1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B.CRIMINAL MISC. BAIL CANC. APPLICATION NO. 5911/2009 Ramniwas vs. State of Rajasthan & Anr. With S.B.CRIMINAL MISC. BAIL CANC. APPLICATION NO. 5567/2009 Ramniwas vs. State of Rajasthan & Anr. Date : 15.09.2009 HON'BLE MR. JUSTICE MAHESH BHAGWATI REPORTABLE Mr. Sanjay Joshi, for the petitioner. Mr. Amit Punia, P.P. for the State. Mr. Manish Gupta, for the respondents. Since both the aforesaid petitions filed under Section 439(2) of Cr.P.C. by the petitioner Ramniwas seeking cancellation of bail of the respondents namely Gumana Ram and Bhonri lal who have been granted bail vide orders dated 29.04.2009 and 21.04.2009 rendered by the learned Special Judge, Prevention of SC/ST Cases, Dausa arise out of and pertain to one FIR No. 99/2008 of police station Ramgarh Pachwara, District Dausa registered in the offences under Sections 147, 148, 341, 323, 325/149, 307/149, 302/149 and Section 3(2)(5) of SC/ST Act, they are being disposed of by this common order. 2. Heard the learned counsel for the petitioner, learned counsel for the respondents as also learned Public Prosecutor appearing for the State and perused the relevant provisions of law as also relevant material available on record. 3. Learned counsel for the petitioner has craved the cancellation of bail on the following grounds:- (i)That the first bail petition of respondents Bhonri lal and Gumana Ram was dismissed by the High court vide 2 its order dated 24th September, 2008 and liberty was granted to them to file fresh bail application before the court below after framing of charge. (ii)That the second bail petition was filed by the respondents but it was not pressed by the learned counsel and the same was dismissed as not pressed vide order dated December, 2008. (iii)That the respondents moved third bail petition but the same was also dismissed by the High Court vide order dated 4th February, 2009. Similarly, respondent Bhonri lal presented fourth bail application before the High Court and it was also dismissed on 15th April, 2009. The last bail petition of respondent Bhonri lal was dismissed on 15th April, 2009 and in spite of there being no change in fact situation, the learned Special Judge (SC/ST) Cases, Dausa allowed the bail to both the respondents on 21st April, 2009. Albeit, the respondent Bhonri lal was granted liberty to move fresh bail application before the trial court but the respondent Gumana Ram was not even granted liberty and then also he was granted bail that too in a heinous offence of murder, punishable under Section 302 of IPC. (iv)That the learned court below has granted the bail to the respondents against the judicial discipline, propriety and comity, therefore, the 3 bail already granted to the respondents deserves to be cancelled. Learned counsel has cited the case titled Maharashtra vs. Captain Buddhikota Subha Rao, AIR 1989 SC pg.2292 in support of his arguments. 4. Learned counsel for the respondents as also learned Public Prosecutor appearing for the State, in contra, has supported the bail order dated 29th April, 2009 passed by the learned court below and have contended that the police after completion of investigation had filed the charge-sheet in the court, which was pending trial. The learned court below observed that the appearance of other co-accused persons was yet to be procured, which could take some time, hence, the learned court below deemed it just and proper to grant indulgence of bail to both the respondents. The said orders dated 29th April, 2009 and 21st April, 2009 are cogent, just and proper and the learned counsel for the petitioner has not assigned any cogent reason for cancellation of bail, as such, the petition deserves to be dismissed. 5. Having reflected over the submissions made at the bar and carefully perused the relevant material available on record, it is noticed that the facts of the case of State of Maharashtra vs. Captain Buddhikota Subha Rao (supra) cited by the learned counsel for the petitioner, are altogether distinct from the facts of the instant case. In the case of Maharashtra vs. Captain Buddhikota Subha Rao (supra), the successive bail petitions were preferred by the accused and the same were rejected by the High Court on merits having regard to the gravity of the offence alleged to have been committed under Official Secrets Act, 4 1923 and Atomic Energy Act, 1962. Undeterred the accused went on preferring successive applications for bail. All such pending bail applications were rejected by the single judge of the High Court by a common order. However he was not aware of the pendency of yet another bail application filed by the accused. Immediately two days thereafter the accused moved another single Judge of the High Court, who directed that the accused be enlarged on bail for a period of two months on his furnishing security in the sum of Rs. 10,000/- with one surety on certain terms and conditions. Between the two orders there was a gap of only two days and its was nobody's case that during those two days drastic changes had taken