GLBEESYA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS case has a very chequered history. An incident took place on 30th June, 1988, about which cross complaints were lodged. On the side of the complainant four persons including one Mst. Manni were injured and the case against the accused persons was registered under sec. 452, 147 and 323 IPC. They were arrested and produced before the Additional Judicial Magistrate, Tonk who accepted their bail application and released them on bail.

(2.) ON 11. 7. 88, Mst. Manni died and the cause of her death was brain 'haemorrhage due to head injury. Because of this development, the offence u/s. 302 IPC was added. Thereafter the SHO, Police Station, Deoli moved before the Magistrate to cancel the bail already granted to the petitioners and prayed that they should be directed to be arrested. Due to this application, the petitioners applied before the Sessions Judge, Tonk for grant of anticipatory bail and also contested the application which was moved before the Magistrate. The Sessions Judge, Tonk dismissed the application for anticipatory bail on 20th July, 1988. The view of the learned Sessions Judge, Tonk was that the court which granted the bail can order the re-arrest of the accused if further offence was added to the already existing offences. The Chief Judicial Magistrate, Tonk ordered the rearrest of the accused petitioners. Thereafter, the petitioners came before this Court under Sec. 438 Cr. P. C. and while deciding the same on August 2nd, 1988 it was observed that the learned Chief Judicial Magistrate, Tonk while ordering re-arrest of the petitioners had ignored the provisions of sec. 437 (5) and 439 (2) Cr. P. C. and it was ordered that the petitioners could not be re-arrested unless the bail granted to them was cancelled by a competent court. It was further observed that it was not necessary to order the release of the petitioners on bail as they were already on bail. While arriving at this decision, reliance was placed on Motilal v. State of Rajasthan (1 ).

(3.) IN Khagendra Nath Bayan v. The State of Assam (2) it has been held that: "the power of cancellation of bail be exercised with care and circumspection. It was observed that it should be remembered that the power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection in appropriate cases, when by a preponderance of probabilities, is clear that the accused is interfering with the course of justice by tempering with witnesses the court has to strike a balance between the necessities, namely necessity of not allowing the course of justice to be deflected and that of allowing liberty to the accused until he is found guilty. " As there was no discussion about any supervening circumstances like abuse of liberty, tempering with witnesses, likelihood of absconding etc. , the order of the Sessions Judge cancelling the bail is set-aside.