TMI Blog2004 (1) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... orcycle. When the offenders learnt that the police had come they started fleeing. The said Chanderkant was chasing the offenders. There was scuffle between Chanderkant and the offenders. One of the offenders pierced the knife in the stomach of Chanderkant and he was lying in the pool of blood and was taken to the hospital. On the date of incident, two other persons were assaulted by the five named offenders. The first information report was registered. The accusations so far as the appellant is concerned, were that he had instigated the mob to assault and murder. Learned Single Judge took note of the fact that persons who were named as accused persons were already released on bail, on the basis of the statement made by the learned APP. Accusations against the appellant were also that he was responsible for the riots at different places at Solapur. Taking note of the circumstances and the only allegation against him was of instigation, bail was granted since the charge sheets were placed and he was in custody for more than 7 and = months. On 18.6.2003 an application for cancellation of bail was filed by the State of Maharashtra under Section 439(2) of the Code of Criminal Procedure, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellation of bail application should have been heard by the learned Judge who had earlier granted the bail. It was not desirable and proper for another learned Single Judge to take up the cancellation of bail application. Further, merely on the statement made by the learned counsel appearing for the State about alleged threat, the bail granted should not have been cancelled. An enquiry as to the correctness of the allegations ought to have been made and in the absence of that the bail should not have been cancelled for mere asking. Otherwise, it would be a routine matter to make allegations of tampering with the evidence and get the bail cancelled and thereby affecting the liberty of a person. The consideration for grant of bail and cancellation of bail stand on different footings. Stand of the learned APP was that matter had been reported to learned Sessions Judge, who had called for a report. But the order-sheet or the evidence recorded on the relevant date makes no mention of the alleged threat. Since these relevant aspects have not been taken note of by the High Court, the cancellation of bail should be nullified and the bail granted earlier should be made operative. Per cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation within the extended time allowed by the proviso was to instill a sense of urgency in the investigating agency to complete the investigation promptly and within the statutory timeframe. The deeming fiction of correlating the release on bail under sub-section (2) of Section 167 with Chapter XXXIII, i.e. Sections 437 and 439 of the Code, was to treat the order as one passed under the latter provisions. Once the order of release is by fiction of law an order passed under Section 437(1) or (2) or Section 439(1) it follows as a natural consequence that the said order can be cancelled under sub-section (5) of Section 437 or sub-section (2) of Section 439 on considerations relevant for cancellation of an order thereunder. As stated in Raghubir Singh v. State of Bihar (1986 (4) SCC 481) the grounds for cancellation under Sections 437(5) and 439(2) are identical, namely, bail granted under Section 437(1) or (2) or Section 439(1) can be cancelled were (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or investigation, (v) there is li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of bail did exist. Learned counsel for the appellant is correct on principles that mere assertion of an alleged threat to witnesses should not be utilized as a ground for cancellation of bail, routinely. Otherwise, there is ample scope for making such allegation to nullify the bail granted. The Court before which such allegations are made should in each case carefully weigh the acceptability of the allegations and pass orders as circumstances warrant in law. Such matters should be dealt with expeditiously so that actual interference with the ordinary and normal course of justice is nipped at the bud and an irretrievable stage is not reached. The other aspect which was emphasized with some amount of vehemence was that the learned Judge who had granted bail should have heard the application for cancellation of bail. Observations made in Harjeet Singh v. State of Punjab and Anr. (2002 (1) SCC 649) was relied upon for that purpose. As noted above, in the said judgment there is a long standing convention and requirement of judicial discipline which has held the field for a long period that subsequent application for grant or cancellation of bail application should be placed bef ..... X X X X Extracts X X X X X X X X Extracts X X X X
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