A Magistrate has no inherent power to cancel bail in a bailable offence.

L. RATH, J.

( 1 ) THIS revision has been referred to the Division Bench by Honourable Mr. Justice S. Acharya on the question whether a Magistrate has powers to cancel a bail in a bailable offence on the ground that the accused persons intimidated the prosecution witnesses with dire consequences if they attend the court. The learned Judge was of the view that there is no provision in the Code of Criminal Procedure authorising the Magistrate to cancel bail allowed in respect of bailable offences and that he has no inherent powers also in that respect, but however since there is an earlier single Judge decision of this Court in (1977) 44 Cut LT 466 also reported in (1978) 45 Cut LT 11, holding the contrary view, he has referred the matter for decision by a larger Bench.

( 2 ) THE facts briefly stated are that the petitioners were being proceeded against under Ss. 448/337 and 509,i. P. C. all bailable offences, in G. R. Case No. 294/79 before the Sub-divisional Judicial Magistrate Kendrapara. The petitioners were on bail. An application was filed on 17-4-1980 to cancel the bail bond on allegation that the petitioners threatened the witnesses with dire consequences if they attended the court in pursuance of summons issued from the court. The learned Magistrate after hearing the parties felt that the bail of the petitioners should be cancelled and following the aforesaid decision reported in (1977) 44 Cut LT 466, cancelled the bail directing that the petitioners should not be enlarged on bail till the prosecution witnesses to the occurrence are examined. Aggrieved by such order, the petitioners have come up before this Court in revision.

( 3 ) THE petitioners had been granted bail under S. 436, of the Criminal Procedure Code under which section admission into bail is as of right. The section itself does not make any provision for cancellation of bail. A benefit to which one is entitled as of right cannot be taken away without an express sanction of the law. There being no such provision under S. 436, Cr. P. C. such a power cannot be conceded to the Magistrate on a plain reading of the section. The only provision for cancellation of bail is found in S. 437 (5) where the court which has released a person accused of non-bailable offences on bail is authorised if it considers necessary so to do, to direct that the person be rearrested and be committed to custody. The provision, being in respect of non-bailable offences, cannot be invoked in respect of bailable ones.

( 4 ) THE learned single Judge, in (1977) 44 Cut LT 466 (Dayanidhi Sarangi v. State of Orissa) relying upon AIR 1951 Hyd 113 : (1951) 52 Cri LJ 1376, AIR 1958 Bom 406, and AIR 1940 Bom 40, was of the view that the power is inherent in any court and when circumstances justify and court is competent to cancel the bail which it has granted earlier and need not refer the matter either to the Sessions Judge or to the High Court for the same. It was further held that the distinction does not lie in whether the case is bailable or non-bailable, but that the determining feature is whether the accused by his behaviour and conduct has forfeited the concession shown to him. Reliance was also placed on AIR 1967 All 394, (Panna Lal v. R. K. Sinha) to confirm that S. 496 of the old Criminal Procedure Code, which corresponds to S. 436 of the new Code, does not confer on a person accused of bailable offence of unqualified absolute and an indefeasible right to be released on bail.

( 5 ) WITH great respect we are not able to agree with the learned Judge. It is now too well settled that there is no inherent power available to be exercised by any subordinate criminal court and the power is exclusively available only to the High Court. Reference may be made to AIR 1977 SC 2432, Bindeshwari Prasad Singh v. Kali Singh. where it was observed :-"xx xx xx xx we, however, need not dilate on this point because there is absolutely no provision in the Code of Criminal Procedure of 1898 (which applie