KASHI RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) ON the basis of a report lodged by one, Kashiram a case was registered for the offences under sections 452 & 323, IPC against Santosh and Hetram which has subsequently been converted into one under Section 302, IPC, after the death of injured, Smt. Chanda, who happens to be mother of accused-non-petitioner No. 2 Santosh. The accused non-petitioner No. 2 moved an application for seeking anticipatory bail in the Court of Sessions Judge. Alwar. The learned Sessions Judge, Alwar, vide his order dated 25th March, 1987, allowed the application of the non-petitioner No. 2 granting anticipatory bail under Section 438, Cr. PC.

(2.) THE petitioner moved an application under section 439 (2), Cr. P. C. for cancellation of bail granted to the non-petitioner No. 2. THE learned Sessions Judge, Alwar, vide his order dated 15th July, 1987 dismissed the application of the petitioner declined to cancel the bail granted to the non-petitioner No. 2. Hence the petitioner has now moved this application for cancellation of bail under section 439 (2), Cr. P. C. Notice of this application was given to the non-petitioner No. 2.

(3.) IN Pokar Ram v. State of Rajasthan (1) the Supreme Court cancelled the bail granted by the Sessions Judge to a person accused of non-bailable offence. Their Lordships of the Supreme Court while cancelling the bail, observed as under: "ordinarily, Supreme Court is not to interfere with the orders granting or refusing bail but it cannot be an instrumentable obstacle in the way of rectifying an order which tends to disclose miscarriage of justice. Relevant considerations governing the court's decision in granting anticipatory bail under section 438 are materially different from those when an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his appeal is pending before the higher court and bail is sought during the pendency of the appeal. Unlike a post-arrest order of bail, it is a pre-arrest legal process. which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. A direction under section 438 is intended to confer condi-tional immunity from the touch as envisaged by sec. 64 (1) or confinement. When a person is accused of an offence of murder by the use of a fire arm, the Court has to be careful and circumspect in entertaining an applica-tion for anticipatory bail. Status in life, affluence or otherwise, are hardly relevant considerations while examining the request for granting anticipatory bail. Anticipatory bail to some extent introduce in the sphere of investigation of crime and the court must be cautious and circumspect in exercising such power of a discretionary nature. When the power under section 438, Cr. P. C. was exercised sub-silento as to reasons or on considerations irrelevant or not germane to the determination, the Supreme Court to avoid miscarriage of justice, must interfere. Some very compelling circumstances must be made out for granting bail to a person accused of committing murder and that too when the investigation is in progress. IN such a case, therefore, the Supreme Court "has no option, but to cancel the order granting anticipatory bail. "