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2006 DIGILAW 861 (PAT)

Nadim Zaffar v. State Of Bihar

2006-09-19

CHANDRAMAULI KR.PRASAD

body2006
Judgment 1. Petitioner is informant of Bihar P.S. Case No. 338 of 2005 registered under Sections 302 and 120B/34 of Indian Penal Code. Sec. 27 of the Arms Act and Sec. 3/4 of the Explosive Substances Act. 2. Md. Gulrej, Opposite party no. 2 herein, is one of the accused in the said case. He filed application for grant of bail before this Court and by order dated 19.5.2006 passed in Cr. Misc. No. 10111 of 2006 Md. Gulrej V/s. State of Bihar he was granted bail. 3. Nadim Zaffar, informant of the said case has preferred this application for can-cellation of his bail under Sec. 439(2) of the Code of Criminal Procedure. The application was heard on 13.8.2007 and today when it is posted for orders Mr. Chitranjan Sinha wanted to address the Court on merit of the case. I have permitted him to do the same. 4. Nadim Zaffar had sought cancellation of bail of Md. Gulrej, inter alia, alleging that after he was released on bail in Bihar RS. Case No. 338 of 2005 pressurised the petitioner as also other witnesses of the said case not to depose against him and when he failed in his attempt brutally assaulted the petitioner as also the witness Ramjee Prasad. According to the petitioner, in relation to the incident Bihar RS. Case No. 164 of 2006 was registered under Sections 341, 323, 324, 307, 504 and 506 of the Indian Penal Code. 5. Petitioner has further averred that a report was also given apprehending that one of the witnesses of the said case, namely, Nazir Hussain shall be killed on the basis of which Station Diary Entry No. 67 of 2006 has been made. 6. Counter affidavit has been filed on behalf of Opposite party no. 2 Md. Gulrej in which he had stated that the petitioner as also his brother whose murder had led to registration of Bihar P.S. Case No. 338 of 2005 were veteran criminals and involved in a large number of cases. He has further stated that the petitioner and Opposite party no. 2 are residing in the same Mohallah and due to political rivalry case and counter case have been lodged between them. 7. As regards Ramjee Prasad the informant averred that he is the henchman of the petitioner and involved in a large number of cases. He has further stated that the petitioner and Opposite party no. 2 are residing in the same Mohallah and due to political rivalry case and counter case have been lodged between them. 7. As regards Ramjee Prasad the informant averred that he is the henchman of the petitioner and involved in a large number of cases. He has also denied to have given any threat to the petitioner and any other witness. 8. Petitioner has averred that after Opposite party no. 2 was released on bail in pursuance of the order of this Court he assaulted a witness of the said case, namely, Ramjee Prasad and for that Bihar P.S. Case No. 164 of 2006 was registered under Sections 341, 323, 324, 307, 504 and 506/34 of the Indian Penal Code in which police after investigation had charge-sheeted him in another case. This has not been denied by Opposite party no. 2. 9. In that view of the matter, there is no escape from the conclusion that after Opposite Party No. 2 was released on bail in pursuance of the order of this Court, he assaulted Ramjee Prasad, a witness of the case and in that he has been charge-sheeted. 10. Mr. D.K. Sinha, Senior Advocate, appearing on behalf of the petitioner submits that Opposite party no. 2 having misused the liberty granted to him by assaulting the witness of the case, it is a fit case in which his bail deserves to be cancelled. 11. Mr. Chitranjan Sinha, appearing on behalf of Opposite party no. 2 however, submits that once Opposite party no. 2 has beengranted bail, same is not fit to be cancelled on the mere allegation of the petitioner. He submits that petitioner and witnesses are hardened criminal and because of political rivalry, false case has been lodged. In support of his submission he has placed reliance on a judgment of this Court in the case of Vishwanath Tiwary V/s. State of Bihar, 1987 0 PLJR 306 and my attention has been drawn to the following passage from paragraph 11 of the said judgment, which reads as follows: "Rejection of bail when bail is applied for is one thing whereas cancellation of bail already granted to a person is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail already granted in such a case because cancellation of bail necessarily involves a review of decision already made." 12. Reliance has also been placed on a decision of this Court in the case of Surendra Singh V/s. State of Bihar, 1990 1 PLJR 168 and my attention has been drawn to the following passage from paragraph 5 of the judgment which reads as follows: "Mr. Braj Kishore Prasad, learned Senior Counsel appearing on behalf of the Opposite parties submitted that it is established law that the consideration of cancelling the bail is different from the consideration for granting bail. The bail granted by the learned Sessions Judge in its discretionary power cannot be cancelled unless there be evidence to show that the Opposite parties are likely to abscond or they are trying to tamper with the evidence or investigation." 13. Having appreciated the rival submission, I do not have the slightest hesitation in accepting the broad submission of the learned Counsel representing Opposite party no. 2 that the power to take back in custody an accused who has been enlarged on bail is different than grant of bail. The power to cancel the bail has to be exercised with care, caution and circumspection but it is equally well settled that this power, though of extraordinary nature, is meant to be exercised in appropriate cases when, by preponderance of probabilities, it is clear that accused is interfering with the course of justice by tampering with the witnesses. An accused on bail, committing another offence and threatening and assaulting the witness is nothing but misuse of the privilege of bail. 14. Bearing in mind when I proceed to consider the present case, I am of the opinion that the petitioner has misused the privilege of bail and it is a fit case in which the power deserves to be exercised. He was granted bail by this Court by order dated 19.5.2006 passed in Cr. Misc. No. 10111 of 2006. He was released on bail in pursuance of the said order and thereafter on 16.6.2006 he alongwith other accused threatened Ramjee Prasad, of his life in case he deposes in Bihar P.S. Case No. 338 of 2005. On the witnesses insistence that he will depose in the Court, he was assaulted by Chura. Misc. No. 10111 of 2006. He was released on bail in pursuance of the said order and thereafter on 16.6.2006 he alongwith other accused threatened Ramjee Prasad, of his life in case he deposes in Bihar P.S. Case No. 338 of 2005. On the witnesses insistence that he will depose in the Court, he was assaulted by Chura. Case was investigated by the police and the Investigating Officer finding the allegation to be true submitted charge-sheet under Sections 341, 323, 324, 307, 504 & 506/ 34 of the Indian Penal Code against him. 15. Thus in my opinion Opposite party no. 2 had made attempt to tamper the witnesses and thus misused the privilege of bail. It shall be travesty of justice to allow such person to remain on bail. 16. Bail granted to Opposite party no.2 by order dated 19.5.2006 passed in Cr. Misc. No. 10111 of 2006 is cancelled. He is directed to surrender forthwith. He may renew his prayer for bail after the conclusion of trial of Bihar P.S. Case No. 164 of 2006. 17. Application stands allowed with the direction aforesaid.