A.P. Ravani, J.
1. The original complainant Kanubhai Ramjibhai Rabari whose brother Babubhai Ramjibhai has been killed in the incident which took place on June 26, 1985, has filed this application for cancellation of bail granted by the learned Sessions Judge, Mehsana, in Criminal Misc. Application No. 394 of 1985 as per his order dated July 6, 1985. The prayer for cancellation of bail of Kalabhai, accused No. 1 is not pressed at the initial stage, since he has been ordered to be released on bail by this Court for a temporary period so as to enable him to appear at the examination only. This term of bail is to expire very soon.
2. It is alleged that one of the prosecution witnesses, namely, Dharamsingbhai Govindbhai was threatened by the accused. He was told that he should make an affidavit in their favour or he would also meet the same fate as that of Babubhai Ramjibhai. In this respect, the witness Dharmsingbhai has filed a complaint on August 10, 1985 with the Kadi Police Station. The application for cancellation of bail has been filed on August 14, 1985. It is stated at the bar that the Government took decision to submit an application for cancellation of bail on August 1, 1985. Now the Government has also filed revision application being Criminal Revision Application No. 372 Of 1985 and the same has been tagged on with this application.
3. Counsel for the original accused has submitted that in view of the decision of the Supreme Court in the case of Delhi Admn. v. Sanjay Gandhi reported in : 1978CriLJ952 and in the case of Bhagirathsingh Jadeja v. State reported in 25 (1) GLR 332 this High Court should not interfere with the discretion exercised by the learned Sessions Judge and should not order to cancel the bail granted by the learned Sessions Judge.
4. In Delhi Administrations case (supra.) the Supreme Court has laid down the principle that the prosecution witnesses turning hostile is not a circumstance by itself which can be taken into consideration for cancellation, of bail. The Supreme Court has further observed:
Cancellation of bail necessarily involves the review of a decision already made and can by 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.
In the very same judgment, the Supreme Court has observed that cancellation of bail is an incidental issue which arises pending the trial of an accused. While deciding such an issue, the standard of proof required to be adduced by the prosecution would be like that of civil cases where on balance of probabilities either side has to prove whether the application for cancellation of bail is required to be granted or refused. Ultimately in para 24 of the judgment, the Supreme Court has observed:
The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extra-ordinary nature is meant to be exercised in appropriate cases when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with the witnesses. Refusal to exercise that whole some power in such cases, few though they may be, will reduce it to a dead letter and will suffer the Courts to be silent spectators to the subversion of the judicial process.
In the latter case of Bhagirathsinh Jadeja (supra), the Supreme Court has stated that in the case of grant or refusal of bail, the approach of the court would not be to detain the accused by way of punishment, but the question should be decided on the basis as to whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion exercised in his favour by tampering with evidence.
5. Be it noted that in the aforesaid two cases, decided by the Supreme Court, the accused were not charged with the offence of murder. In Delhi Administrations case (supra) (popularly known as 'Kissa-Khursi-Ka' case), the accused were charged for offences under Sections 409, 435 and 201 read with Section 120-B of the Indian Penal Code while in Bhagirathsinh Jadeja's case (supra), the accused was charged for offence under Section 307 of the Indian Penal Code and Section 135 of the Bombay Police Act and it was an admitted position that the victim had survived the blows administrated by the assailant.
6. As laid down by the Supreme Court, one of the considerations which should weigh with the Court while granting or refusing bail is to see the availability of the accused at the time of trial. More serious the offence, the more likehood of the accused to escape and not to stand the trial. This can safely be inrerred because, if the case in which the caused is charged with serious offence is proved, the stake would be very high. He may even be imprisoned for life or may be ordered to be hanged. Therefore, in such cases, it will surely be one of the relevant circumstances to take into consideration as to with which offence the accused is charged. In the instant case, it is an undisputed position that the charge against the accused is that of offence under Section 302 the Indian Penal Code.
