( 1 ) THIS is a bail application in case of triple murder. The petitioners Bachchu Lal and his servant debi Dayal along with thirty others were sent up by the Kamlapur police and the case is at present pending inquiry in the Court of a Judicial Magistrate, Sitapur, under Chap. XVIII, criminal P. C. The prosecution witnesses have been examined and the remaining formalities have still to be gone through.

( 2 ) THE applicants were, we understand, not named in the first information report or during the course of the police investigation. This was presumably because their identity was not known to the complainant and the prosecution witnesses. They were arrested in the third week of september, 1950, and identified at a jail parade held in the District Jail, Sitapur, on 10-10-1950. Out of eighteen witnesses who were seat up nine spotted Bachchu Lal and three pointed to Debi dayal. Both these persons moved the learned Sessions Judge Sitapur, for bail. The offence which the petitioners were alleged to have committed were punishable with death or transportation for life and Section 497, Criminal P. C. , therefore, did not apply. The Court acting under Section 498, Criminal P. C. admitted both Bachchu Lal and Debi Dayal to bail and released them on 12-10-1950, on their furnishing two sureties each in sums of Rs. 1,000. Subsequently, however, the order was cancelled by the successor of the learned Judge on 16-2-1951, on an application made by the prosecution alleging that the two accused were actively tampering with and intimidating the prosecution witnesses. Bachchu Lal and Debi Dayal preferred their application in this Court on 22 2-1951. On the matter bung laid before our brother V. Bhargava J. , some questions of law of general importance were raised and since the learned Judge thought they deserved a careful consideration by two Judges he referred the case to a Division Bench.

( 3 ) TWO points fall to be considered in this case; (1) Was the learned Sessions Judge, Sitapur, empowered to cancel the order of his predecessor admitting the petitioners to bail, and (2) Was the order otherwise unjustified.

( 4 ) THE first point has to be considered from two angles : (a) Is the power to withdraw the earlier order derived from or implicit in chap. XXXIX or any other provision of the Code, and (b)Whether such a power can be deemed to exist in view of Section 21, General Clauses Act.

( 5 ) THE powers possessed by Courts of criminal jurisdiction in respect of admitting persons accused of offences to bail are regulated and circumscribed by Chap. XXXIX and Section 426, criminal P. C. They may be summarised as fellows : (i) In a bailable offence, the accused is entitled to bail as a matter of right and not as a matter of favour. (ii) In a non bailable offence, if the offence is not punishable with death or transportation for life, an unrestricted and discretionary power to admit an accused person to bail is possessed by Magistrates, Sessions judges and the High Court in all cases arising before them. (iii) In offences punishable with death or transportation, the power of a Magistrate to grant bail is restricted to cases of the nature covered by Section 497 viz : (a) Where the accused who is arrested and brought before the Court is a minor, a female, a sick or an infirm person, and (b) Where on the evidence before the Court, there are no grounds for believing that the accused is guilty of an offence punishable as aforesaid. (iv) The power to cancel an order admitting an accused person to bail under Section 497, Criminal P. C, is conferred on the High Court and the Sessions Court in general terms but it is also given to the Court which passed the initial order of release. (v) Apart from the powers possessed in cases arising under Section 497, Criminal P. C. , the High Court and the Court of session have further an unrestricted jurisdiction under Section 498, Criminal P. C. to grant bail at their discretion at any stage of a criminal procee