State as well as the first informant moved this Court for cancellation of bail granted to the accused Santosh, Madhav and Anand mainly on the ground that the learned 2nd Additional Sessions Judge, Nanded has used his discretion in an arbitrary manner. All the three accused have filed their affidavits in reply. 7. Shri Sapkal, learned A.P.P vehemently submitted that the learned 2nd Additional Sessions Judge, Nanded has exercised his discretion in an arbitrary manner and, therefore, the impugned order of bail is liable to be cancelled. He further submits that the learned 2nd Additional Sessions Judge has not taken into consider face value of the statements of eye-witnesses namely Balaji Ingale, Vishal Salunke, Laxmikant Alewar, Narayan Salunke and Venkatesh Bhurewar. Shri Sapkal, learned A.P.P. diverted my attention to para Nos. 6 and 7 of the order under challenge and submitted that the observations made by the learned 2nd Additional Sessions Judge, Nanded are not only incorrect but contrary to the material placed on record. He further points out that the accused Santosh represented himself as a student for the purpose of securing bail order and the learned Additional Sessions Judge, without verifying the claim of accused Santosh, granted him by pointing out these intrinsic defects, the learned A.P.P. Shri Sapkal submitted that this is a case to cancel the bail granted to the accused Santosh, Anand and Madhav. 8. 8. In support of his submissions, he relied upon followings rulings : 1. (Imamuddin v. Ayub Khan)1, 1984 Cri.L.J. 117. 2. (State of Orissa v. Jagannath Patel)2, 1992 Cri.L.J. 1818. 3. (Bansilal Kala v. State of M.P.)3, 1991(1) Crimes 540 . 4. (Gurumurti Digal v. Ashok Kumar Digal)4, 1991(II) Crimes 633 ; and 5. (Aslam Babalal Desai v. State of Maharashtra)5, 1993(3) Bom.C.R. 166 . 9. Shri Mantri, learned Counsel harped on the same string and played the same tune. 10. Shri Choudhari, learned Counsel for the accused argued that the bail has been granted to accused on 22-11-1999 and, therefore, it is not proper to cancel the bail at this stage. He further points out that the accused did not misuse the liberty granted to them. Accused Anand is a student of 1st year B.A. According to him, the learned 2nd Additional Sessions Judge has taken into consideration availability of the accused persons for trial and satisfied that the accused would not abuse the liberty. Shri Chaudhari, learned Counsel has advanced a proposition that bail once granted cannot be cancelled. In order to buttress his submission,s he relied upon the case of (Bhagirathsinh Judeja v. State of Gujrat)6, A.I.R. 1984 S.C. 372 and the case of (Dolatram v. State of Haryana)7, 1995(1) S.C.C. 349 . At this very juncture, I would like to mention that the reliance placed on these authorities is misconceived. Cancellation of bail is not asked on the ground of misuse of liberty. Cancellation of bail is asked on ground of arbitrary exercise of discretionary power. 11. From careful perusal of the order of bail under challenge, it is seen that the learned 2nd Additional Sessions Judge has taken into consideration following circumstances for grant of bail : 1. Police papers do not reveal the author of major stab injury which proved to be fatal; 2. The status of accused Santosh and Anand as being students; 3. Completion of investigation; 4. Young age of the accused persons; 5. Absence of bad antecedents; 6. Permanent place of abode and 7. Availability or presence of the accused for the final trial. 12. The status of accused Santosh and Anand as being students; 3. Completion of investigation; 4. Young age of the accused persons; 5. Absence of bad antecedents; 6. Permanent place of abode and 7. Availability or presence of the accused for the final trial. 12. Before adverting to the facts with regard to cancellation of bail, I would like to refer few judgments of the Supreme Court in order to find out the exact legal position with regard to cancellation of bail as contemplated under section 439(2) of the Criminal Procedure Code. 13. In the case of (State through Delhi Administration v. Sanjay Gandhi)8, A.I.R. 1978 S.C. 961, the Supreme Court has observed that rejection of bail when bail is applied for is one thing and cancellation of bail already granted is quite another. It is easier to reject a bail application in a non bailbale case than to cancel a 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. The Supreme Court has further observed that : "Power to take back in custody an accused, who has been enlarged on bail, has to be exercised with a care and circumspection. But the power though of an extraordinary nature, is meant to be exercised in appropriate cases, when, by preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with the witnesses. Refusal to exercise that wholesome power in such cases, few though they may be, will reduce it to a dead letter and will suffer the courts to be silent spectators to the subversion of the judicial process." 