Rakesh Chandra vs State of U.P.

I.P. Singh, J.—This Cr. Misc. Application has been moved u/s 482 Code of Criminal Procedure for staying the execution/operation of the order dated 11-8-81 passed by Munsif Magistrate, Mainpuri in Crime No. 122-A of 1981, P.S. Kishni, Mainpuri Under Sections 147/323, IPC State v. Balak Ram and Ors.

2 It appears that in above mentioned crime case originally Rakesh Chandra., present applicant was granted bail for offences punishable u/s 147/323, IPC. These were bailable offences and as such bail was granted by the Munsif Magistrate u/s 436, Code of Criminal Procedure.

It appears from the reading of paras 5 to 11 of this application that other four co-accused, namely Abhay Ram, Bharat Singh, Chhote Singh and Rambir had moved applications for release on bail twice. Their first bail application was rejected on 27-7-81, annexure 1, on the ground that the offences prima facie appeared to be punishable Under Sections 395/397 IPC and the second bail application was rejected on 1-8-81, annexure 2, and in that order it was inter-alia observed as follows:

I have also been informed that one co-accused Rakesh was granted bail in this case u/s 147/323, IPC and as the case is u/s 396/397 IPC, notice be issued to him for appearance and to show cause why his bail be not cancelled and for that fix 11-8-81".

It is against this order that the present application has been moved by Rakesh Chandra.

The argument is that when a bail has been granted u/s 436, Code of Criminal Procedure for a bailable offence there is no provision in the Code whereby the said bail can be cancelled. I agree with this contention that there is no general power in the Code in exercise of which the Magistrate can cancel a bail granted for bailable offences. The only provision connected with the matter is Section 89, Code of Criminal Procedure which provides as under:

Arrest on breach of bond for appearance-When any person who is bound by any bond taken under this Code to appear before a Court, does not appear, the officer presiding in such Court may issue a warrant directing that such person be arrested and produced before him.

It is therefore, obvious that such bail can only be cancelled if the accused fails to appear on a particular date on which his appearance was required by the Court. The same view was expressed in the case or Panna Lal Vs. R.R. Sinha, .

Obviously this situation has not arisen in the present case and the learned Counsel for the applicant has contended that since the learned Magistrate had no jurisdiction to cancel the bail so he had no jurisdiction to issue notice to the applicant to appear and show cause as to why the bail granted to him be not cancelled.

But I do not agree with the contention of the learned Counsel for the applicant The impugned order is in two parts. In the first part notice is to go for his appearance. Certainly the Magistrate can always enforce his appearance in the Court and to that extent the impugned order cannot be challenged. of course, the second part requires him to show cause only as to why his bail is not cancelled. This show cause only requires the applicant to plead, justify and show to the Court that his bail bond need not be cancelled. The said show cause notice does not actually amount to cancelling the bail. The reasons which the learned Counsel has advanced before this Court can also be advanced before the Magistrate and it would be open to the learned Magistrate that if he feels satisfied he may withdraw the notice.

In Roshanali Burhanali Syed Vs. State of Gujarat, the facts presented even a harder situation. In that case the Magistrate had issued summons to the accused u/s 204, Code of Criminal Procedure to answer the offence contemplated. The Supreme Court held as under:

All that the learned Magistrate had done was to issue a summons to Respondent No. 2 Satyavir Singh. If, eventually, the learned Magistrate comes to the conclusion that no offence was made out against Satyavir Singh, it will be open to him to discharge or acquit him as the case may be. But it is difficult to appreciate why the order issuing "summons" to the accused should be quashed.

On the same analogy, since it would be open to the Magistrate to withdraw the notice if he is satisfied with the contention of the applicant which may be placed before him in compliance of the show cause notice issued to him. There seems no force in the present application. No interference by this Court in exercise of its powers u/s 482, Code of Criminal Procedure is called for.

The application is hereby dismissed.

Application dismissed.