K. Bomanji Wookerji vs State of Mysore

These two petitions in which the petitioner is the same and the point involved is common can be disposed of by a single order. Both relate to cases in which the petitioner is alleged to have committed an offence u/s 420, I.P.C. which, according to the schedule to the Code of Criminal Procedure, is bailable. The petitioner applied for bail and the learned Magistrate granted it on condition of his executing a bond for Rs. 25,000/- and furnishing two sureties for a like sum. The amount- mentioned being felt to be excessive, the petitioner applied to the learned Sessions Judge, Mysore, for reduction of the amount, and he reduced it to Rs. 2500/-. The requirements of this order were satisfied and the cases are still pending in the Magistrate''s Court An application was filed on behalf of the prosecution before the learned Sessions Judge for cancellation of the bail on the ground that the petitioner was repeatedly absent on the dates; (SIC) hearing of the cases and the progress of the case was considerably retarded. The learned Judgment a summary order allowed the application and the correctness of this is impugned in this Court.

The order of the learned Judge does not state the reasons for it or the provision of law under which it purports to have been passed. Mr. Govindarajulu on behalf of the .petitioner re-presents that the order is unjust as the accused was not given opportunity to refute the allegations in the application and contends that it is in any event illegal and unwarranted.

The provisions for grant and cancellation of bail are contained in Sections 496, 497 and 498 of the Code of Criminal Procedure. Section 49(SIC) applies to cases of bailable offences; Section 49(SIC) to nonbailable offences for which punishment is other than death or transportation for life and u/s 498 power is given to the High Court or Court of Session to admit any person to bail or to reduce the bail required by the police officer or a Magistrate. In both cases against petitioner as already mentioned, the offences alleged are bailable and the order previously made by the learned Sessions Judge is stated to be u/s 498 of the Code of Criminal Procedure since it only reduced the bail required by the Magistrate. There is no provision for cancellation of bail by the Sessions Judge when the offence alleged is bailable and cancellation is allowed in Sub-section (5) of Section 497 when the offences alleged are nonbailable and punishment for which is not death or transportation for life. The learned Asst. Advocate-General has fairly conceded that the order cannot be supported by any statutory provision.

In -- The Crown Prosecutor Vs. N.S. Krishnan and Another, it was held that bail once granted cannot be cancelled by the same Court u/s 497 and such an order is permissible u/s 561-A of the Code of Criminal Procedure. Section 561-A cannot be (SIC) vowed in the present case as It relates only to (SIC) powers of the High Court and not other Courts. To the same effect is the decision in Seoti and Others Vs. Rex., . If as stated in the petition before the learned Sessions Judge the accused by his absence is hindering the case from being proceeded with it is open to the trial Magistrate to apply the provisions of Section 92, Criminal P. C., as pointed out in 39 Mys HCR 1102 (C). The orders now passed by the learned Session Judge cannot be regarded as warranted by law These are, therefore, set aside and the applications are allowed.

Applications allowed.