Om Prakash vs Karan Singh And Ors.
1993 Latest Caselaw 344 Del

JUDGMENT

Sat Pal, J.

(1) This petition has been filed on behalf of Om Prakash, the father of the deceased Bimla, under section 439(2) read with section 482 of the Criminal Procedure Code (hereinafter referred to as 'the Code') for cancellation of bail granted to respondent No.1 Karan Singh by the learned Additional Sessions Judge, Shahdara vide order dated 16th September, 1992.

(2) The case of the prosecution is that respondent No.1 Karan Singh, who is employed as Head Constable in Delhi Police, had been teasing and harassing deceased Bimla, who was residing in his neighborhood at the relevant time. It is further alleged that on the night intervening 31st July and 1st August, 1992, respondent No.1 committed criminal trespass into the house of the petitioner when the petitioner was not at home and was on duty and committed rape on his deceased daughter Bimla, who was aged about 16 years and was a student of Xth class. It is further alleged that hearing the cries of the deceased, her mother, who was sleeping at the ground floor, came out and spotted respondent No.1 coming down from the stairs and when asked as to why he had come to the terrace, he pushed her mother and threatened her.

(3) It is further alleged that on 1st August, 1992 at about 10.00 a.m. when the petitioner came back from his duty, his wife informed him that respondent No.1 Karan Singh had been knocking at their door at night and thereafter the petitioner Along with his son went to the house of Karan Singh where the petitioner and his son were assaulted by respondent No.1 Karan Singh and his brothers. It is further alleged that a report was also lodged by the petitioner at the police Post Khajuri Khas against accused Karan Singh and his brothers. It is further alleged that on 1st August, 1992 late in the afternoon, the petitioner came back after medical examination and was shocked to note that his daughter Bimla had committed suicide and had left behind a suicidal note staling that respondent Karan Singh Along with his brothers had trespassed into their house at night and that her father and brother were assaulted. It was also stated in this note that respondent No.1 and his brothers should be awarded extreme penalty.

 (4) The postmortem on the body of the deceased was conducted on 2nd August, 1992 at about 11.30 a.m. The opinion of the doctor who conducted the postmortem is as follows:-    "TIME since death about 18 hours. Death due to asphy as a result of compressor neck. Injuries are antemortem, recent tears of hymen suggestive of sexual intercourse before death."  

 (5) Thereafter, a case was registered against respondent No.1 at police Station Gokul Pun under section 376/306/506/34 IPC.   

 (6) After two applications filed by respondent No.1 for release on bail were dismissed as withdrawn, arguments were heard on the 3rd application for bail and after hearing learned counsel for the parties Mr. J.P. Singh, learned Additional Sessions Judge, Shahdara, Delhi rejected this application on 22nd August, 1992 and passed the following order:-    "THIS is a case in which a 16 years old girl was allegedly raped. There is a note written by the girl, who committed suicide, against the accused involving him in an offence other than rape. But the post-mortem report says that there is evidence of rape before death. Considering all the facts and circumstances of the case I do not find any merit in the application. The same is dismissed."  

 (7) Thereafter, an application filed by respondent No.1 was dismissed as withdrawn on 2nd September, 1992. Finally another application was again filed by respondent No.1 for release on bail and this application was decided by Mr. B.S. Chaudhary, another Additional Sessions Judge, Shahdara, on 16th September, 1992 and' bail was granted to respondent No.1. The aforesaid order granting bail reads as follows:-    "THIS bail application of the petitioner was rejected by Shri J.P. Singh, Asj Shahdara on 22/8/92. I have heard both the sides today. In view of the totality of the circumstances petitioner be enlarged on bail on his furnishing a personal bond in the sum ofRs.10,000.00 with a surety in the like amount to the satisfaction of the Magistrate concerned."  

 (8) It will be seen from the above order that though the earlier order rejecting the bail has been mentioned but no reasoning to differ-with the earlier order passed on 22nd August, 1992 was given by the learned Additional Sessions Judge.   

