Pritam Singh Pattar, J.
1. This is an application made under Section 439(2) of the Code of Criminal Procedure, for cancellation of the bail granted to the respondent Nand Lal, Assistant Sub-Inspector of Police, by the Sessions Judge, Bhatinda, vide order dated 20th December. 1974.
2. The facts of this case are that a case under Section 302, Indian Penal Code, was registered against Nand Lal, A.S.I., respondent at Police Station, Boha, at 5-30 P. M. on 14th November. 1974, on the report lodged by Ranjit Singh son of Hardit Singh, resident of Bam Nagar Bhathal. According to him, he and his two brothers Gulab Singh and Roop Singh were irrigating the land from the tubewell of Bachan Singh on the night between 12th and 13th of November, 1974, when at about 2 A. M., A.S.I. Nand Lal of Police Station, Boha and three constables came there and they asked them their names. When Gulab Singh told his name, then Shri Nand Lal, A.S.I., stated that he was the person wanted in the case. On hearing this, Gulab Singh ran away out of fear. Nand Lal, A.S.I. fired a shot with his pistol which hit Gulab Singh on the back and he fell down. Nand Lal fired two more shots. Both Ranjit Singh and Roop Singh requested the respondent not to kill Gulab Singh. Nand Lal and the three constables then went to the place where Gulab Singh was lying injured and on seeing the blood oozing out, they ran away. Gulab Singh was placed on a cot and was removed to the hospital at Budhlada. From there on the advice of the doctor, Gulab Singh was taken to Bhatinda Hospital as his condition was serious. However, Gulab Singh died in the way. A case under Section 302, Indian Penal Code, was registered against the respondent and he was arrested in that case.
3. Nand Lal A.S.I. made an application in the Court of the Sessions Judge, Bhatinda, for bail stating that the facts mentioned in the prosecution story were false and that the correct facts were that on 12th November, 1,974, at about 11-30 P. M., secret information was received by Nand Lal, A.S.I. respondent, who was then posted at Police Station, Boha, District Bhatinda, that Gulab Singh, Ajaib Singh and Gurmail Singh were distilling illicit liquor by working a still in the area of village Ram Nagar Bhathal, The Assistant Sub-Inspector along with Naranjan Singh, Iqbal Singh and Sohan Singh constables went in a jeep driven by one Chhinder Singh. On reaching there, they found that in the cotton field, the said Gulab Singh, Ajaib Singh and Gurmail Singh were working a still and were distilling illicit liquor. Gulab Singh armed with a gandasa was feeding the fire, Ajaib Singh was changing the water and Gurmail Singh armed with a gandasa was watching the working of the still. The police party wanted to arrest these three persons but they were alleged to have attempted to attack the police party. The Assistant Sub-Inspector was alleged to have fired a shot in the air with his pistol but all those persons ran away after throwing their gandasas. Thereafter, the working still was dismantled and its component parts were taken into possession. A case under the Punjab Excise Act and under Section 307. Indian Penal Code, was registered against Gulab Singh, Ajaib Singh and Gurmail Singh. His application for bail was dismissed on 2-12-1974 by the Sessions Judge, Bhatinda. However, he directed the Public Prosecutor to see that the chalan was presented in Court in a week's time. The chalan was not presented within that period and the accused made another application on 11th December. 1974. in the Court of the Sessions Judge, who allowed that application on 20th December, 1974, and directed that the respondent be released on bail on his furnishing bail bond in the sum of Rs. 25.000 with one surety in the like amount to the satisfaction of Duty Magistrate,
4. Thereafter, the present application for cancellation of bail was made by Ranjit Singh, brother of the deceased, wherein it was simply mentioned that in case the accused remained on bail he is likely to influence and put pressure on the three eye-witnesses, who are police constables
5. At the outset, Mr. Meja Singh Sandhu, the learned Counsel for the respondent raised an objection that it is a case of police chalan and, therefore, Ranjit Singh petitioner has no locus standi to file this petition. In support of this contention, he relied on Thakur Ram v. The State of Bihar : 1966CriLJ700 , wherein it was held as under:
In a case which has proceeded on a police report a private party has no locus standi. No doubt, the terms of Section 435 (Cr. P. C.) are very wide and he can even take up the matter suo motu. The criminal law is not, however, to be used as an instrument of wrecking private vengeance by an aggrieved party against the person, who according to that party, had caused injury to it. Barring a few exceptions, in criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the state to take all the steps necessary for bringing the person, who has acted against the social interests of the community to book.
