MANZOOR ALAM Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application has been filed for quashing the order dated 5.5.2005 passed by 1st Additional Sessions Judge, Purnea, in ST. No. 743 of 2002 by which the learned Judge has cancelled the bail order granted to the petitioner on 18.12.2000 by the learned Sessions Judge, Purnea in B.P. No. 1635 of 2000 in connection with K. Hat P.S. Case No. 59/99 registered under sec - tion 302/34 of the Indian Penal Code (for short the Code) and 27 of the Arms Act against the petitioner and five others.

(2.) BRIEF facts leading to the case is that Late Gulam Mustafa father of Massom Hussain, the informant, was killed by one Jahangir on 16.2.99 near the rice mill Chowk, Purnea. Earlier on 25.1.1999 an attempt to kill the deceased was made by gun shot but he was escaped unhurt. A case of murder was registered as K. Hat P.S. Case No. 59/99 under sections 302, 120B of the Code and 27 of the Arms Act against the petitioner and other accused persons. The main accused Jahangir died. The other four accused Md. Sarfaraz, Md. Julfkar, Md. Sahua and Md. Mahbooba were granted bail by this High Court. However the petitioner Manzoor Alam was granted bail by the Sessions Judge on 18.12.2000. The Addl, Sessions Judge started Sessions trial against the accused persons of the offence under the aforesaid sections vide Tr. No. 743/02. The witnesses after issue of summonses did not appear on the following dates i.e. 23.3.2004, 21.4.2004, 25.5.2004, 10.6.2004, 18.6.2004 and 25.6.2004. On the next day i.e. 14.7.2004 A.P.P. filed an application for issue of summons to the witnesses. But on the next fixed dated i.e. on 14.8.2004 also witnesses did not appear and the A.P.P. prayed for issue of bailable warrant of arrest. On the next dated on 11.9.2004 no witness appeared. On 13.10.2004 the A.P.P. came out with the allegation that on 11.9.2004 when the witnesses, the informant and his brother and his uncle came near the court premises, they were surrounded by the accused persons and threatened to be killed if they tried to depose in the court. However, the case was adjourned to 22.11.2004. On 22.11.2004 the A.P.P. again prayed for issue of bailable warrant of arrest. However, the petitioner filed a rejoinder to the effect that the witnesses used to be present out side the court premises on each and every date but they did not choose to file their Haziri. On the next day i.e. 29.11.2004 the trial court referred the allegation of threatening and also the rejoinder of the petitioner to the Chief Judicial Magistrate, Purnea for getting it enquired and report. The Chief Judicial Magistrate got it enquired by a Magistrate who after getting the witnesses examined came to the conclusion and sent report no. 27 dated 5.2.2005 holding that there was no truth in the allegation. However, with the impugned order the trial court rejected the bail of this petitioner only leaving the other accused persons on bail.

(3.) IN granting bail the court has to exercise its discretion judiciously. However, while cancelling the bail the court has to examine the fact and circumstances of the case. It is well settled that grant of bail is something different than cancellation of bail. For cancellation of bail there are two main principles which have to be tested. The court has to see whether there was attempt to tamper with the evidence. Secondly there is attempt to delay the trial by non -cooperating with the process of the court. In a number of decisions these principles have been elaborated and certain grounds have been laid down by the apex court for cancelling the bail. In this connection reference may be made of the decision in the case of Aslam Babalal Desai vs. State of Maharashtra (AIR 1993 SC 1) in which the apex court has given grounds for cancellation of bail which are: (i) where the accused misuses his liberty by indulging in similar criminal activity (ii) interferes with the course of investigation (iii) attempts to tamper with evidence or witnesses (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation (v) there is likelihood of his fleeing to another country (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency and (vii) attempts to place himself beyond the reach of his surety, etc.