JUDGMENT
Ajit Kumar Sengupta, J.
1.This revisional application is directed against the order dated 11th April, 1989 passed by the learned Sessions Judge cancelling the bail of the accused/petitioners granted by the learned Sub-Divisional Judicial Magistrate, Sadar, Midnapore in a proceeding Under Sections 306/ 498-A of the Penal Code.
2. Shortly stated, the facts are that the de facto complainant lodged a First Information Report before the Kotwali Police Station on 24th November, 1988 against the accused/ petitioners and their sons and daughters on the allegations that his daughter Bijoli Pali alias Ranu was married to Pradip, son of the accused/petitioners after payment of dowry. But the demand for dowry continued and for this purpose torture was meted out on Bijoli by the accused/petitioners and their sons and daughters as well as the husband of the said Bijoli. The factum of such torture was divulged by her to her friends and others. On the night of 23rd November, 1988, at about 2 p.m. the defacto/complainant came to know that his daughter Bijoli was transferred to the Sadar Hospital. Immediately he rushed there and found her dead. Enquiries at her matri-monimal home did not reveal anything as such he suspected foul play and lodged the complaint which was treated as the FIR on the allegation that his daughter was forced to put an end to her life as a sequel to the torture from the inmates of the house of her in-laws.
3. Apprehending arrest the accused/petitioners along with their two daughters Swapna, Supriya and their two sons Tarun and Pradip applied for anticipatory bail before the learned Sessions Judge, Midna-pore in connection with the instant case which was registered as Criminal Misc. Case No. 1153 of 1988.
4. On 15th December, 1988, their prayer was rejected by the learned Sessions Judge, Midnapore.
5. Thereafter they moved this Court against the order of the learned Sessions Judge and on 20th January, 1989, the prayer for anticipatory bail of the accused/petitioners and Pradip, husband of Bijoli were rejected by this Court but the prayer in respect of Swapna, Supriya and Tarun were allowed by the Division Bench of this Court.
6. The accused/petitioners subsequently surrendered by petition before the learned Sub-Divisional Judicial Magistrate, Midnapore (Sadar), on 27th February, 1989. The learned Magistrate took Pradip into costody and remanded him after refusing his prayer for bail since there appeared materials against him after his arrest on 31st January, 1989.
7. But the prayer for bail of the accused/ petitioners was granted upon their furnishing a bond of Rs. 1,500/- with two sureties of Rs. 250/- each and on a condition that they will see the Investigating Officer of this case once in a week. It appears that the learned Magistrate recorded the order of bail on 27th February, 1989 after perusing the case diary produced by the Investigating Officer.
8. Pursuant to the directions of the learned Magistrate the accused/petitioners regularly complied with the condition of meeting the Investigating Officer of this case. They last met the Investigating Officer on 6th April, 1989.
9. The de facto complainant moved the learned Sessions Judge on 21-3-89 for cancelling the bail of the accused/ petitioners on the ground that he was threatened by the accused petitioner No. 2 on 16th March, 1989 which fact was diarised.
10. The State also moved an application for cancelling the bail of the accused/petitioners on 23rd March, 1989 which was registered as Criminal Misc. Case No. 362 of 1989.
11. By the order dated 11th April, 1989, the learned Sessions Judge allowed the prayer of the de facto complainant and the State and cancelled the bail of the petitioners. Against the said order, the present revisional application has been filed.
12. Upon this application, the Division Bench on 10th May, 1989 passed an order to the effect that pending hearing of this application the operation of the impugned order dated 11th April, 1989 as passed by the learned Sessions Judge shall remain stayed subject to condition that the petitioners shall reside within their residence and shall not leave the township of Midnapore without the express permission of the Court below.
13. From the impugned order of the learned Judge it appears that in the application made by the State it was stated that the facts alleged in the FIR made out a case for an offence Under Section 304-B of the I.P.C. punishable with imprisonment for life and there was a prima facie case to infer existence of such an offence and, accordingly, the learned Judicial Magistrate had no jurisdiction to grant bail in such a case and the Court blow failed to take note that the prayer for anticipatory bail for those two petitioners were rejected not only by the Sessions Judge but also by the High Court. It was also contended before the learned Sessions Judge that the petitioners did not disclose that fact and there was suppression of material facts in the bail application fraud was played upon the Court.