It was a case of revision under Section 435, Criminal Procedure Code, and, therefore, this decision is not applicable to this case. Moreover, in a later decision of the Supreme Court reported as Partap v. State of U.P. : 1973CriLJ565 it was held that the power under Section 439, Criminal Procedure Code, is one which the High Court can exercise suo motu and all that a person filing a revision petition under that section does is to draw the court's attention to an illegal, improper or incorrect finding, sentence or order of a Subordinate Court, Such powers are not affected by the fact that the revision petition is filed by a private person and not by the Government. Section 439(2), Criminal Procedure Code, 1973 empowers the High Court to direct that a person, who has already been released on bail, may be arrested and committed to custody. This Sub-section (2) reads as follows:
A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be errested and commit him to custody.
Sub-section (2) of Section 439, Criminal Procedure Code does not state that the State Government alone can make an application for cancellation of bail. The Court can suo motu issue notice to cancel the bail if it comes to its notice that the Sessions Judge granted bail to the accused on erroneous or some extraneous grounds. There is no prohibition in Section 439(2), Criminal Procedure Code, that an application for cancellation of bail cannot be made by a private person. A plain reading of Section 439(2), Criminal Procedure Code, 1973, makes it abundantly clear that the High Court and the Court of Session have been conferred very wide powers in the matter of directing re-arrest of an accused person who has been admitted to bail under Sub-section (1) of Section 439, Criminal Procedure Code. This power of cancellation is not hedged by any conditions and the only limitation that one can read in the exercise of such a power is that the discretion must be exercised judicially and not arbitrarily. It will, therefore, be open to the High Court to cause re-arrest or in other words to cancel the bail if it finds that the same was granted by the Court of Session on erroneous grounds. It is not necessary that the High Court should be moved only by way of a revision petition under Section 401, Criminal Procedure Code, 1973, against the order granting bail. It can act in this behalf suo motu or on an application made by the State or even by a private complain-ant. There is no bar that an application under Section 439(2), Criminal Procedure Code, for cancellation of bail made by a private complainant cannot be entertained. The High Court will, of course, be loath to interfere with the proper exercise of discretion by the Court of Session. If it, however, finds that the order granting bail is patently erroneous, it will not only be justified but duty bound to set aside the order of bail-vide Har-minder Singh v. Sarvjit Singh 1971-73 Pun LR 76. Therefore, the contention of the learned Counsel for the petitioner is devoid of force and is rejected.
6. In the instant case, the learned Sessions Judge did not give any finding whether it is a fit case to grant bail to the accused or not. Para. No. 3 of the order dated 20-12-1974 of the Sessions Judge granting bail to the respondent reads as follows:
I have heard the arguments and have gone through the record very carefully. The investigation of this case concluded on 2-12-1974 and while refusing bail to the petitioner on 2-12-1974 the Public Prosecutor was directed to see that the chalan was presented in Court in week's time. Chalan has not so far been presented in Court. A perusal of the zimni shows that the last Zimni was recorded in this case on 30-11-1974. This shows that the police is unnecessarily sitting on the production of the chalan in Court for the reasons best known to the Investigating Officer, without making any comments on the merits of the case, I feel that non-production of the chalan for all these 18 days without assigning any reason is a valid ground for admitting the accused on ball. The petitioner is, therefore, admitted to bail and he shall be released on furnishing bail bond in the sum of Rs. 25,000 with one surety in the like amount to the satisfaction of Duty Magistrate, Mansa.
The fact that the chalan was not filed within one week as directed by the Sessions Judge on 2-12-1974 while rejecting the bail application of the accused on that day, was no ground to grant bail to the accused in a murder case. The learned Sessions Judge did not exercise his discretion judicially but acted arbitrarily in granting the bail.
7. Proviso (a) to Sub-section (2) of Section 167, Criminal Procedure Code, 1973, reads as follows:
(a) The Magistrate may authorise detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding sixty days, and on the expiry of the said period of sixty days. the accused person shall be released on bail if he is prepared to and does furnish bail; and every person released on bail under this section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.
According to this proviso, if the chalan, has not been filed in Court within sixty days of the arrest of the accused, then on the expiry of the said period of sixty days the accused shall be released on bail if he is prepared to furnish bail. In the instant case, the occurrence took place on the night between 12th and 13th November, 1974, and the chalan in this case was filed on 21-12-1974. The accused was arrested after 14-11-1974. The period of sixty days ,as prescribed by proviso (a) to Section 167(2), Criminal Procedure Code, had not yet expired and, therefore, there was no justification for the learned Sessions Judge to release the accused on bail in a murder case after the expiry of only about five weeks of the arrest of the accused. No reasons whatsoever regarding the merits of the case were given while granting the bail and the order of the Sessions Judge its, therefore, illegal and cannot be sustained.
