Orissa High Court
Chinmaya Sahu vs State Of Orissa on 20 July, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC NO.2452 OF 2023
(From the order dated 5th May, 2023 passed by learned
J.M.F.C.-IV, Cuttack in G.R. Case No.252/2023)
Chinmaya Sahu
... Petitioner
-versus-
State of Orissa ... Opposite Party
Advocates appeared in the case through hybrid mode:
For Petitioner: Mr.B.P.Pradhan,
Advocate
-versus-
For Opp.Party: Mr.S.K.Mishra,
Addl. Standing Counsel
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CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
20.7.2023.
Sashikanta Mishra,J. The Petitioner, in the present application filed
under Section 482 of Cr.P.C. seeks to challenge the
order dated 5th May, 2023 passed by learned J.M.F.C.-
IV, Cuttack in G.R. Case No.252/2023 whereby the
bail bond furnished by him was cancelled and the I.O.
was permitted to arrest him as per law.
2. The facts, relevant only for deciding the present
case are that the Petitioner was arrayed as an accused
in G.R. Case No.252/2023 of the Court of J.M.F.C.-IV,
Cuttack for the alleged commission of offence under
Section 304/34 I.P.C. By order dated 29th March, 2023
the Petitioner was granted bail taking note of the fact
that the alleged offences are bailable in nature.
Accordingly, he furnished bond of Rs.20,000/- with
one surety as directed by the Court and was released
on bail. Subsequently, the I.O. made a prayer for
cancellation of the bail on the ground that in course of
investigation further offences were found to have been
committed by the accused i.e. offences under Sections
420/465/467/471/409/120-B of I.P.C. Considering
such prayer made by the I.O., the Court below, by the
impugned order cancelled the bail bond furnished by
the Petitioner permitting the I.O. to arrest him.
3. Heard Mr. B.P.Pradhan, learned counsel for the
Petitioner and Mr. S.N.Das, learned Addl. Standing
Counsel for the State.
4. Assailing the impugned order, Mr. Pradhan
would argue that firstly, learned Magistrate has no
jurisdiction to cancel the bail as the accused was
bailed out earlier as per the provisions of Section 436
of Cr.P.C. Therefore, cancellation of bail, if at all, could
only have been ordered either by the Court of Session
or the High Court under the provisions of Section
439(2) of Cr.P.C. Mr. Pradhan would further submit
that even otherwise, the principles of natural justice
were completely violated inasmuch as no opportunity
of hearing whatsoever was accorded to the Petitioner
before cancelling the bail.
5. In support of his contentions, Mr. Pradhan has
relied upon the judgments of the Apex Court in the
case of P.K.Shaji @ Thammanam Shaji v. State of
Kerala; reported in (2005) 13 SCC 283 and Gurdev
Singh and another v. State of Bihar and another;
reported in (2005) 13 SCC 286.
6. Mr. S.N.Das, learned State counsel, fairly
submits that the Petitioner having been bailed out
under the provisions of Section 436 of Cr.P.C., the
power of cancellation granted to the Magistrate under
Sub-section (5) of Section 437 of Cr.P.C.is not available
to be applied, rather the appropriate provision is Sub-
section (2) of Section 439 of Cr.P.C. Mr. Das however,
submits that giving of notice to the Petitioner would
have been an empty formality in view of the decision of
the Apex Court rendered in the case of Pradeep Ram
vs. State of Jharkhand and another; reported in
(2019) 17 SCC 326, as per which, once higher offences
are added, an accused, who is already on bail, can be
directed to be arrested and committed to custody.
7. I have considered the rival submissions and
have also examined the relevant statutory provisions
carefully. There is no dispute that the Petitioner was
granted bail earlier as per Section 436 of Cr.P.C. since
the alleged offence was bailable in nature. There is also
no dispute that in course of hearing higher offences
were added i.e. offences under Sections
420/465/467/471/409/ 120-B of I.P.C. On such basis
the I.O. made a prayer for cancellation of the bail. In
so far as making a motion for cancellation of the bail
upon addition of higher offences is concerned, the I.O.
cannot possibly be faulted with in view of the ratio
decided in Pradeep Ram (supra). However, when it
comes to curtailment of liberty of a person, it is
incumbent for the Courts to follow the principles of
natural justice by according opportunity of hearing to
him. The Apex Court in the cases of P.K.Shaji @
Thammanam Shaji and Gurdev Singh and another
(supras) have referred to the maxim audi alteram
partem to hold that the accused must be heard before
his bail is cancelled. To the above extent therefore, the
argument of Mr. Pradhan is acceptable.
8. However, the main point to be noted is, whether
the Magistrate had the jurisdiction to cancel the bail in
the first place. The power of the Magistrate to cancel
the bail already granted is conferred by Sub-Section
(5) of Section 437 of Cr.P.C., which reads as follows;
"437 (5). If a court has granted someone
bail under subsections (1) or (2) of
Section 1, it can order that person to be
arrested and taken into custody if it
deems it appropriate".
9. A bare reading of the provision would make it
clear that such power is relatable only in case bail has
been granted under Sub-Section (1) or Sub-section (2)
of Section 437 of Cr.P.C. As already stated, the
Petitioner was not granted bail under the provisions of
Section 437 (1) or (2) but Section 436 Cr.P.C. Section
436 Cr.P.C. itself does not contain any provision for
cancellation of bail. However, Sub-Section (2) of
Section 439 of Cr.P.C. appears to be only the provision
conferring such power, but only on the High Court or
Court of Session and reads as follows;
"439(2). A High Court or Court of
Session may direct that any person
who has been released on bail under
this Chapter be arrested and commit
him to custody." (Emphasis added)
10. The words 'under this chapter occurring in Sub-
Section (2) are highly significant inasmuch as Section
436 of Cr.P.C. also is included under Chapter XXXIII.
Therefore, bail granted under Section 436 of Cr.P.C.
can only be cancelled by invoking the power under
Sub-Section (2) of Section 439 of Cr.P.C.
11. A similar case was also dealt with by a Division
Bench of this Court in the case of Madhab Chandra
Jena and another v. State of Orissa; reported in 63
(1987) C.L.T. 226, wherein reference was made to the
provision under Section 439(2) in case of cancellation
of bail. In another similar case, this Court in the case
of Kalia vs. State of Orissa; reported in (1999) 17
OCR 398 has also taken identical view.
12. From a conspectus of the analysis of the relevant
provisions as made hereinbefore, it is evident that the
impugned order being contrary to law, cannot be
sustained.
13. For the foregoing reasons therefore, the CRLMC is
allowed. The impugned order dated 5th May, 2023
passed by learned J.M.F.C.-IV, Cuttack in G.R. Case
No.252/2023 is hereby quashed.
..................................
(Sashikanta Mishra)
Judge
Ashok Kumar Behera
Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR BEHERA
Designation: A.R.-CUM-SR.SECRETARY
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 21-Jul-2023 13:22:59
