ORDER
Mohini Kapur, J.
1. This application has been filed by the complainant under Section 439, Cr.P.C. for cancellation of bail granted to accused non-petitioner No. 1, Ganga Singh, by the Sessions Judge, Dholpur. For deciding this, it is necessary to go into the facts of the case as well as to appreciate the legal position which can be said to be relevant.
2. On 11th January, 1987 an incident occurred in village Peeparowa, Police Station, Sepau. At about evening time Ganga Singh was beating Nathi’s wife. Megh Singh, came there and tried to stop Ganga Singh but the latter started absuing him. Some others intervened and tried to stop him but then Ganga Singh, Mahendra Singh, Ramendra Singh and Kalyan Singh all started firing with guns and Katta. Ganga Singh fired a 12 bore gun in the stomach of Chhitariya, Mahendra Singh fired at Har Pyari, Ramendra Singh fired at Premvati and Kalyan Singh fired a Katta at Surendra. Report about the incident was lodged by Man Singh, who is relation of these persons. A case was registered under Sections 307, 323 and 324 and 34, IPC. Subsequently Chhitariya died and the Offence under Section 302 was also added. After registering the case the police inspected the site and recovered an empty cartridge of 12 bore gun from the site. On medical examination Har Pyari and Surendra Singh were found to be having gun shot injuries. Premvati also had an injury. Chhitar Singh died as a result of gun shot injury. All the accused except Ganga Singh were arrested and released on bail on different dates, after they were interrogated and recoveries were made at their instance. Challan in the case was presented after investigation in April, 1987 and at that time non-petitioner No. 1 Ganga Singh was shown as absconding. More than a year after the incident he applied before the Sessions Judge, Dholpur for grant of anticipatory bail. First he was released on interim bail and then the order for his release under Section 439, Cr.P.C. was passed on 6th May, 1988. Though it has been shown that he (Ganga Singh) surrendered and the bail application was under Section 439, Cr.P.C. but on query I have been informed that he was never taken into custody. Actually till the decision of the bail application he was released on interim bail. While granting bail to Ganga Singh the learned Sessions Judge has observed that there are two types of witnesses against Ganga Singh, one set of witnesses who have deposed that he fired a gun due to which Chhitriya died and another set of witnesses who say that Ganga Singh did not fire. Considering this situation the learned Sessions Judge considered it proper to release him on bail.
3. I have called for the case diary and have perused the same. The learned counsel for the complainant has contended that there are eyewitnesses to the occurrence who have all stated that Ganga Singh had fired at Chhitariya and after the incident he remained absconding for about 16 months. Even the challan was filed showing him as an absconder and he should not have been granted the indulgence of bail. It is contended that the bail granted by the Sessions Judge is improper. My attention has also been invited to the statements of the five witnesses who were examined by the police after Ganga Singh was released on interim bail. It is in these statements that the witnesses deposed that Ganga Singh had not fired. These witnesses the Prithvi Raj Singh, Brijraj Singh, Indu Singh, Durag Singh and Sangrama Singh. Their statement is that on 10-11-1988 a Pahchayat of Rajput Samaj was held and in this meeting Chhotu Singh was confronted with the question as to how his party had taken the name of Ganga Singh as the person who had fired at Chhitariya when in fact Ganga Singh had been on the ground floor and Chhitariya was on the top, and was not in a position to fire. Upon this Chhotu Singh told that Ganga Singh was the head of his family and therefore he had been involved in the case so that he would not be able to defend the accused. This is the second set of evidence to which the learned Sessions Judge has referred while considering it proper to grant bail to Ganga Singh. It is also contended that after the release of Ganga Singh he is interfering with the investigation and further witnesses were examined after challan in the case had been presented, merely with a view to weaken the prosecution case.
4. To keep the record straight it may be mentioned that after moving the application for grant of anticipatory bail in April, 1988 interim anticipatory bail was granted to Ganga Singh and then he surrendered before the Sessions Judge on 6-5-1988 and on-the same day bail was granted to him under Section 439, Cr.P.C. Five witnesses which have been referred to above as the second set of witnesses were examined on 29-4-1988. It may also be mentioned that interim bail was probably granted to Ganga Singh because his wife had expired.