 (9) Aggrieved by the order dated 16th September, 1992 passed by Mr. B.S. Chaudhary, learned Additional Sessions Judge, Shahdara, the petitioner, who is the father of the deceased, has approached this Court under section 439(2) read with section 482 of the Code for cancellation of bail granted to respondent No.1.   

 (10) It may be pointed out here that the State has not filed any petition for cancellation of bail in the present case. Mr. P.S. Sharma, learned Standing counsel for the State, during the course of arguments, however, submitted that since the aggrieved party had already Filed the present petition for cancellation of bail of respondent No.1 and had imp leaded State as one of the respondents, the State has not filed any other petition. He, however, has supported the petition.   

 (11) Before making his submissions on merits of the case Mr. Bhagat, learned Senior Advocate, appearing on behalf of respondent No.1, raised a preliminary objection that the petitioner has no locus standi to file the present petition for cancellation of bail. Detailed arguments have been addressed by the learned counsel for the parties on the locus standi of the aggrieved party to approach the High Court for cancellation of bail of an accused. Accordingly, first of all I examine the question whether the petitioner has locus standi to file the present petition.   

(12) Mr. Bhagat, learned Senior Counsel, drew my attention to Article 21 of the Constitution of India and submitted that entertaining an application under section 439(2) read with section 482 of the Code for cancellation of bail at the instance of a party other than State, would be violative of Article 21 of the Constitution since it is and it would be violative of procedure established bylaw. Learned counsel submitted that the procedure is found in various sections of the Code and traveling beyond the sections would amount to taking steps towards deprivation of liberty to an accused by way of procedure which is not established by law. In this connection he drew my attention to sections 24(1), 25, 154, 173(2), 190, 301, 302, 314, 321, 377 and 378(4) of the Code. He contended that the complainant party may bring facts to the notice of the State Counsel and apart from that the complainant has no right to approach this Court for cancellation of bail granted to an acused. In support of his contentions, the learned counsel placed reliance on Babu Singh and others vs. State of Uttar Pradesh, , , Maneka Gundhi vs Union of India & Anther, , Simranjit Singh Mann vs Union of India and another, , The Janta Dal vs H.S. Chaudhary, 1993 Crl. LJ. 600, Praveen Malhotra vs. State of Haryana, and Indu Bala vs Delhi Administration, 1991 Crl L.J. 1774.

(13) Learned counsel also contended that under the Constitution, fair trial is guaranteed to an under trial and in case a private party is allowed to approach this Court for cancellation of bail, this will amount to interference with the right of the accused to fair trial. He submitted that the father of the deceased is bound to be an interested party and an interested party can create hurdles in the speedy trial of the case. Relying on sections 301(2) and 302 of the Code learned counsel contended that the complainant party may bring the facts to the notice of the State counsel and apart from that the complainant party has got no right to be heard in a matter regarding grant of bail or cancellation of bail. He further submitted that the role of the Public Prosecutor is quite independent under the provisions of the Code and it is the only right of the Public Prosecutor/State counsel to address the Court in a case for cancellation of bail. Learned counsel submitted that the scope of powers of the Supreme Court under Article 136 of the Constitution is much wider than those of the High Court under.section 482 of the Code. He, therefore, contended that whereas the Supreme Court ". exercise of its power under Article 136 of the Constitution can entertain an application of the aggrieved party for cancellation of bail, no such power vests with the High Court under section 482 of the Code.

