IMPORTANT POINT
There is no provision in the Code of Criminal Procedure, under which, the Court of Session while granting bail can direct that after fulfillment of the condition, the accused shall surrender before the Magistrate, who shall consider the question of bail afresh.

ORDER

M.M. Das, J.—Heard learned counsel for the petitioner and the learned counsel for the State.

2. This is an application filed under Section 439(1)(b) of the Code of Criminal Procedure for modification of the conditions imposed by the learned Additional Sessions Judge; Rourkela while directing the petitioner to be released on bail in B.A. No. 548 of 2007.

3. Learned Additional Sessions Judge by order dated 9.10.2007 passed in the aforementioned bail application filed by the petitioner, directed that the accused petitioner shall be released on bail on furnishing bail bond of Rs. 10,000 with one solvent surety for the like amount to the satisfaction of the learned S.D.J.M., Panposh with a condition that during the period when the accused is on bail, he shall clear up the advance amount taken from various people and report the fact of such clearance to the IO concerned. The other conditions imposed by the learned Additional Sessions Judge in the bail order is that the petitioner shall also report before the IO on each Sunday at evening hours and submit the progress of his clearance/refund of the advance amount. After completion of one month from the date of his release, he shall surrender before the Court of S.D.J.M., Panposh who will consider his case for bail in case he fulfils all the conditions in the meantime.

4. The application filed before the learned Addl. Sessions Judge was one under Section 439 Cr.P.C. for grant of regular bail to the petitioner, who is an accused in G.A. case No.1633 of 2007 and on being apprehended and produced before the learned S.D.J.M., Panposh on 5.9.2007 was remanded to custody.

5. The facts of the case reveal that an F.I.A. was filed by one Abhimanyu Mukhi, inter alia alleging that the petitioner, who was running a Travel Agency in the name and style of “Rabi Tour and Travels” on persuading the informant that he will undertake a conducted tour to Port Blair by Flight and will bear the expenses towards Flight ticket, boarding and lodging, the informant paid a sum of Rs.1,10,000 to the petitioner and obtained a receipt with a condition that after delivering the Flight ticket, he will pay a further sum of Rs. 31,650. However, the petitioner did not deliver the Flight ticket nor returned the money. The petitioner also received amounts from many other persons, who were also dealt with in a similar manner. As the FIR discloses a cognizable offence, the same was registered by the police and investigation commenced. The petitioner as stated earlier, on being apprehended and produced before the learned S.D.J.M. on 5.9.2007 was remanded to the custody as his bail application was rejected by the learned S.D.J.M. On moving the learned Addl. Sessions Judge, Rourkela, the impugned order was passed.

6. Learned counsel for the petitioner submits that the learned Addl. Sessions Judge has acted contrary to law in imposing a condition that the petitioner shall repay the amounts to the persons from whom he has received the same for the alleged conducted tour, while granting bail to him. He further submits that such condition, as has been imposed by the learned Addl. Sessions Judge amounts pre-judging the case and presuming that the petitioner is guilty of the alleged offences before the accused is tried. Learned counsel also vehemently argues that once an application under Section 439 Cr.P.C. is allowed by directing that the accused will be released on bail, there is no provision in the Code of Criminal Procedure to direct that the accused will again surrender before the learned Magistrate, who will consider his prayer for bail afresh, as has been done in the instant case.

7. I have perused the order dated 9.10.2007 passed by the learned Additional Sessions Judge. Section 439 Cr.P.C. prescribes that the High Court or the Court of Session may direct that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in Sub-section (3) of Section 437 Cr.P.C. (i