Kewal ram Chauhan vs State of H.P.

V.K. Mehrotra, J.—Applicant Kewal Ram Chauhan is an Advocate, i He has been Member of the H.P. Legislative Assembly for number of years. He is being tried, along with Ors. , by the Special Judge, appointed under the provisions of the Criminal Law Amendment Act, 1952, for offences under Sections 379, 420, 467, 468, 471, 120B IPC and Sections 41 and 42 of the Indian Forest Act and Section 5(2) of the Prevention of Corruption Act, 1947. These charges are founded upon a number of First Information Reports. These Reports bear F. I. R. Nos. 13, 21 to 27, 29 and 30 of 1983. The offences are said to have been committed during the period between 1981 and 1983.

In respect of the case registered as F.I.R. No. 21 of 1983 V- the applicant was directed to be released on bail, on certain conditions, by this Court by order dated June 19, 1986 [in Criminal Misc. Petition (Main) No. 290 of1986]. By an order passed on June 25, 1986 by the Special Judge the applicant was directed to be released on bail in respect of offences involved in F.I.R Nos. 22 and 29 of 1983. By Anr. order of the same date, he was enlarged on bail in respect of cases involved in F.I. R. Nos. 23, 24, 25, 26, 27 and 30 of 1983 by the Special Judge, 3. On April 21, 1988, an application was made on behalf of the -prosecution for cancellation Of the bail of the applicant.

The application was made u/s 439(2) Code of Criminal Procedure It was registered as Criminal Misc. Petition No. 11/4 of 1988 before the Sessions-Judge, Shimla, who was also a Special Judge under the Criminal Law Amendment Act, 1952. The application was rejected by the learned Judge by an order dated August 6, 1988. That order has been challenged by the State of H.P. in Criminal Revision No. 140 of 1988 which is pending consideration of this Court.

While the trial was pending before the Special Judge, an order was made on April 4,1987 by him saying that no prejudice would be occasioned to the accused if the trial in respect 6f the various cases founded upon different First Information Reports Are held separately. This order was assailed by the applicant before this Court in Criminal Revision No. 40 of 1987 on August 24, 1987 this Court passed an order saying that all the nine F.I.R would be clubbed together and a single trial in respect of these F.I. R. shall be held. The order of this Court was founded upon the statement made by the learned Advocate General that he had no -objection to the clubbing of the cases in all the nine F.I.R and to have a single trial in respect thereof. A similar statement was made before the Court on behalf of Respondent''s No. 2 to 11 who is the co-accused of the present applicant. The applicant approached this Court again on October 27, 1987, in Criminal Revision Petition No. 102 of 1987 in the matter of clubbing of cases. The grievance was that the Special Judge had directed the recording of evidence with effect from November 16, 1987, without clubbing all the nine F.I.R. in terms of the order of this. Court in Criminal. Revision No. 40 of 1987. This revision was disposed of by the Court on November 4, 1987. This Court said that the order passed by it earlier on August 24, 1987, was intended to ensure that all the nine F.I.R. would be consolidated so that a single trial be held for all of them and evidence be recorded in one case which should be read in all the nine F.I.R. This Court found that the order passed by the Special Judge oil September 1, 1987, was justified in the facts and circumstances of the case. The revision was dismissed m Murine. The Applicant took the matter to the Supreme Court by filing a SLP (Criminal) No. 2980 of 1987 there. The Supreme Court disposed of the petition on February 1, 1988. It said that there was nothing for which the SLP should be entertained. It further directed that if a witness is for a number of charges, his examination will be conducted once and that may be used for all the cases. The SLP was dismissed with this observation.

By a Notification [No. Home B (A) 3-18/78] dated September 1,1988j all the Addl. Sessions Judges have also been appointed as Special Judges in Himachal Pradesh under the provisions of Section of the Criminal Law Amendment Act, 1952, with immediate effect. These powers are exercisable within the respective Sessions Divisions to which these Addl. Sessions Judges are posted.