(14) Mr. Aggarwal, learned counsel appearing on behalf of the petitioner, submitted that section 439(2) of the Code empowers a High Court or a Court of Sessions to direct any person who has been released on bail, be arrested. He further submitted that under section 482 of the Code, the High Court case exercise its inherent power to cancel the bail and the power under section 482 of the Code can be exerted even suo moto by the High Court. He further submitted that an aggrieved party by filing a petition under section 439(2) read with section 482 of the Code only draws the attention of the High Court to an illegal, improper or incorrect order of a Subordinate Court. He, therefore, contended that at the instance of the aggrieved party, the High Court in exercise of its power under section 439 (2) read with section 482 of the Code is competent to set aside the order granting bail in case of heinous crime like in the present case. He also submitted that it is well settled law that criminal law can be set in motion by any one. In support of his contentions, learned counsel placed reliance on the following judgments, (1) Pratap vs State of U.P., , (2)Ranjit Singh vs Nand Lal, 1975 Cr.LJ. 1416, (3) Sant Ram vs Kali Charan and others, 1977Cr.L.J. 486, (4) Bhagirath and others vs Gobind, (1975) 2nd Himachal Senes Vol. Iv 629, (5) Harpreet Singh ¸ Happy and others vs Stale, 24(1983) Dlt (SN) 31, (6) Goya Singh vs Kedar Singh, 1973Crl.L.J. 1626, (7) Bhore Singh and others vs State through Dharam Pal Singh, , (8) Suresh Singh vs 77ie State and others, 1977 Bihar Bar Council Journal 374, (9) Tej Ram vs Suresh and another, 1991 Jcc 384, (10) Abdul Jabbar vs State & others, 1992 (1.) Ccr 721 and (II) Court On Its Own Motion vs Vishnu Pandit, .

(15) Mr. Sharma, learned Standing Counsel for Delhi Administration, appearing on behalf of the State, submitted that since the ag grieved party had already filed the present petition for cancellation of bail of respondent No.1 and has imp leaded the State as one of the respondents in this petition, the State has not filed a separate petition for cancellation of bail. He, however, submitted that on instructions from the State he fully supports the present petition for cancellation of bail of respondent No.1. Learned counsel drew my attention to section 190 of the Code and submitted that under this section any Magistrate of the 1st Class may take cognizance of any offence upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed. He, therefore, contended that High Court which is a superior Court can entertain an application Filed by the complainant party for cancellation of bail. He also contended that under section 482 of the Code and Article 227 of the Constitution, the High Court has inherent power to interfere in a case like the present one. Lastly, the learned counsel contended that respondent No.1 is alleged to have committed a heinous crime and keeping in view the facts of the case it was a Fit case for exercising inherent power of this Court under section 439(2) read with section 482 of the Code for cancellation of bail granted to respondent No.1. In support of his contentions he placed reliance on State of Mahorashtra vs Captain Buddhikota Subha Rao, and Shahzad Hasan Khan vs Ishtiaq Hasan Khan and another,

(16) I have given my thoughtful considerations to the various submissions made by the learned counsel for the parties and have also perused the judgments relied upon by them. In the case of Pratap (supra) the Suprime Court while dealing with the revisional power of High Court under section 439 of the Old Code (Section 401 of the new Code) held:- "THE power under section 439 Criminal Procedure Code . is one which the High Court can exercise suo moto and a person all that Filing a revision petition under that section does is to draw the court's attention to illegal, improper or incorrect findings, sentence or order of a Subordinate Court, The fact that in this case the brother of the deceased filed the revision petition and the government did not do so, does not affect the power of the High Court under that section."

(17) From this judgment it is clear that in a case where High Court can exercise suo moto power, an aggrieved party can approach the High Court to exercise that power to set aside an illegal, improper or incorrect finding, sentence or order of a Subordinate Court. Following this judgment a learned Single Judge of this Court in the case of Happy (supra) held that the High Court in exercise of its revisional power under section 397 and 401 of the Code is competent to set aside the order of acquittal and order re-trial at the instance of a private party inspite of the fact that the State had not find it fit to come in appeal. Following the same judgment of the Supreme Court in the case of Pratap (supra) a learned Single Judge of Punjab & Haryana High Court in the case of Ranjit Singh (supra) held:- "IT will be open to the High Court to cause re-arrest or in other words to cancel the bail if found that the same was granted by the Court of Sessions on erroneous grounds. It is not necessary that the High Court should be moved only by way of revision petition under section 401 Cr.P.C. against the order granting bail. It can act in this behalf suo moto or on an application made by the State or even by a private complainant. There is no bar that an application under section 439(2) Criminal Procedure Code . for cancellation of bail made by a private complainant cannot be entertained."

