1. This is an application on behalf of Gurdip Singh and Puran Singh against whom a case under Sections 307, 326, 324 and 323, read with S. 34, Indian Penal Code, is pending enquiry. Though the petition was filed under Section 561-A, read with S. 498, Code of Criminal Procedure, but it is prayed that this may be treated as a petition under Section 439 of the code as the quashing of the order of the Sessions Judge dated 2nd December, 1969, is sought in this petition.
2. Gurdip Singh was allowed bail by the Additional Sessions Judge on 22nd September, 1969, while Puran Singh petitioner was granted bail by the Sessions Judge on 5th September, 1969. Subsequently, Joginder Sing complainant applied for cancellation of the bail of the accused and their companions which resulted in the impugned order. by this order the bail of Gurdip Singh and Puran Singh was cancelled on the ground that they had misused the concession of bail by threatening the eye-witnesses and by causing injuries to them. This finding was reached on the basis of the first information report which was lodged against Gurdip Singh, Buta Singh and Puran Singh accused by the complainant, on the allegations that these accused, accompanied by one Jagir Singh, had threatened and assaulted the complainant his mother Gurpal Kaur and his sister Surinder Kaur, with the object of dissuading them from appearing against the accused in the present case. Support was also sought from the medico-legal certificate of Joginder Singh. In view of the first information report and the medical certificate produced before the learned Sessions Judge, he came to the conclusion that Gurdip Singh and Puran Singh had misused the concession of the bail allowed to them, and he, therefore, passed the impugned order cancelling the bail of the accused.
3. On behalf of the petitioners, it is contended that the order is illegal inasmuch as the conclusions that the accused had misused the privilege granted to them had been arrived at on the basis of the material which was not evidence and could not be used to give the finding against the accused. Support for this argument was sought from two unreported decisions of this Court and from Sant Ram v. State, AIR 1952 J & K 28 and also from Madhukar Purshottam v. Talab Haji Hussain, AIR 1958 Bom 406.
4. In Criminal Misc. No. 510-M of 1969 (Punj), Ripudaman Singh v. State of Haryana, decided on 23-4-1969 Jindra Lal, J., while considering the question of the cancellation of bail by the Sessions Judge, observed that neither police report made to the District Attorney, nor the application filed by the District Attorney, unsupported by any affidavit, was evidence in the case and the facts stated therein could not be accepted as correct. Similarly, in Inter Pal v. State of Punjab, Criminal Misc. No. 977-M of 1969, D/- 14-8-1969 (Punj), H. R. Sodhi, J. observed as under :-
'I am afraid the approach made by the Sessions Judge is not correct while cancelling the bail. The mere fact that another case has been registered against the accused person isnot by itself a sufficient reason for cancelling the bail in another case when he first thought that on the merits of that case it was necessary to grant bail to them. It cannot be said that merely because another case has been registered, the accused have been proved to be guilty.............'
In Inder Pal's case, Criminal Misc. No. 966-M of 1969, D/- 14-8-1969 (Punj) the facts were somewhat similar to the present case. While the accused were proceeded against under Sections 307 and 324, read with Section 34, Indian Penal Code, another case was registered against them under Section 324, Indian Penal Code, on the allegation that they had given simple injuries so as to deter the non-official witnesses from appearing against the accused in the earlier case. The fact that another case had been registered was not found sufficient for cancellation of the bail and the order was set aside with the above observations.
5. In AIR 1952 J and K 28, it was observed as follows :-
'There are only three sections in the Criminal P.C., namely Sections 74, 526 and 539-A, according to which a fact may be got proved by an affidavit. It follows from this that an affidavit not covered by these sections is not legal evidence. In an application for cancellation of bail, the fact that the witnesses were intimidated by the accused persons ought to be proved by such evidence as can be tested on the touchstone of cross-examination and not by affidavit.
I am in respectful agreement with the above observations in Sant Ram's case, AIR 1952 J and K 28. The decision of an application for cancellation of bail is not a trial and proof is not being sought of the facts stated in the application for the purpose of convicting or acquitting the accused. All that is required in such a situation is to ensure that the material placed before the Court is such so as to enable the Court to come to a conclusion that there was strong prima facie case that if the accused were to be allowed to be at large, they would tamper with the prosecution witnesses and impede the course of justice. If the view in Sant Ram's case, AIR 1952 J & K 28 is accepted, before a bail can be cancelled the charge that the accused had tampered with the evidence would have to be established beyond doubt by the production of the relevant evidence. There is nothing in the language of sub-section (5) of S. 497 and sub-section (2) of S. 498, Code of Criminal Procedure, to warrant such a conclusion. On the other hand, what appears from these provisions is that the Court is making only a discretionary order while cancelling the bail, and in doing so can make use of any material from which facts necessary to infer that the accused were tampering with evidence could be concluded. I find support for these views from the following observations made by Chagla, C. J. in AIR 1958 Bom 406, while considering the material on which the bail could be cancelled :-
'Mr. Somjee has applied to us that he should be permitted to cross-examine the deponents of various affidavits filed before the learned Chief Presidency Magistrate and also to permit him to lead evidence on behalf of his client. Now this seems to be a most unusual and extraordinary application. In all these years of the existence of this High Court, we have never known of an application for the granting of bail or cancellation of bail or any application in regard to bail ever having been disposed of otherwise than an affidavits. Under Section 497 the High Court has cancelled bail when allegations have been made similar to those being made here and the cancellation has always been on a consideration of affidavits filed in Court. In making this application, what is overlooked is that this not a trial. We are not seeking for proof of facts in order to convince the accused. We are being asked to make a discretionary order ad we have to be satisfied that the material placed before us are such as to lead us to the conclusion that there is a strong prima facie case that if the accused were to be allowed to be at large he would tamper with the prosecution witnesses and impede the court of justice. We are not suggesting that the High Court has no power to take evidence, if it was so inclined. But that would be a very violent departure from settled practice and we see no reason whatever in this case why such a departure should be permitted.'
6. I, therefore, find that the facts necessary to come to the conclusion that the accused had misused the privilege of bail can be established on the basis of affidavits. However, the first information report or the medical certificate relating to another case cannot be used as evidence to cancel the bail in the first case. The facts stated in the first information report cannot be accepted as true without there being affidavits in support of those facts. I, therefore, find that the learned Sessions Judge had erred in accepting the facts contained in the first information report lodged by the complainant in the case under Section 325, read with Section 34, Indian Penal Code, and action on those facts.
7. Mr. Y. P. Gandhi, appearing for the complainant, produced two affidavits before me to establish that the accused were abusing the privilege granted to them. I am not inclined to go into this matter afresh at this stage.
8. I, therefore, set aside the order of the learned Sessions Judge cancelling the bail of the petitioners and accept this petition. The petitioners must be deemed to be on bail by virtue of the bail granted to them by the learned Sessions Judge vide his order dated 13th August, 1969 and 22nd September, 1969.
9. This order will not in any way prejudice the rights of the State or the complainant to take such steps as they are advised for cancellation of the bail of the petitioners by placing admissible material before the Sessions Judge, who will then be at liberty to apply his mind arrest to the fact of the case. Nothing said by me in this order will in any way prejudice the case of either party before the learned Sessions Judge.
10. Petition accepted.