Shri Maugat Ram is a Deputy Ranger in the Himachal Pradesh Forest Department., He is posted at present in the Enforcement Wing of the Vigilance Department of the State Government at Stnmla. Shri B.S Thind is Superintendent of Police (Mn, South Zone, Shimla.

Mangat Ram has been cited as a prosecution witness in the nine cases aforesaid It is said that on April 24, 1988, he had telephonic conversation with applicant Kewal Ram Chauhan at about 9.00 A.M. from the residence of the Superintendent of Police (Enforcement) on Telephone No. 2641. It is also said that this conversation was made in the presence of Shri Thind and had been tape recorded by him.

Shri B.S. Chauhan; the present Special Judge, was posted as Addl. Sessions Judge in Shimla on July 14, 1988. By virtue of the Notification dated September 1, 1988, he became Special Judge with effect from that date. These nine cases were then entrusted for trial to him. An application dated November 10, 1988, was moved in the Court of Shri Chauhan, on November 11, 1988, by the State of Himachal Pradesh, through Shri Thind, Superintendent of Police (Enforcement) for cancellation of the bail and surety bond of applicant Kewal Ram Chauhan. This application was moved u/s 439 . Code of Criminal Procedure Along with the application, an affidavit sworn by Shri Thind on November 10, 1988, as also an affidavit sworn by Mangat Ram on the same day, were appended in support of the allegations contained In the application. This application has been disposed by the Special Judge by an order dated April 27, 1989. The application has been allowed. The operative portion of the order, contained in paragraph 10, runs thus :

For the reasons stated above, the application is allowed and the bail of the Respondent-accused Shri Kewal Ram Chauhan in the present two cases is" cancelled and he is directed to be kept in judicial lock up for a period of fifteen days from today onwards. However, after the expiry of the period of fifteen days the said Respondent accused will be entitled to be released on bail on his furnishing fresh bail bonds. As such, the application stands disposed of and the record thereof be placed on the trial file concerned.

The two cases mentioned in the operative portion are those relatable to F. I. R. Nos. 22 and 29 of 1983. The order dated April 27, 1989, of the Special Judge is under challenge before this Court in the present revision. The revision was heard in part. A on April 28, 1989, when the Court directed that the papers be summoned from the court of the Special Judge so as to be available in the Registry by May 1, 1989. The case was directed to come up on May 3, 1989, and an. order was passed that till then applicant, Kewal Ram Chauhan shall not be taken into custody in pursuance of the order of the Special Judge dated April 27, 1989. It has been heard further today. The protection against arrest-granted by this Court to applicant Kewal Ratn Chauhan was extended for today as well.

Provisions as to bail and bonds are contained in Chapter XXXIH of the Code of Criminal Procedure, 1973 Section 437 permits the release on bail of a person, in the case of non billable offences. Sub-section (5) of Section 437 says that "Any Court which has released a person on bail under Sub-section (1) or Sub-section (2), may, if it considers necessary so to do, direct that such person be arrested and. commit him to custody".

Section 439 of the Code deals-with Special powers of the High Court and the Court of Session regarding bail; It runs thus:

Special powers of High Court or Court of Session regarding bail(1) A High Court or Court of Session may direct (a) that any person accused of an offence and in custody, be released on bail, and if the offence is of the nature specified in Sub-section (3) of Section 437, may impose any condition which it considers necessary for the purpose mentioned in that Sub-section ;

(b) that any condition imposed "by a Magistrate when releasing any person on bail be set-aside or modified:

Provided that the High Court or the Court of Session shah, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

(2) A High Court or Court of Session may direct that any person Who has been released on bail under this Chapter be arrested and commit him to custody.

