STATE OF MADHYA PRADESH Vs. CHINTAMAN

JUDGEMENT

(1.) IN Sessions Trial No. 16/85, the Sessions Judge Bhind held the non-applicants guilty of offences punishable under Sections 326/149, 323/149 and 148 I. P. C. and sentenced to various terms of imprisonment the longest being five years' rigorous imprisonment. They preferred an444 appeal. Vide order dated 13-1-87 passed in Criminal Appeal No. 281/86 this Court directed the execution of the sentences of imprisonment to be suspended under Section 389 (1), Cr. P. C. subject to their furnishing personal bonds in the sum of Rs. 10,000/- each with one solvent surety in the like amount. The non-applicants/appellants furnished bail bonds and are thus at liberty pending appeal.

(2.) ON 9-9-87, an application under Section 439 (2) read with Section 482, Cr. P. C. has been filed by the State under instructions of the Law Department praying for cancellation of the bail and for further direction committing the accused/appellants to custody pending appeal on the ground that subsequent to being enlarged on bail, they have made an abuse of the privilege, they are threatening the complainant and are indulging in other criminal activities creating a terror in the village. The non-applicants have controverted the allegations by filing reply on affidavit sworn by one Keshavsingh.

(3.) A preliminary objection has been raised to the entertainability of the application on behalf of the non-applicants. It is submitted that Section 439 (2), Cr. P. C. which makes a provision for cancellation of bail is limited in its application to such persons only who have been released on bail under Chap. XXXIII of the Code of Criminal Procedure, 1973. His further submitted that no provision for cancellation of bail is to be found in Section 389, Cr. P. C. which is a self-contained provision and hence a prayer for cancellation of bail of a convict (who ceases to be an 'accused') whose sentence has been directed to be suspended under Section 389, Cr. P. C. , cannot be entertained by having resort to the provisions of Section 439 (2) Cr. P. C. It is insisted that the prayer for cancellation of bail should be rejected in limine.