RAJENDRA KUMAR TIRKHA Vs. STATE OF U P

JUDGEMENT

(1.) THIS is an application for bail filed on behalf of one Rajendra Kumar Tirkha. THIS Rajendra Kumar Tirkha along with Sanjay Gandhi and three others is being prosecuted for offences u/Sec. 5 (1) (d) read with Section 5 (2) of Prevention of Corruption Act and Sections 120-B and 420 I. P. C. in the court of the Special Judge, Anti Corruption, U. P. (East), Dehradun. All the accused of the case including the applicant were released on bail by the learned Special Judge. The learned Special Judge, however, cancelled the bail of the applicant, vide order dated 30-5-79 and took him in custody. The learned Judge cancelled his bail op the ground that he is "bent upon creating impediments in the trial of the case in normal course". It is certainly open to a court to cancel bail granted by it, but it is now well settled that cancellation should be resorted to only when it is found that it is no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. There is nothing convincing on record to show that the applicant has done anything by which his remaining on bail would not be conducive to a fair trial. The applicant had been appearing in court on all the dates fixed in the case. It appears that one of the dates fixed in the case was 28-3-79. On that date a big crowd collected in the court compound and raised slogans in favour of Sanjay Gandhi due to which the court could not conduct the proceedings of the case. As no order was probably passed in the case on 28-3-79, the applicant appeared in court on 29-3-79 and the court then fixed . 27-4 -79 as the next date for hearing. On 27-4-79 also a crowd collected in the court premises and there was slogan -shouting as before. The applicant and Sanjay Gandhi could not appear in court on that date because of the crowd and the courts therefore, cancelled their bail, took them in custody and sent them to Jail. On 28-4-79, however, the learned Special Judge released them on bail and the case was listed for hearing on 21 -5-79. On 21-5-79 also there was a big crowd in the court compound even though an order under Section 144 CrPC was in force at that place. The police swung into action and took the applicant and Sanjay Gandhi in custody for breach of Section 144 CrPC. The result was that they could not appear in court. The counsel for the applicant moved an application for adjournment, but his application was rejected and the court decided to proceed with the case on the next day (22-5-79) under Section 317 (1) CrPC. On 22-5-79 the applicant instructed his counsel, Sri K. S. Seth, not to proceed with the case in his absence. Sri K. S. Seth informed the court about this thing and the court then summoned the applicant from Jail for 29.5.79. The applicant was produced in court on 29 -5 -79 and he informed the court as to why he had asked Sri K. S. Seth not to appear for him. The court felt,that by changing his counsel the applicant was creating impediments in the trial of the case and it, therefore, cancelled his bail.

(2.) IT is the constitutional right of an accused to engage any lawyer whom he wants to engage and, therefore, merely because the applicant changed his counsel in the midst of the case, it cannot be inferred that he had changed his lawyer with any evil intention in his mind. Sri K. S. Seth was counsel for the other accused persons also and the applicant felt that Sri K. S. Seth would not be able to do full justice to his case. His apprehension in this regard could not be said to be totally ill-founded and, therefore, it was not proper on the part of the court to think that the applicant had changed his counsel just with a view to prolong the hearing of the case.

(3.) ACCORDINGLY, I release him on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the Special Judge, Anti Corruption, U. P. (East), Dehradun.