7. From the aforesaid decisions of the Supreme Court, it is clear that the question of cancellation of bail necessarily involves a review of earlier decision (para 13 of Delhi Administration's case). On proper scrutiny of the order passed by the learned Sessions Judge, it becomes clear that the learned Sessions Judge has exercised his discretion on the basis that Kalabhai Jaisingbhai-opponent No. 1 was the only person responsible for causing the death of deceased Babubhai Ramjibhai. The learned Sessions Judge has observed as follows:
On perusal of the police papers and post-mortem note, the deceased died due to single blow given by the assistant Kalabhai Jesangbhai. Now from the police lepers, it does not appear that the other accused were armed with deadly weapons and they were waiting for the arrival of the deceased Babubhai @ Karamsibhai and, therefore, it appears that the other accused were involved in the present crime and it is an after-thought and the F.I.R. has been given after due deliberation.
With respect to the leased Sessions Judge, he has not read the F.I.R. correctly. In the F.I.R. it is very clearly stated that when deceased Babubhai Ramjibhai was returning to his house from Ahmedabad, he was intercepted by the accused and there was 'zapazapi' between the accused on the one side and the deceased on the other side. At that time the complainant had reached there. It is further stated in the complaint that his (complainant's) brother deceased Babubhai Ramjibhai was caught, hold of from both the sides by Babubhai Nathabhai (Opponent No. 2 herein) and by Karmanbhai Zaverbhai (opponent No. 3 herein) and Kalabhai Jaisingbhai (opponent No. 1 herein) took out his knife and gave knife blow on the neck of deceased Babubhai. Thus, in the complaint itself opponents Nos. 2 and 3, i.e., Babubhai Nathabhai and Karmanbhai Zaverbhai, have been ascribed specific role. It may be said that had they not caught hold of the deceased, the opponent No. 1 probably could not have been successful in delivering the knife blow on the neck of the deceased. Even so, the learned Sessions Judge has passed the order granting bail on the footing that there is nothing in the police papers to connect all the opponents so as to involve them in the offence of murder. Thus, the very basis of the discretion exercised by the learned Sessions Judge is based on the gross misreading of the F.I.R.
8. It is very clear from the complaint filed on August 10, 1985 by one of the witnesses, namely, Dharamsingbhai Govindbhai, that he was threatened by opponents Nos. 2, 3, 4 and 5. The counsel for the opponents-accused submitted that the complaint filed by the said witness is concocted and the same cannot be relief upon. At this stage, the contention raised by the counsel for the opponents-accused cannot be decided. On the face of it, as the complaint stands, appears that a witness has been threatened by the Opponents-accused and as per in the complaint, he has been told that he should swear an affidavit in their favour or that he would be finished. In above view of the matter, it is clear that if the order passed by the learned Sessions Judge is not interfered with, there are all the chances that it will impair the fair-trial of the prosecution case.
9. However, in the case of opponent Nos. 4 and 5, i.e., Prabhatbhai Jaisingbhai and Jaisingbhai Bhatibhai, in F.I.R. no specific overtact in the commission of crime of murder has been attributed. Therefore, the bail granted to them is not required to be interfered with. However, their bail can be continued by imposing certain further conditions.
10. In the result, the application is partly allowed. Bail granted by the learned Sessions Judge, Mehsana, in Criminal Misc. Application No. 394 of 1985 in favour of opponents Nos. 2 and 3 i.e. Babubhai Nathabhai and Karmanbhai Zaverbhai is ordered to be cancelled. Bail granted to opponents Nos. 4 and 5, i.e. Prabhatbhai Jaisingbhai and Jaisingbhai Bhatibhai is not disturbed. However, further condition is imposed. It is directed that till the chargesheet is filed, opponents Nos. 4 and 5 i.e., Prabhatbhai Jaisingbhai and Jaisingbhai Bhatibhai, shall not enter the village Indrad, taluka Kadi and also within the radius of 10 kms. from village Indrad. It will be open to the parties to apply before the learned Sessions Judge for modification and/or cancellation of this condition after the chargesheet in filed. Opponents Nos. 2 and 3, i.e. Babubhai Nathabhai and Karmanbhai Zaverbhai, to surrender latest by September 13, 1985.
Rule made absolute to the aforesaid extent only.
11. In view of the aforesaid order passed on Criminal Misc. Application No. 1499 of 1985, it is not necessary to pass any separate order on Criminal Revision Application No. 372 of 1985 filed by the State.