The Supreme Court dealt with the scope of Sections 437 and 439 of the Code of Criminal Procedure in Gureharan Singh and Ors. v. State (Delhi Administration) (AIR 1978 SC 179). Amongst other things, it said that unlike Section 498(2) of the old Code, which said that a person, who had been admitted to bail by the High Court, could be committed to custody only by the High Court, Section 439(2) of the present Code has made a departure by providing that the High Court may commit a-person released on bail under Chapter XXXIII by any Court including the Court of Session. It also said (in paragraph 29 of the report) that two paramount considerations, namely, likelihood of the accused fleeing from justice and his tampering with prosecution evidence relate to ensuring a fair trial of the case in a court of justice and that it is essential that due and proper weight should be bestowed on these two factors apart from Ors. . The observations were made in the context of the question about the circumstances which have to Code of Criminal Procedure

In the same year the Supreme Court spoke again on the subject. In the State through the State (Delhi Administration) Vs. Sanjay Gandhi, it said that the nature of burden which rested of the prosecution, in an application for cancellation of bail, interalia, was that it should be able to establish its case showing, on a preponderance of probabilities, that the accused had attempted to tamper or has tampered with its witnesses. Proving by the test of balance of probabilities, that the accused had abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail. The Court also referred to its earlier decision in Gurcharan Singh ( AIR 1978 SC 179) (in paragraph 25 of the report) and said that:

...the only question which the Court had to consider was whether ''there was prima facie case made out, as alleged, on the statements of the witnesses and on other materials'', that ''there was a likelihood of the Appellant tampering with the prosecution witnesses.

(emphasis is supplied).

Bhagirathsinh Judeja Vs. State of Gujarat, was the next case which was brought to my notice by the learned Counsel on the subject. In it, a two Judge Bench of the Supreme Court, observed (in paragraph 6 of the report) that.

Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail.

And the trend today is to wards of granting, bail because? it is now well settled by a catena, of decisions of this Court that the power to grant bail is not so to be exercised as if the punishment before trial is being imposed The only material considerations in such a situation ace 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.

In Judea''s case the High Court of Gujarat had cancelled the bail of Judea The learned Judges of the Supreme Court observed(towards the end of paragraph 6 of the-report) that:

The order made by the High Court is conspicuous by its silence on these two relevant considerations. It is for these reasons that we consider in the interest of justice a compelling necessity, to interfere with the order made by the High Court.

In State of Maharashtra Vs. Anil Baloba Donbe and Others, the question which came up before the Bombay High Court was whether the order by which the accused persons were-granted anticipatory bail should be recalled, Repeated applications had been made on behalf of the State for cancellation of bail of the accused persons. They had been rejected. It was urged on behalf of the State, in the application disposed of by the reported judgment, that the earlier applications had been dismissed without a speaking order. The High Court observed that the earlier applications had been disposed of after hearing both the, parties and had been rejected as the Court did not find any substance in the allegations made for the cancellation of bail. Also that in the application before the Court no allegation had been made about the involvement of the accused in any incident after January 5,1981, when the previous application had been rejected by the High Court The learned Judges noticed that even the Public Prosecutor found it difficult to support the application which was before the High Court. The Court said that these repeated applications were being, filed only to harass the accused persons and could not serve any useful purpose unless a fresh material was placed before the Court; which would make out a case for cancellation of bail. The application for calculation was rejected on this ground.

Maiku Vs. The State, is a decision of the Allahabad. High Court Prayer for bail on behalf of Maiku had once been rejected by the Sessions Judge. Later, after one of the co-accused had been granted bail by the High Court, a second application was made by Maiku. On this application the Sessions Judge allowed bail to him. This was by order of April 7, 1977. A fortnight later, on April 22, 1977, the Session Judge cancelled the bail of Maiku on an application moved for the cancellation of his bail by the Public Prosecutor. Maiku approached the High Court for redress.

The learned Judge, who decided the matter in the High Court, noticed the provisions of Sub-section (2) of Section 439 Code of Criminal Procedure and said that the question which deserved consideration was as to what was the subsequent material that was placed before the Court for cancellation of bail. It was urged on behalf of the State that subsequent consideration of the material would include reconsideration of the material on the record and the attention of the Court being pointedly drawn to the material to which its attention had not been drawn earlier. What was said by the learned Judge (in paragraph 9 of the report) was that :

Subsequent consideration of material'' relates only to discovery of subsequent new material which was not already available to the prosecution agency. It would not be in any manner tantamount to subsequent consideration of the material already existing on the record.

