Learned counsel for the petitioner submits that the offence prima facie against the accused are under Sections 315 & 316 IPC as observed by the
learned District Judge and in view of the nature of the allegations, learned Magistrate ought not even grant bail to the accused. She, therefore, moved
an application under Section 439 (2) Cr.P.C. before the learned District Judge, who has rejected the application.
Learned counsel for the petitioner submits that taking into consideration the seriousness of the allegations made under Sections 315 & 316 IPC are
triable by learned District Judge. There was no occasion for the learned Magistrate to grant bail.
I have considered the submissions.
This court finds that an application was moved by the petitioner-complainant for cancellation of bail. Learned District Judge has noticed that even
though the allegations against the accused is of serious nature, however, the same cannot be a reason for cancellation of bail.
In the opinion of this court, such a view taken by the District Judge, Sikar is in-confirmation with the law laid down by the Supreme Court in the case
of Aslam Babalal Desai Versus State of Maharasthra reported in AIR 1993 SC 1, wherein it has been held as under:-
14. We sum up as under:
The provisions of the Code, in particular Sections 57 and 167, manifest the legislative anxiety that once a persons' liberty has been interfered with by
the police arresting him without a court's order or a warrant, the investigation must be carried out with utmost urgency and completed within the
maximum period allowed by the proviso (a) to Section 167(2) of the Code. It must be realised that the said proviso was introduced in the Code by way
of enlargement of time for which the arrested accused could be kept in custody. Therefore, the prosecuting agency must realise that if it fails to show
a sense of urgency in the investigation of the case and omits or defaults to file a charge sheet within the time prescribed, the accused would be entitled
to be released on bail and the order passed to that effect under Section 167(2) would be an order under Sections 437(1) or (2) or 439(1) of the Code.
Since Section 167 does not empower cancellation of the bail, the power to cancel the bail can only be traced to Section 437(5) or 439(2) of the Code.
The bail can then be cancelled on considerations which are valid for cancellation of bail granted under Section 437(1) or (2) or 439(1) of the Code.
The fact that the bail was earlier rejected or that it was secured by the thrust of proviso (a) to Section 167(2) of the Code then recedes in the
background. Once the accused has been released on bail his liberty cannot be interfered with lightly i.e. on the ground that the prosecution has
subsequently submitted a charge-sheet. Such a view would introduce a sense of complacency in the investigating agency and would destroy the very
purpose of instilling a sense of urgency expected by Sections 57 and 167(2) of the Code. We are, therefore, of the view that once an accused is
released on bail under Section 167(2) he cannot be taken back in custody merely on the filing of a charge-sheet but there must exist special reasons
for so doing besides the fact that the charge-sheet reveals the commission of a non-bailable crime. The ratio of Rajnikant's case to the extent it is
inconsistent herewith does not, with respect, state the law correctly.
15. Even where two views are possible, this being a matter belonging to the field of criminal justice involving the liberty of an individual, the provision
must be construed strictly in favour of individual liberty since even the law expects early completion of the investigation. The delay in completion of
the investigation can be on pain of the accused being released on bail. The prosecution cannot be allowed to trifle with individual liberty if it does not
take its task seriously and does not complete it within the time allowed by law. It would also result in avoidable difficulty to the accused if the latter is
asked to secure a surety and a few days later be placed behind the bars at the sweet will of the prosecution on production of a charge-sheet. We are,
therefore, of the view that unless there are strong grounds for cancellation of the bail, the bail once granted cannot be cancelled on mere production of
the charge-sheet. The view we are taking is consistent with this Court's view in the case of Bashir & Raghubir (supra) but if any ambiguity has arisen
on account of certain observations in Rajnikant's case our endeavour is to clear the same and set the controversy at rest.
In view thereof, no case for interference is made out. The criminal misc. petition is devoid of merit and it is accordingly dismissed.
