Dharnidhar Jha, J.
1. I have heard learned Counsel on behalf of the petitioner, who seeks cancellation of Court's order dated 10.1.2013 passed in Criminal Misc. Bail Application No. 32206 of 2011 by which the opposite party Sujeet Kumar Singh was directed to be released on bail on furnishing bond to the satisfaction of the Court concerned. Some of the facts necessary to be noticed for disposal of the present petition are as follows:--
2. Undisputedly, the opposite party No. 2 was married to Archana, the deceased, on 25.11.2007 as per Hindu rites and rituals and it is also not disputed that on the day of occurrence, i.e., on 16.4.2011, the deceased was residing in her matrimonial house where she was killed. The fact that she was killed does not appear disputed as is recorded in the very order by the learned Judge, who passed the impugned order. In addition to what has been recorded, as may appear from the post mortem examination report, there were as many as 16 injuries and it appears from the perusal of those injuries that before the deceased had been finally killed by being strangulated to death with the help of liga
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ture, she was brutally assaulted as there were numerous abrasions and contusions on the dead body.
3. The basic allegations were that since after being married, the deceased was being harassed and ill-treated by her in-laws because they were demanding Rs. 2 lakhs in cash, a refrigerator, a washing machine and were asking the lady to convey the demand and ensure giving of the money and articles to them by her parents. The father of the deceased was not inclined to meet the demands of the accused persons and he appears to have intervened on social level by convening a panchayat. But, the accused persons were not ready to give up their demands and, ultimately, the deceased was killed.
4. While granting bail to the opposite party No. 2, the ground which found favour with the learned Judge was that undisputedly the opposite party No. 2-Sujeet Kumar Singh was working in merchant navy and, on the relevant day, he was away from India. To a submission that there was a tacit consent and connivance of opposite party No. 2 with other persons in killing the deceased, the learned Judge was taking a view that it was never the case of the prosecution and the police had also not found any conspiratorial angle after investigating the case and further, the ingredients of section 304-B I.P.C. that the death under circumstances not natural occurred "soon before" the death of the deceased also did not appear from the records and, in that view, the learned Judge directed the release of the opposite party No. 2 on bail as indicated above.
5. While addressing the Court, the learned Counsel submitted that there was no denial in the F.I.R. that the opposite party No. 2 was away from India on the relevant date and he might have not been present in his house to participate directly in the commission of the offence but the tacit consent of the petitioner and his approval of the acts of his family members could no less be the evidence as regards having conspired with his family members in commission of murder of his wife. Submission also was that, after having been enlarged on bail, the opposite party No. 2 had committed as many as five overt acts towards tampering with the evidence and one such instance could be the lodging of the report by him by self-inflicting an injury by firearm and implicating the informant and others, which report was found palpably false after investigation by the police. Submission was that it was a class example of terrorizing the witnesses so that they could not turn up into the witness-box to support the charges. The copy of the report obtained by the petitioner under the Right to Information Act has been placed during the course of the present hearing. As regards the other cases, the details thereof appears stated in paragraph 13 of the present petition and it was contended that intimidatory tactics were employed and adopted by opposite party No. 2 only to ensure that justice is not meted out to the victim of the offence and her family members.
6. Some principles on cancellation of an order of bail may be recapitulated. It is well settled that the consideration for cancelling an order of bail are the same which are at the time of granting bail, i.e., (1) nature of offence and its impact on the society; (2) the nature of evidence collected against the accused; (3) the chances of the accused being available to justice during trial; (4) the further chances of the accused not tampering with the evidence; (5) the chances or any instance of commission of the offence by the accused; and, lastly, his own security after being enlarged on bail. If the Court is satisfied on all these aspects of a prayer for bail, then a Court generally admits an accused to bail. The other factor which is important as regards granting bail to an accused is that it could never be by way of a punishment that the accused should be refused being admitted to bail so that he is detained in custody. If the Court is satisfied generally regarding the chances of an accused remaining available to justice during trial and that he would not tamper with the evidence or threaten the witnesses or he himself is not a threat to the society, then ordinarily the Courts admit accused persons to bail.