14. In the application made for cancellation of hail the de facto complainant alleged that after release on bail Bholanath had threatened him with dire consequence and this fact was reported to Kotwali Police Station. It was also submitted that the case really fell Under Section 304B of the I.P.C. and the Sub-Divisional Judicial Magistrate had no authority to grant bail.
15. In reply to the show cause the petitioners made a counter allegation that the complainant demanded cash from them and the matter was reported to Kotwali Police Station. They stated that they never misused the liberty of bail and a mere allegation of misuse of bail cannot be a ground to cancel the bail.
16. The learned Judge after discussing the contentions of the respective counsel, inter alia, held as follows:
“In the case at our hand the first ever application for bail Under Section 438 of the Cri. P.C. for Bholanath and Renuka (may be Renu-bala) was rejected by the Sessions Court on the ground that prima facie materials were there against these persons. These two along with three others moved the Hon’ble Court and those three got an order in their favour but no such order was recorded in favour of these two. This reinforces the opinion of the Sessions Court that there was a prima facie case against these persons. Although intimation was sent to the Court below, he failed to take note of the same and the accused also posed innocence and dis not disclose the fact that the prayer was twice refused. Had there been a disclosure of this fact and had the S.D.J.M. being diligent of what was there on record, perhaps he would have thought thrice before recording an order for bail. Moreover I do feel that the facts suggest a demand of dowry and an unnatural death of a housewife in her matrimonial home within one year of her marriage prima facie there was a case Under Section 304-B, I.P.C.S. 437(1) does not speak of the mere mention of sections of the I.P.C. by the Police in its report. The Court is to see if there are reasonable grounds for believing that an accused has been guilty of an offence punishable with death or imprisonment for life. If the Court is satisfied about it, he shall not release the accused Under Section 437(1), I.P.C. Section 437(4), Cr. P.C. makes it clear that when an S.D.J.M. proposes to release a person on bail Under Section 437(1), Cr. P.C. he shall record an order in writing with reasons for so doing. In the case at our hand the learned S.D.J.M. simply mentioned the bail petition and recorded an order without application of any judicial mind even to the grounds mentioned in their application.
I believe the course of justice has seriously been interfered with as the judicial discipline to give due weight on an order of the superior court has been unduly violated. It is a case Under Section 306 with elements of 304-B, I.P.C. and is one of such crimes over which the whole society is concerned at the present juncture of time. Certainly people may think adversely against the judiciary if after refusal of bail by superior courts, persons having prima facie case against them got bail at the lower forum on the very first day of appearance and that too upon an order without reasons. I believe the bail order for Bholanath Das and Renuka alias Renubala Das must be cancelled.
The prayer of the de facto complainant and the State stands allowed. The bail order dated 27-2-89 in favour of Bholanath Das and Renuka alias Renubala Das stands cancelled. They are directed to surrender to their bail immediately. The S.D.J.M. is directed to issue process against them for for their arrest and for their detention in custody till further orders.”
17. At the hearing Mr. Balai Roy, learned Senior Counsel has contended that the learned Judge in cancelling the bail did not take into account that the learned Judicial Magistrate had granted bail after consulting the case diary and this rejection of the anticipatory bail did not affect the merits of granting bail. The petitioners were complying with the direction of the learned Judicial Magistrate imposed while granting bail. It is contended that the bail once granted is one thing while cancellation of bail as already granted is quite another. Unless there are compelling reasons, the bail once granted should not be cancelled. It is contended that there was no cogent ground against the petitioners for cancellation of bail.
18. Mr. Roy also contends that as a matter of fact the learned Judge came to a conclusion as regards the involvement of the petitioners in the crime before the trial is held.
19. It has further been contended that the learned Judge was not justified in directing the detention of the petitioners in custody till further orders as this has taken away the right of the petitioners to make an application subsequently for bail.
