At, High Court of Judicature at Calcutta
By, THE HONOURABLE MR. JUSTICE SUDHENDU NATH MALLICK & THE HONOURABLE MR. JUSTICE ASHIS BARAN MUKHERJEE
For the Appearing Parties: A.K. Pal, Chandi Charan De, K.J. Ahmed, Milan Mukharji, Sirajul Islam, Advocates.
(1) IN the instant review application dated 18. 7. 95 filed on behalf of the accused petitioner Nandan Dutta propriety of our order dated 16. 5. 95 cancelling the ball granted to the present petitioner and another accused Ashalata Dutta by the S. D. J. M. Rampurhat in Nalhati P. S. Case No. 24/ 95 dated 8. 3. 95 under section 498a/302/201 /34 IPC has been challenged on the ground that the bail granted to the present accused petitioner was cancelled by this Court under section 439 (2) Cr. P. C. without giving any opportunity of hearing. In the impugned order we have given elaborate reasons for cancellation of ball in respect of the present petitioner Nandan Dutta and his wife Ashalata Dutta both arrested as accused in the abovementioned case. It is true that the defacto complainant in his application dated 24. 4. 95 prayed for cancellation of ball only in resp
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ct of the accused Smt. Ashalata Dutta. After hearing the learned Advocate appearing for the defacto complainant and the learned Advocates appearing for Ashalata Dutta and the learned counsel for the State we have found in our order dated 16. 5. 95 that the learned Magistrates concerned granted bail to the present petitioner Nandan Dulls. and to Sam. Ashalata without any application of judicial mind to the materials on record standing as against them. In coming to this finding we have gone through the orders passed by the S. D. J. M on 10. 4. 95 and 10. 5. 95 and by the S. D. J. M. in-charge passed on 23. 4. 95 granting interim bail to Ashalata Dutta and the co-accused Nandan Dutta (the present petitioner) and we have held same to be per se perverse for having been passed without any application of judicial mind. Although there was no formal prayer on behalf of the defacto complainant to cancel the bail granted to Nandan Dutta we cancelled this bail also as both the accused were similarly placed in the same case and the orders of bail granted in their favour were passed without considering the materials on record.(2) SRI Mukherjee's main contention before us in connection with this review application is that this Court should not have cancelled the bail of the present petitioner without giving him an opportunity of hearing. So the question ultimately comes to this issue whether under section 439 (2) of the Cr. P. C. the accused has a right of hearing before the Court cancels his ball obtained from the lower court. It is interesting to note that the Criminal procedure Code is quite specific about the cases where a party has a right of hearing. Section 439 (2) Cr. P. C. provides unequivocally that a High Court or a Court of Session may direct that any person who has been released on ball under Chapter 33 be arrested and committed to custody. It does not provide that before such cancellation the Court is bound to hear the person concerned. Section 403 of the Cr. P. C. specifically says that save as otherwise expressly provided by the Code no party has any right to be heard either personally or by pleader before any Court exercising its power of revision; but the Court may, if it thinks fit when exercising such powers hear any party either personally or by pleader. Technically the petition for cancellation of ball does not come to be treated as a revisional application under section 397/401 Cr. P. C, but, there can be little doubt that the power exercised under section 439 (2) by a High Court or a Court of Session is in the nature of revision or review of an order of ball granted by the Court concerned. It contemplates cancellation of ball granted by the High Court or by the Court of Sessions or by the Magistrate. In such a matter it is in the Court's discretion to hear any party before exercising its power under section 439 (2). It is quite settled in law that the High Court should not ordinarily cancel a bail granted by the court below unless that court has failed to consider the circumstances relating to the granting of ball. If the court below had granted bail to the persons concerned after appropriate assessment of the materials on record then the High Court should be reluctant to cancel the ball unless some conduct or act on the part of the accused is prima facie proved from which a reasonable inference may arise that the witnesses have gone back on their statements as a result of intervention by or on behalf of the accused. But in the instant case we have cancelled the bail granted to the present petitioner and to his wife Ashalata fruits not on the ground of their any subversive or adverse act or conduct so as to prejudice the prosecution materially but on the finding that the lower court had granted ball to them without any application of judicial mind to file material on record. It is quite settled in law that a ball may be cancelled under section 439 (2) on the ground inter alia that the order granting ball was without jurisdiction, or was made by the Magistrate without applying his mind or upon irrelevant consideration or arbitarily. In the impugned order we have found that the learned Magistrates granted Interim ball to the present petitioner arid his wife without considering the incriminating materials standing in the case diary against both of them. Accordingly we cancelled the ball granted to both of them for ends of justice and directed them to surrender before S. D. J. M. Rampurhat forthwith.(3) SRI Mukherjee to substantiate his contention that his client, the present petitioner, was entitled to a hearing before his bail should be cancelled under 439 (2) Cr. P. C. has referred to a judgement of the Supreme Court report in AIR 1978 SC 597 (Maneka Gandhi v. Union of India). But in our opinion this decision of the Supreme Court can have no application to the present case because the bail in the instant case was cancelled not on the ground of any fault or act or conduct on the part of the petitioner but on ground of perversity of the order of bail passed by the lower court without application of judicial mind to the facts and circumstances manifested in the case diary. We have already pointed out that the Criminal Procedure Code is specific on the matters in which a party has a right of hearing. We have also found that section 439 (2) Cr. P. C. does not say that before cancellation of bail a party has got to be heard by Court. We have also noted that in the spirit of provisions contained in section 403 Cr. P. C. it is discretionary on the part of the Court to hear a party or not in the matter where a Court exercises its power of revision. In the instant case we did not think it fit to hear the present petitioner before cancelling his ball on due consideration of the materials on record produced before us. To prevent the abuse of the process of any Court and to secure the ends of justice we thought it necessary to cancel the bail granted to the present petitioner and we accordingly did it The question of hearing him did not arise in the facts and circumstances of the case.(4) ANOTHER contention of Sri Mukherjee is that the impugned order is violative of the provisions of Article 21 of the Constitution of India. We are unable to appreciate this contention inasmuch as the petitioner is already facing a prosecution launched by the State in Nalhati P. S. case No. 24 of 1995 dated 8. 3. 95 under section 498a/302/201/34 of the IPC pending before the Court of the S. D. J. M. Rampurhut where he was arrested, taken into custody, released on bail and subsequently again taken into custody on cancellation of bail. The question of granting ball or not in a non-bailable case is within the discretionary powers of the Court. Once the bail has been granted, it cannot be said legally that it can not be cancelled without giving him an opportunity of hearing. We have given the reasons for coming to this conclusion in the foregoing paragraphs. It may not be out of context to note here that after his bail was cancelled by our order dated 16. 5. 95 the present petitioner thereafter made repeated attempts to get bail from this High Court and his prayers were rejected by this High Court. In Criminal Misc. Case No. 1838 of 1995 the prayer for bail made on behalf of the present petitioner and another was rejected for being not pressed as per order dated 8. 6. 95. On 7. 7. 95 similar prayer for bail made on behalf of the present petitioner and another was rejected by this Court in Criminal Misc. Case No. 2465 of 1995. In view of the acts and circumstances and on due consideration of the provisions of law in this regard we do not find any reason to review our order dated 16. 5. 95. The applications stand dismissed. No order as to costs. Application dismissed.
"1996 (2) CalLT 178"