IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.29606 of 2011 Suresh Giri & Ors. Versus The State Of Bihar & Anr. ----------- 2 18.10.2011 Heard learned counsel for the petitioners as well as learned A.P.P. for the State. Petitioners have raised their grievances against an order dated 20-06-2011 passed by learned Sessions Judge in Cr. Misc. No.31 of 2010 whereby and where under regular bail granted to the petitioners by the learned A.C.J.M. in connection with Ram Nagar P.S. Case No.145 of 2010 has been cancelled invoking the power prescribed under sub- section 2 of Section 439 of the Cr.P.C. It has been submitted on behalf of the petitioners that the finding recorded by the learned lower court is not at all sustainable in the eye of law because of the fact that those are not recognizable for the aforesaid purpose. Then submitted that consideration for granting of bail is something different wherein the merit of the case has to be adjudged. Once merit of the case has been adjudged and bail has been granted, a liberty has been given to the accused in accordance with law which should not be nipped in ordinary course unless and until there appears to be flagrant violation at their part which may adversely affect the prosecution and that happens to be reasons behind that the Hon’ble Apex Court times without number has taken into consideration and laid down certain criteria for cancellation of bail such as (a) where the accused flouted conditions imposed by the court, (b) threatening the witnesses / interfering with impartial investigation, (c) repeatedly 2 indulge in committing an offence, (d) misusing the privilege of bail etc. Further submitted that in the present atmosphere, none of the aforesaid criteria is visualizing hence the order impugned appears to be bad in law. Now coming to merit of the case, it has been submitted that there happens to be dispute amongst own Patidar wherein an allegation has been alleged against petitioner, Suresh Giri who had inflicted farsa blow over head of Sobha, wife of informant who had sustained two simple injuries over her head caused by sharp cutting weapon and in likewise manner other injured have also sustained simple injury over different pats of the body caused by hard blunt substance. Dinesh Giri had further been alleged to have snatched away the golden chain belonging to his wife. So, the nature of allegation, nature of injury, relationship amongst the parties, absence of any intervening circumstance rules out application of Section 307 of the I.P.C. and so far Section 379 I.P.C. is concerned, apart from having an ornamental one, without having any recovery. So, the learned A.C.J.M. after considering the merit of the case inconsonance with the nature of injuries granted bail to the petitioners. It has further been submitted that the learned Sessions Judge while deciding the issue did not differ from the factual finding recorded by the learned A.C.J.M., however taken into consideration the presence of sharp cut injury over the person of Sobha along with certain finding recorded by learned A.C.J.M. while considering the bail petition of Suresh Giri. So submitted that on merit of the case there was no occasion for the learned Sessions Judge to cast any sort of doubt over conduct / approach of the learned A.C.J.M. Also submitted that 3 petitioners should not be punished on account of fault of the court. As such, prayer is that the order dated 20.06.2011 passed by learned Sessions Judge be set aside and the order passed by the A.C.J.M. be restored. At the other hand the learned A.P.P. opposed the prayer and submitted that merit of the case was not at all considered by the learned lower court in its right prospective and the same was perceived by the learned Sessions Judge while hearing the matter and that was found to be sole ground for cancellation of bail because the learned lower court had tried to conceal the real affair which cast serious doubt over its conduct and resulted and that justify the finding recorded by the learned Sessions Judge. After all, the institution must be protected. In a decision reported in 2011 Criminal Law Journal, page 3585 the Hon’ble Apex Court have taken into consideration the criteria so formulated for cancellation of bail and after analyzing the same it has been observed in para – 17 and 18 as follows: “17. However, we are of the opinion that that is not an absolute rule, and it will depend on the facts and circumstances of the case. In considering whether to cancel the bail the Court has also to consider the gravity and nature of the offence, prima facie case against the accused, the position and standing of the accused, etc. If there are very serious allegations against the accused his bail may be cancelled even if he has not misused the 4 bail granted to him. Moreover, the above principle applies when the same Court which granted bail is approached for cancelling the bail. It will not apply when the order granting bail is appealed against before an appellate/revisional Court.” “18. In our opinion, there is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of the bail. That factor, though no doubt important, is not the only factor. There are several other factors also which may be seen while deciding to cancel the bail.” Now coming to the order impugned along with the order dated 13.07.2010 as well as 14.7.2010 passed by the learned lower court, its conjoint reading gives a clear cut impression that the order impugned suffers from extraneous consideration and that part is visible from the conduct of the P.O. itself. On 13.7.2010 altogether six accused have surrendered out of whom bail petition on behalf of Suresh Giri was not pressed so he was remanded to custody. Remaining five were granted bail. On 14.7.2010 his prayer for bail was renewed and was granted bail. The nature of allegation coupled with nature of injury is of no consequences, the consequence which comes out from the parallel scrutiny of both the orders dated 13.07.2010 as well as 14.07.2010, is of consideration. The learned Sessions Judge rightly perceived action of 5 learned A.C.J.M. while recording his reason during course of granting bail to Suresh Giri vide order dated 14.7.2010 and found it against the judicial decorum. Moreover, there is no apparent material to infer nexus in between nor the order shows any sort of foul smell. Therefore, taking into account the nature of allegation, nature of injury forbids me to concur with the finding of the learned Sessions Judge to the extent of permitting cancellation of bail and accordingly order passed by the learned Sessions Judge vide order dated 20.06.2011 is set aside to that extent and the petitioners are directed to remain on their bail. However, the learned A.C.J.M. is warned to be transparent in his future conduct otherwise will be seriously viewed. Let a copy of this order be sent to administrative side for future use. PN (Aditya Kumar Trivedi,J.)