J.N. Datta, J.C.
1. The three petitioners are standing trial before the Sessions Judge, the first on a charge under Section 302 I. P. C, and the other two under Section 302 read with Section 109 I. P. C.
2. They were on bail in the Committing Court, which committed the case to the Court of Session, charging the petitioners under Section 304 I. P. C. The learned Sessions Judge fixed 4-8-58 as the date for the commencement of the trial before him. On that date he altered the charges as already indicated above, and one P. W. was examined. He was declared hostile and the prosecution was allowed to cross-examine him, which went on till the next day. The deposition of this witness before the Committing Court was also transferred under Section 288 of the Cr. P.C. Another P. W. was also examined, on that day (5-8-58) but his cross-examination was not over The learned Public Prosecutor, then filed an application for the cancellation of the bail of the three petitioners on the ground that they are influential persons and have already gained over some of the P. Ws. and if they are allowed to remain on bail, they will further tamper with the prosecution witnesses.
3. The learned Sessions Judge took the view that the apprehension of the prosecution that the petitioners were likely to tamper with the prosecution witnesses was not without foundation, since it had come out in the evidence adduced till then, that the petitioners are Influential persons, and the villagers are afraid to give evidence against them. The learned Sessions Judge, therefore, cancelled the bail and committed the petitioners to custody.
4. The order of the learned Sessions Judge was attacked on the ground, that it was based, on vague allegations, and he was not entitled to cancel bail, without there being evidence to show that the petitioners were tampering with the prosecution witnesses. The learned Counsel went to the length of urging that the learned Sessions Judge could not Pass that order without taking evidence, that is, examining witnesses on the point. Reliance was placed on two cases reported in Sant Ram v. State AIR 1952 J and K 28 and Emperor v. Abhai-raj Kunwar AIR 1940 Oudh 8.
5. I find it difficult to agree with the contention that positive evidence of witnesses to show that the accused persons are tampering with the prosecution witnesses must be tendered and the fact proved beyond all doubt, before the Court can act under Section 497 (5) of the Cr. P.C. Such direct evidence will hardly be available if not impossible, and if that were the criterion to be laid down, then there would hardly be a case in which Section 497(5) could be attracted.
Persons accused of non-bailable offences are not to be released on bail as a rule, and this is much more so, when a capital offence is involved, and the learned Sessions Judge could have cancelled the bail on that ground alone, when he altered the charge into one under Section 302. The Jammu and Kashmir case relied upon, can be distinguished on the ground, that it related to the stage of investigation. In the other case cited, the offence involved was one under Section 302 read with Section 115, which is punishable with the maximum penalty Order 14 years imprisonment, and on the facts before the learned Judge in that case, he was not satisfied that the accused would tamper with the evidence.
In the present case the charge against one of the accused persons is under Section 302, while against the others it is under Section 302 read with Section 109 which is punishable with the same punishment as for the offence abetted, and the learned Sessions Judge was satisfied that there were grounds to believe that the petitioners would tamper with the evidence, if released on bail, and for that he had material in the shape of evidence of a witness, who did not support the prosecution case before the Committing Magistrate, yet admitted that the accused persons were influential persons, and villagers were afraid to give evidence against them.
If therefore the accused persons are released on bail it is bound to create an atmosphere, which will not be conducive to the interests of justice, and it would be against human nature to expect that the accused will not make use of their influence when they are involved in a serious charge of this kind. The object of Section 497 (5), though not punitive, is to protect the interests of the administration of justice, and to prevent its being hampered in any manner. In the present case, it cannot be said that the learned Sessions Judge, exercised his discretion in any erroneous manner, and this Court will not ordinarily interfere with that discretion in the exercise of its revisional jurisdiction.
6. In the course of arguments it was stated that petitioner No. 2 Rajmani is the nephew of the first petitioner, while petitioner No. 3 Chinglen Singh is the son of petitioner No. 1 and it was admitted by all that petitioner No. 3 is a minor aged 14 Order 15 years, It is therefore difficult to see how a boy of his age can exercise influence and tamper with the evidence, if the other two petitioners are in custody. There was no allegation that he is likely to abscond. I, therefore, consider that he should have been allowed to remain on bail and the proviso to Sub-Section (1) of Section 497, permits such a course. I have knowingly refrained from entering into evidence, as such a course is bound to prejudice one side or the other, in a pending trial. Though it was urged that the petitioners if not granted bail, would be hampered in their defence, nothing reliable was shown in support of that contention.
7. This revision petition therefore fails as regards the petitioners Maibam Bidhu Singh and Maibam Rajmani Singh, but succeeds as regards petitioner Maibam Ching***en Singh, who shall be released on a bail of Rs. 5,000/- with two sureties in like sum, to be furnished to the satisfaction of the Court of. Session.