IMPORTANT POINT
It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case.

JUDGMENT

V. D. Gyani, J. - By this petition the petitioner, who is an Advocate, has prayed for cancellation of bail of accused Kalu S/o. Gattu, who has been admitted to bail by the 1st Addl. Sessions Judge, Dhar, vide order dated 19.3.1986, passed in Misc. Criminal Case No. 128 of 1986.

2. Kalu was arrested along with two others by the Police Dhar in connection with offences registered against them under Ss. 302, 364 and 201/34 I.P.C., as Crime No. 452 of 1985. An Application for bail was presented to the learned Sessions Judge, Dhar, on 27.2.1986, which was made over to the 1st Addl. Sessions Judge for disposal according to law. It may be noted that the Trial itself is pending before the same Court, being Sessions Trial No. 74 of 1986.

3. On 3.3.1986 an application u/s. 32 of the Bal Adhiniyam was moved before the learned Addl. Sessions Judge stating that the accused Kalu was below 16 years of age and his case, therefore, should be transferred to the Juvenile Court. This application was orally opposed by the Public Prosecutor and it was directed that evidence on the point of age of Kalu be recorded, and 19.3.1986 was fixed for the purpose. On 19.3.1986 the Head Master concerned was not present and 15.4.1986 was fixed, but in the mea while as the order-sheet dated 21.3.1986 discloses, bail bonds on behalf of the accused Kalu and his surety were accepted and he was ordered to be released by the learned Addl. Sessions Judge. It is this order, which has been made a matter of grievance and the basis for cancellation of bail.

4. Shri R.S. Garg, learned counsel for the applicant has filed certified copies of all the necessary orders and bas urged that in such circumstances the bail order passed by the learned Add!. Sessions Judge should be cancelled. Shri Amarsingh, learned counsel for the accused Kalu CN.A No. 2) submitted that now bail having been granted by the trial Court, there is no justifiable ground for its cancellation. Shri Swami, learned Panel Lawyer for the State has also criticised the manner in which bail bas been granted to the non-applicant Kalu, although so far as its cancellation is concerned, Shri Swami states that in view of the circumstances emerging from the record the bail granted to the accused Kalu deserves to be cancelled.

5. It may be noted that on 19.3.1986 when the learned Addl. Sessions Judge passed the order granting bail to accused Kalu in bail petition No. 128 of 1986, based his inference about age on a School-Leaving Certificate produced on behalf of the accused showing his date of birth as 8.7.1970. Apparently, the applicant-accused was below 16 years of age and on that basis the learned Judge based the bail order. The order-sheet dated 19.3.86 in Sessions Trial No. 74 of 1986 clearly indicates that the learned Judge had issued a fresh notice to the Head Master of the School and also directed the prosecution to produce evidence in rebuttal, if they so desired and 15.4 1986 was fixed as the date for recording of evidence on the point of Kalu's age. School-Leaving Certificate, issued on 6.2.1986, had been produced on behalf of accused Kalu on 3.3.1986 and as can be gathered from the subsequent order-sheets in Sessions Trial No. 74 of 1986, the trial Court insisted on evidence and examination of the Head Master issuing the certificate. In fact the Head Master was also examined on 15.4.86 and the trial Court has yet to make up its mind about the age of the accused Kalu. Evidence on the point is still continuing and the date as fixed by the trial Court is 29.7.1986.

6. As can be seen from the order-sheet dated 19.3.1986, In M.Cr.C. No. 128 of 1986, the sole basis of passing the bail order in favour of accused Kalu is the School-Leaving Certificate issued on 6.2.1986. It is also equally clear from the order-sheet of the same date, recorded in S.T. No. 74 of 1986, that there was a serious lurking doubt in the mind of the Court as regards the age of the accused Kalu and evidence on that point is still cont