YUNUS HUSSAIN RATHOD Vs. ASSISTANT COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) THE question which arises for consideration is whether the Sessions Court possesses legal authority to stay the operation of the order of a Magistrate releasing the accused on bail.

(2.) THE petitioners are the accused in a case under the Customs Act. They were arrested on 15th September, 1989 and produced before the Magistrate on 16th September, 1989. By the Order of the Additional Chief Metropolitan Magistrate, 8th Court, Bombay, dated 16th September, 1989 in Remand Application No. 968 of 1989, they were remanded to custody. However, on 23rd October, 1989 they were released on bail. On 24th October 1989, the Assistant Collector of Customs the respondent No. 1, preferred Criminal Revision Application No. 299 of 1989 before the Sessions Court of Greater Bombay. On the same day, the Additional Sessions Judge, Bombay, who was hearing criminal applications, stayed the operation of the order releasing the petitioners on bail. The Order granting stay of the operation of bail is impugned in this petition.

(3.) THE Criminal Revision Application No. 299 of 1989 filed by the Assistant Collector of Customs is for cancellation of bail. A Court of Sessions, no doubt, has the power to direct that any person who has been released on bail. . . . . . . . . . . . . be arrested and committed to custody (Sub-section (2) of section 439 of the Code of Criminal Procedure ). But the cancellation of bail is an extraordinary step. It must be preceded by an inquiry into the circumstances on which the application is based and application of the principles governing cancellation of bail. The existence of supervening circumstances which make it necessary that the accused should not remain free. (The State through the Delhi Administration v. Sanjay Gandhi) A. I. R. 1978 S. C. 961 : 1978 Criminal Law Journal 952, or other cogent and overwhelming circumstances (Bhagirath Singh Judeja v. State of Gujarat) 1984 Criminal Law Journal 160 have to be proved before the bail is cancelled. It follows, therefore, that the order of cancellation of bail can be made after examining the material produced and therefore, of necessity, after hearing both the parties. It stands to reason that cancellation of bail is a final order on the application. There is no power in the Sessions Court under section 439 of the Code of Criminal Procedure to make an interim order of cancellation of bail. The order which stays or suspends the operation of the Order of the Magistrate granting bail has the effect of temporary, intervening, cancellation of bail. Such a power has not been conferred on the Sessions Court. In (Rameshwar Prasad v. State) 1975 Criminal Law Journal 658, the Allahabad high Court, too has held the same view. This is not to suggest that once an accused has been released on bail by a Subordinate Court, such Order cannot be suspended. There are occasions where accused secure orders of bail, by fraud, misrepresentation or the order are, otherwise grossly improper. In such cases, the ends of justice may demand suspension or stay of such orders. The High Courts inherent powers have been saved "to prevent abuse of the process of any Court of otherwise to secure the ends of justice" (Section 482 of the Code of Criminal Procedure ). The Sessions Court does not possess such powers.