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2009 DIGILAW 379 (RAJ)

Phool Chand v. Kailash

2009-02-05

MAHESH BHAGWATI

body2009
Hon'ble BHAGWATI, J.—Two separate petitioners have been filed on behalf of the petitioner Phool Chand S/o Shri Mali Ram under Section 439(2) of the Cr.P.C. seeking cancellation of bail of the accused respondents Kailash and Smt. Choti who were granted bail by this Court on 27th May, 2002 and 21st September, 2000, respectively. Hence, these both the petitions are disposed of with this common order as they pertain to one FIR No. 82/2000 of Police Station Khandela District Sikar. 2. Heard the learned counsel for the petitioner as also the learned counsel for the respondents and the learned Public Prosecutor appearing for the State and perused the relevant material available on record. 3. Learned counsel for the petitioners has contended that initially both the accused respondents were arrested in the offence under Section 306 of IPC and the High Court also granted bail to them treating that they were accused of the offence under Section 306 of IPC but the learned trial Court has framed charges against both the them in the offence under Section 302 of IPC. Thus, the circumstances of the case and the nature of the offence has changed and the same is causing adverse effect on the trial of the case pending before the CBI Court. 4. He has further contended that if the nature of the offence changes then in that event the bail may be cancelled and he has cited one judgment Dinesh M.N. (S.P.) vs. State of Gujarat reported in (2008) 5, SCC, 66 in support thereof. 5. The learned counsel for the accused respondents has canvassed that this case was later on investigated by the CBI and on completion of investigation, CBI also filed Police report under Section 173(2) of Cr.P.C. in the offence under Section 306 of the IPC but the trial Court after hearing both the parties has framed charge against both the accused persons for the offence under Section 302 of IPC. 6. He has further contended that both the offences are non-bailable and they are triable by the Court of Sessions then change of the nature of the offence does not change the process of trial. The procedure of the trial in both the cases prescribed by the legislature is the same, No other allegation has been levelled by the petitioner. They have not abused the concession granted by this High Court by granting bail. The procedure of the trial in both the cases prescribed by the legislature is the same, No other allegation has been levelled by the petitioner. They have not abused the concession granted by this High Court by granting bail. Thus, the petition seeking cancellation of bail must be dismissed. 7. Hon'ble Supreme Court in the case of State vs. 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. 8. Hon'ble Supreme Court has also held in the case of Dolatram and others vs. 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. 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. 9. This Court has held in the case of Smt. Rajbala vs. State of Rajasthan (2005(1) RCC 289 = RLW 2005(1) Raj. 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. 9. This Court has held in the case of Smt. Rajbala vs. State of Rajasthan (2005(1) RCC 289 = RLW 2005(1) Raj. 475) 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." 10. The learned counsel for the petitioner has simply canvassed that the nature of the offence has changed. Initially the accused respondents were granted bail for the offence under Section 306 of IPC but now the learned trial Court has framed a charge in the offence under Section 302 of IPC, against both the accused. To my firm view, albeit, there is a change in a nature of the offences but so far as the procedure prescribed for trial for both the offence is concerned, that is the same. Cancellation of bail of both the accused respondents is not going to serve any purpose, so far as the fair trial of the case is concerned. 11. Learned counsel for the petitioners has cited one judgment Dinesh M.N. (S.P.) vs. State of Gujarat (2008) 5, SCC 66. Having reflected over the submissions made by the learned counsel for the petitioner and scanned the whole judgments cited before me, it is noticed that the facts and circumstances of both the cases are altogether different and distinct. The ratio decided by the Hon'ble Supreme Court in the case of Dinesh M.N. (S.P.) vs. State of Gujarat (2008) 5, SCC 66 is altogether distinct from the facts of the case on hand and it is not at all applicable in the instant case. 12. For these reasons, the cancellation of bail petition filed on behalf of the petitioner is devoid of force as also bereft of substance which is to be dismissed and the application filed by the petitioner under Section 439(2) seeking cancellation of bail stands dismissed accordingly.