Bhagirath and Others vs Gobind

Chet Ram Thakur, J.—This is an application by Sarvshri Bhagirath and three others under the provisions of Section 439(2) of the Code of Criminal Procedure, 1973.

The Respondent is alleged to have committed the murder of one Shri Mall of village Row, Illaqua Hatgarh, Tehsil Sadar, District Mandi, on 5-6-1974. The Petitioners alleged themselves to be the eye-witnesses of the occurrence. The Respondent was arrested by the police, but later on he was released on bail on 29-1-1975.

The case has now been committed to the Court of Sessions for trial under the provisions of Section 302 of the Indian Penal Code. It is stated that the Respondent bears grudge and enmity against Petitioner No. 1 and his father Petitioner No. 4 on a piece of land which has been purchased by Petitioner No. 1 and his brother which was intended to be purchased by the Respondent. It is stated that there is every likelihood that the Respondent would indulge in Committing any type of offence to satisfy his whims as even if he commits any other offence he will not be the loser in satisfying his ego because he is already facing a case in which capital sentence is provided. In Para 7 it has been stated that he is threatening the Petitioners and other witnesses to keep their mouth shut and not to give evidence against him or otherwise they will make the, statements against the Respondent at the cost of their lives. So, it is on these allegations that the Petitioners 3 have prayed for the cancellation of the bail granted to the Respondent by this Court.

The Respondent denied that he had committed any murder to which the Petitioners were witnesses. He averred that he and his father were in peaceful possess ion of a piece of land. Mall deceased, Giaharu and others formed an unlawful assembly and attacked the Respondent with a view to dispossess them from the land and during the course of that attack, the Respondent received injuries on his person and he was medically examined. The Petitioners are close relatives of Mall deceased. Petitioner No. 4 is the brother of Mall, Petitioner No 1 is the son of Petitioner No. 4, Petitioner No. 2 is the husband of the sister of Petitioner No. 4 and the sister''s daughter of Petitioner No. 3 is wedded to Petitioner No. 4. He denied the allegations of threats, etc. It was also averred that the application is not maintainable by the Petitioners, especially when it has not been filed by the State.

The Petitioners in their rejoinder denied the alleged relationship between Petitioners No. 3 and 4.

Shri Inder Singh did not appear and, therefore, Shri Bhawani Singh learned Counsel for the Respondent was heard and I have gone through the grounds taken by the Petitioners for the cancellation of the bail as also examined the affidavits in support of their allegations in the petition.

It cannot be disputed that the grant of bail in a non-bailable offence, like the one which is alleged to have been committed by the Respondent, is a concession allowed to such a person and this privilege is not to be abused in any manner and one of the conditions imposed under the order of bail is that the alleged accused is not to destroy or tamper with the evidence and if it is found that he has misused this concession granted to him by the Court he disentitles himself to the privilege and he can be re-arrested and put into custody under the provisions of Sub-section (5) of Section 497 of the Old Code and now Section 437(2) of the New Code and, therefore, the question that arises is as to who can move an application for cancellation of the bail granted to a person accused of an offence. Ordinarily in a police case it is for the State to move for cancellation of bail, but from the perusal of Section 497(5) of the Code there is nothing to prohibit a private person also from applying for cancellation of bail. In the instant case the Advocate-General has not moved any such application for the cancellation of the bail, rather, this application has been moved by the witnesses who allege themselves to be the eye-witnesses in the case. They are four persons and they have filed their affidavits. The Respondent also has filed his reply opposing the application. Bhagirath Petitioner No. 1 has stated in para 2 of the affidavit that the Respondent is on inimical terms with him and his father on a piece of land. Similar is the affidavit of Chugha Petitioner No- 2, and to the similar effect are the affidavits of the other Petitioners that the Respondent is on inimical terms with them. Therefore, these affidavits of the Petitioners cannot be taken as gospel truth to the effect that the Respondent is holding out threats to them that in case they make statements against him in the court they will also meet the same fate as was met by Mall deceased. The Petitioners 1 and 2, as already stated, have mentioned that the dispute between them and the Respondent relates to a piece of land which had been purchased by them. The other Petitioners also make similar statements. Therefore, it appears that all these witnesses have got a common cause and these affidavits are refuted by the Respondent by his own affidavit. Therefore, it is difficult to believe the correctness of the contents of their affidavits when they have frankly conceded that they are inimically disposed towards the Respondent and vice versa. Bail can be cancelled on the ground that the accused continues or repeats the same offence while he is on bail or where he tampers with the prosecution evidence or where fresh evidence for believing that the accused is guilty of an offence punishable with death or imprisonment for life has been discovered and where the bail is granted in wrong exercise of the discretion. In the instant case the only ground disclosed by the Petitioners is that the Respondent is threatening them with dire consequences in case they deposed against him and, therefore, this is the only allegation of tampering with the prosecution evidence. But apart from the affidavits which are controverted by the Respondent by his own affidavit there is nothing to conclude that the averments made in the affidavits are correct. It would have been better if the Petitioners had appeared in the court and then their testimony could be tested on the touchstone of cross-examination.

In these circumstances, in my opinion, this application cannot be allowed in the absence of any cogent and independent evidence to the effect that the Respondent is misusing the concession granted to him. The result, therefore, is that the application is rejected.