14. In the case of Bhgirathsinh Judeja v. State of Gujrat, A.I.R. 1984 S.C. 372, the Supreme Court has observed that very cogent and overwhelming circumstances are necessary for an order seeking cancellation of bail. It is now well settled by a catena of decisions of the Supreme Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. It is now well settled by a catena of decisions of the Supreme Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material consideration in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with the evidence. 15. In the case of Aslam Babalal Desai v. State of Maharashtra, A.I.R. 1993 S.C. 1, the Supreme Court observed that : The grounds for cancellation of bail under sections 437(5) and 439(2) are identical, namely, bail granted under section 437(1) or (2) or 439(1) can be cancelled where --- (i) the accused misuses his liberty by indulging in similar criminal activity; (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence of witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety etc. These grounds are illustrative and not exhaustive. It must also be remembered that 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". 16. In the case of Dolatram v. State of Haryana, 1995(1) S.C.C. 349 , the Supreme Court observed that : "Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already 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 place on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. The satisfaction of the Court, on the basis of material place 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 circumstancces 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. Bearing in mind the principles enunciated by the Supreme Court in the matter of cancellation of bail, I now divert to the facts of the present case. The first informant Say Gaud Bhurewar and accused Santosh admittedly deal in liquor. In the F.I.R., first informant Say Gaud Bhurewar has specifically made a reference to the business rivalry and the threats which were given by accused Santosh, Anand and Madhav to the effect that they would kill all his four sons. It is prosecution version that the accused assaulted decease Ramesh with deadly weapons. The police papers would further reveal that specific overts acts are attributed to the accused Santosh, Anand and Madhav. Accused Santosh was armed with knife, accused Madhav was armed with knife and accused Anand was armed with stick. It is seen from the police statements of eye-witnesses Balaji Ingale, Vishal Salunke, Laxmikant Alewar, Narayan Salunke and Venkatesh Bhurewar that the accused Santosh inflicted as stab wound under the right arm pit of deceased Ramesh. Accused Madhav caused incised wound on the right side of cheek of Ramesh by means of knife and accused Anand gave a stick blow on the waist of deceased Ramesh. 18. The learned 2nd Additional Sessions Judge, Nanded is well aware that the major stab wound under the right arm pit of Ramesh was fatal and caused his death. The learned Additional Sessions Judge, in para No. 6 of his order, has specifically observed that on perusal of police papers and taking into consideration the allegations made against the applicant accused it is rather difficult to decide who is responsible for causing the fatal injury to decease Ramesh. All the relevant papers of investigation were placed before the learned 2nd Additional Sessions Judge. The 2nd Additional Sessions Judge appears to have perused the papers of investigation and thereafter has come to a conclusion that author of the major stab wound cannot be determined. All the relevant papers of investigation were placed before the learned 2nd Additional Sessions Judge. The 2nd Additional Sessions Judge appears to have perused the papers of investigation and thereafter has come to a conclusion that author of the major stab wound cannot be determined. The observations in para No. 6 are in fact contrary to the statements of eye-witnesses. All the eye-witnesses referred above have specifically attributed a major role to accused Santosh. It is seen from the statements of the eye-witnesses that it was the accused Santosh who was the author of major stab wound which caused death of Ramesh. There is absolutely no confusion in this behalf. It is to be seen that the names of the eye-witnesses are disclosed in the F.I.R. The observations made by the learned 2nd Additional Sessions Judge are not only incorrect but are contrary to the material placed on record. In fact, the learned 2nd Additional Sessions Judge overlooked the statements of the eye-witnesses conveniently. He did not at all consider the face value of the statements of eye-witnesses. He took a strong aversion to these statements and made a very bold statement that the author of major stab wound cannot be determined. The learned 2nd Additional Sessions Judge has thereby committed high degree of impropriety. 