Mangesh Kaisare vs The State of Karnataka

K.N. Phaneendra, J.—In all the above matters it appears that respondent No. 2 has secured anticipatory bail before the District & Sessions Judge, Uttara Kannada, Karwar. The Sessions Judge has granted bail after providing opportunity to the learned Public Prosecutor and also after hearing both the parties. The offence alleged against the accused persons in the above said cases are u/s 395 read with Section 149 of the Indian Penal Code, 1860 (hereinafter referred to as ''I.P.C.'' for brevity)

In the above said cases learned counsel for petitioner had filed an application seeking for cancellation of anticipatory bail granted to respondent No. 2 by the Sessions Court on the ground that he has not complied with the order passed by learned Sessions Judge by colluding with the police and they are misusing the liberty and freedom given by the Court. It is further urged that the amount and valuable materials taken away by respondents are not recovered. Therefore, releasing of said accused persons is illegal.

It is further submitted that if the respondent No. 2 continues with anticipatory bail, then there is no possibility of getting justice and petitioner will be put to irreparable loss. In fact, the above said ground has not been urged before the Sessions Court as the petitioner has not approached the Sessions Court for cancellation of bail.

It is a well recognised principle of law, particularly, if the Sessions Court passes a bail order u/s 439(2) of Code of Criminal Procedure, 1973 (hereinafter referred to as ''Cr.P.C.'' for brevity), then it has got ample power to cancel the bail on sufficient grounds that may be urged by the party. The State has not filed any petition for cancellation of bail.

In this regard, it is worth to note here a decision in the case of Shahzad Hasan Khan Vs. Ishtiaq Hasan Khan and Another, . In the said judge, the Hon''ble Supreme Court has held that-

Bail application before the High Court-Practice-Where earlier bail applications of the accused already rejected by a Judge of the High Court, subsequent application should also be placed before the same Judge-Practice and Procedure.

On perusal of above judgment, it is clear that even for cancellation of bail if the same Judge is available the application has to be moved before the same Judge for appropriate remedies. Under the above said circumstances, I am of the opinion that the petitioner has to make an application u/s 439(2) of Cr.P.C. before the same Judge, who has passed the bail order in favour of respondent No. 2, as the said Judge will have control over the factual aspects of case. In the event of petitioner filing any application u/s 439(2) of Cr.P.C. the learned Sessions Judge is directed to hear the person in favour of whom the bail has been granted and the State and then pass appropriate orders with regard to cancellation of bail in accordance with law. With these observations, the above petitions stand disposed of.