Proceeding further the learned Judge observed that:

In the instant case there is nothing to show that, there was subsequent discovery of new materials or that there was any danger of tampering with the evidence by the applicant. In the circumstances it cannot safely be said that the liberty granted to the applicant was abused- by him in any manner.

Reverting back to the decision of the Supreme Court in the case of State (Delhi Administration) Vs. Sanjay Gandhi, it is noticeable that in the opinion of the Court, which spoke through Chandrachud C.J., for a Bench of three Judges:

Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reasons of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom 4uring the trial. The fact that the prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over It is, therefore, necessary for the prosecution to show some act or conduct on the part of the Respondent from which a reasonable inference may arise that the witnesses have gone back on their statements as a result of an intervention by or on .behalf of the Respondent.

The present application for cancellation of bail was presented in the Court of the Special Judge on November IT, 1988. An affidavit in reply was sworn by applicant Kewal Ram Chauhan on November 14, 1988. "It was filed before the Special Judge the same day. In paragraph 3 of this affidavit he said that he had no telephonic talk with Mangat Ram, Ranger on the date and time mentioned in paragraph 9 of the application moved by the State. Also the substance of the transcript was incomplete. Further, unless a full transcription was replayed before the Court in his presence, the reply could not be given on merit ;

In paragraph 5 of the affidavit it was stated that the application should have been moved immediately on-24th April, 1988, when a similar action was pending in the Court and that it would-have supplemented the contention of the S.P. Enforcement in the application which was finally disposed of on August 6,988.

On the day following, namely, November 1, 1988, the Court Recorded in the order sheet that the tape, along with the" instrument for playing the same, had been produced in Court by the Public Prosecutor. Since the Court time was over, the case was ordered to be put up the next day for further proceedings. On November 16; 1988, the order sheet records, that the tape had been played at the instance of applicant Kewal Ram Chauhan in. Court. It had been retained in the Court in sealed form. The case was ordered to be put up for the reply of Kewal Ram Chauhan on November 17, 1988. A reply to the application and the affidavits in support thereof was filed by applicant Kewal Ram Chauhan oh November 17, 1988. He raised several objections in it Under the heading of preliminary objections he mentioned (in paragraph 2 of the reply) that:

the recorded talk on the basis of which the present application to the cancellation of bail of the Respondent has been moved is technically not sound for it lacks audibility. Moreover, the date, time, place and identity relevant to the controversy are hopelessly lacking.

In paragraph 9 of the reply, where it deals with the merits, it was stated that ;

the said tape recorded conversation does, not inspire any confidence and lacks genuine corroboration.

Later, in the penultimate paragraph (after paragraph 13) it has been asserted by applicant Kewal Ram Chauhan that:

It is further submitted that the date and time mentioned in para 2 of the affidavit of Shri B.S. Thind, submitted with the application, does not find place either in the recorded talk or the transcription thereof. In case, the said talk was recorded on 24-4-1988, it is not understood as to why the same is being produced at a belated -period of almost seven months. This fact shatters the credibility of the Petitioner.

Applicant Kewal Ram Chauhan also asserted (in paragraph 7 of his reply) that he had not violated any of the conditions imposed while granting bail to him and merely because a witness turned hostile to the prosecution case, it could not be said that he had tampered with the prosecution case.

The Superintendent of Police (Enforcement) has sworn in affidavit-in-rejoinder on November 21, 1988. In reply to .paragraph 7 aforesaid he said in this rejoinder that:

the Respondent has win over PW 2 Mishru Mall and attempting to win over and tamper with the remaining, prosecution witnesses. The Petitioner is reasonably apprehensive that the Respondent would leave no stone unturned to win over the remaining prosecution witnesses at all costs"

The applicant has asserted, in paragraph 1.1 of the reply filed by him that it was denied that he weilded considerable influence over the prosecution witnesses as also on Sukhchain Singh approver. Further, that he had neither tampered with the prosecution evidence nor shall ever do so. This paragraph has not been specifically replied to in the affidavit-in-rejoinder. Yet, it is found stated in paragraph 10 thereof that "the contents of para 10 of the application are reiterated remanded to judicial custody so that he may not be able to win over the remaining prosecution witnesses.

