Judgment

D.A. DESAI, J.:- Special leave granted.

2. Unusual though it may appear to be, under a compelling necessity in the interest of justice, we would depart from the ordinary response of this Court to matters involving bail. Ordinarily, this Court is loath to interfere with the orders granting or refusing bail but it cannot be an insurmountable obstacle in the way of rectifying an order which tends to disclose miscarriage of justice.

3. An incident occurred on August, 23, 1983 in which one Bhanwaria, son of the present appellant received fatal injuries resulting in his death. An information was lodged with the Police Station, Khedapa, District Jodhpur, Rajasthan State about the occurrence on August 24, 1983 around 11.30 A.M. At that time, Bhanwaria was alive and the offence was registered under Ss. 307, 447 read with S. 149 And under Ss. 148, 379 and 327 of the Penal Code. When the hospital authority sent the message that Bhanwaria, the victim of assault, who was admitted in the hospital for treatment has succumbed to his injuries, the Investigating Officer also added an offence under S. 302 IPC. Soon thereafter on Sept. 29, 1983, the second respondent Chandan Singh s/o Shri Ranjit Singh (respondent for short) appeared before the learned Sessions Judge, Jodhpur and moved an application under S. 438, Cr. P.C., for granting him anticipatory bail. The Public Prosecutor appearing for the State opposed the application for grant of anticipatory bail. The learned Judge by his order dated Sept. 30, 1983 accepted the application and granted anticipatory bail to the respondent observing that the dispute is with regard to the right to cultivate a certain field from which when deceased Bhanwaria was coming out, the respondent fired at him and caused the injuries which proved fatal. The learned Judge further observed that keeping in view some decisions referred to by him, he was of the opinion that the application for anticipatory bail should be granted. The learned Judge then ordered that if the accused is taken into custody by the police, he must be released on bail on his furnishing security in the amount of Rs. 5,000/- on condition that he will assist in investigation and will not interfere in the investigation and will not go out of India.

4. The present appellant moved the High Court of Rajasthan questioning the correctness of this order and for cancellation of the anticipatory bail. A learned single Judge of the High Court negatived the contention that the petitioner had no locus standi to move the High Court for cancellation of anticipatory bail. On merits, the learned Judge after referring to several decisions observed that while dealing with an application for cancellation of bail warranting interference with the discretionary order passed by the learned Sessions Judge granting bail, the considerations which should weigh with the court were whether: (1) the accused would be readily available during the trial; (2) he is not likely to abuse the discretion granted in his favour by tampering with the prosecution witnesses, concluded that the respondent and his father are influential persons and hold important posts in the Panchayat or Zila Parishad furnished no ground for cancelling bail and that it is not necessary to examine whether anticipatory bail ought to have been granted, but what must be considered is whether a case for cancellation of the same is made out. The learned Judge then held that such grounds are not shown to exist: and accordingly rejected the application. Hence this appeal by special leave.

5. Relevant considerations governing the courts decision in granting anticipatory bail under S. 438 are materially different from those when an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his appeal is pending before the higher Court and bail is sought during the pendency of the appeal. These situations in which the question of granting or refusing to