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2008 DIGILAW 2303 (RAJ)

Bhuri v. State of Rajasthan

2008-10-13

MAHESH BHAGWATI

body2008
JUDGMENT 1. - This order governs the disposal of an application filed under Section 439(2) of criminal procedure code. by the petitioner Mst. Bhuri seeking cancellation of bail of the respondent no. 2 to 5 who have been granted anticipatory bail vide order dated April 10, 2008 rendered by Additional Sessions Judge, Malpura (Tonk). 2. Heard the learned counsel for the petitioner, learned Public Prosecutor appearing for the State and perused the relevant provisions of law as also relevant material available on record. 3. Learned counsel for the petitioner has craved the cancellation of bail on the following grounds:- (i)The petitioner is widow and illiterate who never signs any document. Thus, no question of selling the land in dispute and putting the signatures on document arises. (ii)The petitioner never executed any document, hence the alleged original power of attorney, sale-deed and other relevant documents are required to be recovered from the possession, for which the custody of the respondent nos. 2 to 5 is necessary. (iii)The respondent nos. 2 to 5 have been threatening the petitioner and pressing her to withdraw the complaint or to enter into the compromise. 4. Learned Public Prosecutor appearing for the State has simply submitted that the learned counsel for the petitioner has not assigned any cogent reason for cancellation of bail. 5. Hon'ble Supreme Court in the case of State v. Sanjay Gandhi (AIR 1978 Supreme Court 961 ) has held that rejection of bail when bail is applied for is one thing, cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a 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. 6. Hon'ble Supreme Court has also held in the case of Dolatram and others v. State of Haryana (1995) (1) Supreme Court cases 349 ) that rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so 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. 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 placed 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 circumstances have rendered it no longer conducive to a fair trial to allow the trial. 7. Hon'ble Rajasthan High Court has held in the case of Smt. Rajbala v. State of Rajasthan (2005 (1) R.C.C. 289 ) as under:- "It is now well settled by a catena of cases of the Apex Court as well as of this Court that the grounds for cancellation of bail are distinct from the considerations for grant of bail. The bail once granted cannot and ought not to be normally cancelled in a mechanical manner unless there are cogent and overwhelming facts and circumstances on record to do so." 8. The learned counsel for the petitioner has simply argued that the lower court has granted the bail to the non-petitioner-accused on irrelevant considerations but he has failed to explain as to what are those irrelevant considerations which moved the lower court to pass the impugned bail order. No other reason except the one has been assigned by the learned counsel for the petitioner to cancel the bail. Hence, to my firm view, the application of the petitioner is found to be devoid of force and substance and the same deserves to be dismissed. 9. In the end, I would also like to point out that the petitioner has no locus standi to file the present application for cancellation of bail as he can not be treated on par with the public prosecutor. 9. In the end, I would also like to point out that the petitioner has no locus standi to file the present application for cancellation of bail as he can not be treated on par with the public prosecutor. The Hon'ble Andhra Pradesh High Court while citing so many pronouncements of Hon'ble Apex Court and various Hon'ble High Courts has held in the case of Sardela Damodar v. State of Andhra Pradesh and others (1998 Cr.L.J. 277 ) as under:- Therefore, I am of the considered opinion that the petitioner has no locus standi to file the present application for cancellation of the bail as he cannot be treated on par with the Public Prosecutor. As already observed, it is for the prosecution to satisfy itself whether by granting bail, the accused will be interfering with the trial or the evidence and if it finds that the accused is conducting himself prejudicial to the interest of the prosecution, it is open for the prosecution to file an application or bring to the notice of the Court for cancellation of the bail. But, it would not authorise the private person to step in the shoe of Public Prosecutor and file the application under Section 439(2) of criminal procedure code. 10. Thus, from the pronouncement of the Hon'ble Apex Court and various Hon'ble High Courts, it is now very well settled that the petitioner or the complainant has no locus standi to file the application for the cancellation of the bail as it is Public Prosecutor only who has been conferred with the powers under Section 301(2) and Section 24 of criminal procedure code. to prosecute a case on behalf of the state and only in exceptional cases a private advocate can be permitted to assist a Public Prosecutor subject to the limitation under Section 301(2) of criminal procedure code. In the present application, the petitioner-complainant has made the State Government a party to the case which leaves an impression that the state is also behaving anti to the complainant. Be as it may, the complainant has no locus standi to file the application for the cancellation of the bail nor he is entitled to appear independently before the court where the State Government is a party. Be as it may, the complainant has no locus standi to file the application for the cancellation of the bail nor he is entitled to appear independently before the court where the State Government is a party. Thus, from this angle too, the application of the petitioner is found to be against the provisions of law and the same deserves to be dismissed. 11. Consequently, this petition being devoid of merit and substance deserves to be dismissed and is hereby dismissed accordingly.Application dismissed. *******