ORDER
L. Rath, J.
1. The petitioner as the informant in C.R. Case No. 306 of 1988 in the court of the Sub-divisional Judicial Magistrate, Puri has moved this application for cancellation of bail of the opposite parties urging the same to have been improperly allowed.
2. The short facts constituting the prosecution case are that on 9-3-1988 at about 9.30 p.m. the informant was performing 'Trinath Mala' in the Village along with some villagers when opposite party 2 came there along with one Dusasan Swain and abused them. The opposite party 1 instigated them to commit murder of the informant and others and on his instruction opposite party 2 threw a bomb at them. Immediately thereafter one Dwija Swain went over to the roof of a thatched house and threw a bomb as a result of which a girl named Chanchala Pradhan died on the spot. Some others were also injured due to pelting of stones. While the opposite parties and some others were arrested, Dwija Swain, due to whose throwing of the bomb Chanchala died, has not been arrested. Application for bail moved for the two opposite parties was rejected by the Sessions Judge on 12-4-1988 in Criminal Misc. Case No. 107 of 1988 taking the view that though the opposite parties did not intend to kill an innocent girl witnessing the Mala, yet their presence had created disturbance and terror and they had taken the law into their own hands throwing two bombs and hence they should not be released on bail. A subsequent application for bail by them was also rejected by the Sessions Judge on 13-5-1988 in Criminal Misc. Case No. 208/88 with the observation that the opposite party No. 1 had directed the opposite party 2 to throw the bomb which fortunately did not hit anyone but the bomb thrown by the absconding accused Dwija had proved to be fatal causing the death of Chanchala. Learned Sessions Judge was of the view that there was no new ground to enlarge the opposite parties on bail. In a subsequent application for bail in Criminal Misc. Case No. 318/88, the learned Sessions Judge, however, observed in orders passed on 22-6-1988 that there was a counter case against the informant's group under Section 307, Cr. P.C. that chargesheet had already been submitted in the case, and that the main accused was Dwija Swain who threw the bomb causing the death. Because of such circumstances, he directed release of the opposite parties on bail. The order is impugned in this petition.
3. Admittedly the State has not moved for cancellation of bail. Though there is no absolute bar against an informant to move for cancellation of bail, under Section 439(2), Cr. P.C., yet the considerations which weigh with the Court to exercise powers at the instance of a private person are, besides the factors necessary to be considered when the application is made by the State, the additional 'factors of whether the order granting bail has resulted in gross miscarriage of justice, is wholly an abuse of the process of law and whether there is any real threat or risk to the informant or his party due to the accused being at large.
4. Chargesheet has been submitted against the opposite parties under Sections 147/148/307/323/324/302/337/147, I.P.C. and Section 9B of the Indian Explosives Act. As appears from the impugned order of the learned Sessions Judge, the considerations which have weighed with him to release the opposite parties on bail are the existence of a counter case under Section 307, I.P.C. against the informant's group, the main culprit in the case' being one Dwija Swain, and the fact that chargesheet had already been submitted. So far as the existence of a counter case is concerned, it is hardly a consideration to enlarge the accused in the case on bail since considerations for grant of bail do not include the existence or otherwise of a counter case. The factors considered relevant by the Court in either granting or refusing the bail are the gravity of the offence, the nature of the evidence available against the accused, the circumstances under which the offence is committed, the apprehension of the accused of fleeing from justice, if enlarged on bail, the apprehension of their tampering with the evidence if they are at large, the larger interest of the public and the State and the like as also the fact that continuance in custody of the accused before trial is never resorted to as a punishment. The fact that the informant's group is also involved in a criminal case is thus of no relevance to the question.
