Kailash Singh vs State and Another

H.R. Panwar, J.—By the instant criminal revision petition u/s 397/401 CrPC, the accused - petitioner has challenged the order dated 01.8.2005 passed by Sessions Judge, Pali (for short "the trial court" hereinafter) whereby the Sessions Judge cancelled the bail granted to the petitioner by Judicial Magistrate, Marwar Junction by order dated 30.5.2005 on an application filed by the non-petitioner No.2 u/s 439(2) CrPC.

Heard learned counsel for the parties. Perused the order impugned.

From perusal of the order impugned, it appears that allegation against the petitioner is that by teeth biting, a portion of the ear of the non-petitioner No.2 was cut.

Learned counsel for the petitioner submits that in Shakeel Ahmed vs. State, Delhi reported in 2004 SCC (Cri) page 1759, the Hon'ble Supreme Court has held that teeth of a human being cannot be considered as deadly weapon u/s 326 IPC. On similar facts, it was held that it cannot escalate to Section 326 IPC. It can best remain only at Section 325 IPC. According to the learned counsel for the petitioner, the offence at best, does not travel beyond Section 325 IPC in view of the decision of the Hon'ble Supreme Court referred above.

In my view, the trial court fell in error in cancelling the bail granted by Judicial Magistrate. The Hon'ble Supreme Court in the case of Aslam Babalal Desai Vs. State of Maharashtra, , held that bail granted u/s 437(1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) Interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation. As such, from the perusal of the order of the Sessions Judge, it nowhere appears that there was any ground enumerated by Hon'ble Supreme Court in Aslam Babalal Desai Vs. State of Maharashtra (supra) before the Sessions Judge to cancel the bail.

In the circumstances, therefore, Sessions Judge fell in error in cancelling the bail granted to the petitioner.

Consequently, the revision petition is allowed. The order impugned passed by the Sessions Judge, Pali is set aside and that of Judicial Magistrate, Marwar Junction is restored. The petitioner is on bail. He shall continue on bail on the same bail bonds.