20. The contentions of the opposite parties are that there is no error of law in the order cancelling the bail. It was within the jurisdiction of the learned Sessions Judge to cancel the bail in view of the allegations made by the complainant and the State.
21. We have considered the rival contentions. It is now well settled that the rejection of bail when bail is applied for is one thing, while cancellation of bail already granted is quite another. The Supreme Court in the case of State v. Sanjay Gandhi reported in AIR 1978 SC 961: (1978 Cri LJ 952) has laid down as follows:
“It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial.
The Prosecution, therefore, can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses. Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will 1991 Cri.L.J./90 V interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail.”
22. It is for the prosecution to show that some acts or conduct on the part of the accused from which a reasonable inference may arise that the witnesses have gone back on the statement as a result of an intervention by or on behalf of the respondent.
23. It is, therefore, necessary to determine in every case whether by the application of the test of probabilities the prosecution has succeeded in proving its case that the accused has tampered with its witnesses and that there is a reasonable apprehension that he will continue to indulge in the course of conduct if he is allowed to remain at large. Assuming that the Magistrate had no power to grant the bail in this case, the Sessions Judge ought to have considered whether the accused could be allowed to remain at large or not. The learned Sessions Judge failed to consider that the learned Magistrate looked into the case diary and thereafter granted bail and that the conditions imposed upon the accused/petitioners had not been violated. While granting bail the nature of the charge and the evidence supporting it, the chance of the accused committing further offence if set free, and the severety of the potential punishment are considered and bail once granted upon such consideration cannot be revoked unless there are fresh materials to warrant a different conclusion. There were allegations and counter allegations. No evidence was adduced in support of the allegations made by the de facto complainant against the accused persons. The application made by the State for cancellation of the bail was merely concerned with the jurisdiction of the learned Judicial Magistrate to grant bail in a non-bailable offence. If a person while on bail commitee another offence or he hampers the investigation or tampers with the evidence or goes out of country to avoid the trial it will be a good ground for cancellation of the bail. But unless there is evidence to hold that the accused has tampered with the evidence or exercised intimidation on the prosecution witnesses, or that there is likelihood of the accused’s not appearing to answer the charges, bail once granted upon consideration of relevant facts should not be cancelled on the mere allegation of the de facto complainant or the State. The Division Bench of this Court on 10th May, 1989 imposed conditions after granting stay of the impugned order. It has not been stated before us that the conditions of the bail have been violated or the petitioners have done anything which could make them liable for being detained in custody until the trial is over.
24. There is no material before us which would pursuade us to hold that there is a strong prima facie case that if the accused were to be allowed to be at large they would tamper with the prosecution witnesses and impede the course of justice. On the contrary, as we have already indicated, the conditions imposed by the learned Judicial Magistrate while granting stay of the impugned order have not been violated at all. The liberty of a person even if he is accused of a heinous crime cannot be taken away lightly, especially when there is considerable time-lag between the date of occurrence and the conclusion of the trial. The cancellation necessarily involves a review of a decision already made and can by and large be only permitted if by way of supervening circumstances it would no longer be conducive to a fair trial to allow the accused to retain his freedom during the trial. No such supervening circumstances have been established in this case.
25. There is another aspect of the matter. The learned Sessions Judge directed not only the cancellation of the bail but for their detention in custody till further orders. This is beyond his jurisdiction. Even if the bail is rejected at one stage it does not mean that at no subsequent stage bail cannot be granted to the accused. The accused has the liberty to apply for bail at any subsequent stage on fresh materials which might justify his enlargement on bail. Accordingly, there cannot be any order of detention of an accused until further orders by the learned Sessions Judge.
26. Having regard to the facts and circumstances of this case we are of the view that the cancellation of the bail in the present case by the learned Sessions Judge by his order dated 11th April 1989 was not proper. We, therefore, allow this application and set aside the order dated 11th April, 1989 passed by the learned Sessions Judge, Midnapore. The petitioners shall be enlarged on bail subject to the satisfacton of the learned Judicial Magistrate Midnapore (Sadar).
Manabendra Nath Roy, J.
27. I agree.