Swatantra Kumar Bahl vs Ashok Kumar Bahl and Others

S.K. Mahajan, J.

(1) Petitioner and respondents 1 to 3 are the real brothers. There arose certain disputes between them about the property left behind by their father. On a complaint having been made by the petitioner against his brothers, case Fir No. 443/95 was registered against the respondents under sections 457/380/34, Ipc with Ps Badarpur, New Delhi. On an application having been made by respondent No. 1 for the grant of anticipatory bail, the learned Additional Sessions Judge by his order dated 2nd February, 1996 admitted him to bail. The application of respondents 2 and 3 for the grant of anticipatory bail was first dismissed on 14th February, 1996 however, on 23rd April, 1996 anticipatory bail was also granted to them. Being aggrieved by the orders of Additional Sessions Judge granting anticipatory bail to the respondents, the petitioner has filed this petition u/s 439(2) of the Code of Criminal Procedure (in short referred to as "the Code") for cancellation of their bail.

(2) It is alleged in the petition that the learned Additional Sessions Judge had illegally and in a wrong manner granted anticipatory bail to the accused persons and real facts were not disclosed to the Court at the time of granting anticipatory bail.

(3) At the time of granting bail, learned Additional Sessions Judge had taken into consideration the fact that the parties were real brothers and their father had mutated the house in favor of their mother and that it was the mother of the parties who had sold the property. In this view of the matter, learned Additional Sessions Judge while not commenting upon the merits of the case and looking into the nature of the offence granted anticipatory bail to the respondents. I do not see any infirmity in the order passed by learned Additional Sessions Judge and he was within the jurisdiction to pass such an order. The question of cancellation of bail u/s 439(2) is certainly different from admitting a person to bail u/s 439(1) of the Code. u/s 439(2) of the Code, the High Court or the Court of Sessions may direct any person who has been released on bail to be taken into custody. The cancellation of bail involves the review of a decision already made and can by and large be permitted only if by reason of supervening circumstances it will be no longer conducive to a fair trial to allow an accused to retain his freedom during the trial. Two circumstances which must prevail in deciding whether the bail can be cancelled are, namely (1) if the accused would jump the bail; and (2) if the accused would tamper with evidence. The petitioner has nowhere in the petition made allegation that there were any chances of the respondents fleeing from justice or tampering with evidence. From the record, it does not appear that at the time of grant of bail the Additional Public Prosecutor had not disclosed certain facts to the Court. Even assuming that the App had not brought to the notice of the Court certain facts, in my opinion, it will still not entitle the petitioner to move this Court for the cancellation of bail granted in favor of the respondents as the Court at the time of granting bail had taken into consideration the material on record, as js apparent from the bail order. In my opinion, there is no case made out by the petitioner for cancelling the bail of the respondents. The petition is wholly mis-conceived and is, accordingly, dismissed.