( 1 ) THIS is an application against the order granting bail. It is treated as an application for cancellation of bail and not as revision application.

( 2 ) THE learned Addl. P. P. has submitted that the offence charged against the accused is punishable under Sec. 302 of IPC read with Secs. 147 148 149 307 324 323 of IPC. There are in all 29 accused and all of them have been granted bail by the learned Addl. Sessions Judge Morvi by an order dated 27-8-1987. The State has preferred this application against the present three accused persons and submitted that these three persons have taken direct and active part in the incident resulting into the death of Lalubha. The learned Addl. P. P. has also submitted that there is great tension in the village and when all the accused were released on bail the State had to put Special Police Force in village. He has submitted that at present that Police Force is withdrawn.

( 3 ) THE learned Counsel for the respondent-accused has submitted that ordinarily bail is to be granted and only in special circumstances bail can be refused and in the present case there are circumstances for granting bail and the learned Sessions Judge on considering the circumstances granted bail and three months have passed thereafter without any untoward incident and therefore the bail cannot be cancelled. He has submitted that the relevant circumstances taken into consideration by the Sessions Court are that there is a cross case in respect of the injuries suffered by the persons on the accused side and therefore there is a probable defence of private defence apart from other defences. Therefore the offence would not punishable under Sec. 302 of IPC and the Sessions Court has rightly followed the judgment of this Court in Misc. Cri. Application No. 479 of 1975 delivered on 26 by T. U. Mehta J. The relevant observations are as under:" Now looking to the facts of this case it is found that the accused No. 1 has filed a cross complaint with regard to the very incident on which the prosecution has put reliance to prosecute to him. The applicants have produced medical certificate to show that three of them were medically examined on the day of the incident and all the three of them bad injuries on their persons. Under these circumstances it is prima facie found that there was some mutual quarrel between the parties and that during the course of this quarrel deceased Bachu received injuries on his head which proved fatal. These facts prima facie show that the applicants have got good case to put forward before the Court to escape punish ment under Sec. 302 of IPC. In this case from the circumstances I and that this is a fit case for enlarging the applicants on bail. "

( 4 ) THE learned Sessions Judge has granted bail to all the accused in the present case. It clearly appears that the learned Sessions Judge has mechanically followed the aforesaid judgment without appreciating its ratio and different facts. The learned Sessions Judge seems to have assumed that whenever there is a cross case and injuries on the accused persons there is a prima facie case of private defence. This is clearly a misconception. Such simple proposition mechanically followed would result into very serious consequences. In a given incident there might be deaths on both sides. That does not necessarily mean that both sides have a right of private defence. It would depend upon the facts and circumstances of each case as to whether there is a right of private defence to any of the Fide and if yes which side. It cannot be said that both sides have a right of private defence In any case it would be disastrous to presume that in all cross cases with injuries there is a right of private defence. In some cases there may not be any right of private defense to either side arid it may be a case of free fight. Therefore without going into the question prima facie it cannot be said that merely because there is a cross case and injuries on the sid