1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B.CRIMINAL MISC. BAIL CANC. APPLICATION NO. 6600/2009 Prabhu Dayal vs. State of Rajasthan & Anr. Date : 10.09.2009 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. P.C. Bhandari] Mr. Sanjay Tyagi ], for the petitioner. Mr. Amit Punia, P.P. for the State. Mr. S.K. Gupta, for the respondent no.2. This order governs the disposal of an application filed under Section 439(2) of Cr.P.C. by the petitioner Prabhu Dayal seeking cancellation of bail of the respondent No. 2 who has been granted bail vide order dated 18.08.2009 rendered by the learned Additional Sessions Judge, Shahpura, Jaipur. 2. Heard the learned counsel for the petitioner, learned counsel for the respondent No.2 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 took me through the bail order dated 18.08.2009 rendered by the Addl. Sessions Judge, Shahpura, Jaipur as also the order sheets of the file and contended that the learned trial court has very wrongly stated in his order that the prosecution failed to examine all the witnesses and had lingered on the trial of the case. The order sheets of the case tangibly suggest that on each and every date of hearing, there was progress in the trial and the witnesses were examined. Learned counsel further contended that the bail petition of the respondent no.2 Shyam Sunder was dismissed thrice by the High Court on 2 20.08.2007, 08.04.2009 and 27.07.2009. In spite of this fact, the learned trial court granted the bail to the respondent no.2 on 18.8.2009, whereas, there was no change in circumstances in 20 days. Learned trial court abused his position and granted bail to the respondent no.2, which was against the propriety as also the canons of jurisprudence. In view of these factors, the bail granted to the respondent no.2 by the learned trial court deserves to be cancelled. 4. Learned counsel for the respondent no.2 has rebutted all the submissions made for the petitioner. He contended that the petitioner was arrested way back on 19.10.2006. The main accused of this case is Sandeep, who has yet not been arrested by police. The third accused is Siya Ram, who has been enlarged on bail on 10.07.2009 by the co-ordinate Bench. The Hon'ble High Court initially directed the learned trial court to conclude the trial of the case within a period of three months. As the total number of prosecution witnesses is 65 and the trial court could not record the statements of these witnesses, the High Court granted three months' more time to dispose of the case. Thereafter, the High Court again extended period of two months. The case was adjourned for recording the statements of prosecution witnesses 65 times but for one or the other reason, the trial continued to linger on. When, the learned trial court found that the main accused was not arrested in this case, and the co-accused Siya Ram has been enlarged on bail on 10.07.2009 and the prosecution evidence is lingering on, it decided to grant bail to the respondent no.2 also. The bail order dated 18.08.2009 rendered by Addl. Sessions Judge, Shahpura is running in six pages. He has dealt with all the facts and circumstances in detail. The order is cogent, 3 just and proper. Above all, the learned Addl. Sessions Judge has got power to grant bail under Section 439 of Cr.P.C., which is not a subject to be questioned. 5. Learned Public Prosecutor appearing for the State as also learned counsel for the respondent No.2 have submitted that the learned counsel for the petitioner has not assigned any cogent reason and tenable ground for cancelling bail, as such, the petition deserves to be dismissed. 6. Having reflected over the submissions made at the bar, it is impressed upon that the parameters of accepting the bail are altogether distinct from the parameters of cancelling the bail already granted. The respondent has not abused the liberty of his bail. The petitioner has not quoted any instance to prove that the respondent tampered with or endeavoured to tamper with any witness, posed any threat to the petitioner, tried to hide himself or hampered the investigation or the trial of the case, as such, the petition deserves to be dismissed. 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 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) 4 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. 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) 5 10. 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 respondent no.2. Merely arguing that the bail has been granted on extraneous consideration 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 tamper 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. 11. Nowt 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. The grounds put forth by the learned counsel for the petitioner cannot lead to or cannot be the basis for cancellation of bail, already granted to the respondent no.2. 12. For these reasons, the petition 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/- 5