Judgment:
Kanta Bhatnagar, J.
1. In this petition under Section 439(2) Cr.PC it has been prayed that the bail granted to non-petitioner No. 2 may be cancelled.
2. The application contains two grounds for cancelling the bail. First that the offence alleged against the petitioner is of grave nature and secondly that he has no fixed abode and there are chances of his absconding. While advancing the arguments, learned counsel for the petitioner contended that one witness Rajendra has been turned hostile to the prosecution and the possibility of Kailash tampering with the witnesses cannot be ruled out.
3. Mr. Mathur, learned counsel for the petitioner referred to the order dated February 10, 1986 and argued that a part from the merits of the case the learned Sessions Judge was swayed by the financial position of Kailash and the deceased wife being unable to maintain the children. According to Mr. Mathur, in such a case where there is allegation of gruesome murder of a girl by Kailash and co-accused Ramdev the learned Sessions Judge should not have exercised discretion of granting of bail in favour of the petitioner.
4. Learned counsel for non-petitioner No. 2 submits that Kailash is residing at Pratap Nagar, Jodhpur and there is no apprehension of his absconding.
5. Having heard the learned counsel for the parties and perusing the order of the learned Sessions Judge and the papers filed along with the petition under Section 439(2) Cr.PC, I am of the opinion that it is not a fit case in which the liberty granted to accused Kailash may be cancelled. In India it is quite natural for poor persons to live in rented house or on foot-paths. But that does not mean that they do not have a fixed abode and are likely to abscond when they are to face a trial. It is pertinent to note that in this case the bail order was passed on 10-2-1986. Subsequent to that Kailash has been regularly appearing in the trial court on all the hearings. As I am informed, 17 witnesses have already been examined and only 7 formal witnesses remain to be examined now. All the important witnesses have been examined. The question of Kailash tampering with the witnesses does not arise. So far as the witness Rataulal turning hostile is concerned suffice it to say that he was the would be father-in-law of deceased Saroj and the allegation as submitted by the learned counsel for the petitioner was (hat Ratanlal was speaking against Saroj to Rajendra. But if that was the position the argument of Mr. Mathur that Kaiiash might have tampered with witness Rajendra has no force.
6. The powers under Section 439 Cr.PC vested in a Court of Sessions are discretionary powers. True it is that such a discretion should be exercised judically. But the order dated February 10, 1986 does not show that the learned Judge has, without looking to the merits of the case, passed the order simply on the ground of the poverty and the starving condition of accused Kaiiash. While deciding an application under Section 439(2) Cr. PC the most important consideration to be kept in mind is whether the person who has been granted liberty by an order of the Court has misused that liberty so as to make him liable for curtailing the opportunity one extended. There is no allegation that Kaiiash might have misused the liberty granted to him or might have avoided appearance at the trial. It is also relevant to observe that Kaiiash has been released on a heavy bail i.e. personal bond for an amount of Rs. 10,000/-and two sureties of Rs. 5,000/- each to the satisfaction of Sessions Judge, Jodhpur. This precaution having been taken, it cannot be said that the learned Sessions Judge has not properly looked into the matter before passing an order of bail of Kaiiash accused.
7. In these circumstances I find no force in the application under Section 439(2) Cr.PC and it is rejected.