RAJPAL Vs. JAGVIR SINGH AND

JUDGEMENT

(1.) application has been filed on behalf of the complainant under Section 439 (2), Cr. P. C. for cancelling the bail granted to Jagvir Singh and Bijendra Singh. They were granted bail by the Magistrate on a technical ground that remand was not proper. According to the F. I. R. the main allegations were against Jagvir Singh, Bijendra Singh, Bishambhar alias Kare - Diggo alias Durgvir Singh and Karan Singh that they had used fire-aims. Jagvir Singh, Bijendra Singh and diggo alias Durgvir Singh were said to have used their licenced guns while Bishambhar alias Kare and Karan Singh were said to have used country-made pistols. There were fouteeen accused in all. The rest were said to have been armed with lathis and pharsa. Sahib Singh was said to have instigated. The occurrence resulted in the double murder. Mahendra Singh son of the applicant Rajpal died on the spot while Peetam Singh was badly injured and died in the hospital later on. Kishori, Prem and Phool Singh received injuries. The committing Magistrate by the order dated March 17, 1979 (Annexure L) cancelled the bail of Sahib Singh, Diggo alias Durgvir Singh, Karan Singh and Bishambhar alias Kare, all of whom had been allowed bail on a technical ground and ordered them to be committed to the court of sessions. The committing Magistrate, however, did not cancel the bail of opposite parties Jagvir Singh and Bijendra Singh who were working as Lab. Assistants in Agra. He, however imposed some condition that they would not visit the village. The other persons, who were armed with lathis and pharsas had already been allowed bail by the High Court. There was thus no question of interference with the order of the High Court at the time of commitment. The committing Magisrtate had observed that it was not desirable in the interest of justice that Sahib Singh, Karan Singh, Bishambhar alias Kare and Diggo alias Durgvir Singh should remain enlarged on bail. He also took into consideration the circumstances that the accused persons had threatened the witnesses that they would be killed and thus they tried to tamper with the prosecution evidence. The four persons whose bail had been cancelled approached the High Court. The bail applications were opposed on behalf of the State on the ground that they had tried to tamper with the prosecution evidence. Sahib Singh had filed the bail application separately. It appears that he too was not granted bail although the allegation against him only was that he had instigated. Subsequently he was released on parole for three months which period was extended subsequently. The bail application of Karan Singh Diggo alias Durgvir Singh and Bishambhar alias Kare came up before Hon. P. S. Gupta, J. on April 23, 1979. He took into consideration certain F. I. R's which had been filed against the accused persons by the witnesses that they had tried to tamper with the prosecution evidence and had threatened the complainant and other persons that they would be killed. He rejected the bail application of Diggo alias Durgvir Singh and Bishambhar alias Kare on this very ground but allowed bail to Karan Singh as his name did not appear in those F. I. Rs. In the meantime the present applicant Rajpal had filed an application before the Sessions Judge under Section 439, Cr. P. C. for cancelling the bail granted to Jagvir Singh and Bijendra Singh. The learned Sessions Judge rejected that application by his order dated April 18, 1979 on the ground that 'it was discretionary for the Chief Judicial Magistrate to cancel bail of an accused person while committing him to the court of sessions or to allow him to be committed being enlarged on bail. He, however, observed that it was most improper that the Chief Judicial Magistrate had discriminated in the case of Jagvir Singh and Bijendra Singh while cancelling the bail of the other accused persons and committing them to the 'court of session. He placed reliance on the case of Delhi Administration v. Sanjay Gadhi (1978 Cr. L. J. 952 - A. I. R. 1978 S,c. 961) in which it was held that bail once granted could not be ordinarily cancelled in the absence of any abuse of bail by way of tampering with the evidence. Obviously the order of the High Court dated April 23, 1979 was not before the learned Sessions Judge in which the High Court had accepted the evidence against Diggo alias Durgvir Singh and Bishambhar alias Kare that they had tried to tamper with the prosecution evidence and so had refused to grant them bail. In this petition, reliance has been placed on three reports which were lodged by the prosecution witnesses. The first report was lodged by Kishori Lal on February 10, 1979 against Jagvir Singh and Bijendra Singh, Bishambhar alias Kare, and Diggo alias Durgvir Singh that they had threatened him on February 9, 1979 at 7. 