MANGTA Vs. STATE OF PUNJAB

JUDGEMENT

(1.) MANGTA son of Ujagar Singh was arrested in a case under section 307 read with section 34 of the Indian Penal Code. The charge -sheet was not presented within 90 days of his arrest. Therefore, in view of section 167(2) of the Code of Criminal Procedure (for short the Code), the learned Court released him on bail. Later on the charge -sheet was presented to the Court. The complainant filed an application for cancellation of the bail granted to the petitioner on the ground that the latter was misusing the concession of bail granted to him, as he had threatened him (that is the complainant) and a report was also lodged with the Police to that effect on June 3, 1983. The learned Additional Sessions Judge, Amritsar who heard that application cancelled the bail of the petitioner on two grounds. The first ground taken was that the bail granted to the petitioner under section 167(2) of the Code was not on merits and its cancellation could be considered under section 437(5) of the Code and a perusal of the First Information Report and other documents appended to the charte -sheet, made it abundantly clear that petitioner Mangta had given two blows with a spear to Kapur Singh and thus, there was sufficient ground to presume that the petitioner had committed a non bailable offence and it was necessary that he be arrested and committed to custody. The second ground taken was that the petitioner had misused the concession of bail. For this purpose, he relied upon the affidavit produced by the complainant and the report lodged by him with the Police. Feeling aggrieved of that order, the petitioner has filed this application under sections 437 and 439 of the Code for granting bail to him.

(2.) TAKING the second ground first, the learned counsel for the petitioner argued that before the learned Additional Sessions Judge the petitioner filed a reply to that application of the complainant duly supported by affidavits of respected persons that he had since ceased living in village Lopoke to which village the complainant belonged and on that ground, the prosecution has not come forward for cancellation of bail of the petitioner. According to him, the bail of the petitioner ought not to have been cancelled by the learned Additional Sessions Judge merely on the basis of the application of a private person. I am of the opinion that this argument has force. Though the complainant had lodged a report with the Police on June 3, 1983 but the order of the learned Additional Sessions Judge itself shows that the Police did not take any action against the petitioner on the basis of that report. In such circumstances, the allegations made by the complainant regarding the accused interference with the witnesses concerned, have to be treated as having remained mere allegations on the part of the complainant. In the light of the above narration, the observations made in Sita Ram Singh and others. v. The State of Bihar and another, 1973 Cri.L.J. 385 will apply. In that case also, the informant had made a couple of reports to the Police, but nothing was done to find out the truth or otherwise thereof. The informant then filed petition for the cancellation of the bail of the accused on the ground that he was interfering with the witnesses and in support of the application, he furnished the reports, lodged by him with the Police. In those proceedings, the Public Prosecutor did not take part. However, the Sessions Judge cancelled the bail of the accused. They filed criminal revision in the High Court. In that case, it was remarked : - "As already observed the above cancellation petition was filed by the private party, namely the first informant Lachchman Singh. There is nothing to show that the State had also joined that prayer. In the impugned order dated 3.12.1971 of the Sessions Judge under which he has cancelled their bail, there is nothing to show that the Public Prosecutor had sided with the informant's prayer in that behalf. In fact, this order does not show that the Public Prosecutor was present and heard in the matter. On a consideration of all the above facts, I am not convinced that any material of convincing nature was produced before the Sessions Judges to cancel their bail which had already been allowd about seven months ago by his predecessor in -office. His action to cancel the bail merely on the basis of the aforesaid three sanhas which had been lodged on behalf of the informant with the police but they (police) did not even feel it necessary to make any enquiry to ascertain their truth or otherwise, I think, was not sufficient for cancellation of their bail. To do that, the Sessions Judge should have required some more convincing materials to come to the conclusion that they were actually abusing the privilege of bail." Thus, in the present case there was no sufficient material before the learned Additional Sessions Judge to come to a conclusion that the accused -persons had really tried to tamper with the evidence of the prosecution in the case. Therefore, he was not justified to cancel the bail merely on the complainant's allegation that the accused tried to threaten him.

(3.) NOW , I will take up the first ground. The learned counsel for the petitioner does not dispute the fact that under section 437(5) of the Code, the Court was competent to cancel the bail. Otherwise also, in Bashir and others v. State of Haryana, 1977 SCC (Cri.) 608 it was remarked by their Lordships of the Supreme Court as follows : - "The fact that before an order was passed z 167(2) the bail petitions of the accused were dismissed on merits is not relevant for the purpose of taking action under section 437(5). Neither is it 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 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." In the present case, the learned Additional Sessions Judge has clearly held that there are sufficient grounds for presuming that the accused had committed a non -bailable offence and it was necessary that he be arrested and committed to custody. Therefore, on that ground, the order of the learned Additional Sessions Judge is sound.