JUDGMENT - A.D.TATED, J.:---A short question involved in this revision is whether the Sessions Judge can entertain the revision against the order of the Judicial Magistrate granting bail to the accused notwithstanding the provisions of section 397(2) of the Criminal Procedure Code.

2. The above question arises on the following facts. On 30th of March, 1988 on the report of one Vinod Kishanchand Rajesh, Police Station Vithalwadi, registered an offence under sections 302, 354, 323, 336, 147, 148 and 149 I.P.C. against the petitioner alias Mohan Mannu Radhamal Basantani for having committed the murder of Vinod's brother Narendra Kishanchand Basantani. During the investigation of the crime, the petitioner was arrested on 16th April, 1988. The petitioner moved the Sessions Court for the grant of bail vide his Application No. 476 of 1988. The Sessions Court by an order dated 7-5-1988 rejected his application for bail. Thereafter on 27th May, 1988 the petitioner moved an application for bail before Mr. S.B. Tamboli, learned Judicial Magistrate, F.C. Thane, on Deputation to Ulhasnagar, on the ground that he was sick and was suffering from polyarthritis. The ground of sickness was not raised in the earlier bail application submitted to the Sessions Judge. The petitioner's application for bail before the Magistrate was strongly opposed by the learned Assistant Police Prosecutor on the ground that the petitioner had earlier applied to the Sessions Court for bail and that it was rejected on merits. The learned Magistrate relying on the medical certificate dated 15th March, 1988 issued by Dr. P.S. Kolvekar found that the petitioner was chronic patient of polyarthritis and that he was advised to take treatment after consulting orthopaedic surgeon, granted bail to the petitioner invoking the powers under the proviso to sub-section (1) of section 437 Cri.P.C. As per the said proviso Judicial Magistrate can release the accused alleged to have been guilty of the offence punishable with death or imprisonment for life, if he is under sixteen years of age or is a woman or is a sick or infirm. The learned Magistrate allowed the petitioner's application for release on bail on executing three sureties of Rs. 1000/- each in the like amount. He was also ordered to attend the Police Station on Sunday and Thursday from 5 p.m. to 6 p.m. and he was directed to remain within Ulhasnagar area and not to leave that area without the permission of the Court except for medical treatment at Bombay.

3. The State being aggrieved by the order of the learned Magistrate releasing the petitioner-accused on bail, submitted an application to the Sessions Court under section 439(2) read with section 437 (5) of the Criminal Procedure Code for cancellation of bail. Both the parties were heard by the learned Additional Sessions Judge regarding the maintainability of the application for cancellation of bail and after hearing both the parties it was found that the challenge was to the legality of the order of the learned Magistrate and, therefore, by order dated 29th June, 1988 the application was treated as revision against the order of the learned Magistrate and both the parties were again heard. After hearing both the parties, the learned Additional Sessions Judge under his revisional powers set aside the order passed by the learned Magistrate granting bail to the petitioner and thus allowed the revision. Feeling aggrieved, the petitioner accused has preferred this criminal application.

4. The learned Counsel for the petitioner-accused contends that the order granting or refusing the bail is an interlocutory order and in view of the provisions of sub-section (2) of section 397 Cri.P.C. the revision is not tenable. In support of his contention he relied on the decision in (Amar Nath and others v. State of Haryana and others)1, A.I.R. 1977 S.C. 2185. In that case the term "interlocutory order" appearing in section 397(2) of 1973 Criminal Procedure Code was considered and it has b

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