The learned Special Judge has dealt with the submissions ma.de before him at some length in the impugned order. He has noticed the rival contentions, and has also noticed some decisions .which were cited before him. These decisions included those in - Anil Baloba Donble (m3 Cr. L.J. 130$), Garcharan Singh (AIR 1978 SC 179 ) State (Delhi Administration) Vs. Sanjay Gandhi, and Judge Bhagirathsinh Judeja Vs. State of Gujarat, He then adverted to the question as to what was required to be proved by the prosecution for cancellation of bail granted to an accused. He felt that the sole test was whether the material placed before the Court was such as to lead to the conclusion that there was a strong prima facie case that if the accused was allowed to be at large he would win over the prosecution witnesses and impede the course of justice. Also, that for the: purpose of prima facie case the prosecution had to show that there was a reasonable apprehension to the effect that the accused was interfering with the course of justice by tampering with the evidence. The prima facie case should be proved by means of preponderance of probabilities and also that for this purpose no positive proof is required for proving the guilt of the accused as is required during the trial.

After noticing the principles aforesaid the learned Judge proceeded to say that:

�now in the light of the aforesaid proposition of law it has to be seen whether the material which the prosecution has produced on the record of the case is sufficient to make out a prima facie case.

The Special Judge then proceeded to examine the evidence which had come on the record before him. He noticed that as far as the tape recorded conversation is concerned, there was no dispute between the parties about its admissibility as a piece of evidence. He said that the tape, which was played in the Court '' in the presence of the applicant, where after, he had filed a reply showed that the voice was not very clear, but, at the same time- it could not be held that the voice was totally not audible and discernible.

The learned Judge has mentioned in the impugned order; that in proof of the conversation the prosecution had filed affidavits of Shri. B.S. Thind and Mandan Ram. It had also filed a Transcript the translated version of the conversation. The learned Judge was of opinion that the assertions which had been made by applicant Kewal Ram Chauhan in his reply that the tape recorded conversation was not audible and clear and did not contain his voice was "totally insufficient to rebut the affidavits filed by Shri B.S. Thind and Mangat Ram especially when vv counter affidavit has been filed by Shri B.S. Thind to the reply aforesaid of the Respondent-accused".

In their affidavits both B.S. Thind and Mangat Ram have stated that telephonic conversation took place with applicant Kewal Ram Chauhan from the residence of the Superintendent of Police (Enforcement) on April 24, 1988. These affidavits have been-believed by the Special Judge.

The submission which was made with some emphasis by Shri M.G. Chitkara, appearing for applicant Chauhan, was that the material in the form of the tape recorded conversation said to have taken place between, him and the witness Mangat Ram, allegedly on April 24, 1988, was in the possession of the prosecution when the application dated April 20, 1988 (filed on April 11, 1988J was pending, consideration before the Special Judge. The non-disclosure of this material cast serious doubt hot only on the bonafide of the prosecution but also on the authenticity of the material. The prosecution was duty bound to have disclosed it to the learned Special Judge who disposed of the application dated 20/21, 1988, for cancellation of the bail of applicant Chauhan by his order dated August, 6, 1988. This had not been done by the prosecution. It was, therefore, not open to the prosecution now to seek cancellation of the bail of applicant Chauhan on the basis of this material which cannot be treated to be a new material for purposes of the, application which the prosecution chose to make in the month of November, 1988 when the present Special Judge, different from the one who had disposed of the application earlier, came to have jurisdiction over the case.

The argument is attractive. On close scrutiny, however, it cannot be sustained. The prosecution is seeking cancellation of the bail of applicant Chauhan on the basis of the allegations made in the application dated April 20/21 1988. There is sub stance in the submission of the learned Advocate General, appearing on behalf of the State in this Court, that the prosecution was under a bona fide belief that the allegations which had been given out in the application of April 20/21, 1988, alone could be put forward by it for obtaining an order of cancellation of bail of the applicant. The learned Special Judge presumably, was under the impression, as appears from his observations in the order under challenge, that the plea which applicant Chauhan was raising before him was that there was delay in filing the present application, after the alleged conversation between applicant Chauhah and Mangat Ram.