(18) In the case of Bhore Singh (supra) a learned Single Judge of Allahabad High Court held that if the matter is brought to the notice of the Sessions Judge by the complainant, it is open to the Sessions Judge to pass an order for cancellation of bail. The ratio of this judgment was followed by a learned Single Judge of Patna High Court in the case of Gaya Singh (supra).

(19) From the various judgments discussed hereinabove, it is clear that where the High Court can exercise its power suo moto, the aggrieved party can approach the High Court for setting aside an illegal, improper or incorrect order of a Subordinate Court. As stated earlier, the present petition is under section 439(2) read with section 482 of the Code. There is no bar under section 439(2)(2) of the Code to entertain a petition for cancellation of bail made by a complainant party and under section 482 of the Code the High Court has inherent powers to cancel the bail suo moto. In the case of Vishnu Pandit (supra), it was held:- "THAT power to suspend an order granting bail which is ancillary to power to cancel is inherent in the High Court and can be exercised under Section 482 of the Code."

(20) Further under section 482 of the Code, the High Court has got inherent power to make such orders as may be necessary to give effect to any order made under this Code or to prevent the abuse of any process of any Court or otherwise to secure the ends of justice. In the case of State of Maharashtra vs Tukaram Shiva Patil, 1977Cr. L.J. 394, a Division Bench of Bombay High Court has held that the High Court has powers to cancel the bail in the exercise of its inherent jurisdiction under section 482 of the Code apart from the powers under Article 227 of the Constitution.

(21) Now I deal with the various judgments relied upon by the learned counsel for respondent No.1. The cases of Indu Bala and Praveen Malhotra (supra) are not relevant to the facts of the present case as much as in those cases, the Court was concerned with the rights of the aggrieved party at the time when the order to grant or reject bail was to be passed. Even in the case of Praveen Malhotra the learned Single Judge has observed that the applicants have not alleged that the State is not doing its duty properly in any manner. In the present case, as stated earlier, the State had not challenged the order granting bail when the present petition was filed by the aggrieved party.

(22) In the case of H.S. Chaudhary (supra) it was held, "that the inherent power under section 482 of the Code could be exercised by the High Court to give effect to any order passed under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice but the inherent power conferred by section 482 of the Code should not be exercised to stifle a legitimate prosecution". In the present case the power under section 482 of the Code is not being exercised to stifle a legitimate prosecution, on the other hand it is being exercised to secure the ends of justice. Besides in the present case the petitioner is not a stranger but is the father of the deceased and as such he is entitled to approach this Court to draw the Court's attention to an illegal, improper order. No case has been cited before me by the learned counsel for respondent No.1 where an aggrieved party has filed a petition before the High Court for cancellation of bail granted to an accused and such an application is held to be not maintainable. On the contrary the law is so well settled that the question of locus stands in a petition filed by the complainant party for cancellation of bail has not even been raised by the learned counsel for the accused in four recent cases decided by this Court and reported in Abdul Jabbar vs. State, 1 (1992) Ccr 721, Tej Ram vs. Suresh and another, 1991 Jcc 384, Jyanti Pd. Goel vs Suresh Jain, and Ramesh Bhandari vs Charan DassPuri, . I do not find any force in the contention of the learned counsel for respondent No.1 that entertainment of the present petition will amount to interference with the right of the accused to fair trial. In the present case even the learned Standing counsel appearing for the State has also supported the petition filed by the father of the deceased and has submitted that this is a fit case for cancellation of the bail granted to respondent No.1.

(23) In view of the above discussion I hold that the aggrieved party has a right to approach the High Court under section 439(2) read with section 482 of the Code for cancellation of bail granted to an accused where according to the aggrieved party, the order passed by the Sessions Court granting bail to the accused is illegal, improper and incorrect.

