Bail Granted U/s. 436 CrPC Can Be Revoked Only By High Court Or Sessions Court U/s. 439(2) CrPC: Orissa HC Observes
|The Orissa High Court has observed that in cases where bail has been granted under Section 436 CrPC, such bail can be revoked only by the High Court or Sessions Court under Section 439 (2) of the CrPC.
The Bench of Justice Sashikanta Mishra observed, “A bare reading of the provision would make it clear that such power is relatable only in case bail has been granted under Sub-Section (1) or Sub-section (2) of Section 437 of Cr.P.C. As already stated, the Petitioner was not granted bail under the provisions of Section 437 (1) or (2) but Section 436 Cr.P.C. Section 436 Cr.P.C. itself does not contain any provision for cancellation of bail. However, Sub-Section (2) of Section 439 of Cr.P.C. appears to be only the provision conferring such power, but only on the High Court or Court of Session”.
Advocate B. P. Pradhan appeared for the Petitioner and Additional Standing Counsel S. K. Mishra appeared for the Respondents.
In this case, the Petitioner was charged under Section 304 along with Section 34 of the IPC. The Petitioner was granted bail as the alleged offences were bailable, but the Investigating Officer made prayer for cancellation of bail because the further investigation revealed that the Petitioner had committed offences under Sections 420, 465, 467, 471, 409, 120-B of the IPC
The Court held that the main issue to ascertain was whether the Trial Court had the jurisdiction to cancel the bail of the Petitioner. “However, the main point to be noted is, whether the Magistrate had the jurisdiction to cancel the bail in the first place. The power of the Magistrate to cancel the bail already granted is conferred by Sub-Section (5) of Section 437 of Cr.P.C”, the Court noted.
Additionally, the Court placed reliance on the High Court judgments in the cases of Madhab Chandra Jena and another v. State of Orissa [(1987) C.L.T. 226] and Kalia vs. State of Orissa [(1999) 17OCR 398] and asserted that the Trial Court did not have the power to cancel the petitioner's bail. The Court cited Section 437 of the CrPC and stated that the power to revoke bail only exists when bail was granted under subsections (1) or (2) of Section 437 of the CrPC. Section 436 itself does not contain any provision for cancellation of bail. However, subsection (2) of Section 439 of CrPC appears to be the only provision that confers such power to the court. The Court noted that the bail to the petitioner was not granted under Section 437 subsections (1) or (2), but under Section 436 CrPC.
In this context, the Court observed, “The words ‘under this chapter occurring in SubSection (2) are highly significant inasmuch as Section 436 of Cr.P.C. also is included under Chapter XXXIII. Therefore, bail granted under Section 436 of Cr.P.C. can only be cancelled by invoking the power under Sub-Section (2) of Section 439 of Cr.P.C”.
Accordingly, the Court allowed the Petition and set aside the impugned order of the Trial Court.
Cause Title: Chinmaya Sahu v. The State of Orissa