BUSHAN KUMAR AND ANR. Vs. STATE AND ORS.

JUDGEMENT

(1.) Petitioners are accused of commission of offences under sections 341, 323, 354 RPC and 7(c) of the Protection of Civil Rights Act, 1955 (for short, the PCR Act) registered as FIR No. 33 of Police Station, Bishnah on 13.02.2018. They applied for bail in the court of learned Special Mobile Magistrate, Jammu in File No.569/Misc. on 17.02.2018. Learned Magistrate, after hearing both sides, by a detailed order dated 21.02.2018 admitted the petitioners to interim bail up to 07.03.2018 subject to the conditions that they shall cooperate in investigation, shall not "hamper and tamper with evidence or influence the prosecution witnesses" and will not leave the territorial jurisdiction of the State of Jammu and Kashmir without prior permission of the court.

(2.) After admitting the petitioners to interim bail on 21.02018, the bail application was adjourned to 07.03.2018. In the meantime, however, the victim of the alleged incident moved an application on 202018 before the same Magistrate through her father in File No. 570/Misc. for recalling the order dated 21.02018. She contended that in the application for bail the petitioners have concealed the fact that earlier they had moved an application for anticipatory bail in the court of learned 1st Additional Sessions Judge, Jammu which, however, was withdrawn by them on 21.02018 when that court was about to dismiss the same because of a special offence alleged to have been committed by the petitioners. It was alleged also that the petitioners have concealed the incorporation of special offence in the FIR in which the court of Magistrate could not have granted bail. In this application, learned Magistrate issued notice to the counsel for the petitioners and listed the matter on 23.02018. None appeared on behalf of the petitioner on 23.02018 and the Magistrate adjourned the matter to 24.02018. Order passed by the learned Magistrate on 24.02018 could not be traced on the record received in this court, which, nonetheless, reveals that objections on behalf of the petitioners were filed on 26.02018. On 26.02018, learned Magistrate recalled the interim bail granted to the petitioners on 21.02018 and disposed of the application. Order dated 26.02018 is impugned in this petition under section 561-A Cr. P.C.

(3.) Learned counsel for the petitioner, Mr. Vinod Wali, Advocate submitted, precisely, that the impugned order is illegal as learned Magistrate has not applied the principles applicable to the cancellation of bail, which certainly are different than the principles applicable to grant of bail. Per contra, Mr. Pawan Kumar Kundal, learned counsel for the victim argued that the court granting bail can cancel the bail if it is pointed out that bail was obtained by concealment of important facts, which if revealed, bail would not have been granted. Learned counsel relied upon Patna High Court judgment dated 02.09.1992 in Ramadhar Pandey v. State of Bihar and anr. and Bombay High Court judgment in Ramparsad v. State of Maharashtra dated 07.01.1998. Learned counsel produced computer printout of these judgments.