IMPORTANT POINT
Cancellation of bail – Bail is a mechanism that secures liberty to accused without providing any unjustified benefit to them – Bail once granted cannot be cancelled without any reason.

JUDGMENT

Shampa Dutt (Paul), J.—The present revisional application has been preferred against an order no. 51 dated 15.07.2023 passed by the learned Judge, Special Court, Lalbagh, Murshidabad in POCSO Case No. 07/2017 arising out of Jiaganj P.S. Case No. 23 of 2017 dated 04.02.2017 under Sections 376/306 of the Indian Penal Code and Section 4 of the POCSO Act, 2012.

2. Vide order dated 15.07.2023 the learned Trial Court held as follows:-

“……………Heard Ld. Special Prosecutor. Since the materials on record attracts prima facie commission of offence U/s 302 of IPC as well which is a higher section than with which the accused Shyamchand Mandal has been charged and facing trial I hereby invoke the liberty granted by the Hon’ble Apex Court in Pradeep Ram Vs State of Jharkhand reported in (2019) 17 SCC 326 calling upon accused Shyamchand Mandal to appear before the Court on the date fixed (29.09.2023) to answer as to why his earlier bail is not liable to cancellation in terms of the authority reported in Pradeep Ram vs. State of Jharkhand reported in (2019) 17 SCC 326 and same is required to be heard after serving the notice on the defacto complainant.

Inform all concerned accordingly...........”

3. The Supreme court in the case of Pradeep Ram Vs. The State of Jharkhand, AIR 2019 SC 3193, dated 1st July, 2019, held:-

“59. After referring to Anupan J. Kulkarni(supra) and Dawood Ibrahim (Supra), this court laid down following in paragraph No. 39: -

“39. The statutory scheme does not lead to a conclusion in regard to an investigation leading to filing of final form under sub-section (2) of Section 173 and further investigation contemplated under sub-section (8) thereof. Whereas only when a charge-sheet is not filed and investigation is kept pending, benefit of proviso appended to sub-section (2) of Section 167 of the Code would be available to an offender; once, however, a charge-sheet is filed, the said right ceases. Such a right does not revive only because a further investigation remains pending within the meaning of sub-section (8) of Section 173 of the Code.”

60. Learned counsel for the appellant has relied on a Two Judge Bench judgment of this Court in Mithabhai Pashabhai Patel and Others Vs. State of Gujarat, (2009) 6 SCC 332. In paragraph No. 17, this Court made following observations:-

“17. The power of remand in terms of the aforementioned provision is to be exercised when investigation is not complete. Once the charge-sheet is filed and cognizance of the offence is taken, the court cannot exercise its power under sub-section (2) of Section 167 of the Code. Its power of remand can then be exercised in terms of subsection (2) of Section 309 which reads as under:

“309. Power to postpone or adjourn proceedings.— (1) * * * “

62. After having noticed, the relevant provisions of Section 167(2) and Section 309, Cr.P.C and law laid down by this Court, we arrive at following conclusions: -

(i) The accused can be remanded under Section 167(2) Cr.P.C during investigation till cognizance has not been taken by the Court.

(ii) That even after taking cognizance when an accused is subsequently arrested during further investigation, the accused can be remanded under Section 167(2) Cr.P.C.

(iii) When cognizance has been taken and the accused was in custody at the time of taking cognizance or when inquiry or trial was being held in respect of him, he can be remanded to judicial custody only under Section 309(2) Cr.P.C.

65. The special Judge in his order has neither referred to Section 309 nor Section 167 under which accused was remanded. When the Court has power to pass a particular order, non-mention of provision of law or wrong mention of provision of law is inconsequential. As held above, the special Judge could have only exercised power under Section 309(2), hence, the remand order dated 25.06.2018 has to be treated as remand order under Section 309(2) Cr.P.C. The special Judge being empowered to remand the accused under