JANARDAN YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application is directed against the order dated 27th of June, 1977, passed by Sbri N. K. Chaudhuary, Judicial Magistrate, First Class, Monghyr, in G. R. 1569/73 by which the learned Magistrate has cancelled the bail bonds of the petitioners. By this very order, the learned Magistrate has further directed that non-bailable warrant of arrest be issued against the petitioners. However, when this application was admitted on 3rd August, 1977, this court directed that the execution of the non-bailable warrant of arrest against the petitioners shall be stayed.

(2.) The petitioners have been accused of an offence under section 325 of the Indian Penal Code in which two prosecution witnesses had been examined, cross-examined and discharged. Thereafter on 2.6.1976, a petition was filed on behalf of the informant (Opposite party no. 2) stating that the petitioners were threatening him and his witnesses. It was also stated therein that one witness Rameshwar Mistry who had already been examined in the case, was assaulted by the petitioner on 21.4.1976. In this application on behalf of opposite party No. 2 it was accordingly prayed that the bail bonds of the petitioners be cancelled. In support of this application, an affidavit was filed by the son of the opposite party no. 2. On show cause notice being issued, the petitioners on affidavit filed show cause on 10.12.1976. On a consideration of the materials, the impugned order was passed by the learned Magistrate.

(3.) Under the Code of Criminal Procedure, 1973 (hereinafter called "the Code"), Chapter XXXIII deals with the provisions as to bail bonds. Clause (1) of section 436 of the Code, which is under this Chapter, provides that when any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail. Section 437 (3), which is also under this Chapter, provides for grant of bail in non- bailable offences, and clause (5) of that section provides that any Court which has released a person on bail under sub-section (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person he arrested and commit him to custody. I am referring to the provisions of this section to show that there is no such equivalent provision under section 436 Wherein bail has to be granted for bailable offences. It may be mentioned that in the instant case, the petitioners were on bail in a case under section 325 of the Indian Penal Code which is a bailable offence.