5. Similarly submission of the chargesheet is not a factor for release of the accused on bail since such step taken by the prosecution, if at all, is only a factor against the accused and in no way advances his cause to remain free. It was held in : 1984CriLJ160 (Bhagirathisinh Judeja v. State of Gujarat), that unless there is a prima facie case made out against the accused the other circumstances for granting him bail need not be considered. In a Division Bench decision of this Court in (1986) 2 Orissa LR 520 (Chhaila Pradhan v. Bansidhar Pradhan), also the existence of a prima facie case against the accused was held as necessary to be considered in the matter of exercise, of the power under Section 437, Cr. P.C. In the same decision it was held that unless other grounds for grant of bail are there, the submission of a chargesheet is not to be considered as an additional ground for bail. The observations in the earlier decision in (1984) 57 Cut LT 394 (D. Danda alias Dandapani v. State of Orissa) to the effect that placing of a chargesheet indicates that the investigating agency had found out materials against the accused to connect them with the commission of the offences and that whether the materials gathered against the accused are to be accepted is wholly a matter to be gone into at the stage of the trial, was approved. The only other ground considered by the learned Sessions Judge that Dwija Swain was the main culprit in the occurrence had been also earlier considered by him on both the occasions and yet bail had been refused to the opposite parties and hence such fact was not an additional factor available to be considered for grant of bail. The same decision (1986) 2 Orissa LR 520 (supra) held that when an application for bail has been rejected on merits on one occasion, there should be some development and additional factors to justify an order admitting the accused to bail. Thus unless there are fresh materials to justify grant of bail, it is not open to the Sessions Judge to enlarge the accused on bail on the very same materials which had been earlier considered and bail refused, or on materials which are not otherwise available to be taken into consideration.
6. In view of the foregoing discussions, it must be held that all the grounds relied upon by the learned Sessions Judge to allow the bail were not available to be considered and that the learned Judge has grossly failed to keep the well-settled principle of law in view in passing the impugned order.
7. Even though such conclusions are reached, yet it is to be seen whether the impugned order is to be set aside and the petitioners to be taken into custody. No doubt, the informant has stated in the petition before this Court that after their release the opposite parties Nos. 1 and 2 have been threatening the witnesses and are taking all steps to gain over them and have also made the life of the informant miserable. A counter-affidavit has beep filed by opposite party 1 stating that he had never misused the liberty granted to him by his being released on bail. The State has been impleaded as opposite party 3 in the application and the learned Additional Government Advocate has also been heard. Nothing has been stated by him and no records have also been produced to show there being any allegation against the opposite parties of indulging in activities of either threatening the petitioner or the witnesses or attempting to gain over them. As a matter of fact no materials have been relied upon to show any offensive overt act to have been committed by the opposite parties since their release on bail. In : 1978CriLJ952 , (State through the Delhi Admn. v. Sanjay Gandhi), the Supreme Court observed that rejection of bail when bail is applied for is one thing but cancellation of bail already granted is quite another thing. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a cask Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain the freedom during the trial The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over. The objective fact that witnesses have turned hostile must be shown to bear a causal connection with the subjective involvement therein of the accused. Without such proof, a bail once granted cannot be cancelled on the off-chance or on the supposition that witnesses have been won over by the accused.
8. Besides such factors which necessarily enter into consideration for cancellation of bail, the petitioner has also not shown any miscarriage of justice to have occasioned or abuse of the process of law in grant of bail to the opposite parties 1' and 2. Since even otherwise I think they are entitled to be on bail as there is no evidence of opposite party 1's direct participation in the crime and the bomb thrown by opposite party 2 did not hurt anybody. These factors though were not available to be considered by the learned Sessions Judge in granting the bail, yet are relevant for consideration by this Court in the matter of cancellation of bail already granted.
9. The opposite parties have been granted bail since 22-6-1988. The very fact that the State has not come forward either for cancellation of their bail or has not placed any materials before this Court in support of the prayer for cancellation of bail is a factor in favour of the opposite parties. Since it is not shown except the bare assertion of the petitioner, that the opposite parties 1 and 2 have in any way abused their liberty since their enlargement, the freedom granted to them is not liable to be curtailed which may unwittingly become in reality a punishment imposed upon them before trial. In that view of the matter it must be held that the informant has not been able to establish a locus standi for him to justify an interference by this Court at his instance for cancellation of the bail and hence the petition is rejected.