S.K. Mal Lodha, J.
1. This is an application for cancellation of bail filed by Pokar Ram under Section 439(2), Cr. PC read with Section 482, Cr. PC.
2. It may be stated that the Additional Sessions Judge No. I Jodhpur while exercising the powers of the Sessions Judge, Jodhpur on September 13 1983. accepted the application filed by non-petitioner No. 1, Chandansingh under Section 438, Cr.FC and passed the order for releasing him on bail in the event of his arrest.
3. Petitioner Pokar Ram lodged a report before the Additional Superintendent of Police, Jodhpur who, at the relevant time was holding the charge of Superintendent of Police. It was stated that on August 23 1983 at about 4.00 PM non-petitioner No. 1 Chandansingh and Shyam Singh sons of Shri Ranjeet Singh accompanied by master Harpal, Sukhram and Bhanwar Lal resident of village Anva came on a tractor to his field which is known as 'Talwada'. They started ploughing the field though crop of Baira and Gawer which was sown by him was standing on it. The wife of the petitioner's son came there and asked them not to plough the tractor in the field It has been stated that they started beating her. On hearing cries, the petitioner Pokar Ram went there but he was also given beating by them. The nose ring of the wife (Smt. Randu) of the petitioner's son Jagmal was forcibly snatched away. The petitioner is said to have gone to collect the persons of his 'Dhani' Non-petitioner No. 1 Chandansingh then came there armed with a gun and reached at the 'Dhani' of the complainant's son and fired gunshots on his son Bhanwaria, which are said to have struck on the stomach and chest of Bhanwaria. He became unconscious, His mother Harsukha (son) and Kalia, who is his brother's son were also injured. The report of the incident was submitted before the Additional Superintendent of Police, Jodhpur. After investigation, a case under Sections 207, 441 147 147, 149, 378 and 323, IPC, was registered and further investigation commenced' Bhanwaria was admitted in Mahatma Gandhi Hospital, Jodhpur on August 24,1983. He remained there as an indoor patient. He, however died subsequently. After his death, the offence was converted into one under Section 30; IPC. Non-petitioner No. 1 Chandansingh submitted an application under Section 438 Cr. IC. on September 29, 1983 before the Sessions Judge Jodhpur. That application was however, decided on September 30 1983 by Additional Sessions Judge, No. 1 Jodhpur, who was holding charge of the Sessions Judge, Jodhpur. Vide order dated September 30, 1983 the learned Additional Sessions Judge No. 1, Jodhpur, allowed the application and granted anticipatory bail to non-applicant No. 1. The complainant Pokar Ram has filed this application for cancellation of bail on October 5, 1983, stating that in the facts and circumstances of the case and further having regard to the gravity of the offence the learned Additional Sessions Judge No. 1, Jodhpur, should not have granted anticipatory bail to non-petitioner No 1 and, therefore, it should be cancelled.
3. Notice of this application was issued to non-petitioner No. 1 Chandan Singh as well as to the State of Rajasthan. Non-petitioner No. 1 Chandan Singh has filed reply to the application dated February 23,1984 opposing the prayer made by the complainant-petitioner for cancellation of J toe bail granted to him.
4. Amongst other objections, an objection was also raised that the complainant-petitioner has no locus-standi to move the application for cancellation of bail. After that the complainant has filed affidavit on Februiry 29, (984 controverting the allegations made in the reply which was filed by non-petitioner No. 1. Non-petitioner No. 1 submitted affidavits of Budda Ram, Ranjeetsingh. Chandansingh, Gokharam, Bhakar Ram and Rugharam on March 21, 1984. Learned Counsel for the petitioner filed three affidavits of (1) Pokar Ram; (2) Bhagchand; and (5) Bhakar Ram on March 22, 1984. Thereafter non-petitioner No. 1 submitted as application on March 23, 1984 praying that the petitioner may be summoned and non-petitioner No. I may be permitted to cross-examine him. This application was opposed by filling reply on March 29, 1984. a application was also moved on March 29, 1984 on of non-petitioner No. 2 to put on record the affidavits of Rugharam, Unkrasingh. Nenaram, Rajuram, Haralal, Motiram, Bheraram, Amluram, Sonaram Dhokalram and the doucuments. This is the material on record.
5. After hearing arguments on the application, I directed the Public Prosecutor to produce the case diary for my perusal. He produced the case diary which was returned after perusal.
