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High Court Of Calcutta
SUDHENDU NATH MALLICK, ASISH BARAN MUKHERJEE
NANDAN DUTTA - Appellant
Versus
STATE OF WEST BENGAL - Respondent
CRI. M. C. 1673 Of 199
Decided On : 11/20/1995
CRIMINAL PROCEDURE CODE - SECTION 439(2) - BAIL CANCELLATION - RIGHT TO HEARING - NO RIGHT TO HEARING BEFORE CANCELLATION OF BAIL UNDER SECTION 439(2) UNLESS PERVERSE OR WITHOUT APPLICATION OF JUDICIAL MIND.
Fact of the Case:
The accused petitioner challenged the cancellation of his bail granted by the S. D. J. M. Rampurhat in Nalhati P. S. Case No. 24/ 95 under section 498a/302/201 /34 IPC, arguing that he was not given an opportunity of hearing before the cancellation.
Finding of the Court:
The court held that under section 439(2) Cr. P. C., a High Court or a Court of Session may cancel bail without giving the accused an opportunity of hearing, and that the accused does not have a right to be heard before cancellation of bail unless the order granting bail was perverse or without application of judicial mind.
Issues: 1. Whether the accused has a right to be heard before cancellation of bail under section 439(2) Cr. P. C.? 2. Whether the cancellation of bail in the instant case was violative of Article 21 of the Constitution of India?
Ratio Decidendi: 1. Section 439(2) Cr. P. C. does not provide that the accused has a right to be heard before cancellation of bail. 2. The court has the discretion to hear a party before exercising its power under section 439(2), but it is not mandatory. 3. In the instant case, the court found that the bail was granted without application of judicial mind and was therefore perverse, and thus cancellation of bail was justified without giving the accused an opportunity of hearing. 4. The cancellation of bail was not violative of Article 21 of the Constitution of India as the accused was already facing prosecution and the question of granting bail is within the discretionary powers of the court.
Final Decision: The court dismissed the review application and upheld its order dated 16. 5. 95 cancelling the bail granted to the accused petitioner.
( 2 ) SRI Mukherjee's main contention before us in connection with this review application is that this Court should not have cancelled the bail of the present petitioner without giving him an opportunity of hearing. So the question ultimately comes to this issue whether under section 439 (2) of the Cr. P. C. the accused has a right of hearing before the Court cancels his ball obtained from the lower court. It is interesting to note that the Criminal procedure Code is quite specific about the cases where a party has a right of hearing. Section 439 (2) Cr. P. C. provides unequivocally that a High Court or a Court of Session may direct that any person who has been released on ball under Chapter 33 be arrested and committed to custody. It does not provide that before such cancellation the Court is bound to hear the person concerned. Section 403 of the Cr. P. C. specifically says that save as otherwise expressly provided by the Code no party has any right to be heard either personally or by pleader before any Court exercising its power of revision; but the Court may, if it thinks fit when exercising such powers hear any party either personally or by pleader. Technically the petition for cancellation of ball does not come to be treated as a revisional application under section 397/401 Cr. P. C, but, there can be little doubt that the power exercised under section 439 (2) by a High Court or a Court of Session is in the nature of revision or review of an order of ball granted by the Court concerned. It contemplates cancellation of ball granted by the High Court or by the Court of Sessions or by the Magistrate. In such a matter it is in the Court's discretion to hear any party before exercising its power under section 439 (2 ). It is quite settled in law that the High Court should not ordinarily cancel a bail granted by the court below unless that court has failed to consider the circumstances relating to the granting of ball. If the court below had granted bail to th
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