JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. K.C. Mahanta, learned Public Prosecutor, Assam, appearing on behalf of the Petitioner/State of Assam. Office notes indicate that although this application has been filed in the year 2003 on 27.8.2003, proper steps, despite direction from this Court as well as Registry, have not yet been taken and as such this Court has to proceed with this application without the presence of the Respondent. 2. The Petitioner/State of Assam has filed this application under Section 439(2) read with Section401 of the Code of Criminal Procedure, 1973 ('Code of Criminal Procedure'), seeking interference with the Order dated 27.6.2003 passed by this Court (Saikia, J.) in Bail Application No. 1693/03 wherein the Respondent was granted the privilege of anticipatory bail in connection with Majuli Police Station Case No. 33/03 under Section 409, IPC. 3. This petition has been filed on 27.8.2003 and this Court on 11.9.2003 has passed the following order: Heard learned Counsel for the Petitioner. Steps be taken to serve notice upon Respondents by registered post with A/D or by ordinary process within three days. Issue notice. Notice is made returnable within three weeks. 4. On close perusal of the Office notes of different dates, it would candidly reveal that the case has been pending since 2003 for want of service on the sole Respondent. In the last order dated 6.12.2007, this Court directed the Petitioner to take fresh steps by citing proper name and address of the Respondent. However, till date no proper name and address has been furnished as revealed from the latest Office notes dated 14.7.2008 and 2.9.2008. 5. It is really a matter of concern to note the callousness and cavalier attitude shown by the State in conducting a case of such serious nature. However, it is an usual experience this Court is facing day in and day out when such a matter is taken up either for the State or against the State. 6. Be that as it may, this Court has also carefully gone through the merit of the case. 7. However, it is an usual experience this Court is facing day in and day out when such a matter is taken up either for the State or against the State. 6. Be that as it may, this Court has also carefully gone through the merit of the case. 7. On 27.6.2003, this Court allowed the prayer of the Petitioner for granting the privilege of pre-arrest bail and accordingly, the anticipatory bail was granted to the Petitioner after hearing the learned Public Prosecutor for the State of Assam and also close perusal of the materials available in the Case Diary, imposing as many as three conditions as stipulated under Section 438, Code of Criminal Procedure. 8. For the sake of convenience, Section 438 Code of Criminal Procedure is reproduced herein below: 438. (1) When any person has reason to believe that he may arrested on an accusation of having committed (sic) non-bailable offence; he may apply to the High Court or the Court of Sessions for s direction under this section; and that court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. (2) When the High court or the Court of Sessions makes a direction under Sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including- (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the court; (iv) such other condition as may be imposed under Sub-section (3) of Section 437, as if the bail were grunted under that section. (3) if such person is thereafter arrested without warrant by an officer-in-charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail ; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the court under Sub-section (1). 9. Being aggrieved by the said order dated 27.6.2003, the present petition has been filed on 27.8.2003 by the State. However, till today, no proper steps have been taken by the State during the long period of last 5 years. 10. In the instant case seeking cancellation of bail of the Petitioner under Section 438, Code of Criminal Procedure the State of Assam set out basically the following three grounds: (i) For that after getting the order of Anticipatory bait passed by this hon'ble court the Respondent is trying to tamper the evidence of the witnesses in connection with the case and as such the order dated 27.6.2003 is liable to be set aside. (ii) For that the Respondent not only misuse the liberty of the privileges of anticipatory bail but also violated the terms and conditions given by this hon'ble court and on this ground along the order dtd. 27.6.2003 passed in B.A. No. 1693/03 is liable to be set aside. (iii) For that on the bare perusal of the FIR the prima-facie case under Section 409 is made out against the Respondent which involve the public and govt. exchequer of Rs. 8,80,000 (Rupees eight lakhs eighty thousand) only and as such the order dated 27.6.2003 passed in bail application No. 1693/03 is liable to be set aside. 11. It is also interesting to note that in paragraph-4, the Petitioner/State itself admitted that after obtaining the certified copy pf the order of granting anticipatory bail, the accused himself appeared before the Investigating Officer and accordingly his statement was also recorded. The said paragraph 4 is quoted hereinbelow: 4. That the Respondent has obtained a copy of the order passed by this hon'ble court and appeared before the investigating officer and accordingly statements was recorded and they were released on bail as per direction of this Court. 12. The said paragraph 4 is quoted hereinbelow: 4. That the Respondent has obtained a copy of the order passed by this hon'ble court and appeared before the investigating officer and accordingly statements was recorded and they were released on bail as per direction of this Court. 12. Law is already well settled as regards of cancellation of bail and in this regard law laid down in a case of The State through the Delhi Administration v. Sanjay Gandhi, AIR 1978 SC 961 may be cited herein. In paragraphs-13 and 14 therein, the Supreme Court speaking through the hon'ble Mr. Justice Y.V. Chandrachud the then Chief Justice of India observed as under: 13. 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. The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over. A brother, a sister or a parent who has seen the commission of crime, may resile in the court from a statement recorded during the course of investigation. That happens instinctively, out of natural love and affection, not out of persuasion by the accused. The witness has a stake in the innocence of the accused and tries therefore to save him from the guilt. Likewise, an employee may, out of a sense of gratitude, oblige the employer by uttering an untruth without pressure or persuasion. In other words, the objective fact that witnesses have turned hostile must be shown to bear a casual connection with the subjective involvement therein of the Respondent. Without such proof, a bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won over by the accused. Inconsistent testimony, by itself, can be ascribed to the pressure of the prosecution.... Without such proof, a bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won over by the accused. Inconsistent testimony, by itself, can be ascribed to the pressure of the prosecution.... It is, therefore, necessary for the prosecution to show some act or conduct on the part of the Respondent from which a reasonable inference may arise that the witnesses have gone back on their statements as a result of an intervention by or on behalf of the Respondent. 