(24) As regards the merits of the case, Mr. Aggarwal, the learned counsel for the petitioner, drew my attention to the Fir wherein it has been alleged that prior to the incident, the petitioner who was neighbour of the deceased used to tease her whenever she used to go to school or dump cow-dung and when the mother of the deceased complained to the elder brother of the petitioner, she was threatened by the petitioner and his brothers that if she defamed them, they would kill her and her children and would do bad deed with her daughter. The learned counsel submitted that it was in these circumstances that the mother of the deceased due io fear did not tell her husband when he came back from duty on the morning on 1st August, 1992 that at mid-night she heard screams of her daugther and saw the petitioner coming from the stairs of the roof where the deceased was sleeping and instead she told her husband that the petitioner in drunkard state had pushed their door. The learned counsel also drew my attention to the certificate dated 7th August, 1992 issued by Government Girls Senior Secondary School, Khajoori Khas, Delhi to show that the deceased at the relevant time was studying in 10th class and her age was about 16 years 8 months.

(25) Learned counsel submitted that though on the suicide note, the deceased had only mentioned that petitioner and his brothers made an attack on their house and all of them beat her brother in the morning and they should be awarded the extreme punishment and she has not mentioned about rape committed on her by respondent No. 1 but the deceased had confided the fact of her rape by respondent No.1. to her friend and class fellow Rinki, which is evident from the statement of Rinki recorded by the police under Section 161 of the Code. The learned counsel further submitted that the allegation of rape of the deceased is further corroborated from the post-mortem report wherein the doctor has opined "recent tears on hymen are suggestive of sexual intercourse before death."

(26) Learned counsel for the petitioner also submitted that after two applications for bail filed by respondent No.1 were dismissed as withdrawn, the third application was dismissed on merits by Shri J.P. Singh, Additional Sessions Judge, Shahdara, vide order dated 22nd August, 1992 wherein the reasons for rejecting the application were also given. Thereafter 4th application for bail filed by respondent No.1. was again dismissed as withdrawn but on the 5th application which contained the identical facts as in the 3rd and 4th applications, another, learned Additional Sessions Judge, Shri B.S. Chaudhry vide order dated 16th September, 1992 granted the bail to respondent No.1. Though in this order the fact regarding rejection of the earlier bail application by ShriJ.P. Singh, Additional Sessions Judge on 22.8.92 was mentioned, but no ground to differ with the reasons given in the earlier order except that "in view of the totality of the circumstances petitioner be enlarged on bail" have been given in the order dated 16th September, 1992. Learned counsel, therefore, contended that the learned Additional Sessions Judge while granting bail has exercised his judicial power wrongly as the learned Judge did not consider that on the identical facts, his predecessor had rejected the application for bail with a reasoned order and no new facts pertaining to the intervening period had come into existence or were placed before the learned Additional Sessions Judge.

(27) The learned counsel also drew my attention to D.D. No.12 Police Post Khajuri Khas, P.S. Gokulpuri wherein the complainant Jaswanti has alleged that on 20.9.92 at about 1.00 Pm she was going to the market to buy vegetable and on the way she was stopped by respondent No.1. and his brothers and they told her not to depose against them. Meanwhile, hbr husband also reached there and these people gave them beating also. He drew my attention of another complaint by another resident of village, namely, Attri against the misbehavior of respondent No.1. with that lady on 4th December, 1992. Relying on the aforesaid facts, the learned counsel contended that there is constant threat from respondent No.1. who is a Head Constable in Delhi Police, to tamper with the evidence and as such the bail granted to the petitioner should be cancelled forthwith.

(28) Mr. Bhagat, learned counsel appearing on behalf of respondent No.1, submitted that no case under section 376 Indian Penal Code is made out against respondent No.1 even in terms of the allegations made in the FIR. In this connection he drew my attention to the suicide note of the deceased and submitted that in this note there is no mention of rape having been committed by respondent No. 1. He further submitted that Fir has been registered at the instance of the mother of the deceased but the mother was not the eye witness regarding the alleged rape. Referring to the observations in the postmortem report "even suggestive of sexual intercourse", the learned counsel submitted that from this observation It cannot be concluded that rape was committed by respondent No.1 because in the absence of the statement of the prosecutrix such a conclusion cannot be drawn and besides there is no evidence that the alleged sexual intercourse was without the consent of the deceased who was admittedly more than 16 years of age. He also submitted that there is a delay of two days in registration of the FIR.

