The main legal point established in the judgment is that the court has the power to cancel bail granted under section 439(2) of the Cr.P.C. if there is suppression of material fact by the petitioner, but the court may also consider the circumstances and impose costs on the petitioner instead of keeping them behind bars.

JUDGEMENT :

1. The petitioner is challenging the order of cancellation of bail passed by the Additional Sessions Judge, Aurangabad dated 14.7.2022.

2. Heard Mr. A.D.Ostawal, learned counsel for the petitioner and Mr. S.P.Deshmukh, learned APP for the State.

3. Mr. Ostwal, learned counsel for the petitioner vehemently submitted that the Additional Sessions Judge, Aurangabad had earlier granted bail to the petitioner vide order dated 10.06.2022 in Cri. BA No.967 of 2022. The same court cannot cancel that bail by invoking section 439(2) of the Criminal Procedure Code, 1973. He submitted that, it is for the higher court to cancel bail and not the Court which had granted the bail. He submitted that though the petitioner has suppressed the fact of decision of rejection of bail petition by the High Court, even in that case, the Additional Sessions Judge has no jurisdiction to cancel its own order of bail and direct the petitioner/accused to surrender before the Court. He submitted that, the impugned order is bad in law and liable to be quashed and set aside. He submitted that bail has been granted to the petitioner on merits. The property has been recovered. As such there is no need to keep the petitioner behind bars even by considering merits of the case.

4. Mr. S P Deshmukh, learned APP for the State strongly opposed to allow this application. He submitted that, it is a case of material suppression of fact by the petitioner while obtaining bail from the Sessions Court, Aurangabad. As soon as such fact was noticed by the Additional Sessions Judge, Aurangabad, he issued show cause notice to the petitioner/accused as to why bail should not be cancelled in view of material suppression of fact of rejection of bail by the High Court. He submitted that by giving an opportunity of being heard to the petitioner and by following proper procedure and by invoking section 439(2) of Cr.P.C., the Additional Sessions Judge has rightly cancelled the bail granted earlier.

5. The legal question raised in the petition is about power of the Additional Sessions Judge to cancel bail granted by him by invoking section 439(2) Cr.P.C.

6. On going through the impugned order dated 14.7.2022, it is revealed that the Additional Sessions Judge while hearing another bail application of co-accused noticed that, bail application fled by the present petitioner in the High Court vide bail application no.431 of 2022 though rejected by the High Court, said fact was suppressed by the present petitioner while fling criminal bail application no.967 of 2022. The Additional Sessions Judge issued show cause notice to the petitioner vide order dated 22.6.2022 passed below exhibit 1. Accordingly, the petitioner appeared and offered explanation that since the petitioner was behind bars, he was not knowing fling of such bail application in the High Court and rejection thereof. Under these circumstances, the Additional Sessions Judge, Aurangabad vide order dated 14.7.2022 was pleased to cancel the bail granted by him to the petitioner in Cri.BA No.967 of 2022 in connection with CR No.510 of 2021 registered at Chikalthana Police Station, Aurangabad.

7. On going through both the orders and order passed by this Court in BA No.431 of 2022, it would be clear that after rejection of bail application by the Additional Sessions Judge, Aurangabad; the petitioner moved bail application no.431 of 2022 before the High Court. Said Bail application was withdrawn when the High Court was not inclined to grant bail. Petitioner fled Cri. Bail Application 967 of 2022 before the Additional Sessions Judge, Aurangabad by suppressing the fact of rejection of bail application by the High Court vide order dated 13.4.2022 in bail application no.431 of 2022. There cannot be any doubt that the petitioner has suppressed material fact from the Additional Sessions Judge, Aurangabad while moving second bail application and succeeded in obtaining bail order from the Court.

8. The legal question is whether the Additional