SUMAN RATHORE Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) ON 20. 11. 2007, this Court, while accepting an application preferred under Section 438 Cr. P. C. , ordered to release the accused respondent No. 2 on bail in the event of his arrest in relation to a criminal case lodged at Police Station Shastri Nagar, Jodhpur for the offences punishable under Sections 420, 467, 468, 471 and 120-B IPC. The application aforesaid was the second bail application and it was contended that a charge sheet as per the provisions of Section 173 Cr. P. C. was already filed on 3. 7. 2007 and the CID (Crime Branch) after investigation came to the conclusion that the case against accused persons was of civil nature. ON very next day to granting the application for bail in anticipation of arrest, the applicant-complainant through her power of attorney preferred the instant application as per the provisions of Section 439 (2) Cr. P. C. for cancellation of bail granted.

(2.) AS per the applicant, the accused respondent No. 2 concealed material facts from knowledge of the Court while getting the application under Section 438 Cr. P. C. considered. It was urged, that the respondent No. 2 earlier preferred a petition under Section 482 Cr. P. C. for quashing the first information report, but that was dismissed being infructuous on filing charge sheet by the prosecution, and at the time of dismissal of the petition aforesaid, counsel for the respondent No. 2 (petitioner in the petition under Section 482 Cr. P. C.) submitted that "the petitioner will surrender before the trial court and move a regular bail and a direction be issued to the trial court to decide the bail application on the same day". On basis of the statement aforesaid, a direction was given that, if, Shri Karan Chand Jain (respondent No. 2) surrenders and moves a regular bail application before the trial court, the trial court shall decide the bail application on very day.

(3.) ON the other hand, as per counsel for the respondent No. 2, this application under Section 439 (2) Cr. P. C. has become infructuous in view of the fact that the trial court has already accepted an application preferred by the respondent accused under Section 437 Cr. P. C. Beside the above, it is contended that though it would have been better for the accused respondent No. 2 to refer the facts relating to dismissal of the petition under Section 482 Cr. P. C. but, non-reference of that is of no consequence or cannot be a reason for cancellation of bail already granted being not having a material fact. It is asserted that the petition under Section 482 Cr. P. C. was dismissed by the Court without entering into merits and only on the count that the same become infructuous as a consequent to submission of charge sheet by the prosecution and the bail once granted ordinarily would not be cancelled unless supervening circumstances render liable to cancel the order granting bail. In support of the contention, reliance is placed by counsel for the petitioner upon the law laid down by Hon'ble Supreme Court in Aslam Babalal Desai vs. State of Maharashtra, AIR 1993 SC 1 (supra), holding as follows:- &nbsp&nbsp&nbsp&nbsp&nbsp" 11. As stated in Raghubir Singh's case (AIR 1987 SC 149) the grounds for cancellation under Sections 437 (5) and 439 (2) are identical, namely, bail granted under Section 437 (1) or (2) or 439 (1) can be cancelled where (i)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, (vii)attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to. "