DHARMENDRA SHIVNARAYAN GUPTA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By this application under Article 227 of the Constitution of India, the applicant-original accused calls in question the legality and validity of the order dated 17th November, 2017 passed by the In-charge, 5th Ad-hoc Addl. Sessions Judge, Mehsana in the Criminal Revision Application No.69 of 2017, by which, the Revisional Court rejected the revision application filed by the applicant herein thereby affirming the order dated 13th November, 2017 passed by the 7th Judicial Magistrate, First Class, Mehsana.

(2.) The facts giving rise to this application may be summarized as under;

(3.) Mr. Pathan, the learned counsel appearing for the applicant, submitted that once the Magistrate passes an order, releasing the accused on bail, then he has no jurisdiction, thereafter, to stay his own order on the request of the Public Prosecutor. To put it in other words, the argument is that once the court exercises discretion in favour of an accused and orders his release on bail, he becomes functus officio. It is submitted that the grant of bail has something to do with the personal liberty of an accused as envisaged under Article 21 of the Constitution of India. Once, the Court comes to the conclusion that the accused has made out a case for bail and orders his release, then, thereafter, the Court has no power or should not stay the operation of his order as the same would be violative of Article 21 of the Constitution of India. Mr. Pathan submitted that the order of bail has been suspended from its operation for a period of thirty days. The period of thirty days would expire on 13th December, 2017. If the State is really serious in questioning the order of grant of bail, then, by now, an appropriate application for cancellation of bail should have been filed in accordance with law. No application has been filed till this date for cancellation of the bail.