(29) Referring to the statement of Rinki, the learned counsel submitted that the said statement is of no consequence as the deceased did not mention about her discussion with Rinki in the suicide note. The statement of Rinki was, therefore, only a hearsay. Besides, the said statement was recorded as late as on 15th August, 1992. He further submitted that said Rinki is reported to be a relation of the complainant party.

(30) The learned counsel submitted that even where a prima facie, case is established, the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favor by tampering with the evidence. But the power to take back in custody an accused who had been enlarged on bail, has to be exercised with care and circumspection. He, therefore, contended that since respondent No.1 has not tried to tamper with the evidence during the period he has been on bail, it is not a fit case for cancellation of bail granted to respondent No.1. In support of his conteions, learned counsel placed reliance on Supreme Court judgments in Babu Singh (supra), State (Delhi Administration) vs Sanjay Gandhi, and Bhagirath singh Jadeja vs State of Gujrat, .

(31) Learned counsel also contended that the present case was of circumstantial evidence and in such a case the court has to be watchful and ensure that conjectures and suspicion do not take the place of legal proof. In support of this contention learned counsel placed reliance on a judgment of Supreme Court in Jahar Lal Dass vs State of Orissa, 1991 Crl.L.J. 1809. Relying on another judgment of Supreme Court in the case of Chandran vs State of Kerala, 1990 Crl.L.J. 2296, he submitted that courts of justice cannot be swayed by sentiment or prejudice against a person accused of the very reprehensible crime.

(32) Referring to the order dated 22nd August, 1992 passed by Shri J.P. Singh, learned Additional Sessions Judge, rejecting the bail of respondent No.1, the learned counsel submitted that in the said order word "rape" has been misread. Regarding the contention of the learned counsel for the petitioner that the impugned order dated 16th November, 1992 does not give any reason for varying with the earlier order dated 22nd August, 1992, learned counsel submitted that the learned Additional Sessions Judge has exercised his discretion in granting the bail and there is no need to mention any reason. He further submitted that once discretion having been exercised, there must be some strong factors to cancel the bail and in the present case no such factor has been brought to the notice of the court.

(33) I have given my anxious consideration to the submissions made by the learned counsel for the parties and have perused the records. As per the allegations made in the Fir respondent No. 1, who is employed as head constable in Delhi Police, had been teasing the deceased Bimla when she used to go to school or to dump cow dung. Though the suicide note does not contain any allegation of rape, there is mention of attack at the house of the deceased by respondent No.1 and his brothers on the night when the deceased is alleged to have been raped when the father of the deceased was away on duty. Further the postmortem report says "sexual intercourse before death". Rinki,who was the friend and class fellow of the deceased, in her statement under section 161 of the Code has stated that the deceased on the date of occurrence had told her that she had been raped by respondent No.1 and told her not to disclose this fact. Rinki has explained that it was because of the promise given to the deceased that she would not disclose this fact, and has given statement at a later stage i.e. on 15th August, 1992.

(34) Keeping in view the facts mentioned above and grave nature of the offence Shri J.P. Singh, Additional Sessions Judge, rejected the third application for bail filed by respondent No. I on merits with a speaking order dated 22nd August, 1992. In this order it was specifically mentioned that this is a case in which a 16 years old girl was allegedly raped and that the suicide note involve the accused in offense other than rape but the postmortem report says that there is evidence of rape before death.

(35) But it is astonishing to note that within a period of less than a month on the 5th application for bail filed by respondent No.1 which contained the same facts as those in the earlier third and fourth applications, another learned Additional Sessions Judge, Shri B.S. Chaudhary, granted bail to respondent No.1 vide his order dated 16th September, 1992 virtually overruling the earlier decision without there being any change in the facts and situation. Learned counsel for respondent No.1 could not point out that any drastic change has taken place between 22nd August, 1992 and 16th September, 1992 necessitating the release of respondent No.1 on bail. I am, therefore, of the view-that there was no justification in passing the order dated 15th September, 1992 granting bail to respondent No.1.