14. Before we go to the facts of the case, it is necessary to consider what precisely is the nature of the burden which rests on the prosecution is an application for cancellation of bail. Is it necessary for the prosecution to prove by a mathematical certainty or even beyond a reasonable doubt that the witnesses have turned hostile because they are won over by the accused? We think not. The issue of cancellation of bail can only arise in criminal cases, but that does not mean that every incidental matter in a criminal case must be proved beyond a reasonable doubt like the guilt of the accused. Whether an accused is absconding and therefore his property can be attached under Section 83 of the Code of Criminal Procedure, whether a search of person or premises was taken as required by the provisions of Section 100 of the Code, whether a confession is recorded in strict accordance with the requirements of Section 164 of the Code and whether a fact was discovered in consequence of information received from an accused as required by Section 27 of the Evidence Act are all matters which fall peculiarly within the ordinary sweep of criminal trials. But though the guilt of the accused in cases which involve the assessment of these facts has to be established beyond a reasonable doubt, these various facts are not required to be proved by the same rigorous standard. Indeed, proof of facts by preponderance of probabilities as in a civil case is not foreign to criminal jurisprudence because, in cases where the statute raises a resumption of guilt as, for example, the Prevention of Corruption Act, the accused is entitled to rebut that presumption by proving his defence by a balance of probabilities. He does not have to establish his case beyond a reasonable doubt. He does not have to establish his case beyond a reasonable doubt. The same standard of proof as in a civil case applies to proof of incidental issues involved in a criminal trial like the cancellation of bail of an accused. The prosecution, therefore, can establish its case by showing on a preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses. Proving by the test of balance abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail. 13. In the same tune, the Apex Court in the case of Bhagirathsinh Judeja v. State of Gujarat, AIR 1984 SC 372 in paragraphs-5 and 6 observed that very cogent and overwhelming circumstances were necessary for an order seeking cancellation of the bail. 14. It is now established by a catena of decisions of the Supreme Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are- (i) whether the accused would be readily available for his trial, and (ii) whether he is likely to abuse the discretion granted in his favour by tampering with evidence. 15. If there is no prima facie case, there is no question of considering other circumstances. But even where a prima-facie case is established, the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence. 16. The relevant portion of paragraphs-5 and 6 of Bhagirathsinh's case reads as follows: 5....If there is no prima facie case there is no question of considering other circumstances. But even where a prima facie case is established, the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence. We would have certainly overlooked this aspect of the matter if the approach of the learned judge was otherwise one which would commend to us. It however appears that the learned judge was impressed by some of the most irrelevant considerations which prima facie emerge from the following observations of the learned judge which permeates his whole order running into about 13 pages. Says the learned Judge: The learned Judge ought to have seen the fact that the helpless victim had gone to the hospital for pre-operation check-up. He was a leading social and political worker. He was an active worker and Secretary of "Gundagiri Nivaran Samiti" which had raised a campaign against the atrocities allegedly having been committed by the Rajputs of Girasiya community. Admittedly the Respondent is Girasiya and the complainant who was an active worker and Secretary of Gundagiri Nivaran Samiti had become a victim at the hands of the Respondent. The learned Judge ought to have taken into consideration the material fact that the incident had taken place in the premises of the Hospital which may terrorize a number of sick persons who might be getting treatment in the hospital. 6. In our opinion, the learned Judge appears to have misdirected himself while examining the question of directing cancellation of bail by interfering with a discretionary order made by the learned Sessions Judge. One could have appreciated the anxiety of the learned Judge of the High Court that in the circumstances found by him that the victim attacked was a social and political worker and therefore the accused should not be granted bail but we fail to appreciate how that circumstance should be considered so overriding as to permit interference with a discretionary order of the learned Sessions Judge granting bail. The High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation of the bail. Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. And the trend today is towards granting bail because it is now well-settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. And the trend today is towards granting bail because it is now well-settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. The order made by the High Court is conspicuous by its silence on these two relevant considerations. It is for these reasons that we consider in the interest of justice a compelling necessity to interfere with the order made by the High Court. 17. In the another recent case reported in Mehboob Dawood Shaikh v. State of Maharashtra 2004 (2) SC 362, the Apex Court after delving upon a detailed discussion on the question of cancellation of bail in paragraph-11 observed that mere assertion of an alleged threat to witnesses should not be utilized as a ground for cancellation of bail, routinely; otherwise, there was ample scope for making such allegation to nullify the bail granted. The court before which such allegations are made should in each case carefully weigh the acceptability of the allegations and pass orders as circumstances warrant in law. Such matters should be dealt with expeditiously so that actual interference with the ordinary and normal course of justice is nipped in the bud and in irretrievable stage is not reached. 18. Given facts and circumstances including the grounds set out in this case as already quoted above, would go to show that no specific allegation as regards tempering with the evidence or misuse of liberty and privilege of anticipatory bail has been cited herein. That apart, taking 5(five) years without taking any proper steps to issue notice to the sole Respondent itself shows that the Government is not serious in pursuing the matter nor acting expeditiously for hearing of this application for cancellation of bail. 19. The grounds and allegations made herein are appears to be mere assertion of an alleged threat to witnesses and without any basis. 20. That being the position the order under challenge does not stand a judicial scrutiny calling for any interference. 21. 19. The grounds and allegations made herein are appears to be mere assertion of an alleged threat to witnesses and without any basis. 20. That being the position the order under challenge does not stand a judicial scrutiny calling for any interference. 21. In the result, this revision petition fails and stands dismissed. Petition dismissed