ORDER

This application under Section 439 (2) of Cr.P.C has been filed for cancellation of bail granted to respondent No.2 by order dated 05.01.2021

passed in M.Cr.C. No.50877/2020.

It is submitted by counsel for applicant that respondent No.2 had a criminal history and he is already a convicted person and at the time of arguments on M.Cr.C. No.50877/2020, he could not bring this fact to the notice of the Court, therefore, respondent No.2 is not entitled for the bail.

Per contra, the bail applicaiton is vehemently opposed by counsel for respondent No.2. It is fairly conceded that the bail order of co-accused Rahul Sikarwar has been recalled for the reason that co-accused Sonu @ Satyabhan Sikarwar who was earlier declared as juvenile and was lodged in observation home Indore, broke open the observation home and absconded immediately after he was declared as major but the applicant was granted bail on 05.01.2021 i.e. approximately two years back and at that time Sonu @ Satyabhan Sikarwar had not absconded from the custody and secondly respondent No.2 has been granted bail mainly on the ground of his advanced age and there is nothing on record to suggest that respondent No.2 was in any manner involved in commission of any other offences after his release.

Considered the submission made by counsel for the parties.

It is true that the bail order of co-accused Rahul Sikarwar has been recalled on the ground that before grant of bail to Rahul Sikarwar the co- accused Sonu @ Satyabhan Sikarwar had absconded from observation Home Indore. However, that is not the situation in the present case. The applicant was granted bail much prior to abscondance of Sonu @ Satyabhan Sikarwar from observation home Indore. Furthermore, it is clear from the bail order dated 05.01.2021 passed in M.Cr.C. No.50877/2020 that the applicant was granted bail primarily on the ground of his advanced age. There are different parameters for grant of bail and for cancellation of bail. It is not the case of applicant that respondent No.2 had succeeded in obtaining bail by suppressing any material fact or by playing fraud on the Court. It is not the case of applicant that respondent No.2 has misused the liberty. If the applicant is of the view that this Court has passed an erroneous order thereby granting bail to respondent No.2, then he has a remedy of assailing the same before the Higher Court but this Court cannot review its order in view of the Bar as contained under Section 362 Abdul Basit Alias Raju and Others Vs. Mohd. Abdul Kadir Chaudhary and Another

(2014) 10 SCC 754

21. It is an accepted principle of law that when a matter has been finally disposed of by a court, the court is, in the absence of a direct statutory provision, functus officio and cannot entertain a fresh prayer for relief in the matter unless and until the previous order of final disposal has been set aside or modified to that extent. It is also settled law that the judgment and order granting bail cannot be reviewed by the court passing such judgment and order in the absence of any express provision in the Code for the same. Section 362 of the Code operates as a bar to any alteration or review of the cases disposed of by the court. The singular exception to the said statutory bar is correction of clerical or arithmetical error by the court.

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26. In the instant case, the order for bail in the bail application preferred by the accused petitioners herein finally disposes of the issue in consideration and grants relief of bail to the applicants therein. Since, no express provision for review of order granting bail exists under the Code, the High Court becomes functus officio and Section 362 of the Code applies herein barring the review of judgment and order of the Court granting bail to the petitioner-accused. Even though the cancellation of bail rides on the satisfaction and discretion of the court under Section 439(2) of the Code, it does not vest the power of review in the court which granted ba