MAHENDRA PRASAD SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD Mr. Singh, on behalf of the petitioner, Mr. Dayal, on behalf of the State and Mr. Shakil Ahmad, on behalf of Opposite Party No. 2 and with their consent this application is disposed of at the admission stage itself.

(2.) THIS application under Section 439(2) of the Code of Criminal Procedure has been filed by the informant with a prayer to cancel the order of bail given to Opposite Party No. 2 by the learned Vacation Judge, Saran, Chapra by order dated 5-11-1993 in Bail Petition No. 712 of 1993.

(3.) MR. Kameshwar Dayal, learned Counsel for the State has firstly raised a preliminary objection regarding the maintainability of this application. Referring to Sub-clause (5) of Section 437 of the Code of Criminal Procedure. He has submitted that the petitioner should have moved the learned Sessions Judge at Saran for cancellation of the order of bail inasmuch as, Section 437(5) contemplates that any court which has released a person on bail under Sub-section (1) or (2) may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. On merit, MR. Dayal has submitted that the Police investigated the matter and the case was supervised by the Superintendent of Police and after supervision, the S.P. directed for filing charged-sheet under Sections 341 and 323 read with Section 34 of the Indian Penal Code. He further submits that the learned Sessions Judge before granting bail had gone through the case diary and was prima facie satisfied that no case under Sections 364 and 379 was made out and as such this Court should not interfere with the impugned order very lightly. Regarding threat to the witnesses as submitted on behalf of the petitioner, MR. Dayal has contended that mere filing of a sanaha is not sufficient to hold that there was actual threat to the witnesses. He submits that if actually threat was going by the Opposite Party No. 2, he should have given the threat to Anil Singh who was the alleged eyewitness and was accompanying the informant on his motor cycle.