BISWANATH BHAGAT Vs. SANJAY SAHA

JUDGEMENT

(1.) Petitioner, the informant in G. R. Case No. l157 of 1988 pending in the Court of learned Sub-divisional Judicial Magistrate, Sadar,Cuttack (in short 'SDJM') questions legality of the order of bail passed in respect of the opposite parties.

(2.) Background facts as asserted are that on the basis of an information lodged at Purighat Police Station on 18-8-1988 alleging that opposite parties herein threw acid on the face and other parts of the body of one Jitendra Kumar Jaiswal (son of the informant), P. S. Case No.165 of 1988 was registered and a case under Sections 324/ 341, Indian Penal Code, 1860 (in short 'IPC') was booked and investigation was taken up. On 20-8-1988 a petition was filed by opposite party No.2 along with two others, namely Siba Kumar Saha and Sona Devi for being released on bail, But the bail application was not pressed since the learned Assistant Public Prosecutor filed a memorandum stating that on the allegations made, an offence under Section 307, IPC was made out. Peculiarly the learned SDJM did not send the applicants for bail to custody, but simply stated in his order that the accused persons did not surrender. Opposite party No. 1 and the aforesaid Sona Devi again filed a petition for surrendering in the Court on 9-9-1988 and prayed for being released on bail. On that day, the learned SDJM was on leave and Judicial Magistrate, first class, Cuttack was incharge. He released the applicants on bail, overruling the objection of the A.P.P. to the effect that an offence under Section 307, IPC was made out. He observed that though accused persons had allegedly thrown acid, no medical report was submitted to show that the injured suffered grievous injury on his person. Thereafter, opp. party No. 2 and two others, viz.. Siba Kumar Saha and Kanhaiya Saha filed an advance petition on 13-9-1988 before the learned Magistrate, who was incharge, and moved for bail. They were released on bail on the ground that co-accused persons had since been released on bail though allegations were similar. Opposite party No.3 Om Prakash Saha filed a petition for bail on 20-9-1988 and was released on bail on similar grounds. It is further case of the petitioner that after release on bail, the witnesses who are likely to depose to further the prosecution case as well as the informant have been threatened by the opposite parties and others who have been released on bail. It is submitted that offence under Section 307, IPC is clearly made out and erroneously the learned SDJM incharge, held that no case of any grievous injury prima facie appeared. It is alleged that information was lodged at Lalbag Police Station about the threats but the police officials have sat over the matter. It is prayed that since on erroneous grounds the opposite parties have been released, the same should be cancelled. The learned counsel for the opposite parties, however, submits that once bail has been granted, merely because unsubstantiated allegations have been made, it would not be proper to cancel the bail.

(3.) The principles relating to cancellation of bail have been laid down in several cases. Consideration for grant of bail and cancellation of bail are somewhat different. Granting of bail in the case of a non-bailable offence is a concession allowed to an accused person. In Sections 437(5) and 439(2) a discretion is given to the Court concerned to direct that any person who had been released on bail be arrested and committed to custody. The power of cancellation to take back in custody an accused who has been enlarged on bail has to be exercised with care, caution and circumspection. It is easy to reject a bail application in a non-bailable case than to cancel a bail granted, as cancellation of bail necessarily involves review of a decision already made and existence of supervening circumstances is a desirable requirement before exercise of the power. It is not, however, imperative that there must be supervening or additional circumstances to vest jurisdiction on the Court to cancel a bail granted. Where bail has been granted on untenable ground, plea that there was no misuse of privilege of bail loses significance. This view was expressed in (1986) 2 Orissa LR 536 : (1987 Cri LJ 1462), Durei Behera v. Surath Behera.