The court established that the learned Magistrate had no power to cancel the bail bond of the petitioners in a bailable offence under the Cr. P. C., 1973.

1. This application is directed against the order dated 27th of June, 1977, passed by Shri N. K. Chaudhuary, Judicial Magistrate, First Class, Monghyr, in G. R. 1569/73, by which the learned Magistrate has cancelled the bail bonds of the petitioners. By this very order, the learned Magistrate has further directed that non-bailable warrant of arrest be issued against the petitioners. However, when this application was admitted on 3rd Aug., 1977 this court directed that the execution of the non-bailable warrant of arrest against the petitioners shall be stayed.

2. The petitioners have been accused of an offence under S. 325 of the I. P. C. in which two prosecution witnesses had been examined, cross-examined and discharged. Thereafter on 2-6-1976, a petition was filed on behalf of the informant (Opposite Party No. 2) stating that the petitioners were threatening him and his witnesses. It was also stated therein that one witness Rameshwar Mistry who had already been examined in the case, was assaulted by the petitioners on 21-4-1976. In this application on behalf of opposite party No. 2 it was, accordingly, prayed that the bail bonds of the petitioners be cancelled. In support of this application, an affidavit was filed by the son of the opposite party No. 2 On show cause notice being issued, the petitioners on affidavit filed show cause on 10-12-1976. On a consideration of the materials, the impugned order was passed by the learned Magistrate.

3. Under the Cr. P. C., 1973 (hereinafter called the "Code"), Chapter XXXIII deals with the provisions as to bail and bonds. Cl. (1) of S. 436 of the Code, which is under this Chapter, provides that when any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail. Sec. 437 (3), which is also under this Chapter, provides for grant of bail in non-bailable offence, and Cl. (5) of that section provides that any Court which has released a person on bail under sub-s. (1), or sub-s. (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. I am referring to the provisions of this section to show that there is no such equivalent provisions under S. 436 wherein bail has to be granted for bailable offences. It may be mentioned that in the instant case, the petitioners were on bail in a case under S. 325 of the I. P. C. which is a bailable offence.

4. Under the old Code, the provisions were nearly similar. In the case of Ratilal Bhanji V/s. Asstt. Collector of Customs, 1967 0 CrLJ 1576, it was observed that a person accused of a bailable offence is treated differently and when he is brought before a Court, he has a right to be released on bail. It was further stated therein that the Cr. P. C., 1898 made no express provision for the cancellation of a bail granted in such circumstances. Nevertheless, if at any subsequent stage of the proceedings it is found that any person accused of a bailable offence is intimidating, bribing or tampering with the prosecution witnesses or is attempting to abscond, the High Court has the power to cause him to be arrested and to commit him to custody for such period as it thinks fit. This jurisdiction, it was observed springs from the overriding inherent powers of the High Court which could be invoked in exceptional cases only when the High Court was satisfied that the ends of justice will be defeated unless the accused is committed to custody. Under the Cr. P. C. 1973, however, CL (2) of S. 439, which also is under Chap. XXXIII of the Code relating to provisions as to bail and bonds provides that a High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested