RAJENDRA KISHRI Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this application the petitioner -informant (hereinafter referred to as 'the informant') has prayed for cancellation of bail of accused Shambhu Agrawala (hereinafter referred to as 'the petitioner) who has been granted bail by this Court in Cr. Misc. No. 2090/97 (R) vide order dated 11.4.1997. The petitioner in this case was made accused for committing a non -bailable offence under Section 395 of the Indian Penal Code in connection with Dhanbad P.S. Case No. 735/95.

(2.) It appears that the informant lodged first information report on 7.9.1995 alleging inter alia that while he returned from Calcutta to Dhanbad after collecting sale proceeds of Cigarettes and after taking out his Scooter from Dhanbad Railway Station proceeded for coming to home he was intercepted by some miscreants who were on the Hero -Honda Motor -cycle and at the pistol point the miscreants snatched the breaf -case containing Rs. 4,50,000/ -. After looting the money and other articles the accused persons sat on the motor -cycle and fled away. In the first information report the informant alleged that neither he could see the registration number of Motorcycle nor could identify the miscreants. However, in course of investigation involvement of certain miscreants came into light but no material against the petitioner was collected by I.O. Despite the fact that the informant had been with the Investigating Officer on different dates but he did not speak for the involvement of the petitioner. It was only after one year of the occurrence all of a sudden the informant stated that he had identified the petitioner who was amongst the miscreants. Consequently requisition was made to the Court for his arrest on the basis of statement made by the informant. The petitioner then moved the learned Sessions Judge for the grant of anticipatory bail. The learned Sessions Judge rejected the petition for bail vide Bail Petition No. 53/97 in terms of order dated 18.2.1997. The learned Sessions Judge in his order took notice of all these facts and observed that the conduct of the informant in taking the name of the petitioner after one year when he was with the Investigating Officer on several dates creats a serious doubt in his subsequent statement recorded by I.O. which seemed to be pregnant with meaningful substance. However, the learned Sessions Judge rejected the prayer holding that some of the points raised by the petitioner is quite convincing. The petitioner then moved this Court by filing application for the grant of bail under Sections 438 and 440 of the Code of Criminal Procedure which was registered as Cr. Misc. No. 2090/97 (R). This Court after hearing the counsel for the petitioner and the learned Additional Public Prosecutor appearing for the State allowed the prayer for anticipatory bail of the petitioner in terms of order dated 11.4.1997 and the petitioner was directed to be released on bail in the event of his arrest. The information after about nine months filed this application for the cancellation of bail.

(3.) I have heard Mr. Mahesh Tiwary, learned Counsel appearing for the informant and Mr. P.S. Dayal, Sr. Counsel appearing for the petitioner accused. Mr. Tiwary, learned Counsel firstly submitted that the petitioner accused ought not to have been granted anticipatory bail by this Court for the reason that prior to his application for anticipatory bail charge sheet was already submitted by the police against the petitioner and other accused persons under Section 395 of the Indian Penal Code and the petitioner was declared absconder. The learned Counsel then submitted that some materials already collected prior to the prayer for anticipatory bail and those materials disclosed an accusing finger against the accused then the Court should not have granted bail to the petitioner. Learned Counsel further submitted that even recovery of the looted amount has been made from the possession of the petitioner. According to the learned Counsel, therefore, the order granting bail to the petitioner is liable to be cancelled. Learned Counsel put heavy reliance on the decision in the case of Directorate of Enforcement v. P.V. Prabhakar Rao .