The case with which the prosecution has approached the Court for cancellation of the bail of applicant Kewal Ram Chauhah appears to be simple. And, it is that his continuance on bail was likely to prejudice fair trial, inasmuch as, the applicant was trying to tamper with prosecution evidence. The fact that applicant Chauhan had entered into a conversation with one of the witnesses in the case, namely, Mangat Ram with a view to influence him has been stated on oath by the witness himself in the affidavit filed in these proceedings which was sworn by him on November 10, 1988, The affidavit of the Superintendent of Police (Enforcement) of the same date also corroborates it. It contains a further assertion that applicant Chauhan was making frantic efforts to win over the prosecution witnesses to defeat the ends of justice.

Shri Chitkata submitted that Shri Thind, the Superintendent of Police (Enforcement), as well as Shri Mangat Ram, were investigating officers for the purpose of the present case and were interested in its success. They were, therefore, likely to make an incorrect statement to further the case of the prosecution. The argument, in view of the findings which have been recorded by the Special Judge, cannot be accepted in this Court. The question whether the assertion made on behalf of the prosecution that applicant Chauhan was making efforts to win-over the prosecution witnesses. is correct is essentially one of fact. The Special Judge, on the basis of the evidence brought on the record pf the proceedings before him by the parties, has chosen to believe the affidavits sworn by the Superintendent of Police (Enforcement) and Mangat Ram in regard to this allegation.

The grievance that he had no conversation with Mangat Ram and that the tape recorded voice was not his voice and further that there was no independent evidence to establish that it was his voice, was made by applicant Chauhan before the Special Judge. The learned Judge has chosen not to accept his plea on consideration Of the evidence before him.

An attempt was made on behalf of applicant Chauhan by his learned Counsel before this Court, to show that; the tape recorded conversation was not reliable; it was an interrupted.

version which had a strange start with the words "ACHCHA JI"

that reading as a whole, it could not be said that it was a complete version of the tape recorded conversation and further that it appeared to be an edited version of the conversation of which only those portions had been placed before the Court which suited the prosecution. It is not necessary for this Court to express any opinion on this submission. As observed earlier, whether an attempt was being made by applicant Chauhan to tamper with the prosecution evidence is a matter to be examined, primarily, by the Special Judge on the basis of appraisal by him of the evidence on the record. . He had done so. The findings on such questions are normally not gone into by this Court in exercise of its revisional jurisdiction under Sections 397/401 of the Code of Criminal Procedure. More so, when the finding about the attempt on the part of applicant Chauhan to tamper with the prosecution evidence is, according to the learned Special Judge, also supported by the affidavits filed by; the Superintendent of Police (Enforcement) and one of the witnesses Mangat Ram himself.

In State (Delhi Administration) Vs. Sanjay Gandhi, the Supreme Court observed that:

if two views of the evidence were reasonably possible and the High Court had taken one view, we would have been disinclined to interfere there with in this appeal.

The matter, was being examined by the Supreme Court under Article 136 of the Constitution. The principle, however, which commended itself to their lordships of the Supreme Court is equally applicable to a case; like the present, where the trial Judge-has exercised the discretion to cancel the bail granted to an accused person, on its view that the accused was not entitled to be- permitted to have continued facility which had been ''afforded to him by the grant of bail, as he was trying to tamper with prosecution evidence. On the material brought on the record of the case it is difficult to hold that the view, which has been taken by the Special Judge in the instant case, was not a reasonably possible view. More so; when the question was to be viewed from the point of view of preponderance of probabilities land with reference to the test that "there was a likelihood of the (applicant tampering with the prosecution witnesses.

An objection to the competence of the Special Judge to cancel the bail of applicant Kewal Ram Chauhan; which was also urged with some emphasis was that applicant Chauhan having been granted bail in one of the cases by this Court by its order dated June 19, 1986, it was not possible for the Special Judge to have passed an order of cancellation of bail which would have the effect of annulling the order passed by this Court. This submission, in the circumstances of the instant case, does not merit serious consideration. It is not in dispute that the order of June 19, 1986, was in respect of the case registered on the basis of FIR No. 21 of 1983. The present order passed by the Special Judge is in respect of the cases registered on the basis of FIR Nos. 22 and 29 of 1983 in which the applicant had been granted bail by the Special Judge on June 25, 1987.

