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2003 DIGILAW 68 (PAT)

Raj Kumari Devi v. State Of Bihar

2003-01-17

INDU PRABHA SINGH

body2003
Judgment 1. This application has been filed for quashing the order dated 20.6.2002 passed by the learned A.C.J.M. Rosera in Hathauri P.S. Case No. 39 of 1999 by which the learned Magistrate has cancelled the bail of the petitioner and two other accused persons as also for quashing the order dated 28.9.2002 passed by the learned 5th Addl. Sessions Judge, Samastipur in Cr. Rev. No. 357 of 2001 by which he has refused to interfere with the order dated 20.6.2002. 2. Learned counsel appearing on behalf of the petitioner has submitted that the grant of bail is a discretionary power of the court but cancellation of the same is based on some material fact relating to the act of an accused interfering with the course of justice. Further it was submitted that the court below has cancelled the bail of the petitioner in most mechanical way even through there was no evidence that the petitioner was tampering with the evidence or was planning to jump the bail. He has relied on number of decisions of this Court in which it was held that grant of bail is not to be exercised as if it is punishment imposed to the accused before trial. It was also held that rejection of bail is easier than to cancellation of bail which necessarily involved a review of decision already made. This power should be sparingly exercised if there is likelihood of interfering by an accused with the course of justice by tampering with the witnesses. 3. It is admitted fact that the bail is liberty granted to the accused persons and its cancellation mean snatching the liberty already granted after consideration of the facts and circumstances. Thus this power should be very sparingly exercised in extra-ordinary situation. In the present case once the bail was granted by the court below for the offence the cancellation could have only been ordered if there was police report or the petition filed by the witnesses stating therein that the witnesses are being tampered or threatened or there was likelihood of the petitioner fleeing away. In this case none of the aforesaid ground was there at the time of cancellation of bail. Initially charge sheet was submitted under Sections 341, 323 and 325 of the Indian Penal Code and since these sections were bailable, bail was granted to the petitioner. In this case none of the aforesaid ground was there at the time of cancellation of bail. Initially charge sheet was submitted under Sections 341, 323 and 325 of the Indian Penal Code and since these sections were bailable, bail was granted to the petitioner. Thereafter supplementary charge sheet was submitted under Sections 307, 506 and 379/34 of the Indian Penal Code and cognizance was also taken under these sections mentioned in the additional charge sheet. Since section 307 of the Indian Penal Code was exclusively triable by the Sessions Judge, as such A.C.J.M. after asking show cause cancelled the bail which was not proper and is not sustainable in the eye of law. It is also well settled that once the cognizance taken by the A.C.J.M. on the charge sheet submitted at the first instance there was no jurisdiction in taking cognizance again for the same offence. It is also well settled that cognizance is taken of the offence and not of sections. If an accused was charged under the some other sections but the offence under Section 307 of the Indian Penal Code is also made out on the basis of the allegation so disclosed in the F.I.R., then in that situation it would mean that at the time of taking of final cognizance, the cognizance also of the offence under Section 307 of the Indian Penal Code and other sections were allready taken. There is no jurisdiction or any requirement in law for taking second cognizance for the offence for which cognizance has been taken. As such the order taking cognizance and also the order of cancellation of bail dated 20.6.2002 are hereby quashed and this application is allowed.