30 p. m. saying that they had been released on bail and that they would kill him and would destroy the family and that they would not be able to cause any harm to them as they had sufficient money and would be acquitted ultimately. Kishori Lal also filed an affidavit to this effect before the Magistrate, Copy of which too has been annexed. The second report was lodged on February 12, 1979 against all these four persons by Rajpal complainant. He also filed an affidavit before the Magistrate repeating the facts stated in the F. I. R. It was to the effect that all the four persons were threatening him and other witnesses that in case they appeared as witnesses against them they would be done to death in the same manner as Mahendra and Peetam had been dealt with. The third F. I. R. was lodged by Than Singh on April 10, 1979 against Bijendra Singh and Jagvir Singh only as by that time Diggo and Bishambhar alias Kare were already in jail after the commitment. It was to the effect that both these persons abused him and threatened him that in Case he appeared as a witness in this case against the accused persons, he and all of his sympathizers would be killed. He also filed an affidavit before the court of session of this effect. Learned counsel for the applicant has prayed for cancellation of the bail on merit as well as on the ground that the evidence is being tampered with and there is every apprehension that both the accused persons would misuse their bail. He has also argued that even the committing Magistrate had accepted the evidence of tampering with the evidence but he wrongly discriminated the case of the present opposite parties. He has laid stress on the fact that even the High Court accepted the evidence of tampering with the evidence while rejecting the bail application of Diggo and Kare. On the other hand, Sri S. N. Mulla, learned counsel for the opposite parties has argued that the allegations of tampering with the evidence are vague and are such which the complainant and the members of his family would have easily made by way of vendetta so that the accused persons may remain in jail. He has also argued that the first two reports need not be considered as they have already been considered by the committing Magistrate while exercising his discretion in nit cancelling their bail. With regard to the third report lodged by Than Singh, he has argued that it is vague in the extreme as even the names of the witnesses in whose presence such threats were given have not been mentioned and it was stated that their names would be given subsequently. He has lastly argued that the application is liable to be rejected because it has not been filed on behalf of the State and has been filed by the complainant only who has no locus standi in the matter. I may take up the last argument first. Sri Mulla has relied on the case of Thakur Ram and others v. State of Bihar (A. I. R. 1966 S. C. 911 ). That was a revision under Section 435, Cr. P. C. (old) filed by a private party. Their Lordships of the Supreme Court made the following observation as would be clear from the head-note 'c'. " In a case which has proceeded on a police report a private party has no locus standi. No doubt, the terms of Section 435 are very wide and he can even take up the matter suo motu. The criminal law is not, however, to be used as an instrument of wrecking private vengeance by an aggrieved party against the person who, according to that party, had caused injury to it. " The Hon. Supreme Court, however, modified such strict approach in its later decision in the case of Pratap v. State of U. P. (A. I. R. 1973 S. C. 785 ). In that case the High Court had altered the sentence of life imprisonment to death on the basis of a revision filed by a private party. That order was upheld. Their Lordships of the Supreme Court made the following observation: " The power under Section 439, Cr. P. C, is one which the High Court can exercise suo moitu and all that a person filing a revision petition under that section does is to draw the court's attention to an illegal, improper or incorrect finding, sentence of order of a subordinate court. Such powers are not affected by the fact that the revision petition is filed by a private person and not by the Government," Both these authorities were considered by the Punjab and Haryana High Court in the case of Ranjit Singh v. Nandlal (1975 Cr. L. J. 1416 ). The learned Judge held that an application for cancellation of bail could be filed by a third party not being the State under Section 439 (2 ). On the basis of that application, the High Court cancelled the bail. I agree with the view taken by the Punjab and Haryana High Court. The language of Section 439 (2) Cr. P. C. is clear that the High Court or a court of session may direct that any person who has been released on bail be arrested and be taken into custody. There is no such restriction that this could be done on the basis of an application filed by the State only. It is for the High Court ultimately to order that bail be cancelled. It could be satisfied on the material before it and not necessarily on the basis of an application filed on behalf of the State only. In this connection, I may refer to the following observation made by Hon. the Supreme Court in the case of the State through the Delhi Administration v. Sanjay Gandhi (A. I. R. 1978 S. C. 961) where a duty has been cast on the High Court to cancel bail in proper cases. " It was the plain duty of the High Court to enforce the provisions of Section 437 of the Criminal P. C. when it was brought, to its notice that the respondent being charged with an offence under Section 409 which is punishable with life imprisonment was illegally on bail, particularly when he had misused his liberty. The obligation of the Court to enforce the provisions of Section 437 of the Criminal P. C. does not depend upon whether the State has acted with vigilance and promptitude. " I certainly do not wish to suggest that a mere application by an interested person, the complainant or his near relative will be sufficient for cancelling bail properly granted by a court. I am also aware of the fact that quite often false reports are lodged with the police by the