7. Some of the provisions, which have been specifically incorporated in certain penal law, like, the Narcotic Drugs and Psychotropic Substances Act (N.D.P.S. Act for short) by section 37, have virtually restricted the powers of a Court including the High Court to grant bail by laying down that before granting bail, the Public Prosecutor must have the opportunity of opposing the prayer and in case of the Public Prosecutor having opposed the prayer, the Court should record its satisfaction that there were reasonable grounds for believing that the accused had not committed the offence and further that he is not likely to commit any offence while on bail. But, in that case also there are certain provisions, like, those u/s 21 of the N.D.P.S. Act in which that rigor, which is put down by section 37 of the N.D.P.S. Act, is not applicable as there could be certain class of cases which may entitle an accused to bail after considering the quantum of sentence, which may be inflicted upon an accused in cases of the N.D.P.S. Act as may be in cases of minimum quantity of the drug or substance.
8. However, while cancelling an order of bail, the Court has to be very circumspect and has to consider very compelling and weighty materials placed before it as granting bail is a rule and cancellation of an order granting bail is a exception to that rule. As regards the powers of the High Court to cancel an order of bail, I want to point out that High Court may cancel its own order but, in that case, it has to be shown that the High Court had deviated from some settled principles of law while granting bail which has caused prejudice to the prosecution (please see Mehboob Dawood Shaikh Vs. State of Maharashtra, , and that pleading has to be very weighty and supported by very clinching materials otherwise under the judicial hierarchy an order of bail passed by the High Court is treated almost as not reversible and final in nature. There may be a question as to what is a weighty ground for cancelling an order of bail granted by the High Court. To elucidate, an order of bail passed in favour of assailant of deceased or a person, whose participation in a case of rape or dacoity with murder is shown reasonably from some acceptable materials that in such cases the High Court may also cancel its order or its order may be cancelled by the Supreme Court. In some class of cases if the High Court finds itself to be misled on account of some suppression of facts or not being appropriately apprised of appropriate facts during the course of hearing then, in my considered view, it may not hesitate in cancelling its own order of bail.
9. In the present case, there was not such suppression of fact nor any deviation from the settled course of law was pleaded before me. The only contention was that after being enlarged on bail, the petitioner has indulged into further acts of threatening the witnesses or pressurizing them by filing false criminal charges against them and, thus, had attempted to tamper with the evidence of the case. In such a situation, the High Court could not arrogate to itself the powers of the Court which could be approached in such circumstances with an appropriate application seeking the cancellation of an order of bail.
10. In the case of the State (Delhi Administration) Vs. Sanjay Gandhi, , the Supreme Court was considering a similar prayer for cancelling an order of bail on the ground of tampering with the evidence by threatening or intimidating the witnesses or by pressurizing the witnesses so much so that they should not turn up in the witness-box. It was held that the application seeking cancellation of order of bail has to be heard by taking evidence and it was in that connection pointed out that taking of evidence may be by tendering the same on affidavit by stating thereon the facts and also by annexing documents showing as to how the accused had threatened the witnesses or attempted to tamper with the evidence. As regards the proving of allegations regarding the tampering of evidence or threatening the witnesses, it was observed that it has to be done as is done in a civil trial that the evidence has to be considered on the preponderance of probabilities and not as is the consideration in a criminal trial, that is to say, proved beyond reasonable doubt. No order of bail should be adjudged on the yardstick of proof beyond reasonable doubt rather if the application seeking the cancellation of bail appears supported by evidence which on probability showing reasonable apprehension that the witnesses were likely to be tampered or indicating the probability that they had indeed been won over then such evidence may require the order of bail to be cancelled.
11. The above being the position of law, which holds good till date, in my considered view, the petitioner ought to have approached the Trial Court by filing an appropriate petition before it and to have followed the procedure set down by the Supreme Court in the case of Sanjay Gandhi. The present is not the forum for considering the bail cancellation application as I have already noted that no fact or finding has been brought into my notice, which could be making out a case of deviation from settled principles of law and thereby causing a prejudice to the prosecution due to granting bail that this Court should recall or cancel the order which is impugned herein. The allegation of tampering evidence and terrorizing the witnesses will require the other side to be heard appropriately by the Court below and the Court below may also require the evidence to be adduced before it in the light of Sanjay Gandhi. In that view, this petition appears of no merit as also not maintainable before this Court.
12. In the result, the petition is dismissed with the above direction. It is supposed that if the petitioner files a petition before the Trial Court as per the law laid down in Sanjay Gandhi, the Trial Court shall entertain it and shall hear it after giving notice to the accused whose liberty is required to be put under jeopardy and after following the procedure pointed out by Sanjay Gandhi, the Court shall dispose it of.