5. The learned counsel for the petitioner has contended that the order granting bail to Ganga Singh is arbitrary and against the principles of criminal jurisprudence and material on record and should be set aside. It is contended that when the Sessions Judge has fallen into error, it is the duty of this Court to set it right and this court should order the arrest of Ganga Singh. 6. The learned counsel for the accused Ganga Singh has contended that a discretionary order of the Sessions Judge cannot be interfered with by the High Court and that a bail once granted can be cancelled only under the provisions of Section 439(2), Cr.P.C. It is contended that a revision or a petition under Section 482, Cr.P.C. does not lie against an order granting bail and bail once granted can be cancelled only if it can be shown that there exist some grounds for cancellation of bail. On the merits of the case it is contended that in the incident out of which the case arises, Sugad Singh father of Ganga Singh received gun shot injuries and Brijbala daughter of Ganga Singh also received gun injury for which a cross case is pending and considering this fact the petitioner's release cannot be said to be improper. 7. The learned Public Prosecutor has contended that proceedings under Sections 82 and 83, Cr.P.C. had been started and it was only then that Ganga Singh came to the court and having remained absconding for more than a year he should not have been granted indulgence of bail. 8. The questions which arise in these proceedings are: (1) In what circumstances bail already granted can be cancelled under Section 439(2), Cr.P.C. (2) Whether the High Court has jurisdiction to set aside the order of the Sessions Judge granting bail, if in its opinion bail has been granted erroneously, even if the circumstances for cancellation of the bail do not exist. (3) What orders should be passed in the facts and circumstances of the case.
9. Supreme Court in Bhagirath Singh Judeja v. State of Gujarat, AIR 1984 SC 372: (1984 Cri LJ 160), had the occasion to consider the question as to what are the relevant considerations for purposes of cancellation of bail. In this case the Sessions Judge had granted bail and this order was set aside by the High Court. Dealing with the facts and circumstances of the case, it was held that it was not a case for interference with the discretionary order of Sessions Court granting bail and while discussing the principles, it was observed as under:
“Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. It is now well settled by a catena of decisions of the Supreme Court that the power to grant bail is not be exercised as if the punishment before trial is being imposed. The only material consideration in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. If there is no prima facie case there is no question of considering other circumstances. But even where a prima facie case is established, the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence by the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence.”
It can also be said that it is easier to refuse an application for bail then to cancel a bail already granted by a court. Certain circumstances should exist in order to take this step. In cases punishable with death or life imprisonment grant of bail is not a rule but at the same time it cannot be said that bail can never be granted in such cases. After considering the circumstances if bail has been once granted then there have to be circumstances such as likelihood of the accused to abscond and not be available for trial or likelihood that he would abuse the discretion granted in his favour by tampering with the evidence etc. to cancel the bail. In other words it may also be said that circumstances which have occurred after grant of bail become relevant for purposes of cancellation of bail.
10. The next question which arises is in what circumstances can the High Court cancel the bail granted by the Sessions Judge to an accused person. In other words it is to be seen whether the bail granted can be cancelled on any of the grounds on which the bail can be cancelled, or the bail granted can also be cancelled where it is found that the Sessions Judge has not acted in a proper manner in granting bail to the accused. In this connection it may be said that no appeal lies against an order granting or refusing bail. The power of the High Court to grant bail is not very much different from that of Sessions Judge as the same provision, namely Section 439, Cr.P.C. confers power on them to grant bail. However inherent powers have been vested in the High Court under Section 482, Cr.P.C. to pass such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of the court or otherwise to secure the ends of justice. Hence if Section 439(2), Cr.P.C. cannot be said to be available in a given case powers can be exercised by this Court under Section 482, Cr.P.C.
11. In Delhi Administration v. Sanjay Gandhi, AIR 1978 SC 961: (1978 Cri LJ 952), it has been observed as under (Para 24):
“The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extraordinary nature, is meant to be exercised in appropriate cases, when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. Refusal to exercise that wholesome power in such cases, few though they may be will reduce it to a dead letter and will suffer the courts to be silent spectators to the subversion of the judicial process.”
12. In Immaduddin v. Ayoub Khan, 1984 Raj Cri C 170 : (1984 Cri LJ 117), it has been held that ordinarily the High Court should not exercise its discretion to cancel the bail already granted by the Sessions Judge but if the bail has been granted in a manner which smacks of arbitrariness, capriciousness or perversity then the High Court has not only the discretion but it is its duty to cancel bail. In this case the circumstances were considered to be existing for purposes of cancellation.
13. In Amar Singh v. State, (1985) 1 Crimes 749 : (1985 Cri LJ 550), Delhi High Court reviewed the material on record and the order of the Sessions Court and held that the grant of bail to accused was misdirected use of the discretion of the Sessions Judge and this injudicious use of the discretion was bound to result in chaos and anarchy and also provide encouragement to lawless elements. The bail granted by the Sessions Judge was cancelled.
14. The question of cancellation of bail arose before the Gujarat High Court in State of Gujarat v. Lalji Popat, (1988) 17 Reports 393. In this case all the relevant decisions have been taken into consideration and the principles on which bail can be granted have also been considered. Thereafter it has been observed that if the Sessions Judge grants bail erroneously or illegally or arbitrarily without considering the relevant factors then the High Court cannot feel helpless in setting aside the order of the Sessions Court. The High Court under Section 439(2), Cr.P.C. or under Section 482, Cr.P.C. has jurisdiction to quash and set aside any arbitrary or illegal orders passed by the subordinate courts. A number of circumstances were considered which had not been properly considered by the Sessions Court while granting bail and the order granting bail was cancelled.