(36) In a similar situation the Supreme Court in the case of Captain Buddhikota Subha Rao (supra) took a serious view in the matter and set aside the order granting bail to the accused. Here it will be relevant to reproduce the observations made by the the Supreme Court which are as folows;- "BETWEEN the two orders there was a gap of only two days and it is nobody's case that during these two days drastic changes had taken place necessitating the release of the respondent on bail. Judicial discipline, propriety and comity demanded that the impugned order should not have been passed reversing all earlier orders including the one rendered by Puranik, J. only a couple of days before, in the absence of any substantial change in the fact-situation."

(37) In view of the law laid down by the Supreme Court in the case of Captain Buddhikota Subha Rao (supra) the order dated 15th September, 1992 granting bail to respondent No.1 cannot be sustained. Here a reference may also be made to a judgment of Patna High Court in the case of Surinder Singh (supra) which was also relied upon by the learned counsel for respondent No.1 while referring to the grounds on which an order under section 439(2) of the Code may be passed. One of the grounds given in this judgment is that an order granting bail by the lower court may be cancelled if the High Court finds that the lower court while granting bail has exercised its judicial power wrongly. Since I have taken the view that the learned Additional Sessions Judge while granting bail on 16th September, 1992 has exercised its judicial power wrongly, the bail granted to respondent No.1 is liable to be cancelled.

(38) Besides, there are other grounds also for cancelling the bail of respondent No.1. As per the allegations, respondent No.1 and his brothers had attacked the house of the petitioner on the night when the rape is alleged to have been committed and again they are alleged to have had given beating to the petitioner and his sons on the next morning. Further Dd No.12, copy of which is Annexure-G to the petition, shows that respondent No.1 Along with his brothers gave threats to a witness not to depose against him. Respondent No.1 is employed as Head Constable in Delhi Police. In view of the aforesaid fact there is likelihood of respondent No.1 tampering with the prosecution witnesses. In this connection a reference may be made to a judgment of the Supreme Court in Niranjan Singh vs Prabhakar Raja Ram Kharote, , wherein it was held that, "ground of bail is within the jurisdiction of Sessions Judge but the Court must not, in grave cases, gullibly dismiss the possibility of police accused intimidating the witness with cavalier case." Here I would also like to refer to the observations of a learned Single Judge of this Court in the case of Vishnu Pandit (supra) that "crime against women is on increase and courts have to be circumspect in granting bail to the accused persons accused of having committed heinous offences against the women."

(39) As regards the contention of learned counsel for Respondent No.1, that there is a delay of 15 days in recording the statement of Rinki, it may be pointed out that such delay can be explained during the trial of the case. In this connection reference maybe made to a recent judgment of the Supreme Court in Ganesh Lal vs. State of Maharashtra, .

(40) As regards the contention of the learned counsel for Respondent No.1, that even where a prima facie, case is established, the approach of the Court in the matter of bail should not be that the accused should be defamed by way of punishment, it may be pointed out that the personal liberty of an individual can be curbed by procedure established by law. The law permits curtailment of liberty of anti-social elements. Here it will be relevant to refer to the following observations of the Supreme Court in the case of Shahzad Hasan Khan (supra) :- "NO doubt liberty of a citizen must be zealously safeguarded bycourt, nonetheless when a person is accused of a serious offence like murder and his successive bail applications are rejected on merit there being prima facie material, the prosecution is entitled to place correct facts before the court. Liberty is to be secured through process of law, which is administered keeping in mind the interests of the accused, the near and dear of the victim who lost his life and who feel helpless and believe that there is no justice in the world as also the collective interest of the community so. that parties do not lose faith in the institution and indulge in private retribution."

(41) In view of the above discussion, I hold that the aggrieved party has a right to approach the High Court under section 439(2) read with section 482 of the Code for cancellation of bail granted to an accused where the order passed by the Sessions Court granting bail to the accused is illegal, improper, and incorrect. It is further held that Shri B.S. Chaudhary, the learned Additional Sessions Judge committed serious error in enlarging respondent No.1 on bail. Accordingly, the order dated 16th September, 1992, granting bail to respondent No.1, Karan Singh, is set aside and his bail is cancelled. It is further directed that respondent No.1, KaranSingh, be taken into custody forthwith. With this order the petition stands disposed of.