Orissa High Court
Madhah Chandra Jena And Anr. vs State Of Orissa on 23 December, 1986
Equivalent citations: 1988CRILJ608
Author: G.B. Patnaik
Bench: G.B. Patnaik
JUDGMENT L. Rath, J.
1. This revision has been referred to the Division Bench by Honourable Mr. Justice S. Aeharya on the question whether a Magistrate has powers to cancel a bail in a bailable offence on the ground that the accused persons intimidated the prosecution witnesses with dire consequences if they attend the court. The learned Judge was of the view that there is no provision in the Cock- of Criminal Procedure authorising the Magistrate to cancel bail allowed in respect of bailable offences and that he has no inherent powers also in that respect, but however since there is an earlier single Judge decision of this Court in (1977) 44 Cut LT 466 also reported in (1978) 45 Cut LT 11 : 1978 Cri LJ NOC 104 holding the contrary view, he has referred the matter for decision by a larger Bench.
2. The facts briefly stated are that the petitioners were being proceeded against under Sections 448/337 and 509, I.P.C. all bailable offences, in G.R. Case No. 294/79 before the Sub-divisional Judicial Magistrate Kendrapara. The petitioners were on bail. An application was filed on 17-4-1980 to cancel the bail bond on allegation that the petitioners threatened the witnesses with dire consequences if they attended the court in pursuance of summons issued from the court. The learned Magistrate after hearing the parties felt that the bail of the petitioners should be cancelled and following the aforesaid decision reported in (1977) 44 Cut LT 466 : 1978 Cri LJ NOC 104 cancelled the bail directing that the petitioners should not be enlarged on bail till the prosecution witnesses to the occurrence are examined. Aggrieved by such order, the petitioners have come up before this Court in revision.
3. The petitioners had been granted bail under Section 436, of the Criminal Procedure Code under which section admission into bail is as of right. The section itself does not make any provision for cancellation of bail. A benefit to which one is entitled as of right cannot be taken away without an express sanction of the law. There being no such provision under Section 436. Cr. P.C. such a power cannot be conceded to the Magistrate on a plain reading of the section. The only provision for cancellation of bail is found in Section 437(5) where the court which has released a person accused of non-bailable offences on bail is authorised if it considers necessary so to do, to direct that the person be rearrested and be committed to custody. The provision, being in respect of non-bailable offences, cannot be invoked in respect of bailable ones,
4. The learned single Judge, in (1977) 44 Cut LT 466 : 1978 Cri LJ NOC 104 (Dayanidhi Sarangi v. State of Orissa) relying upon was of the view that the power is inherent in any court and when circumstances justify and court is competent to cancel the bail which it has granted earlier and need not refer the matter either to the Sessions Judge or to the High Court for the same. It was further held that the distinction does not lie in whether the case is bailable or non-bailable, but that the determining feature is whether the accused by his behaviour and conduct has forfeited the concession shown to him. Reliance was also placed on AIR 1967 All 394 : 1967 Cri LJ 980 (Panna Lal v. R. K. Sinha) to confirm that Section 496 of the old Criminal Procedure Code, which corresponds to Section 436 of the new Code, does not confer on a person accused of bailable offence of unqualified absolute and an indefeasible right to be released on bail.
5. With great respect we are not able to agree with the learned Judge, It is now too well settled that there is no inherent power available to be exercised by any subordinate criminal court and the power is exclusively available only to the High Court. Reference may be made to AIR 1977 SC 2432 : 1978 Cri LJ 187 (Bindeshwari Prasad Singh v. Kali Singh) where it was observed:
xx xx xx xx We, however, need not dilate on this point because there is absolutely no provision in the Code of Criminal Procedure of 1898 (which applies to this case) empowering a Magistrate to review or recall an order passed by him. Code of Criminal Procedure does contain a provision for inherent powers, namely Section 561-A which, however, confers these powers on the High Court and the High Court alone. Unlike Section 151 of Civil Procedure Code, the subordinate criminal courts have no inherent powers.
xx xx xx xx In a decision of this Court in 1978 Cut LR (Cri) 46 : 1978 Cri LJ 1310 Ganashyam Das v. Cuttack Municipality), Justice P.K. Mohanti, as he then was, held that unlike a civil court, a criminal court other than a High Court, does not possess any inherent powers. The matter has also been decided by the Hon'ble Supreme Court in AIR 1967 SC 1639 : 1967 Cri LJ 1576 (Ratilal Bhanji Mithani v. Assistant Collector of Customs, Bombay) where dealing with sections 497 and 498, Old Criminal Procedure Code, it was observed:
4. In the matter of admission to bail, the Code of Criminal Procedure makes a distinction between bailable and non-bailable offences. The grant of bail to a person accused of a non-bailable offence is discretionary under Section 497 of the Code and the person released on bail may again be arrested and committed to custody by an order of the High Court, the Court of Session and the Court granting the bail. Under Section 498 of the Code, the High Court and the Court of Session may release any person on bail and by a subsequent order cause any person so admitted to bail to be arrested and committed to custody. A person accused of a bailable offence is treated differently; at any time while under detention without a warrant and at any stage of the proceedings before the Court before which he is brought, he has the right under Section 496 of the Code to be released on bail. The Code makes no express provision for the cancellation of a bail granted under Section 496. Nevertheless, if at any subsequent stage of the proceedings, it is found that any person accused of a bailable offence is intimidating, bribing or tampering with the prosecution witnesses or is attempting to abscond, the High Court has the power to cause him to be arrested and to commit him to custody for such period as it thinks fit.
Thus there is intrinsically difference regarding grant of bail between bailable and non-bailable offences and the two can never be treated alike. The learned single Judge was thus not correct in his view that there is no distinction whether the case is bailable or non-bailable,
6. Even though it was held in AIR 1967 SC 1639 : 1967 Cri LJ 1576 that where circumstance justifies, the bail granted in bailable offences may be cancelled by the High Court in its inherent powers, yet under the new Code, specific provision has been made under Section 439(2), Cri. P.C. authorising the High Court or the Court of Session to direct the arrest of a person who had been released on bail and to comit him to custody. In view of such specific provision, an application can now be moved either before the Sessions Court or the High Court to cancel the bail irrespective of the fact whether the offence is bailable or non-bailable. We are supported in this view by the Patna High Court in 1978 Cri. LJ 1318 (Janardan Yadav v. State of Bihar).
7. In the result (1977) 44 Cut LT 466 or (1978) 45 Cut LT 11 : 1978 Cri LJ NOC 104 (Dayanidhi Sarangi v. State of Orissa must be held as not laying down good law and the order passed by the learned Sub-divisional Judicial Magistrate, Kendrapara on 15-4-1980 cancelling the bail of the petitioners must be quashed. The revision is accordingly allowed.
G.B. Patnaik, J.
8. I agree.