UPENDRA KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS revision petition has been preferred against the order dated 17.7.2001 whereby and whereunder the bail granted to the petitioners in Bihata P.S. case no. 252 of 1999 has been cancelled.

(2.) THE prosecution case is that while the informant Arun Kumar Singh was at his home along with his family members then on 27.9.1999 he was called by villager Surendra Kumar and when he came out he saw the petitioners and other co -accused persons awaiting having deadly weapons in their hands. Then on order being placed by Kameshwar Pd. Yadav to kill the informant, Surendra Kumar through (sic ''threw ?) him on the ground and Lal Babu Paswan assaulted with the butt of the gun and Upendra Kumar and Bijendra Kumar also assaulted with lathi which hit the right hand of the informant. The investigation was aismost completed. No injury report could be collected as the medical officer stated that the injury report was not being prepared. The case was also supervised by the Dy Superintendent of Police and it was observed that the case was true only under Sections 447, 323, 341 and 34 of the Indian Penal Code. Then again it appears that the case was further supervised and then recommendation was made to the Superintendent of Police for giving direction to the investigating officer to submit chargesheet under Sections 323/341/307 and 34 of the Indian Penal Code and then Superintendent of Police, Rural, supervised the case and found the case to be true under Section 307 of the Indian Penal Code. Then chargesheet was submitted and cognizance has also been charged under Section 307 of the Indian Penal Code. But while the investigation was at the stage of completion, bail was granted on 5.11.1999. After scrutinising the materials on the case diary and the chargesheet was submitted on 30.11.1999 and on a petition being filed from the side of the informant bail has been cancelled vide order dated 17.7,2001. In the cancellation petition it was urged that the accused persons i.e. the petitioners were threatening the witnesses and the informant party for coming to a compromise. These are all grounds for cancellation as contemplated under section 439(2) of the Code of Criminal Procedure. The crux of dispute is of a legal proposition. Admittedly, although not stated, the bail has been cancelled under Section 437(5) of the Code of Criminal Procedure wherein power has been given to the Magistrate to cancel bail if afterwards he found it fit to do so. At the time when bail was granted, the case was under the bailable sections but when chargesheet has been submitted it comes under not only on non -bailable sections but also a sessions triable case and definitely as observed by the Apex Court that the Magistrate can have the power to entertain a bail petition under Section 437 of the Code of Criminal Procedure but in that case the Magistrate must hold that the case do not come within the categories of the sessions triable cases. A recent judgment of the Apex Court may be referred to in this respect as reported in (2001) 4 S.C.C. (Prahlad Singh Bhati vs. NCT, Delhi and anr.) In that case also bail was granted while the case was lodged under Sections 306/498A of fhe Indian Penal Code but afterwards chargesheet was Jinish Lal Sah Versus State Of Bihar submitted under Section 302 of the Indian Penal Code and cancellation of bail was held to be a valid one in such circumstances. But the factual aspect of the case is different. When the case was lodged primarily it was under Sections 306/498A of the Indian Penal Code. Then after much deliberations from the side of the informant chargesheet was submitted under Section 302 of the Indian Penal Code. While the case was under Sections 306/498A of the Indian Penal Code, anticipatory bail was granted and when after chargesheet was submitted under Section 302 of the Indian Penal Code warrants of arrest were issued against the accused persons which was in the form of cancellation of bail and it was held to be justified. But in the present case, the case was originally lodged also under Section 307 of the Indian Penal Code and when almost investigation was completed and supervisions are on consideration of the materials on record, the Magistrate came to the finding that it was not a case under Section 307 of the Indian Penal Code and then granted bail. But afterwards on further supervision section 307 of the Indian Penal Code has been added. In that way, it cannot be said that the learned Magistrate had committed error in granting bail earlier as the same was done within his jurisdiction, considering the case to be not a case under Section 307 of the Indian Penal Code. But after the chargesheet was submitted under Section 307 of the Indian Penal Code then a petition had been filed from the side of the informant bringing allegations of tampering of the evidence and terrorising the witnesses. The court had not given opportunity to the petitioners and it appears that nothing such came forward from the side of the petitioners then the matter was heard and the bail has been cancelled. When such sort of grounds are taken for cancellation of bail then opportunity is required to be given to the accused persons but that is not there in the present case. Grounds for cancellation, as sought for, was available under Section 439(2) of the Code of Criminal Procedure but here in the present case on such grounds bail has been cancelled under Section 437(5) of the Code of Criminal Procedure. The Apex Court held that while cancelling the bail much caution is to be applied as the liberty of the person. is being curtailed by such cancellation. When cogent grounds are not made out, bail should not be cancelled. Only on a simple assertion from the side of the informant that the witnesses are being terrorised then without holding any such enquiry of that factor bail cannot be canceiled. It has also been held by the Apex Court that grounds for cancellation of bail under Section 437(5) of the Code of Criminal Procedure and that of 439(2) of the Code of Criminal Procedure are almost of the same [1992 Cr. Law Journal 3712 (SC) (Aslam Babalal Desai vs. State of Maharashtra). Here in the present case it is not a case that the Magistrate concerned had granted bail without considering the materials on record. At the time when the bail was granted there was allegation under Section 307 of the Indian Penal Code but on consideration of the materials on record he found that no case could be made out under Section 307 of the Indian Penal Code and bail was granted. On jurisdictional point it cannot be said that the bail order was without jurisdiction and, as such, the same can be recalled under Section 437(5) of the Code of Criminal Procedure. The factual aspect of the present case are not the same and similar as that of the case in the Apex Court as mentioned above (2001) 4 S.C.C. 280 (supra). Moreover, nowhere there is finding by the learned court below except that of vague allegation from the side of the informant that the petitioners have violated any terms and conditions of the case.