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2004 DIGILAW 944 (RAJ)

Ravindra Kumar v. Sunil Kumar

2004-07-07

HARBANS LAL

body2004
JUDGMENT 1. - This application under section 439(2) of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.') by petitioner-Ravindra Kumar, the complainant, seeks cancellation of bail granted to non-petitioner Nos. 1 and 2 by the learned District and Sessions Judge, Jhunjhunu vide his order dated 16.9.2003 in a case arising out of FIR Nos. 238/02 PS Buhana for the offences under sections 498-A and 304-B Indian Penal Code. 2. The relevant facts are that an FIR came to be registered on 19.9.2002 with the allegations that Smt. Mamta wife of Sanjay Kumar was tortured for dowry and was ultimately done to death and her dead-body was thrown into a Well. After necessary investigation the police arrested accused-Sunil Kumar, the Jeth, Sint. Vidhya Devi, the mother-in-law and Smt. Rajesh, the Jethani and after completion of investigation, a charge-sheet was filed against them. The case was committed for trial to the Court of Addl. District and Sessions Judge, Khetri. At the stage of trial, an application under section 439 Criminal Procedure Code for their release on bail was filed which was decided on 9.1.2003. The bail application of Sunil Kumar and Smt. Vidya Devi was rejected, but that of Smt. Rajesh was allowed. After the rejection of their bail application, two accused persons moved an application for bail before this Court which was also rejected vide order dated 2.5.2003. An application seeking cancellation of bail of Smt. Rajesh was also moved before the High Court which was however, rejected vide order dated 26.8.2003. Thereafter, accused-Sunil Kumar and Smt. Vidya Devi filed another application for bail before the learned District and Sessions Judge, Jhunjhunu which was allowed on 16.9.2003. It is alleged that the accused persons obtained bail after wilfully concealing the factum of their bail application having been rejected by this Court on 2.5.2003. It was also averred that the bail could not be granted to them because 14 witnesses out of a list of 16 witnesses had already been examined and only two witnesses remained to be examined and none of the witnesses examined during trial had turned hostile. The cancellation of bail has been sought on yet another ground that the accused persons have started tampering with the prosecution witnesses. They have threatened Sheeshram, the prime prosecution witness, with dire consequences who resides in the same village and has thus misused the liberty of bail granted to them. The cancellation of bail has been sought on yet another ground that the accused persons have started tampering with the prosecution witnesses. They have threatened Sheeshram, the prime prosecution witness, with dire consequences who resides in the same village and has thus misused the liberty of bail granted to them. The petitioner has been informed by Sheeshram of this fact telephonically on 7.10.2003. 3. The petitioner has filed his own affidavit and certified copy of order dated 26.8.2003 passed by this Court. 4. I have heard learned counsel for the parties as well as learned Public Prosecutor for the State and have perused the relevant record. 5. Learned counsel for the petitioner has contended that the order dated 16.9.2003 granted bail to non-petitioner Nos. 1 and 2 has been obtained by concealing the factum of their first bail application having been rejected by the learned Addl. District and Sessions Judge, Khetri vide his order dated 9.1.2003 and by this Court vide order dated 2.5.2003 and, therefore, the order which has been obtained through fraud is liable to be set aside. He has also submitted that the non-petitioners have threatened Sheeshram, a prosecution witness, with dire consequences if he did not depose in their favour and have thus misused the liberty of bail granted to them. 6. Learned Public Prosecutor has supported the stand of the petitioner, but learned counsel for non-petitioners Nos. 1 and 2 has strongly opposed the contentions. He has submitted that the affidavit of Sheeshram has not been filed in support of the allegation of threat to him and the copy of the bail application filed before the learned District and Sessions Judge has also not been filed to show that the factum of bail having been refused by this Court was concealed by the accused persons. He has also submitted that the bail once granted cannot be cancelled in a mechanical manner and without there being valid and cogent grounds for the same. 7. It cannot be disputed that the non-petitioners Nos. 1 and 2 have been granted bail by the learned District and Sessions Judge, Jhunjhunu vide his order dated 16.9.2003 after rejection of their bail application by the learned Addl. District and Sessions Judge, Khetri vide his order dated 9.1.2003 and by this Court vide order dated 2.5.2003. But, it is also true as contended by the learned counsel for non-petitioner Nos. District and Sessions Judge, Khetri vide his order dated 9.1.2003 and by this Court vide order dated 2.5.2003. But, it is also true as contended by the learned counsel for non-petitioner Nos. 1 and 2 that no copy of bail application has been filed with this application to show that the factum of bail having been refused by the Addl. District Judge, Khetri and by this Court was concealed from the learned District and Sessions Judge, Jhunjhunu. In the absence of such material on record, it may not be just and proper to cancel the bail application once granted to the non-petitioner Nos. 1 and 2 on this ground. 8. So far as the question of threat to Sheeshram, a prosecution witness, is concerned, since his own affidavit has not been filed and in the affidavit of the petitioner himself it is not mentioned as to on which date and at what time the non-petitioner Nos. 2 and 3 came to his house and threatened him with dire consequences if he did not depose in their favour in the Court. This ground also cannot be held to be satisfactorily established so as to be made a basis for cancellation of bail granted to non-petitioner Nos. 1 and 2. 9. It is well settled principle of law that the considerations for grant of bail are different from the grounds for cancellation of bail. The bail once granted to the accused should not normally be cancelled unless the accused has misused the liberty by indulging in similar activities or has interfered with the course of justice or attempted to tamper with the prosecution witnesses or there is an allegation that he would flee to any other country and would not be available for trial. It is to be remembered that the power to take into custody the accused who has been enlarged on bail has to be exercised with care and circumspection in appropriate cases only where it is established from the preponderance of probabilities that the accused is interfering with the course of justice by tampering with the prosecution evidence or threatening the witnesses. The Court had to strike a balance between the necessity of not allowing the course of justice to be deflected and that of allowing the liberty to the accused until he is found guilty on the charges levelled against him. 10. The Court had to strike a balance between the necessity of not allowing the course of justice to be deflected and that of allowing the liberty to the accused until he is found guilty on the charges levelled against him. 10. As indicated above, it is not in dispute that the statements of most of the witnesses cited in the case have already been recorded and the trial is at its fag end. The same could not be concluded as the Presiding Officer of the trial Court was transferred, but arrangement for doing the work of the said Court has now been made and the trial in expected to be concluded shortly. 11. In this view of the matter, therefore, I do not deem it must and proper to cancel the bail granted to non-petitioner Nos. 1 and 2. 12. Consequently, this application for cancellation of bail is hereby rejected. However, it is made clear that in case any fresh and valid ground for cancellation of bail is made out against the non-petitioner Nos. 1 and 2, the petitioner shall be at liberty to approach the trial Court for cancellation of their bail along with necessary material in this behalf and in the event of any such application being made by him, the trial Court shall decide it expeditiously as per law without being influenced by the fact that this Court has rejected the application of the petitioner for cancellation of bail.Application rejected. *******