MOOLDAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) IN this petition, petitioner has challenged the order passed by learned Sessions Judge, Ajmer, dated August 28, 1989, setting aside the order passed by his predecessor-in-office, dated January 9, 1989, granting bail and further ordering the issuance of non-bailable warrants for arrest of the petitioner by cancelling the bail under Section 439 (2) Cr. P. C.

(2.) FACTS leading to this petition are that the petitioner is one of the accused in a Sessions case pending in the Court of Sessions Judge, Ajmer, being Sessions Case No. 634/1988, State Vs. Mahendra Singh and others. Besides the petitioner there are several other accused persons in this case. All the accused have been charged for an offences under Sections 147, 148, 302 read with Section 149 I. P. C. The petitioner moved a bail application before the learned Sessions Judge, which was allowed by Shri G. K. Israni, then Sessions Judge, Ajmer, vide his order dated January 9, 1989, after hearing learned counsel for the petitioner and the learned Public Prosecutor. A detail reasoned order was passed by the learned Sessions Judge. The learned Sessions Judge had also considered while granting the bail application, the fact that bail application of some other accused persons had been rejected even by the High Court but the court finding that the case of the petitioner is distinguishable, granted him indulgence.

(3.) THIS judgment has been followed in several decisions subsequently by this Court and the other High Courts. In Gheesya (Supra), Hon'ble Mrs. Kapur J. dealt with several cases of the Supreme Court and other High Courts including this Court and held that on the basis of the various decisions it can be said that principles governing the bail under Sec. 437 (1) and 439 (1) Cr. P. C. are different from the principles governing the cancellation of bail u/s 437 (5) & 439 (2) Cr-P. C. For the purpose of cancellation of the bail, the prosecution has to make certain allegations which should show that the accused is a person not fit to remain on bail. In other words after grant of bail, there must be some effect which should go to show that either he has tampered with the investigation or tampered with the evidence or committed some faults or remained under-groud or has repeated the offence. Circumstances existing at the time of grant of bail, cannot be reconsidered for the purpose of cancelling the bail itself. It is only the circumstance after the grant of bail, which would govern the question of cancellation of the bail. Hon'ble Mr. M. C. Jain J. in Ghan Shyam Vs. Bheru Lal (supra) considered the aspect that the accused was on bail for nine months when the bail application came up for consideration and held that there is no specific act attributed to the accused during this period, it would no be legal and proper to cancel the bail of the accused. The Court relied upon couple of decisions of their lordships of Supreme Court. In the same volume, Hon'ble Justice I. S. Israni relying on Bhagirath's case (supra) held that if the bail is granted after hearing both the parties, merely because the prosecution failed in its duty to point out certain statements which it thought proper to be considered at the time of consideration of bail application of the accused, it cannot be made a ground for cancellation of the bail. It was further held in the circumstances of the case that prosecution failed to point out any incident showing that the accused have tried to tamper with the evidence of prosecution. Even in State through Delhi Administration V. Sanjay Gandhi (5), their lordships of Supreme Court observed as under: - "the power to take back in custody an accused who has been enlarged on bail, has to be exercised with care and circumspection. "