19. The learned 2nd Additional Sessions Judge has however made reference to the statements of eye-witnesses while rejecting application for anticipatory bail preferred by non-applicant accused Ashok Marakwar. He is very much conscious of the assault on deceased Ramesh made by accused Santosh and Madhav by means of knives. But he did not refer these statements of eye-witnesses while granting regular bail accused Santosh, Madhav and Anand. In order to add artificial strength to the bail order, the learned 2nd Additional Sessions Judge resorted to embroidery i.e. young age of accused, devotee of knowledge, absence of bad antecedent, completion of investigation and so on. But he has forgotten that foundation destroys the superstructure. Such spineless order cannot withstand. 20. The accused Santosh who admittedly deals in liquor, has taken a veil of devotee of knowledge for the purpose of securing bail. The learned 2nd Additional Sessions Judge has not at all taken pains to verify the correctness of the claim made by accused Santosh. I am told at the bar that the accused Anand is a student. 20. The accused Santosh who admittedly deals in liquor, has taken a veil of devotee of knowledge for the purpose of securing bail. The learned 2nd Additional Sessions Judge has not at all taken pains to verify the correctness of the claim made by accused Santosh. I am told at the bar that the accused Anand is a student. However, it is an admitted fact that the accused Santosh is not student, inspite of this fact, the learned 2nd Additional Sessions Judge has proceeded on the assumption that the accused Santosh is a student. Unfortunately the learned 2nd Additional Sessions Judge did not attempt to uplift the veil. This is very sorry affair of the bail order. I am constrained to observe that the bail order with regard to accused Santosh stinks impropriety. 21. At this juncture, I would like to make reference to the decision in the case of Imamuddin v. Ayub Khan, 1984 Cri.L.J. 117. A Single Judge of Rajasthan High Court has observed that if bail has been granted to an accused in a non-bailable offence punishable with death or imprisonment for life in a manner which smacks of arbitrariness, capriciousness or perversity on the part of the Court of Sessions granting such bail, the High Court has not merely the discretion but a duty laid on it under section 439(2) of Criminal Procedure Code to cancel the bail and order the accused to be rearrested. In the said case, the Sessions Judge granted bail on flimsy grounds. The material on record showed prima facie case against the accused and, therefore, bail was cancelled by the High Court. 22. In the case of Bansilal Kala v. State of M.P., 1991(1) Crimes 540 , Single Judge of the Madhya Pradesh High Court has observed that bail may be cancelled on following grounds: That the order granting bail was one without jurisdiction or was made by the Magistrate or Judge without applying his mind or the order has been made upon irrelevant considerations. It is further observed that wrong exercise of jurisdiction generally speaking, has been recognized as a ground for cancellation of bail. 23. It is further observed that wrong exercise of jurisdiction generally speaking, has been recognized as a ground for cancellation of bail. 23. In the case of Gurumurti Digal v. Ashok Kumar Digal, 1991(2) Crimes 633 , Single Judge of Orissa High Courts has observed that it is well settled that if the High Court comes to a conclusion that the bail has been granted to an accused by a lower Court in a manner which smacks of arbitrariness or perversity on its part, then the High Court has a duty to cancel the bail and to order re-arrest of the accused in exercise of power under sub-section (2) of section 439 of the Code of Criminal Procedure. 24. In the case of State of Orissa v. Jagannath Patel, 1992 Cri.L.J. 1818. The Single Judge of Orissa High Court has observed that : "Unrestricted power is conferred on the High Court and the Court of Sessions in the matter of cancellation of bail which no doubt, is to be exercised with due care and circumspection. Bail granted illegally and/or improperly by wrong and arbitrary exercise of judicial discretion can be cancelled by the High Court under section 439(2) of the Code, even if there is no additional circumstances against an accused appearing in record after grant of bail." It is further observed that if a Court erroneously looks at materials and comes to a conclusion which on the face of it, is contrary to the materials, it amounts to non-application of mind. Grant of bail by such non-application of mind would amount to improper and arbitrary exercise of judicial discretion. 25. In the case of (State v. E. Veeramani)9, 1995 Cri.L.J. 184, Single Judge of Madras High Court has observed that where there are strong grounds, cancellation of bail can be ordered in appropriate case. So the larger interest of the State and the community including the consideration that the parties do not lose faith in the system and take law into their hands to wreak vengenance by private retribution is certainly a relevant factor to be taken into account while considering cancellation of bail. So the larger interest of the State and the community including the consideration that the parties do not lose faith in the system and take law into their hands to wreak vengenance by private retribution is certainly a relevant factor to be taken into account while considering cancellation of bail. There is no doubt that the liberty of the accused has to be safeguarded in accordance with law but while keeping in mind the interest of the accused, the collective interest of the community cannot be lost sight of so that the parties do not lose faith in the administration of justice. 