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IN THE HIGH COURT OF BOMBAY
AMAR SINGH s/o NARENDRA SINGH BAIS
Versus
STATE OF MAHARASHTRA
Decided On : (SEPTEMBER 16, 2005) 2006
Criminal Procedure Code, 1973 - Sections 333 and 439(2) Accused facing trial for offence under Sections 302, 201 and 304-B read with 34 of Indian Penal Code Accused was released as he was found to be of unsound mind His bail was cancelled on ground that he became of sound mind and was capable of making his defence Section 330 in Chapter XXV provides for release of accused who are of unsound mind Power given under Section 439(2) in Chapter XXXIII cannot be used for cancelling bail granted under Chapter XXV Trial Court had no jurisdiction to cancel bail. The applicant was released by the trial Court as it was found that the applicant was of unsound mind and was incapable of making his defence. An application was moved for cancellation of the bail of the applicant on the ground that the applicant became of sound mind and was capable of making his defence. Trial Judge allowed the application. Chapter XXV deals with the accused persons who are of unsound mind and who are incapable of making their defence. Section 330 in the said Chapter provides for their release on sufficient security being given, irrespective of the nature of the offence. In Chapter XXV of the Code of Criminal Procedure, power of cancellation of bail is not specifically given to any Court. Unlike Chapter XXXIII wherein sub-section (2) of Section 439 empowers the Courts to cancel the bail. But again the power given under sub-section (2) of Section 439 is restricted to the bail granted under Chapter XXXIII only which clearly shows that the power of sub-section (2) of Section 439 cannot be used for cancelling the bail granted under Chapter XXV. Trial Court had no jurisdiction to cancel the bail and to take the applicant in custody.
Criminal Procedure Code, 1973 - Section 439(2) Cancellation of bail. Power given under Section 439(2) of Code is restricted to bail granted under Chapter 33 only which shows that such power cannot be used for cancelling bail granted under Chapter 25.
( 2 ) ON 30th March, 2005 the learned A. P. P. , in-charge of the trial, moved an application for cancellation of the bail of the applicant on the ground that the applicant became of sound mind and was capable of making his defence. By order dated 18th July, 2005 the learned trial Judge allowed the application, cancelled the bail of the applicant and took him in custody. The applicant has challenged the said order by this application under section 397 read with section 482 of the Code of Criminal Procedure.
( 3 ) DR. Anjan De, the learned counsel for the applicant vehemently urged that the order cancelling the bail of the applicant is without jurisdiction insofar as there is no provision in the Code of Criminal Procedure authorising the trial court to cancel the bail to an accused who was released under section 330 of the code of Criminal Procedure. In this respect Dr. De pointed out that Chapter xxv which contains the provisions as to the accused persons of unsound mind, does not provide for cancellation of the order of release. It indicates the intention of the Legislature to treat the accused of unsound mind on a footing different from other accused persons who are of sound mind. Dr. De submitted that there is only one provision in the Code of Criminal Procedure in the form of sub-section (2) of section 439 which authorises the High Court or the Court of session to direct arrest of an accused person who has been released on bail. Dr. De pointed out that sub-section (2) of section 439 of the Code of Criminal Procedure specifically lays down that "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. " Dr. De urged that the power given under sub-section (2) of section 439 is apparently restricted to the release of the accused under Chapter xxxiii and that power cannot be imported in Chapter XXV. He, therefore, submitted that the order dated 18th July, 2005 is without jurisdiction and cannot he sustained. Dr. De pointed out that no allegations have been made that the applicant misused his liberty in any way.
( 4 ) SHRI A. S. Fulzele, the learned A. P. P. , on the other hand, submitted that though there is no specific provision for cancellation of bail of an accused who was released under section 330 of Code of Criminal Procedure, the release under chapter XXV is merely a temporary phase. The benefit of release is extended for limited purpose i. e. during the unsoundness of the accused and that cannot be extended after he ceases to be of unsound mind. According to Shri Fulzele, after the accused ceases to be of unsound mind and trial resumes, the bail granted to the said accused automatically stands cancelled. Shri Fulzele, therefore, justified the impugned order.
( 5 ) I have carefully considered the rival submissions. It may be seen that chapter XXV deals with the accused persons who are of unsound mind and who are incapable of making their defence. Section 330 in the said Chapter provides for their release on sufficient security being given, irrespective of the nature of the offence. In Chapter XXV of the Code of
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