JUDGMENT

Santosh Hegde, J.-Heard learned counsel for the parties.

Leave granted.

2. The appellant herein was an accused in a case involving offences punishable under Sections 498A/405/419/420/467/469/471/120B of the IPC before the Court of learned ACJM at Sealdah. On 27th of August, 2002, he was produced in custody by the police concerned when he moved a bail application alleging that he was suffering from various ailments like cardiac and diabetic problems. The learned Public Prosecutor opposed the bail paper and alleged that in the event the appellant being released on bail there is a possibility of his tampering with the evidence. It is to be noticed that the prayer of the Investigating Officer was not for police remand but was to take the appellant into judicial custody.

3. Learned Judge after perusing the FIR and the case diary and taking into consideration the age and the ailments of the appellant considered it appropriate to release the appellant on bail of Rs. 2000/- with two sureties of Rs. 1000/- with the condition not to enter the place of his residence and to furnish affidavit giving particulars of the residence where he intends to reside. He also directed the appellant not to tamper with the evidence and meet the I.O. thrice a week that is on Monday, Wednesday and Friday until further orders and further directed him to meet the Officer-in-Charge of the local police station where he intended residing once a week and not to leave the jurisdiction of the local police station where he intended residing. Based on the said order, the appellant was released on bail. Subsequently, on an application made for modification of the terms and conditions of the said bail, the condition prohibiting him from not residing in his residence was deleted by the learned Magistrate as per his order dated 4th of October, 2002.

4. Thus it is noticed that the appellant has been on bail since 27th of August, 2002.

5. Being aggrieved by the order of granting bail to the appellant, the complainant moved an application purporting to be under Section 439(2) read with Section 482 of Cr.P.C. before the High Court at Calcutta for cancellation of bail. In the said application it was contended at para 8 of the petition that the appellant was regularly threatening through unidentified persons the members of the family of the complainant and forcing them to withdraw the complaint failing which the complainant and her family members would be abducted and even murdered.

6. The High Court by the impugned order considered it appropriate to cancel the bail by the impugned order dated 28th of April, 2003 and it is against the said order of cancellation of bail, the appellant has preferred the above appeal.

7. This Court while entertaining the special leave petition at the stage of mentioning on 8.5.2003 had taken the matter on board and issued notice and stayed the order of the High Court. It also directed that the bail granted by the trial court shall continue until further orders.

8. Shri Ranjit Kumar, learned senior counsel appearing for the appellant submitted that the High Court practically went into the merits of the original complaint itself and decided the bail application which will certainly prejudice the appellant s trial. He also submitted that the court did not bear in mind the grounds necessary for canceling the bail which the learned counsel pointed out are different from the grounds that are relevant to be considered at the time of granting the bail. He also pointed out the observation of the High Court that the trial court did not peruse the case diary before granting the bail was factually incorrect as could be seen from the original order granting bail and the further observation of the court that a bail ought not to have been granted on the very first date of hearing is also an erroneous ground for canceling the bail. The further submission of the learned counsel in support of this appeal is that one and the only ground that could be considered