place necessitating the release of the accused on bail. 6. It was held by the Hon'ble Apex Court that: “ the order granting bail was not proper and liable to be set aside. Judicial discipline, propriety and comity demanded that the order granting bail should not have been passed reversing all earlier orders includinig the one rendered by the single Judge of the same High Court only a couple of days before, in the absence of any substantial change in the fact situation. In such cases it is necessary to act with restraint and circumstances so that the process of the Court is not abused by a litigant and an impression does not gain ground that the litigant has either successfully avoided one Judge or selected another to secure an order which had hitherto eluded him. In such a situation the proper course, is to direct that the matter be placed before the same Judge who disposed of the earlier applications. Such a practice or convention would prevent abuse of the process of court inasmuch as it 5 will prevent an impression being created that a litigant is avoiding or selecting a court to secure an order to his liking. 7. Whereas, in the case at hand, the respondent Bhonri lal was granted liberty by the High Court vide order dated 15th April, 2009 to move a fresh bail application before the trial court and learned trial court vide order dated 29th April, 2009 for the aforesaid reason granted the bail to him. It is true, that the accused respondent Gumana Ram was not granted any liberty by the High Court to move the application before the trial court. But learned trial court having found the case of Gumana Ram and Bhonri lal identical or similar granted bail to him also on the ground of parity. In the instant case, all the bail petitions were heard and decided by one Bench and none of the bail petition was found to have been decided on merits, either the bail petitions were not pressed or they were withdrawn. Hence, it cannot be said that there being no change in fact situation in between 15th April, 2009 and 29th April, 2009, the learned court below granted bail to the respondents sans jurisdiction. 8. Now, it is very settled that the parameters of accepting the bail are altogether distinct from the parameters of cancelling the bail already granted. The respondents have not abused the liberty of his bail. The petitioner has not quoted any instance to prove that the respondents tampered with or endeavoured to tamper with any witness, posed any threat to the petitioner, tried to hide themselves or hampered the investigation or the trial of the case, as such, the petition deserves to be dismissed. 9. Hon'ble Supreme Court in the case of State Vs. Sanjay Gandhi (AIR 1978 Supreme Court 6 961) has held that: “rejection of bail when bail is applied for is one thing, cancellation of bail already granted is quite another. 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.” (Emphasis supplied) 10. Hon'ble Supreme Court has also held in the case of Dolatram and others Vs. State of Haryana (1995) (1) Supreme Court cases 349) that: “rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.” (Emphasis supplied) 7 11. Hon'ble Rajasthan High Court has held in the case of Smt. Rajbala vs. State of Rajasthan (2005 (1) R.C.C. 289) as under:- “It is now well settled by a catena of cases of the Apex Court as well as of this Court that the grounds for cancellation of bail are distinct from the considerations for grant of bail. The bail once granted cannot and ought not to be normally cancelled in a mechanical manner unless there are cogent and overwhelming facts and circumstances on record to do so.” (Emphasis supplied) 12. The learned counsel for the petitioner has simply argued that the lower court has granted the bail on untenable grounds but has failed to explain as to what are those untenable grounds which were lost sight of by the lower court. The issue emerging in the petition is as to whether there are grounds available on record to cancel the bail granted to the respondents. Merely arguing that the bail has been granted on untenable grounds is not sufficient to cancel the bail. No such apprehension has been shown by the petitioner that the interference or attempt to interfere with the due course of administration of justice has been made or the concession of bail granted to the respondents has been abused in any manner or the respondents are likely to abscond or they shall temper with the witnesses. No such cogent or overwhelming circumstances have been put forth which are necessary for order directing the cancellation of bail, already granted. 13. Nowt has been brought to our notice either from which any inference may possibly be drawn that the respondents have in any manner, whatsoever, abused the concession of bail during intervening period. I do not find any strong 8 ground to cancel the bail already granted to the respondents. 14. For these reasons, the petitions filed under Section 439(2) of Cr.P.C. seeking cancellation of bail being bereft of merits and devoid of substance stands dismissed. (MAHESH BHAGWATI), J. Mak/-