Jia Lal Kilam, J.
1. This application arises out of the following circumstances: As a result of a clash between two' groups it is alleged that a death did take place in one group and some grievous hurts were caused to some people in the other group. On 6th Assuj 2008 the police registered two eases: one under Sections 302/148/325 and the other under Section 148, R.P.C, against some persons belonging to these two different groups. In the case under Section 148 R.P.C. the accused applicants were arrested on 27th Assuj 2008, and on an application made by them to the Tahsildar Magistrate they are admitted to bail on 29th Assuj 2008. On 8th Katik 2008 an application was submitted by one Matu Ram that the accused persons were misusing their liberty and were intimidating and threatening the prosecution witnesses. A prayer was made that their bail may be cancelled. The Tahsildar Magistrate before whom this application of Matu Ram was presented ordered that evidence in support of the allegation be produced before him. In this connection two persons by name Gyan Singh and Natha Singh P.Ws. submitted two affidavits in which they stated that they were intimidated and threatened with dire consequence by the accused persons in case they appeared as witnesses against them. The Tahsildar Magistrate further examined the Court Sub-Inspector as a witness. His statement which has been treated by the learned Sessions Judge as corroborative evidence of the affidavits of Gyan Singh and Natha Singh will be soon discussed. The accused persons also were given notices of the application submitted by Matu Ram. They too have given counter-affidavits to the effect that the allegations made against them by Matu Ram are baseless and false and that they are not in any way misusing their liberty. The Tehsildar Magistrate believed in the affidavits of Gyan Singh and Natha Singh and ordered cancellation of. the bail of the accused persons on 22nd Katik 2008. The accused persons are since then in police custody.
2. The case, as already seen was registered on 6th Assuj 2008 and since then the challan has not been presented before the Court. I wonder why these cases should have been allowed to hang fire for such an abnormal length of time. I think in cases in which death has taken place, a speedy investigation is always called for and such cases should be produced before Courts without any unnecessary loss of time. If investigations are left pending thus before the police for such a long time, the possibility of the witnesses forgetting important facts or their being won over by the other side or the danger of some important evidence being lost cannot be excluded. If the police were more vigilant of their duties and had produced the challan in proper Court without any delay, perhaps no necessity of putting such an application as the present one would have arisen. But I do not think that the accused persons should have been allowed to continue in police custody for an unlimited period of time simply because the police does not produce the challan in time.
3. After the Tehsildar Magistrate had cancelled their bail, the accused persons approached the Court of Sessions. The learned Sessions Judge relied upon the affidavits of Natha Singh and Gyan Singh and rejected their application submitted under Section 498 of the Criminal P.C. The learned Sessions Judge has also noted in his order that these affidavits are supported by the statement of the Court Sub-Inspector. I have gone through the statement of the Court Sub-Inspector and I find that he does not state any thing from his personal knowledge. All that he says is that the fact that the witnesses were being intimidated was brought to his notice. This evidence is hearsay and I wonder how it was treated by the learned Sessions Judge as corroborative.
4. Then the only material before us is the two affidavits on behalf of the applicant and a number of affidavits on behalf of the accused persons. Now in this behalf I would like +o note down that when the Tehsildar Magistrate had ordered the production of evidence before him, it was necessary for him to have taken down the statements of witnesses produced on either side and he should have given each party an opportunity of cross-examining them. This the Tehsildar Magistrate has not done. On the contrary he has treated the affidavits as legal evidence. So far as I have been able to lay my hands upon, there are only three sections in the Criminal P.C., i.e., Sections 74, 526 and 539A according to which a fact may be got proved by an affidavit. It follows from this that an affidavit if not covered by these sections is not legal evidence. Now in this case the fact that the witnesses were intimidated by the accused persons ought to have been proved by such evidence as could be tested on the touchestone of cross-examination.
5. Apart from this, all that we have got in this ease is an 'oath' against an 'oath'. No reasons have been given by the Courts below as to why the affidavits on behalf of the accused persons should not be believed. It appears to me that the accused persons belonging to the other group having been involved in an accusation of death have not been released on bail and it must certainly have caused a heartburning to the members of that group that the accused belonging to the other group against whom the accusation is of an offence of a lesser gravity should have been released on bail, and hence their anxiety to see that the accused in the other group were also placed in custody. It is true that the granting of bail in a nan-bailable offence is a concession allowed to an accused person and it presupposes that this privilege is not abused. Coming into contact with the prosecution witnesses and exerting undue influence over them will certainly be sufficient for not granting them bail or for cancelling the bail. But at the same time it should be duty of a Court to see that an accused is not locked up or hampered in his defence simply on the ground that an allegation was made against him that he was tampering with the evidence. The general policy of law is to allow bail, rather than to refuse bail. The law presumes an accused person to be innocent till his guilt is proved, and as a presumably innocent person he is entitled to every freedom to look after his own case. Extension of concession of bail to an accused gives him better opportunity of looking after his case. But he will certainly lose this privilege in case he misbehaves.
6. Now in this case I have found that the allegations that the accused were abusing their liberty have not. been substantiated; besides that We have just seen that they have been now in the lock-up for the last two months, and even now the challan has not been produced before the Court. I, therefore, order that the accused persons mentioned in the application may be released on bail of Rs. 1000/-, (Rs. one thousand only) with one surety each. They must also execute personal bonds to the extent of the same amount. On furnishing their bail bonds and personal bonds, they shall be released forthwith. The bail shall be given to the satisfaction of the Tehsildar Magistrate Ranbirsinghpura.