Judgment:
C.R. Pal, J.
1. This is a petition Under Section 439(2) read, with Section 482, Cr.P.C. wherein the petitioner who is the informant in G.R. Case No. 228 of 1995 of the court of S.D.J.M., Puri has prayed for cancellation of bail granted to the opposite party No. 2 by the Second Additional Sessions Judge, Puri and the bail granted to the opposite parties 3 and 4 by the Investigating Officer.
2. The facts of the case are as follows:
On 26.11.1995 the present opposite party No. 2 Batakrushna Panda lodged an information alleging that while he along with his co-villagers were cleaning the village road which the present petitioner's family had encroached the petitioner's father, mother and sister scolded the members engaged in cleaning and the petitioner's father Puma Chandra Panda and one Laxmidhar Panda who were armed with Farsa and Kati threatened them and assaulted the opposite party No. 2 and caused bleeding injury on his person. Sabita Panda also assaulted the opposite party No. 2 by means of a Farsa. The petitioner was armed with a bomb and threatened to throw at the opposite parties left the place put of fear. On the above allegation, Pipili P.S. Case No. 227 of 1993 was registered Under Section 307/34, I.P.C. against the present petitioner and others. Subsequently, on the information of the present petitioner wherein it was alleged that during his absence on that day at about 12 noon when the present opposite parties were cutting the fence, the father of the petitioner objected at which the opposite parties chased him to assault and when the mother of the petitioner intervened, she was also assaulted. The father of the petitioner went inside his house and bolted the door but the opposite parties broke open the door and the opposite party No. 4 assaulted the father of the petitioner by means of a Faras. It is also alleged that they took away Rs. 7,000/- and two gold chains by breaking open the almirah. On the above information, Pipili P.S. Case No. 228 of 1995 was registered for the offence Under Section 326, 380 read with Section 34, I.P.C. against the opposite parties and some others.
3. It is the case of the petitioner that in the said case during investigation, police released opposite party Nos. 2 and 4 on bail illegally. It is also alleged that subsequently opposite party No. 2 was arrested on 16.4.1996 and was forwarded to the court and though his prayer for bail was rejected by the learned S.D.J.M., the learned Second Addl. Sessions Judge granted him bail in Criminal Misc. Case No. 239 of 1996 on 25.4.1996 with the condition that he shall undertake to maintain peace and be of good behavior while on bail. It is alleged that the said order for bail was passed without proper application of mind and as such, the same is liable to be cancelled. It is further alleged that while on bail these opposite parties along with some co-villagers in absence of the present petitioner and other male members of his family again cut the fence and dug earth belonging to the petitioner on 9.5.1996 at about 8.00 A.M. and when Sabita Panda the sister of the present petitioner protested against their illegal action, these opposite parties chased her to assault for which she entered into her house and escaped their wrath. About the above occurrence Sabita Panda lodged information at Pipili Police Station. But when the police did not take any action she wrote a letter to the Superintendent of Police seeking interference. It is alleged that by their above action, the opposite parties have abused the bail granted to them and as such, the same is also liable to be cancelled.
4. The opposite parties 2 to 4 appearing through their counsel filed their counter to the above petition denying the allegation levelled against them relating to the alleged occurrence dated 9.5.1996. According to the opposite parties, the petitioner and his family members are out to get an order of cancellation of bail granted to the opposite parties and with that view they have come up with the false allegations against the opposite parties. It is also their case that just to counter the allegations brought by these opposite parties against the petitioner and others in G.R. Case No. 227 of 1995 the petitioner managed to get a case registered against the opposite parties subsequently by lodging an information on 27.11.1995 about the occurrence of 26.11.1995.
5. Considering the allegation of the petitioner that on the information lodged by Sabita Panda on 9.5.1996 no action was taken by the police for which she also approached the Superintendent of Police, Puri by writing a letter, a report was called for from the concerned S.P. about the action taken on the report or the letter of Sabita Panda. The S.P. submitted his report vide letter No. 3463/CR dated 17.11.96. The report reveals that on enquiry it was ascertained that the opposite parties did not cut the fences which stands on the plot of the petitioner. While conducting the enquiry police also examined Lokanath Panda who was said to be a witness to the alleged occurrence and it was ascertained that these opposite parties and some other villagers were cutting and cleaning a portion of plot No. 1458 which is a village road and they did not touch the fence raised by the petitioner and his family encroaching the other portion of plot No. 1458. The report also reveals that Puma Chandra Panda, the father of the petitioner also concurred to the statement of Lokanath Panda. In view of the contents of the aforesaid report, it is difficult at this stage to say that by their action, the opposite parties have abused the bail granted to them. The report further reveals that on the basis of the information lodged by Sabita Panda police made Station Diary Entry No. 146 dated 9.5.96 and no further action was taken considering the case to be one of civil nature as a suit between the parties was pending. The report further reveals that on 26.5.96 the father of the petitioner engaging some persons and again closed the village road. After this information police has started proceedings Under Section 107, Cr.P.C. against both the rival groups apprehending breach of peace. Keeping in view the facts stated in the report the allegation brought against both the opposite parties about abuse of liberty granted to them cannot be accepted to cancel the bail granted in their favour. It may also, be stated here that the power to take into custody an accused who has been enlarged on bail is of extraordinary nature and is meant to be exercised in appropriate cases with care and circumspection. Bail can be cancelled when it is shown by preponderance of probabilities that the accused has misused the liberty granted to him or grant of bail was illegal or was by improper, arbitrary exercise of discretion. There may also be cancellation of bail when it would no longer be conducive to fair trial to allow the accused to retain his freedom. But here in the instant case the materials on record are not sufficient to suggest that the opposite parties misused the liberty granted to them. The impugned order dated 25.4.1996 does not appear to be a result of total non-application of judicial mind. The question whether the bail granted by the police to opposite party Nos. 3 and 4 during investigation was illegal cannot be of any help to the petitioner at this stage when it is the admitted position that the case is now pending before the court of session for trial and the opposite parties must be on bail granted by the court and as such, the question becomes purely academic and need not be gone into.
In the result, the Criminal Misc. Case is dismissed.