For the purpose of cancellation of bail, following considerations are to be satisfied:- --Perusal of Section 107 PPC -- statement of one of the assailants recorded under Section 164 Cr.P.C in all fairness is a statement of co-accused, hence, no deviation can be made against the established principle of law that statement of one accused cannot be used against the other in absence of any attending material produced by the prosecution.

 2022 SCMR 676

For the purpose of cancellation of bail, following considerations are to be satisfied:-

“i) If the bail granting order is patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice.

ii) That the accused has misused the concession of bail in any manner.

iii) That accused has tried to hamper prosecution evidence by persuading/pressurizing prosecution witnesses.

iv) That there is likelihood of absconsion of the accused beyond the jurisdiction of court.

v) That the accused has attempted to interfere with the smooth course of investigation.

vi) That accused misused his liberty while indulging into similar offence. vii) That some fresh facts and material has been collected during the course of investigation with tends to establish guilt of the accused.”

Perusal of Section 107 PPC reveals that three ingredients are essential to dub any person as conspirator i.e. (i) instigation, (ii) engagement with co-accused, and (iii) intentional aid qua the act or omission for the purpose of completion of said abetment. All these three ingredients of Section 107 PPC are prima facie missing from the record. We do not want to give any finding in this regard because it can prejudice the case of either of the party. It is now established without any hesitation that considerations for the grant of bail and cancellation whereof are entirely on different footings. Generally speaking, the Courts are reluctant to interfere in the order of grant of bail and even in cases where it is apparently found that the bail granting order is not sustainable in the eyes of law, the Courts restrain to interfere in such matters if it is found that there was nothing to show that the accused has misused the concession of bail.

The statement of one accused in “isolation” does not advance the prosecution case except at the most it is a statement of a co-accused. We have noticed that there is nothing on the record where the prosecution has advanced its case qua conspiracy in any manner except the bald allegation which is incorporated in the FIR without citing any witness of the said aspect of the case. The statement of one of the assailants recorded under Section 164 Cr.P.C in all fairness is a statement of co-accused, hence, no deviation can be made against the established principle of law that statement of one accused cannot be used against the other in absence of any attending material produced by the prosecution.

There is no denial to this fact that the jurisdiction of the Sessions Court and the High Court is concurrent in nature. The learned High Court while adjudicating the matter has given cogent reasons especially when it is admitted that one of the deceased was himself a District & Sessions Judge, therefore, any order if would have been passed either way that would have been considered prejudicial because of the reason that the deceased was member of the district judiciary. Even otherwise, the respondent has not availed one remedy, which was available to him while agitating his grievance before the High Court, therefore, he lost one opportunity causing no prejudice to complainant party.