In the High Court of Punjab and Haryana at Chandigarh Criminal Misc. No.M-14630 of 2010 (O&M) Date of decision: 18.5.2010 Vikram Singh ......Petitioner Versus State of Haryana and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Rajesh Lamba, Advocate, for the petitioner. **** SABINA, J. This petition has been filed under Section 439 (2) of the Code of Criminal Procedure praying for cancellation of bail in protest petition against the cancellation report filed by the police in case FIR No. 270 dated 3.6.2008, under Sections 148/ 149/ 323/ 324/ 325/ 365/ 345/ 506 of the Indian Penal Code, registered at Police Station Central Faridabad District Faridabad granted to respondents No. 2 to 8 vide order dated 8.4.2010 (Annexure P-2) passed by learned Additional Chief Judicial Magistrate, Faridabad and also for setting aside order dated 27.4.2010 (Annexure P-3) passed by learned Additional Sessions Judge, Faridabad vide which application for cancellation of bail was dismissed. After hearing learned counsel for the petitioner, no Criminal Misc. No.M-14630 of 2010 (O&M) -2- ground for cancellation of bail granted to respondents No.2 to 8 in a protest petition against cancellation report filed by the prosecution is made out. A perusal of the order dated 8.4.2010 (Annexure P-2), vide which respondents No.2 to 8 were granted bail, reveals that the notice of the application was apparently not issued to the State, although in the order it has been mentioned that the copy of the bail application has been given. The petitioner had moved an application for cancellation of bail before the Additional Sessions Judge, Faridabad and while dismissing the application vide order dated 27.4.2010 (Annexure P-3), learned Additional Sessions Judge, has observed as under:- “8. As noted above, it is not in dispute that out of the occurrence between parties, FIR No.203 was lodged against the applicant and applicant is facing trial under Section 308 IPC, FIR lodged by the applicant was cancelled by the police and respondent were summoned on the protest petition filed by the applicant. The only argument of learned counsel for applicant is that order is non speaking and was passed without notice to the applicant. 9. It is admitted principle of law that discretion exercised by Court in grant of bail is not to be interfered lightly. The judgment cited by learned counsel for Criminal Misc. No.M-14630 of 2010 (O&M) -3- applicant in the facts of the present case is not applicable as in the cited case there was a finding that the learned magistrate in that case had exercised discretion vested in him with oblique motive. However, in the present case, there is no such allegation nor any material to conclude that the learned magistrate has exercised discretion with oblique motive. At the most, learned trial Court has committed a procedural mistake which is bonafide in nature. For this reason, it would be appropriate to see whether the order of learned trial Court is justified on merits or not, I have considered the matter on merits and find that discretion exercised by the learned trial Court cannot be faulted with. In the present case, police has already found the respondents to be innocent. Respondents were summoned by the trial Court in pursuance of the protest petition. Applicant is already facing trial for offence under Section 308 IPC in an FIR lodged on the complaint by respondent No.3. The question is whether custody of respondents was required before the leaned trial Court. The answer to this question in my opinion is No. In the facts and circumstances of the present case, custody of respondents was not necessary and therefore, they were rightly granted bail. Bail and not jail is the rule Criminal Misc. No.M-14630 of 2010 (O&M) -4- and this rule has to be deviated only in exceptional cases. In the present case, learned trial Court has committed a bonafide mistake of not giving notice to the applicant however, the discretion in exercise of grant of bail cannot be faulted with.” The reasons given by the learned Additional Sessions Judge, while dismissing the application for cancellation of bail, are sound reasons and call for no interference. Accordingly, this petition is dismissed. (SABINA) JUDGE May 18, 2010 anita