Short question arising for a decision is whether a subordinate criminal Court entertain a petition for bail by person accused of a non bailable offence otherwise than under subclause (a) of the proviso to section 167(2) of the code of criminal procedure (for short, “the Code”) after a superior court declined to grant bail to such accused on merit.

2. For alleged misappropriation of about Rs.50,00,000/- while working as accounts officer of the complainant, a company, petitioner was arrested by police in the course of investigation of crime No.92 of 2009 of Binanipuram police Station. He preferred a petition before learned magistrate for bail. That petition was dismissed. Petitioner approached learned Sessions Judge requesting to invoke power under sec.439 of the Code. Learned Session Judge as per annexure-C, order dated 24-02-09 refused to grant bail observing that allegation against petitioner are serious, investigation is at the initial stage and that enormity of crime committed by is to be looked into. Learned Sessions Judge was satisfied after hearing counsel for petitioner and learned public prosecutor and perusing relevant records that prima case is made out against petitioner, observed that

“I find that the petitioner cannot be granted bail during the investigation of the crime. It follows that this application is without any merit”

and dismissed the petition. Thereafter petitioner moved criminal M.P.No.1001 of 2009 before learned magistrate seeking bail. That Petition was not opposed by learned Assistant Public Prosecutor as seen from annexure-D, order. Learned magistrate as per order, dated 02-03-2009 though observed that.

“ there is every possibility of absconding”

granted bail to the petitioner subject to certain conditions. Petitioner filed Crl.M.P.No.1602 of 2009 before learned magistrate requesting that condition imposed in the order granted bail may be lifted. That Petition was dismissed as per annexure-E, order dated 25-04-2009. Petitioner approached learned Sessions Judge with a similar prayer in Crl.M.C.No.1023 of 2009 (on 28-05-2009). When that petition came for hearing before learned Sessions Judge it was noticed that learned magistrate granted bail overlooking annexure-C, order passed by learned Session Judge on 24-02-2009. Thereon, public prosecutor who was in charge of the case filed Crl.M.P.No.1338 of 2009 for cancellation of bail granted by learned magistrate, invoking Sec.439(2) of the Code. That petition along with Crl.M.P.No.1023 of 2009 was heard and disposed by a common order dated 18-06-2009. Learned Sessions Judge cancelled bail granted to the Petitioner by learned magistrate, Cancellation of bail is under challenge in this revision.

3. Learned counsel for petitioner contented that there is no suppression of material fact in that counsel who had preferred the petition for bail on behalf of the petitioner before the learned magistrate was not informed about dismissal of the bail petition by learned Sessions Judge. It is contented by learned counsel that petitioner had no malafide intention to cover up the order of the learned Session Judge refusing to grant bail as is clear from the fact that when learned magistrate refused to lift the conditions, petitioner moved learned Session Judge with the very same request concerning the order of learned magistrate granting bail. The further argument is that even in the affidavit of investigating officer supporting Crl.M.P.No.1831 of 2009 there is no allegation, even after expiry of three months after learned magistrate granted bail that petitioner ever attempted to violate any of the conditions of bail or to influence the witnesses. Learned counsel pointed out that the order granting bail by learned magistrate remained in force atleast for about three months, it was not challenged by the investigating officer and hence learned Sessions Judge was not correct in canceling bail atleast in the said circumstances. Learned counsel has placed reliance on