The case of applicant Kewal Ram Chauhan, as presented in this Court, also is that the recording of evidence in the cases began on April 4, 1988. During a period of about one year, namely, till April 28, 1989, the evidence of only one witness was recorded. The witness was Misru Mall, an approver. The fact that Misru Mall, though an approver, did not support the case of the prosecution was, by itself, not enough to give rise to any reasonable apprehension that it was on account of some act on the part of applicant Chauhan that he did not support the prosecution case. Further, the prosecution has, apart from the alleged telephonic conversation of April 24, 1988, not been able to place before the Court any material to show that either before April, 24, 1988, or ever thereafter any effort was made by applicant Chauhan to tamper with the prosecution evidence. As such, it would not be just and proper to withdraw the facility of remaining enlarged on bail to applicant Kewal Ram Chauhan on the basis that he was trying now to interfere with the evidence of some witnesses.

It is true that the Special Judge has noticed the fact that Misru Mall had gone back on his support to the prosecution and that it was, in all probability, on account of some influence brought upon him by applicant Chauhan. Much, however, cannot be made of the observations made by the Special Judge in this respect for what he has said about the volte-face by Misru Mall finds supports from what has been observed by the Supreme Court in Sanjay Gandhi (in paragraph 13 of the report) the Supreme Court said this:

�A brother, a sister or a parent who has seen the commission of crime, may resale in the Court from a statement, recorded during the course of investigation. That happens instinctively, out of natural love and affection, hot 6ut 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 untruth without pressure or persuasion. In other words, the objective fact that witnesses have turned hostile must be shown to bear a casual connection with the Subjective involvement therein of the Respondent.

If, as is implicit in these observations, a witness goes back upon a statement, made by him earlier during investigation, for a reason of some proximity to an accused person, it may be said to be something not very unnatural. In the absence of any such proximity, an inference of some persuasion etc. on the part of an accused cannot be ruled out. The view which the Special Judge has taken in this respect also cannot be said not to be a reasonably possible view on account of what is implicit, as a principle, in the observation aforesaid of the Supreme Court.

The mere fact that the prosecution has chosen to move a fresh application for cancellation of the bail of applicant Chauhan, after the change in the Presiding Officer of the Court of the Special Judge, could not lead to an inference, as was suggested by Shri Chitkara, that the prosecution was, as it were, waiting for some appropriate opportunity to seek cancellation of the bail of applicant Chauhan after it had failed to secure the cancellation of his bail from Anr. Presiding Officer.

This aspect, however, does not merit any further consideration, for Shri Chitkara has very fairly said that the applicant was not attributing any ulterior motive to the Presiding Officer who has passed the impugned order.

Paragraph 10 of the impugned order, which has been quoted earlier, shows that the order of cancellation of bail of applicant Chauhan has been restricted to a period of fifteen days during which the case has been directed to proceed. The learned Advocate General has stated before this Court, on behalf of the prosecution, that the prosecution will take steps to ensure the presence of those witnesses, 11 in all according to the Advocate General, about whom the prosecution felt that the applicant was trying to tamper with their evidence. In particular, he has named Mangat Ram and Sukhchain Singh, Anr. approver, as the witnesses who will be produced as witnesses before the Special Judge during this period.

It is expected that the prosecution would produce these two witnesses in the first instance.

In sum, I am not inclined to interfere with the discretion exercised by the learned Special Judge by canceling the bail of applicant Kewal Ram Chathan by the impugned order dated April 27, 1989. The revision is dismissed.

It will be open to the prosecution, as prayed by the learned Advocate General, to seek appropriate directions from the Special Judge regarding the date with which the order dated April 27, 1989, will become effective, in view of the fact that several days time has been taken in the present proceedings before this Court between the date of the order and today.

A copy of this order may be given Dasti to the learned Counsel for the parties on payment of usual charges.