STATE OF BIHAR Vs. LOK NATH PRASAD DIDWANIA

JUDGEMENT

(1.) This is an application for cancellation of bail granted by the Chief Judicial Magistrate, Bhagalpur and a recall of the anticipatory order of bail passed by this court in the following circumstances. A first information report was lodged against the opposite party alleging him to be the owner of a firm M/s. Bharat Agencies dealing in cement under the Bihar Cement Control Order, 1972. A raid was made by the officers of the Supply Department and it was found that the licensee had sold cement at a rate in excess, of fixed price, that he had sold cement without issuing cash memo therefor or obtaining signature of purchasers and had committed certain other irregularities. In that respect a case under Sections 7 and 9 of the ESSENTIAL COMMODITIES ACT, 1955 and Rule 114 of the Defence of India Rules was instituted. The opposite party then filed an application for anticipatory order for bail in this court on the 6th of July, 1976. It was heard by this court on the 9th of July, 1976 and the application was allowed and the opposite party was directed to be released, if arrested, on furnishing bail of Rs. 3,000.00with two sureties of the like amount to the satisfaction of the Chief Judicial Magistrate.

(2.) In the persent application for recall of the aforesaid order as also for cancellation of order of bail granted by the Magistrate, it has been pointed out that the opposite party had already surrendered before the Magistrate on the 7th of July, 1976 and thus it is urged that the petition to this court Under Section 438 of the Code become infructuous and the order passed by this court in such circumstances ought to be recalled. Next it has been urged that the order for bail passed by the Magistrate was without considering the case on merits and only in pursuance of the order of this court and, therefore, it ought to be cancelled.

(3.) A counter-affidavit has been filed on behalf of the opposite party stating that the Karpardaz of the opposite party had come to Patna and entrusted the papers to the lawyer and gone back to Bhagalpur on the 15th July, 1976. Not having received any information about the filing and the result of the application, the opposite party had, surrendered in the court of the Chief Judicial Magistrate on the 7th of July, 1976 and prayed for bail because the police had already got processes issued against him on the 6th of July, 1976. It is further said that he could not inform his counsel regarding his surrender in such circumstances ; that he could not even inform the Magistrate about the result of the application for anticipatory bail and that there was no wilful suppression of the fact of his surrender before the Magistrate which was necessitated on account of the aforesaid, circumstances.