26. In the instant case, the learned 2nd Additional Sessions Judge ignored the police statements of the eye-witnesses and has made a contrary observations to the material placed on record that the police papers do not disclose the author of major stab wound which caused death of deceased Ramesh. This observation of the learned 2nd Additional Sessions Judge suffers from arbitrariness. The learned 2nd Additional Sessions Judge has not acted judiciously and made contrary observations to the material placed on record and thereby granted bail to the accused Santosh. This is a classic example of gross misuse of discretionary powers. The learned 2nd Additional Sessions Judge has committed gross error in exercising his discretionary power by releasing the accused Santosh on bail in serious offence like murder. The bail has been granted to accused Santosh illegally and improperly by the learned 2nd Additional Sessions Judge and, therefore, it is the solemn duty of this Court to interfere with the said bail order. Arbitrary exercise of discretionary power is the additional ground for cancellation of bail. 27. It is to be noted that the liberty achieved by accused Santosh carries stigma of fraud. The accused Santosh is not a student and is not taking education in any institution or college. Inspite of this, accused Santosh has claimed that he is student. The learned 2nd Additional Sessions Judge has readily, without verifying the correctness of the said claim, preferred to become prey to this fraud perpetrated by accused Santosh. Taking into consideration the discussion made in the foregoing paragraphs, I am of the clear view that the learned 2nd Additional Sessions Judge, Nanded has exercised his discretionary power in an arbitrary and illegal manner. Taking into consideration the discussion made in the foregoing paragraphs, I am of the clear view that the learned 2nd Additional Sessions Judge, Nanded has exercised his discretionary power in an arbitrary and illegal manner. His reasons for grant of bail to accused Santosh are contrary to the material placed on record. Under the circumstances, I find no hesitation in interfering with the bail order which has been granted in favour of accused Santosh. It is to be remembered that fraud and deceit ought not to benefit any one. 28. The learned Counsel Shri Chaudhari finally submits that accused Santosh, Anand and Madhav are on bail since more than four months and, therefore, it is not proper to withdraw the liberty granted to them. The learned 2nd Additional Sessions Judge has released the accused persons on regular bail by order dated 22-11-1999. The complainant Say Gaud Bhurewar has filed Criminal Application No. 2312 of 1999 for cancellation of bail very promptly i.e. on 9-12-1999. The State has also acted promptly in the matter of cancellation of bail. The State has filed its application for cancellation of bail on 16-12-1999. If the order of bail suffers from arbitrariness, then the High Court can legitimately invoke the powers under section 439(2) of Cri.P.C. for cancellation of bail. In that event, duration of enjoyment of liberty is immaterial. Confidence of common man in the Judiciary cannot be sacrificed so lightly. 29. The case of accused Anand and Madhav stands on different footing. They are admittedly not responsible for the major stab wound which proved to be fatal. The accused Madhav caused superficial incised wound on the face of Ramesh. Similarly, accused Anand gave a stick blow on the waist of deceased Ramesh. The death is not caused on account of injuries caused by accused Madhav and Anand. Under the circumstances, I hold that the learned 2nd Additional Sessions Judge, Nanded has used his discretion properly so far as accused Madhav and Anand are concerned, I am not, therefore, inclined to interfere with the liberty already granted to them. 30. In the result, Criminal Applications Nos. 2312 of 1999 and 2364 of 1999 are partly allowed. The bail granted to accused Santosh Ganpatrao Marakwar is hereby cancelled. He be rearrested and be sent to jail forthwith. 30. In the result, Criminal Applications Nos. 2312 of 1999 and 2364 of 1999 are partly allowed. The bail granted to accused Santosh Ganpatrao Marakwar is hereby cancelled. He be rearrested and be sent to jail forthwith. The learned 2nd Additional Sessions Judge, Nanded is hereby directed to take appropriate steps in this regard and submit a compliance report. Criminal Application No. 2365 of 1999 is rejected. Order accordingly. -----