ISWAR DAS AND OTHERS Vs. STATE OF ORISSA

JUDGEMENT

(1.) Order dated 29-3-1995 passed by the learned Judicial Magistrate, first class, Jajpur Road, which has been confirmed by the learned Additional Sessions Judge, Jaipur, is under challenge. According to the petitioners, the impugned order amounts to cancellation of bail without following due procedure in law, more particularly Sec. 437(5) of the Code of Criminal Procedure, 1973(in short the Code).

(2.) A brief reference to the factual aspects is necessary for disposal of the case. Petitioners were enlarged on bail by order dated 16-2-1995. Subsequently an application was filed by the Investigating Officer for cancellation of bail on the ground that after further investigation it was found that the nature of offence committed by the petitioners was far more serious, and the case was one covered under Sec. 307 of the Indian Penal Code, 1860 (in short, IPC). It was stated that these aspects were not considered when bail was granted. Copy was served on the A.P.P. and notice was issued to the petitioners and bailors in the case asking them to show cause as to why bail granted to the petitioners should not be cancelled. The date of appearance was fixed to 14-3-1995. On that day the matter was adjourned to 29-3-1995 as service report was not back. On 29-3-1995 the accused-petitioners filed objection, and the copy thereof was served on the A.P.P. Since there was a direction in the show-cause notice issued for appearance of the accused persons, an application seeking time for appearance of the accused persons was filed. Time was allowed and the matter was directed to be put up on 5-4-1995 for consideration of objection. Further direction which is impugned in this application is to the effect that the accused persons were to surrender to their bail. The revision application was not entertained on the ground that the impugned order was an interlocutory one.

(3.) According to the learned counsel for petitioners, the direction to surrender to bail amounted to cancellation of bail, though the question of cancellation of bail was under consideration. The learned Additional Government Advocate submits that till consideration of the objection, it would be appropriate that the accused persons should be present in Court. That is not the direction given by the learned J.M.F.C. He had directed the accused persons petitioners to surrender to their bail, failing which warrant was to be issued. This virtually amounted to cancellation of bail, which matter was under consideration of the learned Magistrate. By the time the application of sub-section (5) of Sec. 437 comes into play, the accused would be on bail, and the question for consideration would be cancellation of the bail and recommittal of the accused to custody. That power to cancel bail can be exercised only when the accused is on bail and not in custody. Since the learned JMFC has virtually cancelled the bail, though the question whether bail granted is to be cancelled was under consideration, this is a fit case where exercise of power under Sec. 482 of the Code is called for, which I do.