8. In the State v. Jagjit Singh : 3SCR622 , it was held:
Where an offence is bailable, bail has to be granted under Section 496 of the Code of Criminal Procedure, but if the offence is not bailable, further considerations arise and the Court has to decide the question of grant of bail in the light of those further considerations, such as, nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State and similar other considerations, which arise when a Court is asked to admit accused to bail in a non-bailable offence. Under Section 498 of the Code of Criminal Procedure, the powers of the High Court in the matter of granting bail are very wide; even so, where the offence is non-bailable, various considerations such as those indicated above have to be taken into account before bail is granted in a non-bailable offence.
9. The accused was a former captain of the Indian Army and at the time of arrest was employed in the delegation in India of a French Company. He along with two others was prosecuted for conspiracy (Section 120B, Penal Code) and also ,under Sections 3 and 5 of the Indian Official Secrets Act, 1923. The case against the three persons was that they in conspiracy had passed on official secrets to a foreign agency. The two other persons were admitted to bail. On rejection by the Sessions Judge of his application for bail, the accused applied to the High Court under Section 498, Criminal Procedure Code. The High Court was of the view that at that stage the question was arguable whether the accused had committed an offence under Section 3 (non-bailable) or under Section 5 (bailable). Consequently, the High Court took the view that as the other two persons prosecuted along with the accused had been released on bail, the accused should also be so released, particularly as it appeared that the trial was likely to take a considerable time and the accused was not likely to abscond. The High Court, therefore, allowed bail to him. On an appeal by the State:
Held (1) that in dealing with the application for bail before it on the assumption that the offence might fall under Section 5, the High Court fell into an error, as it should have considered the matter, even ii it did not consider it proper at that stage to decide the question whether the offence was under Section 3 or Section 5 on the assumption that the case fell under Section 3 of the Act;
(2) that the only reasons which the High Court gave for granting bail in this case were that the other two persons had been granted bail, that there was no likelihood of the accused absconding, he being well connected, and that the trial was likely to take considerable time. These were, however, not the only considerations which should have weighed with the High Court if it had considered the matter as relating to a non-bailable offence under Section 3.
(3) that among other considerations, which a Court has to take into account in deciding whether bail should be granted in a non-bailable offence, was the nature of the offence; and if the offence was of a kind in which bail should not be granted considering its seriousness, the Court should refuse bail even though it has very wide powers under Section 498 of the Code of Criminal Procedure.
(4) that as the case against the accused was in relation to the military affairs of the Government, and prima facie the accused if convicted would be liable upto fourteen years' imprisonment under Section 3, in such circumstances considering the nature of the offence, it was not a case where discretion, which undoubtedly vested in the Court under Section 498, of the Code of Criminal Procedure, should have been exercised in favour of the accused. The appeal of the State was allowed and the bail of the accused was cancelled.
10. In the instant case, as mentioned above, the learned Sessions Judge, Bhantida, did not given any finding after discussing the facts of this case whether it is a fit case to release the accused on bail in a murder case, but simply said that as the chalan had not been filed as directed by him on 2-12-1974, therefore, the bail is granted. The order is not based on any judicial considerations. The Sessions Judge had no power to direct the prosecution to file chalan within a prescribed period and the prosecution can take its own time to file the chalan and he could only pass an order in accordance with law, which he failed to do so.
11. In the present case, there are five eye-witnesses of the occurrence against the accused and they are Ranjit Singh and Roop Singh, the real brothers of the deceased, besides three constables, who were members of the raiding party consisting of themselves and the respondent Nand Lal, A.S.I. The statements of these witnesses were read out in Court and they fully supported the prosecution story. The bail was allowed by the Sessions Judge on 20-12-1974 and the chalan by the prosecution was filed in Court on 21-12-1974 as was admitted before me by the learned Counsel for the parties and the counsel for the State. It appears that the above direction of the Sessions Judge to file chalan within one week was intentionally not complied with with a view to give some sort of handle to the Court to grant bail to the accused. The respondent Nand Lal, A.S.I, has been committed to the Court of Session for trial and the case is fixed for 10-3-1975 in that Court for proper orders. The respondent, who is an Assistant Sub-Inspector of Police and at present posted in the Police Lanes, Bhatinda, is likely to win over the three official witnesses, who are police constables.
12. Therefore, after considering the nature of the accusation against the accused, the evidence of the prosecution in support of the charge, the severity of the punishment, which the conviction will entail, and also the law Laid down in the abovementioned decisions, I am of the considered view that this petition must be allowed and the bail of the accused should be cancelled. As a result, this application is accepted, the bail granted by order dated 20-12-1974 of the, Sessions Judge, Bhatinda, to the accused Nand Lal, A.S.I. is cancelled and is directed that he should be arrested and committed to custody. He is directed to surrender to his bail bonds.