interested persons to show that the evidence is being tampered with, with the sole object of getting bail cancelled. Each case has to be decided on its own merit and all such allegations have got to be carefully scrutinized. It is also true that it is one thing to refuse to grant bail under Section 437, Cr. P. C. while it is another thing to cancel bail under Section 439, Cr. P. C. Power to cancel bail has to be exercised with care. But at the same time it is not required that the court should insist on the same proof which is required for the purpose of convicting the accused. In Sanjay Gandhi's case (supra), the Hon. Supreme Court observed as follows: " The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extraordinary nature, is meant to be exercised in appropriate cases when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. Refusal to exercise that wholesome power in such cases, few though they may be, will reduce it to a dead letter and will suffer the Courts to be silent, spectators to the subversion of the judicial process. In the present case, the most important circumstance is that the allegations with regard to tampering of the witnesses had been accepted by the committing Magistrate while committing the accused to the court of session and it was for that reason that the committing Magistrate had cancelled the bail of four persons, but had arbitrarily drawn distinction in the case of opposite parties Nos. 1 and 2 simply because they were Government servants. The High Court also Accepted the allegation regarding tampering while rejecting the bail application of Diggo and Bishambhar alias Kare. It cannot, therefore, be said that it is such a case in which the complainant or his near relations had made false allegations. When the committing Magistrate acted illegally in allowing the opposite parties to continue to be on bail while cancelling the bail of the othei accused persons, it can be said in the words of the Hon. Supreme Court in the case of Sanjay Gandhi (quoted above) that it has become the duty of the Court to enforce the provisions of Section 437, Cr. P. C. and to cancel bail under Section 139 Cr. P. C. if the bail was granted illegally. Sri S. N. Mulla has also placed reliance on the case of Bashir and others v. State of Haryana (6. A. I. E. 42 1978 S. C. 55) in which it was held that bail granted on a technical ground under Section 167 (2) Cr. P. C. should be deemed to be bail "granted under Section 437 (i) or (ii) Cr. P. C. and could be cancelled only when the case was covered by Section 437 (v) Cr. P. C. That case is distinguishable, as it appears that in that case the Magistrate had cancelled the bail while committing the accused persons to the court of session simply because the charge-sheet had been filed as earlier they had been released on bail on a technical ground only under Section 167 (2) Cr. P. C. The High Court had also taken the same view in that case that when bail was granted on a technical ground only under Section 167, Cr. P. C. it could be cancelled as soon as the charge-sheet was presented. In that case also, Hon. the Supreme Court held that bail could be cancelled under Section 437 (v) Cr. P. C. for which there are certain considerations. It made the following observation The fact that before an order was passed under Section 167 (2) the bail petitions of the accused were dismissed on merits is not relevant for the purpose of taking action under Section 137 (5 ). Neither it is a valid ground that subsequent to release of the appellants a challan was filed by the police. The court before directing the arrest of the accused and committing them to custody should consider it necessary to do so under Section 437 (5 ). This may be done by the court coming to the conclusion that after the challan had been filed there are sufficient grounds that the accused had committed a non-bailable offence and that it is necessary that he should be arrested and committed to custody. It may also order arrest and committed to custody on other grounds such as tampering of the evidence or that his being at large is not jn the interests of justice. But it is necessary that the court should proceed on the basis that he has been deemed to have been released under Section 437 (i) and (2 ). " It is thus obvious that bail can be cancelled at the time of the commitment even if the court is satisfied that there was sufficient ground that the arcused had committed a non-bailable offence. For this purpose the Court is to be satisfied on the merits of the case after considering the first information report etc. It can take other circumstances also into consideration such as the accused tampering with the evidence or that it will not be in the interest of justice that the accused should, be allowed to remain on bail. In the present case, the Magistrate was fully satisfied on the merits as well as on the evidence about tampering with the evidence and thereupon cancelled the bail of Diggo and Kare. The Magistrate, however, acted illegally in discriminating the case of the opposite parties arbitrarily. In the light of the above discussion, I am satisfied that it is a fit case in which bail granted to Jagvir Singh and Bijendra Singh be cancelled as it is not in the interest of justice that they be allowed to remain enlarged on bail. The petition is accordingly allowed. The bail granted to Jagvir Singh and Bijendra Singh by the learned Magistrate is cancelled. Both these persons shall surrender to their bail bonds and be taken into custody forthwith. .