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2005 DIGILAW 53 (JK)

Rakesh Kumar v. Puran Singh

2005-03-16

S.K.GUPTA

body2005
1. This application has been preferred by the petitioner/ applicant seeking cancellation of the bail granted to accused/respondent-1 in FIR No. 46/2003 for offences under section 148, 149, 447 and 307 RPC by this Court vide its order dated 24-12-2003, in invoking the provisions of section 498(2) of the Code of Criminal Procedure. 2. The case of the petitioner gatherable from the averments in the application, in brief, is that the accused committed a murderous assault on the petitioner and his father, Moti Lal, by firing a gunshot, in respect which a report was lodged with the Police Station, Bhaderwah, that led to the registration of FIR No. 46/2003 for offences under sections 148/149/447 and 307 RPC against the accused/respondent-1 alongwith others. It is further stated that before the accused/respondent-1 could be arrested, he moved an application for pre-arrest bail. The accused/respondent-1 was granted bail in anticipation of his arrest by the Court vide its order dated 24-12-2003 and its relevant portion is reproduced as under: "I have perused the FIR also, copy of which is available on the file and in my view the petitioner is entitled to the grant of anticipatory bail in the circumstances of the case. It is, therefore, ordered that in the event of the arrest of the accused he shall be released on bail on his furnishing surety bond to the tune of Rs. 10,000/- including personal bond in the like amount to the satisfaction of the detaining authority. The petitioner shall make himself available to the investigating agency as and when required for the purposes of the investigation of the case and for that purpose he shall appear and report to the concerned Police Station in the first week of February 2004. He shall also not directly or indirectly tamper with the prosecution evidence." 3. Further case of the petitioner is that after the release of the accused/respondent-1 on bail, he has misused the concession by extending threats and assaulting the witnesses. Even an application before the Executive Magistrate has also been filed for taking out preventive proceedings under section 107 of the Criminal Procedure Code. Further contention of the petitioner is that in case the accused/respondent-1 is not prevented from his criminal activities, he is likely to commit another heinous crime and would also not allow the witnesses to make the statements voluntarily out of their free will in the Court. 4. Further contention of the petitioner is that in case the accused/respondent-1 is not prevented from his criminal activities, he is likely to commit another heinous crime and would also not allow the witnesses to make the statements voluntarily out of their free will in the Court. 4. Despite opportunities, objections have not been filed by the respondents. The matter being more than one year old, requires expeditious disposal. 5. I have heard the learned counsel appearing for the respective parties and considered the rival contentions in context with the material on record. 6. Bail in a non-bailable case is merely a concession, which can be withdrawn, if abused. The granting of bail in a non-bailable offence is a concession allowed to an accused person and it presupposes that this privilege is not to be abused in any manner. It is sort of trust reposed in him by the Court and if it is found that he has betrayed the trust in any manner or he has misused the liberty thus granted to him by the Court, it disentitles him to the privilege so granted. It is no doubt true that the object of the provision is not punitive, but the interests of administration of justice demand that nobody should be allowed to impede the course of justice or hamper its administration in any manner. 7. In considering an application for cancellation of bail, the Court will have all those considerations in view which it would take while granting bail. The Court while granting bail considered the materials collected by Investigating Agency. Cancellation of a bail is permitted, by and large, only if there is proof that the accused shall not be allowed the freedom during the trial. Party taking a plea that the witnesses have been threatened or evidence tampered with, has to prove by placing sufficient and satisfactory material on record. 8. Mr. Salaria, learned senior counsel appearing for the petitioner, has vehemently urged that after the grant of pre-arrest bail by the High Court, of course, subject to certain conditions, the accused/respondent-1 has misused the concession and thwarted the witnesses and threatened them to appear in the Court. 9. On going through the averments in the application, the petitioner, it is found, has no where indicated the names of the witnesses, on what occasion, where and on what date, they were threatened by the accused/respondent-1 and also assaulted. 9. On going through the averments in the application, the petitioner, it is found, has no where indicated the names of the witnesses, on what occasion, where and on what date, they were threatened by the accused/respondent-1 and also assaulted. Mr. Salaria has not placed the affidavits of those witnesses on record in support of the allegations made against the accused/respondent-1, so as to form the basis for the cancellation of his bail. 10. It is pertinent to point out that the bail cannot be cancelled on the mere allegation that the accused on bail committed acts of violence in revenge. The State has not come forward with the plea that the accused/respondent-1 has in any manner violated the conditions on which the anticipatory bail was granted or has not co-operated with the investigation. The petitioner has also not lodged any report with the Police with regard to the threat extended and assault committed on the witnesses. The application does not disclose about any such complaint made by the witnesses to the Police. In such event, it can safely be concluded that the petitioner has not brought any material on record, much less sufficient and satisfactory material, in support of the recitals in the application with regard to the misuse of concession by the accused/ respondent-1 of bail granted by this Court. 11. Mr. Kotwal, learned senior Advocate appearing for the accused/respondent-1 submitted that application for cancellation of bail can be filed only by the State, which is Incharge of the prosecution after the registration of the FIR and not the private party and, thus, it entails outright rejection of the application. I am not convinced with the argument put across by Mr. Kotwal, being legally untenable. Ordinarily, in a police case, it is the State, which should move for cancellation of bail, but there is nothing to prohibit a private person also from applying for cancellation of a bail. 12. It is implicit that the Court granting anticipatory bail is entitled upon appropriate consideration to cancel or recall that order. In ordinary circumstances, it would be done only when the conduct of the accused/respondent-1, to say the least, is improper and tends to obstruct the process of law, which is not shown to be the position in this case by the petitioner either from the averments in the application or otherwise in his argument. 13. In ordinary circumstances, it would be done only when the conduct of the accused/respondent-1, to say the least, is improper and tends to obstruct the process of law, which is not shown to be the position in this case by the petitioner either from the averments in the application or otherwise in his argument. 13. Taking stock of the facts and circumstances discussed above in its cumulative, I unhesitantly reach a conclusion that the petitioners application for cancellation of bail is devoid of any merit, bereft of any substance and is, accordingly, dismissed.