6. I have heard Mr. R.N. Bishnoi, learned Counsel for the complainant-petitioner and Mr. R.P. Dave, Public Prosecutor and Mr. M.D. Purohit and Mr. K.N. Joshi for non-petitioner No. 1 I have considered the material on record and the case diary.
7. Learned Public Prosecutor stated that he has nothing to say in the matter and the Court may dispose of the application under Section 439(2), Cr. PC on the basis of the material on record.
8. An objection has been raised in the reply filed on behalf of non-petitioner No. 1 that when the learned Additional Sessions Judge No. 1 Jodhpur has granted anticipatory bail to the petitioner such order cannot be cancelled or modified, at the instance of the complainant. In other words, locus standi of the petitioner to move an application for cancellation of bail was questioned and challenged. On the other hand, Mr. R.N. Bishnoi, learned Counsel for the petitioner, submitted that an application for cancellation of bail can be moved by a private party. The petitioner is a complainant. It is settled law that even a private party can apply for cancellation of bail.
9. It was held in Mani Ram and Ors. v. Idan and Ors. 1976 (1) Raj. Cr. Cases 228 and Jagram v. Bhamandi and Ors. 1980 Raj. Cr. Cases 364 that there is nothing in Section 439(2), which creates a bar that an application under Section 439(2) for cancellation of bail cannot be entertained if made by a private complainant in a criminal case in which the State is the prosecutor. The same view has been taken by the High Courts of Allahabad, Delhi, Patna, Punjab and Himachal Pradesh. 1 am of c pinion that a private party can apply for cancellation of bail. It is futile for the learned Counsel appearing for the non-petitioner No. 1 to contend that the petitioner who is complainant has no locus-standi to move an application for cancellation of bail under Section 439(2) Cr. PC. The preliminary objection regarding the maintainability of the application for cancellation of bail at the instance of the complainant is, therefore, over-ruled.
10. Now, I proceed to examine the merits of the application filed by the complainant petitioner.
11. Mr. R.N. Bishnoi, learned Counsel for the petitioner, pressed for my consideration that the learned Additional Sessions Judge No. 1, Jodhpur having regard to the nature of accusation, made against non-petitioner No. 1 and the gravity of the offence, should not have granted anticipatory bail to him in exercise of his powers under Section 438 Cr. PC. He further submitted that the order has been made incomplete disregard of the principles governing the grant of anticipatory bail. He placed strong reliance on Gurbaksh Singh v. State of Punjab : 1980CriLJ1125 . It was contended that by passing the order for anticipatory bail a basic and fundamental error was committed by the learned Additional Sessions Judge. He referred to the various decisions of this Court and also of the Supreme Court.
12. A probe has to be made whether there exists grounds for cancellation of the bail under Section 439(2) Cr. PC.
13. Before proceeding further with the matter, it may be useful to advert to the principles that have been laid down by Apex court of the country. I will first examine the two authorities cited ' by the learned Counsel for the petitioner in support of his submissions. In Gurcharan Singh v. State AIR 1978 SC 179, Sections 437 and 439 were examined. It was observed therein as under:
Ordinarily the High Court will not exercise its discretion to interfere with an order of bail granted by the Sessions Judge in favour of an accused.
After referring to State v. Capt. Jagjit Singh : 3SCR622 their Lordships of the Supreme Court, while dealing with the question relating to powers of High Court under Section 439(2) in respect of cancellation of bail, have stated that the Sessions Judge did not take into proper account the grave apprehension of the prosecution that there was a likelihood of the appellants tampering with the prosecution witnesses and that in the peculiar nature of that case revealed from the allegations and the position of the appellants in relation to the eye witnesses, it was incumbent for the Sessions Judge to give proper weight to the serious apprehension of the prosecution with regard to the tampering with the eye witnesses which was urged before him in resisting the application for bail After dealing with the aforesaid point, it was observed to para 29 the report as under:
We may repeat the two paramount considerations, viz. likelihood of the accused fleeing from justice and his tampering with prosecution evidence relate to ensuring a fair trial of he case in a court of justice. It is essential that due and proper weight should be bestowed on these two factors apart from other. There ca not be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail.
14. In the facts and circumstances of that case, the order cancelling the bail by the High Court was not interfered with under/Article 136 of the Constitution.
