Deepu, Sri Mallikarjuna and Sri Siddalingaiah vs State and Govinde Gowda

H.N. Nagamohan Das, J.—The petitioners are accused Nos. 2, 4 and 6 in S.C. No. 47/2013 pending on the file of II Additional District and Sessions Judge, Tumkur for the offences punishable under Sections 143, 147, 148, 323, 324, 341, 504, 506, 307, 302 r/w Section 149 of IPC. In Crl. Misc. 110 & 111 of 2013 vide order dated 18.02.2013, the petitioners are enlarged on bail subject to certain conditions. One of the condition is that the petitioners shall not threaten or tamper with the prosecution witnesses.

During the pendency of the trial, the Public Prosecutor filed an application u/s 439(2) of Cr.P.C. seeking cancellation of bail granted in favour of the petitioners on the ground that they have violated the bail conditions and the threatened the witnesses. To this application, the petitioners filed objections denying the allegations. Under the impugned order, the Sessions Judge, allowed the application, cancelled the bail granted in favour of the petitioners. Now they are apprehended and are in custody. Aggrieved by this order of cancelling the bail, the petitioners are before this Court.

Learned counsel for the respondents contend that the petition u/s 482 of Cr.P.C. is not maintainable against an interim order cancelling the bail granted by the Sessions Judge. I decline to accept this contention. The Supreme Court in Puran Vs. Rambilas and Another etc. etc., held that the petition u/s 482 of Cr.P.C. is maintainable against an interim order cancelling the bail order. The relevant portion is as under: In the hierarchy of Courts, the High Court is the Superior Court. A restrictive interpretation which would have effect of nullifying S. 439(2) cannot be given. When S. 439(2) grants to the High Court the power to cancel bail, it necessarily follows that such powers can be exercised also in respect of orders passed by the Court of Session. Of course cancellation of bail has to be on legal principles and only in appropriate cases. Further, even if it is an interlocutory order, the High Court''s inherent jurisdiction under S. 482 is not affected by the provisions of S. 397 of Cr.P.C. The High Court may refuse to exercise its jurisdiction under S. 482 on the basis of self-imposed restriction is a different aspect. It cannot be denied that for securing the ends of justice, the High Court can interfere with the order which causes miscarriage of justice or is palpably illegal or is unjustified.

A perusal of the impugned order passed by the Sessions Judged do not specify a finding on the rival controversy between the parties relating to threatening the witnesses. The Sessions Judged had only recorded the rival contentions and referred to certain decisions. But there is no finding on the factual controversy between the parties. On this ground alone the impugned order is liable to be set aside and the matter is required to be remanded for reconsideration. Accordingly, the following: ORDER

i) The petition is hereby allowed.

ii) The impugned order dated 17.10.2013 in S.C. No. 47/2013 passed by the II Additional District and Sessions Judge, Tumkur is hereby set aside.

iii) The matter is remanded to the Sessions Judge for reconsideration of the application filed by the Public Prosecutor u/s 439 of Cr.P.C. for cancellation of the bail as expeditiously as possible.

In view of the above order, the petitioners are to be enlarged forthwith from the custody on the same conditions which they were enlarged on earlier occasions in Crl. Misc. 110 and 111 of 2013.