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PATNA HIGH COURT
Dharampal Sinha, J.
Manji Ram Alias Manji Halwai
Versus
State Of Bihar
Criminal Miscellaneous No. 2793 of 1977 ;
Decided On : JANUARY 16, 1978
Bail Cancellation - Opportunity to Show Cause - The court set aside the order of bail cancellation as the petitioner was not given an opportunity to show cause against the proposal to cancel the bail, as required under sub-section (2) of Sec.439 of the Code of Criminal Procedure.
Fact of the Case:
The petitioner's bail, granted by the Chief Judicial Magistrate, was cancelled by the Sessions Judge without affording the petitioner an opportunity to show cause against the proposal to cancel the bail.
Finding of the Court:
The court found that the bail cancellation order was not in accordance with the legal provision under sub-section (2) of Sec.439 of the Code of Criminal Procedure, which requires the petitioner to be given an opportunity to show cause before the bail can be cancelled.
Issues: The issue was whether the bail cancellation without affording the petitioner an opportunity to show cause against the proposal was in accordance with the legal provision.
Ratio Decidendi: The court held that the bail cancellation should be done after calling upon the petitioner to show cause against the proposal to cancel the bail, as required under sub-section (2) of Sec.439 of the Code of Criminal Procedure.
Final Decision: The court set aside the impugned order and directed the Sessions Judge to give an opportunity to the petitioner to show cause and then decide the question as to whether his bail should or should not be cancelled.
D. P. Sinha, J.
1. This is an application directed against an order dated the 28th june, 1977, passed by the Sessions Judge, Bhojpur and Rohtas, at Arrah cancelling the bail granted to the petitioner, who is being proceeded against for offences under sections 379 and 411 of the Indian Penal Code. He had been granted bail by the chief Judicial Magistrate of Sasaram. It appears that the petitioners bail was ordered to be cancelled at the verbal prayer, of the public prosecuter on the ground that the stolen wrist watch had been recovered from the possession of the petitioner, without affording an opportunity to the petitioner to show cause against the proposal to cancel the same. Learned Counsel appearing on behalf of the state frankly concedes that while the learned Sessions Judge did have the power to cancel the bail of the petitioner granted by the Chief Judicial Magistrate, in exercise of his powers under sub-section (2) of Sec.439 of the Code of Criminal Procedure, this could be done after calling upon the petitioner to show cause against the proposal to cancel the bail and that since this has not been done in this case the order is fit to be set aside. Learned Counsel has correctly stated the legal position. In the circumstance, the application is allowed and the impugned order dated the 28th June, 1977, is hereby set aside. The learned Sessions Judge will now give an opportunity to the petitioner to show cause and then decide the question as to whether his bail should or should not be cancelled. Application allowed.
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