MOHINI KAPUR, J.—The petitioners arc accused of offence under section 3/7 of the Essential Commodities Act. They were regularly appearing in court for two years and on 19.1.88 they were absent and their counsel was also absent and hence, their bail bonds were forfeited. Thereafter, after some times, the date of which is not known they moved a bail application before the learned Sessions Judge, Sikar giving the reasons on account of which they could not appear on 19.1.88 and requested for the cancellation of the warrants issued for their arrest they were prepared to furnish fresh bail and bonds. This application has been rejected by the learned Sessions Judge, Sikar vide order dated 18.11.1988 and the petitioners have now moved this court under section 438 Cr.P.C.

2. It may be mentioned that the petitioners give a out before the trial court that on 19 1.88. there was the Teeka Ceremony of the grand daughter of petitioner Bhagirath Singh and for this reason they could not appear before the trial court and for some reasons the counsel for the "petitioners also did not appear. They did not move bail application for some times because, there was lawyers strike. The petitioners could not surrender thereafter because they would have been arrested. So they moved for the cancellation of the warrants issued against them.

3. Certain decisions have been cited by the learned Sessions Judge and he has made an observation that the decision in the case of Surendra Singh Vs. The State of Rajasthan (1) has been over ruled by the decision in the case of Johny Wilson v. State of Rajasthan (2). This approach of the learned Sessions Judge is entirely incorrect and therefore, it is necessary to first discuss the legal position in this respect.

4. In the case of Surendra Singh v. State of Rajasthan (supra) the matter came up before this court because the Magistrate took the view that he had no jurisdiction to cancel the warrant of arrest once it is issued by him. Referring to sec. 70(2) Cr. PC. it was held that every warrant of arrest is to remain in force until it is cancelled by the court which issued it, or until it is executed. Referring to sec 447 Cr. P.C. it was held that the Magistrate is empowered to demand a fresh surety in accordance of the demand of earlier order.

5. Thereafter, in the case of Jumma Khan v. State of Rajasthan (3), the case of Surendra Singh was referred and followed. It was held that "when bail bonds are forfeited and warrant of arrest is issued and the application of the accused under section 447 Cr. P.C. is rejected, then the Magistrate must demand fresh surety from the accused in accordance with the directions of the original order." The order of Judicial Magistrate rejecting the application under section 447 Cr. P.C. was quashed in a petition under section 482 Cr.P.C.

6. Thereafter, a question was raised relating to the opinion in Jumma Khans case, that a Magistrate had no power to refuse to grant bail after the accused appears and applies for cancellation of warrant and on account of this argument there appears to be some conflict between the decision in Jumma Khans case and Surendra Singhs case. In the case of Johny Wilson (supra), the matter was referred to a Division Bench and in this case, it has been held that when a bond for appearance in a case of a person is forfeited for breach of condition, his bonds and surely shall be cancelled and such person will not be entitled as of right to be released on bail upon the execution of fresh personal or surety bonds. It was held that it is within the discretion of the court to release him or not release him upon execution of fresh personal or surety bonds. In case, the court releases him then fresh bonds are to be furnished.

7. In a recent decision Shyam Sunder Sharma v. State of Rajasthan (4) it has been specifically said that the controversy between Jumma Khans case and Surendra Singhs case has been clarified in the case of Johny Wilson and the decision in Johny Wilsons case

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