( 1 ) THE original complainant Kanubhai Ramjibhai Rabari whose brother Babubhai Ramjibhai has been killed in the incident which took place on 26/06/1985 Has liked this application for cancellation of bail granted by the learned Sessions Judge Mehsana. in Criminal Misc. Application No. 394 of 1985 as per his order dated 6/07/1985 The prayer for cancellation of Jail or Kalabhai-accused No. 1 is not pressed at the initial state since he has been ordered to be release on bail by this Court for a temporary period so as to enable him to appeal at the examination only. This term of bail is to expire very soon.

( 2 ) IT is alleged that tone of the prosecution witnesses namely Dharamsingbhai Govindbhai was threatened by the accused. He was told that he should make an affidavit in their favour or he would also meet the same fate as that of Babubhai Ramjibhai. In this respect the witness Darmsingbhai has filed a complaint on 10/08/1985 with the Kadi Police Station. The application for cancellation of bail has been filed on 14/08/1985 It is stated at the bar that the Government took decision to submit an application for consultation of hail on 1/08/1985 Now the Government has also filed revision application being Criminal Revision Application No. 379 of 1985 and the same has been argued on with this application.

( 3 ) COUNSEL for the original accused has submitted that in view of the decision of the Supreme Court in the case of Delhi Admn. v. Sanjay Gandhi reprote in AIR 1978 SC 961 and in the case of Bhagirathsinh Jadeja v. State reported in 25 (1) GLR 332 the High Court should not interfere with the discretion exercised by the learned Sessions Judge and should not order to cancel the bail granted by the learned sessions Judge.

( 4 ) IN Delhi Administrations case (supra) the Supreme Court has laid down the principle that the prosecution witnesses turning hostile is not a circumstance by itself which can be taken into consideration for application of bail. The Supreme Court has further observed. "cancellation of bail necessarily involves the review of a decision already made and can by large be permitted only is by reason of supervening circumstance it would be no longer conducive to a fair trial to allow the accused to retail his freedom during the trial". In the very same judgment the Sopranos Court has observed that cancellation of bail is and incidental issue which arises pending the trial of an accused. While deciding such an issue the standard of proof required to be adduced by the prosecution would be like that of civil cases where on balance of probabililies either side has to prove whether the application for cancellation of hail is required to be granted or refused. Ultimately in para 24 of the judgment the Supreme Court has observed:"the power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power though of an extra-ordinary nature is meant to be exercised in appropriate cases when by a preponderance of probabilities it is clear that the accused is interfering with the course of justice by tampering with the witness. Refusal to exercise that wholesome power in such cases few though they may be will reduce it to a dead letter and will suffer the Courts to be silent spectators to the subversion of the judicial process". In the latter case of Bhugirathsinh Jadeja (supra) the Supreme Court has stated that in the case of grant or refusal of bail the approach of the court would not be to death the accused by way of punishment but the question should be decided on the basis as to whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion exercised in his favour by tampering with evidence.

( 5 ) BE it noted that in the aforesaid two cases decided by the Supreme Court the accused were not charged with the offence of murder. In Delhi Abministrationss case (supra) (popularly known as Kissa-Kh