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2011 DIGILAW 296 (RAJ)

Narsi v. State of Rajasthan

2011-02-08

MAHESH BHAGWATI

body2011
Hon'ble BHAGWATI, J.—Since all the four petitions have been filed by the petitioner Narsi under Section 439(2) of Cr.P.C. seeking cancellation of pre-arrest bail already granted to the accused respondents namely Thakarsi vide order dated 3rd November, 2009; Smt. Mangli Devi, Smt. Geeta Devi, Smt. Seeta Devi, Smt. Chhoti Devi, Smt. Jamna Devi and Smt. Ganga Devi vide order dated 27th October, 2009; Bhonri Devi and Soni Devi vide order dated 23rd October, 2009; and bail granted under Section 439 of Cr.P.C. to Nanchhu Ram vide order dated 13th April, 2010, rendered by the learned District and Sessions Judge, Jaipur, District Jaipur in one FIR No. 157/2009 registered at Police Station Jamvaramgarh, District Jaipur for the offences under Section 143, 148, 149, 341, 323, 447 and Section 302 of IPC added during investigation, hence, they have been heard together and are being disposed of by this common order. 2. Having heard the learned counsel for the parties and carefully perused the relevant material on record, it is noticed that one FIR No. 157/2009 came to be registered for the offences under Section 147, 148, 149, 341, 323, 325 and 452 and 302 of IPC at Police Station Jamwaramgarh. The accused-respondents applied for anticipatory bail and all of them were bailed out by the learned Sessions Judge, Jaipur District, Jaipur. Learned counsel for the petitioner canvassed that the accused respondent Thakarsi is the main accused of this case. The bail petitions of many other accused persons have been dismissed by this Court numerous times and the case of the accused-respondent Thakarsi is not distinguishable from those accused persons, whose bail petitioners were dismissed by this Court. They are alleged to have been involved for the offence under Section 302 of IPC, which is of a grave nature, hence, the bail already granted to them, should be cancelled. 3. Learned counsel for the petitioner cited one judgment rendered by this Court in the case of Tikam Chand vs. State of Raj. & Anr. reported in WLC 1993(2), 412 in support of his arguments. In this case, this Court observed that merely because the fact that the charge-sheet was filed and the accused did not misuse the bail, the application with regard to the cancellation of bail could not be dismissed. 4. & Anr. reported in WLC 1993(2), 412 in support of his arguments. In this case, this Court observed that merely because the fact that the charge-sheet was filed and the accused did not misuse the bail, the application with regard to the cancellation of bail could not be dismissed. 4. Adverting to the facts of the instant case, it is noticed that vide order dated 3rd November, 2009 the learned Sessions Judge, Jaipur District Jaipur admitted the accused-respondent Thakarsi to pre-arrest bail. Smt. Mangli Devi, Smt. Geeta Devi, Smt. Seeta Devi, Smt. Chhoti Devi, Smt. Jamna Devi and Smt. Ganga Devi were granted pre-arrest bail vide order dated 27th October, 2009. Bhonri Devi and Soni Devi were granted pre-arrest bail vide order dated 23rd October, 2009 and Nanchhu Ram was granted bail under Section 439 of Cr.P.C. vide order dated 13th April, 2010. On 7th May, 2010, the Police, after completion of investigation, submitted the charge-sheet against the accused persons namely Thakursee, Smt. Mangli Devi, Smt. Geeta Devi, Smt. Seeta Devi, Smt. Bhonri Devi, Smt. Chhoti Devi, Smt. Jamna Devi, Smt. Ganga Devi and Soni Devi for the offences under Section 147, 148, 149, 341, 323, 325 and 452 and 302 of IPC. On that very day, the counsel filed an application for bail under Section 439 of Cr.P.C. A copy of the petition was supplied to the learned Assistant Public Prosecutor. After having afforded an opportunity of being heard to both the parties, learned court allowed the bail application and directed the accused persons to furnish personal bonds as also the surety bonds in the sum of Rs. 15,000/- for their appearance in the court during trial. 5. Now the question arises as to whether the pre arrest bail granted by the Court during investigation under Section 438 of Cr.P.C. can be cancelled by the Sessions Court or the High Court under Section 439(2) of Cr.P.C. when after completion of investigation the charge-sheet has been filed against them and they have been admitted to bail under Section 437 of Cr.P.C.? Needless to say that the scope of the provisions of Section 438 and 439 of Cr.P.C. are altogether distinct. Even if the anticipatory bail is granted during investigation by the Court to an accused, he is required to file an application seeking bail under Section 437 or 439 of Cr.P.C., as the case may be. Needless to say that the scope of the provisions of Section 438 and 439 of Cr.P.C. are altogether distinct. Even if the anticipatory bail is granted during investigation by the Court to an accused, he is required to file an application seeking bail under Section 437 or 439 of Cr.P.C., as the case may be. In the instant case, when the regular bail has been granted to the accused persons after submission of the charge-sheet under Section 173(2) of Cr.P.C. by the regular Court. I am of the view that the pre-arrest bail granted by the Court during pendency of the investigation automatically becomes infructuous or meaningless. At this stage, now when as per the submissions made by the learned counsel for the accused respondents that only one prosecution witness is left to be examined and the trial of the case is at its fag end, I do not deem it just and proper to invoke the provisions conferred under Sub Section 2 of Section 439 of Cr.P.C. otherwise too, learned counsel for the petitioner has not assigned any cogent reason on the basis of which the pre arrest bail already granted to the accused respondents may be cancelled. 6. So far as the question of the accused Nanchhu Ram is concerned, learned counsel for the petitioner has not given any cogent reason on the basis of which bail granted to him may be cancelled. 7. A bird's eye view of some of the decisions of Hon'ble Apex Court throwing light on this issue needs to be taken into consideration. 8. 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." 9. 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." 9. 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 mechnical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial." 10. Hon'ble Rajasthan High 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. 11. It is relevant to record that no such apprehension has been shown by the petitioner that the interference or attempt to interfere with the due course of administration of justice has been made or the concession of bail granted to the respondents has been abused in any manner or the respondents are likely to abscond or they shall tamper with the witnesses. No such cogent or overwhelming circumstances have been put forth which are necessary for order directing the cancellation of bail, already granted. 12. Now has been brought to our notice from which any inference may possibly be drawn that the respondents have in any manner, whatsoever, abused the concession of bail during intervening period. I do not find any ground to cancel the bail already granted to the respondents. 13. For these reasons, all the four petitions filed under Section 439(2) of Cr.P.C. seeking cancellation of bail, being bereft of merits and devoid of substance stand dismissed.