Mahant Sant Sarup vs State of Punjab

J.M. Tandon, J.—Mahant Sant Sarup filed Cr. M. No. 4286-M/84 praying for anticipatory; bail u/s 438, Cr. P.C. in a case FIR No. 43 dt. July 5, 1984 under Sections 452, 506, 380, 148, 448 and 149, IPC and Sections 25 and 27 of the Arms Act, P.S. Division ''E'', Amritsar. The prayer was allowed by order dt. Aug. 6,1984 which reads:

Heard. The petitioner is directed to be released on bail in the event of his arrest on his furnishing adequate security to the satisfaction of the arresting officer. The petitioner would join investigation as and when required by the police.

The petitioner through his counsel is directed the appear before S. I. Sucha Singh on Aug. 9, 1984 at 10.00 A.M. in ''E'' Division Kotwali, Amritsar.

The State of Punjab has moved Cr. Misc. No. 5248/84 praying that the order dt. Aug. 6, 1984, allowing anticipatory bail to Mahant Sant Sarup be recalled and the bail already allowed to him be cancelled in view of the provisions contained in Section 15(4) of the Terrorist Affected Areas (Special Courts) Act, 1984 (for short, the Act).

Mr. D. S. Brar, AAG(Pb) appearing for the State has argued that offences under Sections 506, IPC and 25/27 Arms Act, for which Mahant Sant Sarurp has been accused are scheduled offences falling within the purview of the Act "and he could not be allowed anticipatory bail in view of the provisions contained ''in Section 15(4) of the Act. The bail already allowed to him is liable to be cancelled u/s 439(2), Cr. P.C.

Learned Counsel for Mahant Sant Sarup respondent has argued that irrespective of the fact that the respondent could not be allowed anticipatory bail for offence u/s 506, I.P.C. and Sections 25/27 Arms Act in view of the provisions contained in Section 15(4) of the Act, the bail already allowed to him cannot be cancelled for the reason that the criminal Court has no jurisdiction to review the order already passed. Reliance has been placed on State (Delhi Administration) Vs. Sanjay Gandhi, and Ajit Singh v. State of Punjab (1982) 1 Chand LR (Cri) 363 : 1982 Cri LI 1215 (FB).

Section 15(4) of the Act reads:

Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed a scheduled offence in a terrorist affected area.

The offences under Sections 506, IPC and 25/27 Arms Act for which Mahant Sant Sarup has been accused are included in the Schedule of the Act. It is evident and is also not disputed that he could not be allowed anticipatory bail 1 on Aug. 6, 1984 in Cr. M. No. 4286-M/84.

Section 439(2), Cr. P.C. reads:

A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.

An accused who has been released on bail u/s 438, Cr. P.C. can be ordered to be arrested and committed to custody. Section 439(2), empowers the High Court and the Court of Session to cancel the bail already allowed to an accused including anticipatory bail. In Ajit Singh and Another Vs. State of Punjab, it has been held that the High'' Court has no power to review or alter its earlier judgment in a criminal case except to correct a clerical error. In State (Delhi Administration) Vs. Sanjay Gandhi, their Lordships have observed that the power to take back in custody an accused who has care and circumspection. But the power, though of an extraordinary nature, is meant to be exercised in appropriate cases, when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses.

The contention of the learned Counsel for the accused is that the power of the High Court to cancel the bail already allowed to the accused u/s 439(2) Cr. P.C. can only be exercised when the accused is found interfering with the course of justice and not on the ground that the Court had no jurisdiction to allow the bail (or anticipatory bail). The contention is without merit Section 439(2), Cr. P.C. empowers the High Court to cancel the bail already allowed to an accused. The cancellation of bail already allowed to an accused does involve the review of the earlier order passed. The High Court has no power to review or alter its decisions in criminal cases except to the extent permitted by law. The High Court is competent to review its earlier decision allowing bail to an accused. It is so provided in Section 439(2) Cr. P.C. The power of the High Court u/s 439(2) Cr. P.C. is fairly wide. It can also be exercised on the ground that the High Court had no jurisdiction to allow bail (anticipatory bail) to start with. The learned Counsel for the accused cannot justifiably press the ratio of State (Delhi Administration) Vs. Sanjay Gandhi, in support of his contention that the High Court cannot cancel the bail already allowed in exercise of power conferred u/s 439(2) Cr. P.C. on the ground that it had no jurisdiction to allow bail to start with. The accused is on bail in pursuance of the anticipatory bail allowed to him vide order dated Aug. 6, 1984. The bail allowed to him is liable to be cancelled.

In the result, Cr. M. No. 5248/84 is allowed and the bail allowed to Mahant Sant Sarup in pursuance of the order dt. Aug. 6, 1984 in Cr. M. No. 4286-M/84 cancelled.