Judgment:
Raghuvendra S. Rathore, J.
1. Heard learned Counsel for the parties and perused the order of bail granted by the learned Court below on 11.2.2008. It is the said order of bail passed in favour of the accused non-petitioner No. 2 Devi Ram, is under challenge in this application for cancellation of bail, under Section 439(2) Cr.P.C.
2. Broad facts of the case are that a report came to be lodged in the year 2006. Thereafter, the investigation commenced and the challan came to be filed against Kishori Shyam and Gopal. The Investigating Agency was of the view that no case was made out against Devi Ram Meena.and Prem Sukh.
3. Subsequently, after framing of the charge against the aforesaid persons, under Section 302/34 IPC, the prosecution evidence was recorded. After recording of the statements of the five prosecution witnesses, an application came to be filed by the complainant under Section 319 Cr.P.C. for taking cognizance against three persons, who had been left out by the Investigating Agency. The learned trial Court, vide its order dated 5.6.2007 took cognizance against the accused Devi Ram, the non-petitioner No. 2 for the offence under Section 302/34 IPC and he was summoned through non-bailable warrant.
4. Being aggrieved of the order of cognizance and issuance of process by the trial Court, accused Devi Ram approached the High Court, by way of filing a revision petition but without any success as the same came to be dismissed on 9.10.2007. However, in the facts and circumstances of the case, the High Court deemed it proper to grant liberty to the accused Devi Ram to surrender before the trial Court. It is after the surrender of the accused Devi Ram before the trial Court that the instant order dated 11.2.2008 was passed, whereby he was granted bail under Section 439 Cr.P.C.
5. Learned Counsel for the petitioner has vehemently argued that the impugned order is illegal and improper and the same deserves to be set-aside. He has further submitted that the non-petitioner No. 2 Devi Ram is the principal accused, and he had not been made to remain in custody even for a day whereas the other co-accused person Gopal had remained in jail for a sufficient period. He has also referred some of the statements of the prosecution witnesses.
6. On the other hand, the learned Public Prosecutor assisted by the learned Counsel for the complainant, have supported the order passed by the learned Court-below and submitted that the order is very much in accordance with law. He has further submitted that the Investigating Agency had come to the conclusion that no offence is made out and it was only at a later stage, on the application Tiled under Section 319 Cr.P.C. that the accused non-petitioner No. 2 Devi Ram had been implicated as an accused. Therefore, he submitted that the benefit of the situation should be certainly given to the accused. He has also referred to the case of Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors. JT 2007(11) SC 499, in support of his arguments that the issuance of non-bailable warrant against the respondent No. 2 after taking cognizance should could not be taken in a different perspective. He has also submitted that in fact the principle of law laid down by the Apex Court is that an order of non-bailable warrant should be passed by the trial Court only in a situation when it feels that the normal procedure of summoning of the accused, at whatever stage, is not found to be practical/sufficient then the steps of issuance of non-bailable warrant should be taken.
7. I have given my thoughtful consideration to the rival submissions made by the learned Counsel for the parties. In this case, the undisputed facts are that initially, a report was lodged against the accused persons including the non-petitioner No. 2; the investigating Agency came to the conclusion that no case is made out against the respondent No. 2 and therefore, the challan was not filed against him. It was only after recording of the statements of some of the prosecution witnesses during trial that cognizance was taken against the respondent No. 2 on the application filed under Section 319 Cr.P.C. and issued non-bailable warrant.
The learned trial Court in the impugned order had taken into consideration the above facts and circumstances of the case and had also, after giving other reasons, granted bail to the respondent No. 2 Devi Ram. In my considered opinion, once the discretion has been exercised by the Court below, particularly, in the peculiar facts and circumstances of this case, it would not be just and proper for this Court to interfere with the order impugned, In exercise of the powers under Section 439(2) Cr.P.C.
8. Needless to say, the principles of law for granting bail are different than the one for cancellation of it. Moreover, it is not the case of the petitioner, neither pleaded nor submitted, that the respondent No. 2 had in any manner misused the liberty of bail granted by the Court below.
9. Taking into consideration the over all facts and circumstances of the case, I do not consider it to be a fit case for cancellation of bail granted to the respondent No. 2 Devi Ram by the learned Court below.
10. Consequently, the application for cancellation of bail is dismissed.