K.D. Sharma, J.
1. Chandan Singh & Uchhab Singh petitioners have applied for bail by was of an application under Section 499, CrPC. The two petitioners stand involved in a criminal case State v. Chandan Singh And Ors. under Sections 147, 148, 307, 326, 325, 324 and 323 read with Section 149, IPC which is pending in the court of the Chief Judicial. Magistrate, Jodhpur. In the aforesaid case the two petitioners were admitted to bail by the learned Sessions Judge, Jodhpur. It was alleged that, while remaining, on bail, they threatened to kill one of the eye-witnesses, namely, Kheta Ram, in case he appeared in the witness-box to give evidence against them and in this manner tried to destroy the evidence which prosecution proposed to lead in support of its case. Kheta Ram was threatened and terrorised in the night between 1st and 2nd December, 1977 inside his room. He lodged a first information report of the incident with Police Station, Shastri Nagar on 2nd December, 1977. On the basis of the said report the police registered a criminal case under Section 452, IPC and proceeded to inquire into the matter. On completion of investigation, a challan was put up against the petitioners in the court of the Judicial Magistrate No. 1, Jodhpur, for an offence under Section 452, IPC. Mohan Singh who, was the complainant in the referred to above case State v. Chandan Singh and Ors. pending in the court of the Chief Judicial Magistrate Jodhpur, came to know from Kheta Ram that the latter had been threatened and terrorsted by the petitioners, so he rushed to the court of the Sessions Judge, Jodhpur, and filed an application for cancellation of the bail granted to the petitioners in his case. The State of Rajasthan also moved the Sessions Judge by way of a separate application for cancellation of the bail of the petitioners, on the ground that the latter have tampered with prosecution witness Kheta Ram by exerting undue influence on him so as to destroy his evidence or to minimize its effect against them.
2. The learned Sessions Judge heard both the applications for cancellation of bail and cancelled the bail of the petitioners and committed them to custody. Hence, the petitioners have moved this Court for bail, as stated above.
3. I have carefully gone through the record and heard Mr. Bhimraj Purohit, Public Prosecutor assisted by Mr. P.L Chaudhaiy for Mohan Singh. At the outset, I may observe that the object of Sub-section (2) of Section 439, CrPC is not punitive. Of course, bail may be cancelled in a case where the person bailed out has done something which may cause interruption in or obstruction to the smooth trial of a case against him. In the instant case, the allegations against the petitioners were that they threatened and terrorised one of the eye-witness, namely, Kheta Ram in the night between 1st and 2nd December, 1977, inside his room and told him frankly that if he appeared in evidence against him, he would be done away with. Kheta Ram has put in his affidavit before the Sessions Judge in support of the above allegations. He was cross-examined upon his affidavit by the learned Counsel for the petitioners. In his affidavit, he clearly stated that a day prior to this incident also he was threatend and terrorised by the petitioners in his room in his cross-examination, he could not afford any reasonable explanation why he did not make a report to the police about the first incident. In the absence of any explanation from his side for his failure to make a report to the police about the first highhanded act of the petitioners in threatening and terrorising him a day prior to 1st December, 1977. I do not feel inclined to attach any weight to his statement in his affidavit about the second incident Apart from this, Kheta flam admitted in his cross-examination on his affidavit that, besides himself, two other persons, namely, Dungar Ram and Chautha Ram were present in his room at the time A hen he was threatened and terrorised by the petitioners for the second time, but, curiously enough Khera Ram or the State could not cause the affidavits of these two eye-witnesses to be filed before the Sessions Judge or before me If the affidavits of these two persons had been put, they would have served the purpose of the independent corroboration of the story narrated by Kheta Ram in his affidavit. The third circumstance which throws considerable doubt on the version given out by Kheta Ram in his affidavit is that he did not immediately rush to the police to make a report about the incident. He was not all alone in the room. According to him, Dungar Ram and Chautha Ram were there and his two brothers Tila Rani and Sahu Ram also were present at the time when the petitioners had threatened him After the petitioners had disappeared, he could have easily gone to the police station along with his brothers Tila Ram and Sahu Ram to lodge a report about the incident. The record reveals that he reported the matter to the police at 5 p.m. on the next day, i.e. oh December 2, 1977. Taking all these infirmities into consideration. I am reluctant to hold that the petitioners exerted any undue influence oh Kheta Ram so as to interrupt or obstruct the smooth inquiry or trial of the case against him. It is the bounden dirty of this Court to see that a free-hand is not got by the prosecution and the accused are not hampered in their defence merely on the vague allegations of tampering with the prosecution witnesses. The fact that the petitioners have tampered with the prosecution witness, Kheta Ram must be proved beyond all doubt before any action can be taken by the Court under Sub-section (2) of Section 439, CrPC for cancellation of bail. As the fact that the petitioners threatened and terrorised Khetaram, one of the prosecution witnesses, was hot established beyond all doubt, the Sessions Judge committed a grave error in cancelling the bail granted to the petitioners and in committing them to custody.
4. Consequently, I accept the application filed by the petitioners, set aside the order of the Sessions Judge, Jodhpur, dated 17th December, 1977, and direct that the petitioners Chandan Singh and Uchhab Singh shall be released on bail, provided each of them furnishes a personal bond in the amount of Rs. 10,000/-, together with two sureties of Rs. 5000/-, each to the satisfaction of the Chief Judicial Magistrate, Jodhpur, for his appearance in the court of the said Chief Judicial Magistrate, Jodhpur, on each and every date of hearing or whenever called upon to do so. I would like to observe that the observations which I have made regarding the affidavit of Khetaram shall not affect or prejudice the mind of the Judicial Magistrate No 1, Jodhpur in whose court the case against the petitioners under Section 452, IPC is pending. The Judicial Magistrate shall be free to come to his own conclusion regarding the merits of the evidence including that of Kheta Ram.