1998 Supreme(Raj) 955
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Shiv Kumar Sharma, J.
Kallu Khan & Anr. - Appellant
Versus
State of Raj. & Anr. - Respondent
S.B. Criminal Revision Petition No. 4 of 1998.
Decided On : 20-02-1998
Bail granted in a bailable offence cannot be cancelled merely on the conversion of the case into a non-bailable offence.
Headnote:
BAIL - CANCELLATION - SECTION 439(2) CR.P.C. - ONCE BAIL IS GRANTED IN A BAILABLE OFFENCE, IT CANNOT BE CANCELLED EVEN AFTER THE CONVERSION OF THE SAID CASE INTO A NON-BAILABLE ONE.
Fact of the Case:
The petitioners filed a revision petition challenging the order of the Special Judge, SC/ST (Prevention of Atrocities) Cases, Dausa, dismissing their application for cancellation of bail granted to the non-petitioner, Mst. Farida, in a case registered under Sections 147, 323, 307, 448, and 379 IPC.
Finding of the Court:
The court held that once bail is granted in a bailable offence, it cannot be cancelled even after the conversion of the said case into a non-bailable one. The court further held that there were no strong grounds for cancellation of bail in the present case.
Issues: Whether bail granted in a bailable offence can be cancelled after the conversion of the case into a non-bailable offence.
Ratio Decidendi: The court relied on the Supreme Court decision in Aslam Babalal Desai v. State of Maharashtra, wherein it was held that once an accused is released on bail under section 167(2) Cr.P.C., he cannot be taken back in custody merely on the filing of a charge sheet, but there must exist special reasons for doing so besides the fact that the charge sheet reveals the commission of a non-bailable offence.
Final Decision: The court dismissed the revision petition and upheld the order of the lower court granting bail to the non-petitioner.
JUDGMENT
1. - Instant criminal revision impugns the order dated September 25, 1997 of learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Dausa, whereby the application under section 439 (2) Cr.PC. moved by the petitioners for cancellation of bail of non-petitioner No.2 Mst. Farida was dismissed.
2. Brief resume of the facts is that FIR came to be lodged against the non-petitioner No.2 Farida on July 24, 1994 with the Police Station Dausa by the informant Tahir Hussain. A case under Sections 147, 323, 307, 448 and 379 IPC was registered and investigation commenced. It appears that Mst. Farida, moved an application under Section 438 Cr.P.C. before the learned Sessions Judge Dausa, as well as before the Court, but she was not granted bail. Second bail application bearing No. 4160 of 1994 under Section 438 Cr.RC. was moved by Mst. Farida but it was also rejected by this court on September 2, 1994. However, the Police Station Dausa after completing investigation submitted charge sheet under Sections 341, 325, 323/34 IPC and Mst. Farida was released on bail as ail the said offences were bailable.
3. On December 9, 1994 an application was moved by the Additional Public Prosecutor to the effect that cognizance under section 307 IPC. ought to have been taken. The learned Chief Judicial Magistrate Dausa vide its order dated March 12, 1996 returned the charger sheet back to the investigating officer with the direction to file a fresh charge sheet after proper investigation. Thereafter the learned Public Prosecutor moved an application for cancellation of bail granted to Mst. Farida. In the said application it was averred that as the investigating agency was of the view that Mst. Farida committed offences under sections 344, 325, 323/34 IPC She was released on bail by the investigating officer on May 6, 1994 and the learned trial court also released her on bail on the said ground. The learned Chief Judicial Magistrate vide order dated June 19. 1996 dismissed the application of the Additional Public Prosecutor. Thereafter the petitioners Kallu Khan and Tahir Hussain moved application under Section 439 (2) Cr.P.C. before the learned Special judge, SC/ST (Prevention of Atrocities) Cases, Dausa, but the learned Judge dismissed the application vide order dated September 25, 1997. Against this order that the present action for filing the revision has been resorted to by the petitioners Kallu Khan and Tahir Hussain.
4. I have heard Mr. Ravi Kasliwal, learned counsel appearing for the petitioner and Mr. M.L. Goyal, Public Prosecutor for the State and Mr. Rajeev Surana and Mr. Hemant Singh, learned counsel appearing as intervenors and carefully perused the impugned order as well as the case law cited before me.
5. The learned Public Prosecutor canvassed that bail can be cancelled in view of the ratio propounded in 1986 RLR 1027, 1992 Cr.L.J. 1527, 1988 Cr.L.R. (Raj.) 689 and 1987 RCC 347.
6. Mr. Ravi Kasliwal also placed reliance on AIR 1936 Sind page 187 and AIR 1933 Sind page 331. Whereas Mr. Hemant Singh placed reliance on 1988 RCC 534, 1974 Cr.L.J. 526 and AIR 1978 SC page 17 and canvassed that bail once granted cannot be cancelled.
7. Mr. Rajeev Surana, learned counsel placed reliance on 1996 (4) SC and 1994 (5) SCC 146.
8. From a perusal of ratio propounded in the authorities cited before me two views are possible. According to first view, the bail once granted in bailable offence can be cancelled if subsequently the offence is found non-bailable. Whereas the second view is that if the accused is granted bail in bailable offence, the bail cannot be cancelled even after the conversion of the said case into non-bailable one.
9. In Aslam Babalal Desai v. State of Maharashtra (AIR 1993 SC page 1) their Lordships of the Supreme Court propounded that once an accused is released on bail under section 167 (2) Cr.RC. he cannot be taken back in custody merely in the filing of a charge sheet, but there must exist special reasons for so doing besi
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