1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B.CRIMINAL MISC. BAIL CANC. APPLICATION NO. 135/2009 Anita Sharma vs. State of Rajasthan. DATE :- 13.02.2009 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. V.K. Jaiman, for the petitioner. Mr. N.C. Choudhary, for the respondent. Mr. Vibhuti Bhushan Sharma, P.P. for the State. This order governs the disposal of an application filed under Section 439(2) of Cr.P.C. by the petitioner Anita Sharma seeking cancellation of bail of the respondent No. 1 who has been granted anticipatory bail vide order dated 20th December, 2008 rendered by learned Sessions Judge, Jaipur District Jaipur. 2. Heard the learned counsel for the petitioner, learned counsel for the respondent 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 offence wherein the accused- respondent is found to be involved are of grave nature. (ii)That the recovery of CD and naked photographs of the complainant-petitioner are yet to be made from the possession of the accused-respondent Ramvilas Vijay. (iii)That the learned lower court lost sight of the statements made by the petitioner under Section 164 of Cr.P.C. which constitute the offence under Section 376 of IPC. 2 Hence, the benefit of anticipatory bail granted to the respondent deserves to be withdrawn. 4. Learned counsel for the respondent and the learned Public Prosecutor appearing for the State have simply submitted that 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. Learned counsel for the respondent has canvassed that the factors relevant for rejecting bail at initial stage and canceling bail once granted are distinct. The bail once granted should not be cancelled 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 trial. He has cited AIR 1999 Supreme Court 3026. Learned counsel has further canvassed that the rejection of a bail in a non- bailable case at the initial stage and the cancellation of bail already granted, have to be considered and dealt with on different basis. In support of this argument, he has cited the case of Daulat Ram & Ors. vs. State of Haryana, (1995)1 Supreme Court Cases 349. 6. The most crucial question springing for consideration in the instance petition is that as to whether the bail once granted can be cancelled merely on the ground that the non- bailable offence for which the bail has been granted is of grave nature and further, that the recovery of CD and naked photographs of the complainant are yet to be recovered from the possession of the accused-respondent? 7. Hon'ble Supreme Court in the case of State Vs. Sanjay Gandhi (AIR 1978 Supreme Court 961) has held that: “rejection of bail when bail is 3 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) 8. 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) 9. In the case of State of Maharashtra v. Chandrakant Daliram Sonawana & Anr., 1991(1) Crimes 844, Bombay High Court has observed that: 4 “Even if it is said that the learned Judge of the court below has failed to take into account the grave nature of the offence alleged against the respondents, yet the aforesaid factors in my opinion, cannot be overlooked while considering the application for cancellation of bail. Moreover, sole ground that investigating agency has yet to recover the weapon of assault, will not be a sufficient ground to cancel the bail which has been granted in favour of the respondents.” 10. 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) 11. The learned counsel for the petitioner has simply argued that the learned Sessions Judge 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 learned Sessions Judge. The issue emerging in the petition is as to whether there are grounds available on record to cancel the bail granted to the respondent. Merely arguing that the anticipatory 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 respondent has been abused in any manner or the respondent is likely to abscond or they shall temper with the witnesses. No such cogent or overwhelming circumstances have been put forth which are 5 necessary for order directing the cancellation of bail, already granted. 12. Nothing has been brought to our notice either from which any inference may possibly be drawn that the respondent has in any manner, whatsoever, abused the concession of bail during intervening period. I do not find any strong ground to cancel the bail already granted to the respondent. 13. For these reasons, the petition filed under Section 439(2) of Cr.P.C. seeking cancellation of anticipatory bail by the petitioner is found to be devoid of force as also bereft of substance and the same stands dismissed. (MAHESH BHAGWATI), J. Mak/- 2