15. It can therefore be considered that the High Court has inherent powers under Section 482, Cr.P.C. to deal with the matters where it is considered necessary to pass some orders to prevent the abuse of the process of court or to secure ends of justice and under this power the bail already granted by the Sessions Judge can be cancelled. There should be circumstances to show that the order passed by the Sessions Judge granting bail was arbitrary, illegal and perverse. It is only in such circumstances that bail already granted can be cancelled. This power has to be exercised with caution. The other provision in which bail already granted can be cancelled is under Section 439(2), Cr.P.C. and for this exercise of powers there must be circumstances as discussed above.
16. Now it is to be seen whether in the facts and circumstances of the present case the Sessions Judge has rightly granted bail to the accused and whether bail granted should be cancelled.
17. First of all I shall refer to the order of the Sessions Judge. The factors considered by the Sessions Judge are that other co-accused in this case had been released on bail either by the Sessions Court or by the High Court under Section 439, Cr.P.C. While considering the nature of the case reference has been made to the entry in the case diary dated 25-4-1988 wherein the investigating officer has mentioned that a family quarrel took place on 11-1-1987 between Ganga Singh and his aunt. Ganga Singh pushed his aunt. Chhitriya came there and caught hold of Ganga Singh and Ganga Singh shouted for help and Ramendra Singh came there with the gun of Ganga Singh and fired it as a result of which Chhitriya and Sugad Singh received injuries. The learned Sessions Judge observed that in the circumstances there were two types of evidence on record. One set of witnesses had said that Ganga Singh fired and by this shot Chhitriya died and there is other set of five witnesses who have said that Ganga Singh did not fire. Considering this second type of evidence he considered it proper to release the accused on bail. The objection which the Public Prosecutor had raised was that Ganga Singh had been absconding for one year but it appears that this objection did not influence the Sessions Court in any manner.
18. At the risk of repetition, it may be mentioned that the incident took place on 11-1-1987. The accused Ganga Singh moved for grant of anticipatory bail on 3-4-1988. Meanwhile the challan had been presented showing him absconder. He was granted interim bail from time to time and he is shown to have surrendered on 6-5-1988 and on this very date he was released on bail. He did not remain in custody even for a single day. It was after 13-4-1988 when the accused Ganga Singh was released on interim bail that the investigating officer recorded his observations in the case diary on 25-4-1988 which had the desired effect on the court. The five witnesses who stated that Ganga Singh did not fire but was falsely implicated were also examined on 29th April, 1988 i.e. after Ganga Singh was granted interim bail. The learned Sessions Judge has emphasised that part of the investigation which was made after the filing of the challan and after the grant of interim bail to Ganga Singh but has not looked into the earlier part of the investigation which contains statements of several witnesses who have deposed that Ganga Singh fired at Chhitriya as a result of which the latter died. One thing that is apparent from the situation is that after his release on interim bail, Ganga Singh accused has succeeded in moulding the investigation in his favour. There can be why only five but five hundred or even five thousand persons who could say that they had not seen the incident, and could come forward to say that a particular accused has been falsely implicated in a case. This negative evidence cannot be given more importance at this stage in order to brush aside the evidence of the eye-witnesses. In giving importance to this evidence instead of the material in the challan papers, the learned Sessions Judge has acted in an illegal manner. The misuse of liberty by Ganga Singh is reflected from the subsequent investigation. It may also be said that the case of Ganga Singh could not be equated with that of other accused persons who had been released on bail because these other persons had not murdered any one by the shot fired by them. Moreover they were released after being arrested while in fact the release of Ganga Singh can be said to be release on anticipatory bail. The fact that the accused Ganga Singh remained absconding for more than a year was also a relevant consideration and the learned Sessions Judge should have refused bail to him only on this ground. This further makes the order of the Sessions Judge arbitrary.
19. The accused Ganga Singh in this case has claimed that his father and daughter were also injured and there was an exchange of gun shots on the both sides and this circumstance should be considered in his favour. However, it is too early to say which party had a right of private defence in the present circumstances. The injuries on the side of accused Ganga Singh are superficial which have not resulted in any casualty. This aspect can be considered after some witnesses are examined during trial.
20. I have no hesitation in saying that the grant of bail by the Sessions Judge is arbitrary and illegal and injudicious exercise of discretionary powers. The order granting of bail deserves to be cancelled also on the ground that after the grant of interim bail the accused Ganga Singh made efforts to influence the investigation and has thus misused his liberty as well as the discretion of grant of bail. This application is accepted. The bail granted to Ganga Singh is cancelled. The bail bonds of Ganga Singh shall stand cancelled and he is directed to surrender to custody forthwith.