Document Fragment View

Matching Fragments

12. It is not in dispute that during the crime stage, the learned Principal Sessions Judge, Dharwad, rejected the bail petition in Crl.Misc.No.286/2017 holding that prima facie case was made out against them. It is also not in dispute that accused No.1 filed bail petition before this Court in Criminal Petition No.101312/2017 which came to be dismissed on 09.08.2017. Accused No.2 also approached this Court seeking bail in Criminal Petition No.101051/2017 which also came to be dismissed on 14.06.2017 holding that there is prima facie case made out for having committed the offence by the accused person. It is also not in dispute that again accused No.1 and 2, after suffering an adverse order before the same Judge, i.e. trial Court on 06.02.2018, after committal of the case, have approached this Court in Criminal Petition No.101337/2018 which also came to be dismissed on 22.11.2018 on the ground that there is no changed circumstances to grant bail. Subsequently, after rejection of the bail petition by the trial Court in February 2018 and on a petition, rejection of the same by the Co-ordinate Bench of this Court in November 2018, it s not in dispute that, the trial has been commenced after framing of charges. During the pendency of the trial, in May 2019, accused Nos.1 and 2 again moved bail petition before the learned trial Judge under Section 439 of Cr.P.C. seeking bail on the ground that since the case and the counter claim wherein the petitioner herein and the injured are the accused in SC No.115/2018 wherein Special Public Prosecutor was not appointed for conducting trial and there was delay in disposing of the main case i.e. S.C. No.134/2012 wherein already 4 witnesses have been examined, it would take much more time for concluding the trial in the counter case . The accused are in judicial custody since from their arrest i.e. for more than two years. The trial Court relying upon the judgment of the Hon'ble Apex Court in the case of Babba v. State of Maharashtra, reported in 2005 (11) SC 569, in the case of Vivek Kumar v. State of Uttarpradesh reported in (2000) 9 SCC 443 and in the case of Mahesh Kumar Bhawsinghka v. State of Delhi reported in (2000) 9 SCC 383 wherein it is held that there is a delay in the trial, bail should be granted to the accused and considering the dictum laid down and also the changed circumstances urged by accused Nos.1 and 2, as the trial in the counter case is held up due to non-appointment of the public prosecutor in the counter case, the trial Court has exercised the discretionary power and granted bail.

" 20. A three-member Bench of this Court State (Delhi Administration) b. Sanjay Gandhi made the following elemental distinction in defining the nature of exercise while canceling bail:
Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in an non-bailable case than to cancel a bail already granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large by permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial.

In the case of Dolat Ram and others v. State of Haryana reported in (1995) 1 SCC 349, the Hon'ble Supreme Court at paragraph 4 has held as under:

"4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession ranted to the accused in many manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court, it appears to us overlooked the distinction of the factors relevant for rejection bail in a non- bailable case in the first instance and the cancellation of bail already granted."