JUDGMENT
Mridula Mishra, J.
1. This petition has been filed by the petitioner for quashing the order dated 16.12.2002, passed by the learned Chief Judicial Magistrate, Gopalganj, in Barauli P.S. case No. 249 of 2001 whereby bail granted to the petitioner has been cancelled and the warrant of arrest has been issued against him.
2. On 23.12.2001 the opposite party No. 2 instituted First Information Report which was registered as Barauli P.S. case No. 249 of 2001. The allegation was that Kamta Tiwari (petitioner) made an entry in the room in the afternoon and committed rape on the informant. The informant raised alarm on which the mother-in- law of the informant came and she was assaulted by the accused. The accused thereafter fled away from the place of occurrence. It is further stated that at the time of the alleged occurrence, the husband and father-in-law of the informant had gone to the field and, as such, they were not present in the house.
3. The petitioner was arrested on 24.12.2001 and was sent to jail. He filed an application for grant of bail before the Chief Judicial Magistrate, Gopalganj, which was heard on 18.1.2002 and after hearing the parties provisional bail was granted in anticipation of Report-II of the Superintendent of Police, Gopalganj. From the doctor’s report no sign of rape was found on the informant. The report of the S.D.P.O., Gopalganj, also shows that he examined several witnesses and found the case false and, as such, he recommended for institution of a case under Section 182/211 of the Indian Penal Code against the informant. In the order granting bail the Chief Judicial Magistrate, Gopalganj, also observed that the order of bail will be confirmed after perusal of Report-II of the Superintendent of Police. Thus, provisional bail granted to the petitioner was confirmed on 16.8.2002 after receipt of Report-II of the Superintendent of Police, Gopalganj. From the order confirming the provisional bail it transpires that the Chief Judicial Magistrate perused the Report-II of the Superintendent of Police, Gopalganj, who also found the allegation of the informant false and has directed the Investigating Officer to submit a final report in the case. The Chief Judicial Magistrate has also stated that since the provisional bail granted to the petitioner has not been misused and the Superintendent of police has also directed to submit final form in the case, the provisional bail is confirmed.
4. The informant of the case in the meantime preferred Cr. W.J.C. No. 163 of 2002 being aggrieved by the interim order granted by the Chief Judicial Magistrate in extending by the provisional bail in favour of the accused. Criminal writ was disposed of by the order dated 26.8.2002 with this observation that this Court is not required to enter into any controversy at this stage but shall give liberty to the petitioner to make an application to the Chief Judicial Magistrate for cancellation/recall of the earlier order on the ground that C.J.M. is not entitled to grant bail to a person, who is facing charge wherein the punishment is of life imprisonment or death. Further it was observed that if such an application is filed by the present applicant before the C.J.M. shall decide the application on merits. The informant thereafter filed a petition before the Chief Judicial Magistrate and the Chief Judicial Magistrate by the impugned order has cancelled the bail granted in favour of the petitioner.
5. Section 437 of the Code of Criminal Procedure deals, inter alia with two stages during the initial period of the investigation of non-bailable offence. When any person accused of or suspected of the commission of any non-bailable offence is produced before the Court, the Court has a discretion to grant bail in a non-bailable cases except those punishable for death or imprisonment for life if there appears to be reason to be believed that there has been guilty of such offence. The Court exercising judicial discretion in granting bail should always be in mind that the liberty of individual is not unnecessarily or unduly abridged and at the same time the cause of justice does not suffer.
6. The counsel appearing for the opposite parties has stated that under Section 437 of the Code of Criminal procedure when an accused is guilty of offence punishable for death or imprisonment for life is produced before the Chief Judicial Magistrate, the Chief Judicial Magistrate has got no jurisdiction to grant bail to such person.
7. Before dealing with the rival contention made by the learned counsel for the parties, I should take rote of the fact that trial is pending in the court below and any observation made in this application may influence the course of trial. I, therefore, should not say anything on the merits of the case as the matter is within the domain of the sessions case. It is well settled that rejection of bail when bail is applied for is one thing and cancellation of bail as already granted is quite another. The question as to what should be the prime consideration for deciding an application for the cancellation of bail has been dealt with by the Apex Court in the case of Bhagirath Singh Judeja v. State of Gujarat, AIR 1984 SC 372, where their Lordships held :
“The High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation of the bail. Very cogent and over-whelming circumstances are necessary for an order seeking cancellation of bail and the trend today is towards granting bail because it is now settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether is he also likely to abuse the discretion granted in his favour by tampering with the evidence.”
8. Counsel appearing for the petitioner has referred to AIR 1978 (SC) 179 (Gurcharan Singh and Ors. v. State (Delhi Administration), and 1977 Vol. 4 SCC 410 (Bashir and Ors. v. State of Haryana) to substantiate his case.
9. In the present case, the Chief Judicial Magistrate has granted provisional bail to the accused in anticipation of Report- II, of the Superintendent of Police which should not have been done at that stage, but has confirmed the bail after receiving the report of the Superintendent of Police and also on perusal of the final form as submitted in this case. Under Section 437 of the Code of Criminal Procedure any court other than court of sessions is restrained to grant bail to an accused or suspect of a non-bailable offence if there is material to substantiate the allegation. The Chief Judicial Magistrate has cancelled the bail application considering the observation made by this Court in Cr. W.J.C. No. 163 of 2002 although final form has been submitted in this case.
10. I do not feel inclined to cancel the bail of the petitioner by affirming the impugned order when there is no evidence that the petitioner has misused the liberty by tampering with the evidence or otherwise.
11. The order dated 16.12.2002 passed by the Court below in Barauli P.S. case No. 249 of 2001 is hereby quashed and this application is allowed.
This application is thus disposed of.