15. In Delhi Admn. v. Sanjay Gandhi AIR 1976 SC 961 Sections 437(5) and 439(2), Cr. PC. came up for consideration. I am tempted to quote here the following observations:
Rejection of bail when bail is applied for is one thing, cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and 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 freed m during the trial. The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over A brother a sister or a parent who has seen the commission of crime, may resile in the Court from a statement recorded during the course of investigation. That happens instinctively, out of natural love and affection, not out of persuasion by the accused. The witness has a stake in the innocence of the accused and tries therefore to save him from the guilt. Likewise, an employee may, out of a sense of gratitude oblige the employer by uttering on untruth without pressure or persuasion. In other words, the objective act that witnesses have turned hostile must be shown to bear a causal connection with the subjective involvement therein of the respondent. Without such proof, a bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won her by the accused. Inconsistent testimony can no more be ascribed by itself to the influence of the accused than consistent testimony, by itself can be ascribed to the pressure of the prosecution.
16. In a recent case, their Lordships of the Supreme Court in Bhagirath Singh Judeja v. Stare of Gujarat AIR 1984 SC 961 had occasion as consider Section 439. Their Lordships have stated the considerations which ate relevant for deciding an application for cancellation to bail. In para 5, it was observed as under:
If there is no prima facie case there is no question of considering other circumstances. But even where a prima facie case is established the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial that he is likely to abuse the discretion granted in his favour by tampering with evidence.
It will also be useful to excerpt the following from para 6 of the report 5
The High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation of the bail. Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail And the trend today is towards granting bail because it is now well settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence.
17. From the aforesaid decisions of the Supreme Court and in particular Bhagirath's case AIR 1984 SC 961, it is clear that while dealing with the application or cancellation Of bail warranting interference with the discretionary order passed by the learned Sessions Judge granting bail are : (I) whether the accused would be reality available during the trial; (2) whether he is likely to abuse the discretion granted in his favour by tampering with the prosecution witnesses.
18. On behalf of the petitioners affidavits have been filed to show that non-petitioner No. 1 Chandaa Singh is Sarpanch of Panchayat Dawara and is an influential person and further that this father Ranjeetsingh is Ex. M.L.A. and at present is Pradhan of the Panchayat Samiti. Both of them bring undue pressure upon the complainant not to prosecute the, case and to change the statement of the witnesses. On the father hand, non-petitioner No. 1 Chandansing has filed affidavits to show that a settle
19. The anticipatory bail was graated by the learned Additional Sessions Judge on September 30, 1981. The application for cancellation of bai was moved on October 5, 1984, i.e. only after five days from the date of granting bail.
20. The anticipatory bail was granted on the conditions:
1 vuqla/kku es lgk;ksx nsxk A
2 vuqla/kku es ck/kk ugh Mkysxk A
3 Hkkjr NksM+dj ugh tkosxk A
From the material on record, it is difficult to infer that non-petitioner No 1 has acted in breach of the aforesaid conditions. Non-petitioner No 1, Chandansingh cannot be said to have abused the discretion, which was exercised in his favour. Nothing, has been shown that non-petition No. 1 Chandansingh is not available for investigation or that he would not be readily amiable during the trial. The question of abusing the grant if bail by tampering with the prosecution evidence also in the facts and circumstances of the case, does not arise.
21. Para 6 of the affidavit of Pokar Ram dated Feb. 28 1984 is as under:
6 ;g gS fd rkjh[k 2&2&1984 dks xzke yksgkoV ds gjhxkjke dh fo'uksbZ
The fact that non-petitioner 1 Chandansingh and his father are influential persons and hold important positions in the Panchayat or Zila Parish. also no ground for cancelling bail. In the case for cancellation of bail not necessary to examine whether anticipatory bail under Section 438 should have been granted but what is to be seen is whether good grounds exist for cancellation of bail. The matters enumerated by the Supreme courting regard to cancellation of the bail do not exist in this case.
22. In the facts and circumstances on this case, at this stage, no order for cancelling the bail, can be made, when the learned Additional sessions Judge No. I, Jodbpur has granted anticipatory bail to non-petitioner No. 1 Chandan Singh by his order dated September 30, 1983.
23. The application for cancellation of bail filed by Pokar Ramon October 5, 1933 is, accordingly dismissed.