By this application under section 439(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the new Code'), the applicant seeks cancellation of the bail granted to the non-applicants No. 1 and 2-Bala Prasad and Bal Mukund, by the Vth and VIth Additional Sessions Judge. Jabalpur by their orders dated 11th May, 1983 and 17th May, 1983 respectively.

2. The application involves an interesting question and a point of some importance regarding the powers of the High Court and Court of Sessions under section 439 of the new Code with special reference to the provisions of section 437, the limitations and conditions laid down therein.

3. The necessary facts in order to highlight the points canvassed in this case may be briefly stated thus; On a first information report lodged by the village Kotwar in the police-station Bheraghat an offence under section 302 read with section 34 of the Indian Penal Code has been registered against the non-applicants No. 1 and 2 (Bala Prasad and Bal Mukund) who are real brothers, for murder of one Puran. The applicant is the son of late Puran. The case is at the investigation stage which is said to be almost complete now. According to the prosecution, on the date of incident at about 7.30 A M. while the deceased Puran was heading from his village Umaria to another village Baroda, the non-applicants No, 1 and 2 came on a motor-bike, knocked down the deceased and then assaulted him with axe which resulted into the death of Puran. Consequently the non-applicants were arrested by the police on 26-4-1983. An .application for releasing the non-applicant No. 1 on bail was made to the Court of Sessions Judge, Jabalpur which was decided by the Vth Additional Sessions Judge, Jabalpur on 11-5-1983 enlarging the non-applicant No. 1 on bail. Later a similar application was moved for grant of bail to the non-applicant No. 2 Bal Mukund which was also allowed by the Court of Vlth Additional Sessions Judge, Jabalpur by order dated 17th May, 1983. While enlarging both the non-applicants on bail learned both the Additional Sessions Judges observed that a perusal of the case diary revealed that prima facie case under section 304, Part II of the Indian Penal Code is made out against the non-applicants as the injuries allegedly inflicted could not be intended to cause death. These are the two orders admitting the non-applicants on bail, which have been challenged by the applicant.

4. Before I venture to deal with the main controversy involved in this case, I shall first deal with a preliminary objection raised by Shri Rajendra Singh, learned counsel for the non-applicants regarding the competence of the applicant to move this Court for cancellation of bail. Precisely the contention was that a party other than the State cannot move the Court for cancellation of bail granted to person accused of a non-bailable offence. Reliance was placed on the decision in Devilal v. Ganpat, AIR 1951 Raj. 94 in which it has been observed that in a cognizable case challenged by the police, it is the function of the State to question the order of bail, if it is considered that the said order was unjustified.” This decision hardly advances the point raised by the learned counsel for the reason that in this decision itself it has been observed at the end that “in exceptional cases a revision by a private party might also be entertained”. No doubt in a case initiated on a police challan the party who is recognised as the aggrieved party is the State which is the protector of the life and property of its subject and custodian of law and order in the State, responsible to bring to book a criminal who violated the law and acted against the social interests of the community, but the powers of High Court under section 439(2) of the Code are very wide under which the High Court may exercise the powers suo rnotu in cancelling the bail. All that a private person has to do is to draw the attention of the Court and point out the illegal, improper or incorrect finding, sentence or order of a subordinate Court. See Pratap v. State of U.P., AIR 1973 SC 786 Para 15. This apart a bare reading of sub-section (2) of section 439 of the new Code will go to show that it contains no bar in the entertainment of an application made by a private party for cancellation of bail or re-arrest. That being so the fact that the son of the deceased moved this court for cancellation of bail and that the State Government did not do so, does not affect the powers of the High Court in entertaining .the application. In this view of the matter, I am further supported by the decision in Ranjit Singh v. Nand Lal, 1975(2) Cr LJ 1416. in which Punjab and Haryana High Court, relying on the Supreme Court decision in Pratap v. State of U. P. (supra), also took the view that the High Court can act on the application of a private party filed for cancellation of bail under section 439(2) of the Code. I, therefore, hold that the applicant being the son of the deceased is fully competent to move this Court for cancellation of bail under section 439(2) of the new Code.

5. Learned counsel for the applicant first contended that as the non-applicant No. 1 Balaprasad is admittedly a previous convict under section 302 read with section 34 “of the Indian Penal Code and released by the Government on 24-5-1976 and, therefore, by virtue of the amended provisions of clause (ii) of sub-section (1) of section 437 of the new Code, he could not have been released on bail by the Additional Sessions Judge His argument was that both the provisions of sections 437 and 439 of the new Code should be read together while enlarging any person accused of a non-bailable offence of the nature specified in sub-section (3) of section 437. As against this, learned counsel for the non-applicants contended that the non-applicants were admitted to bail by the Additional Sessions Judges in exercise of their unfettered powers under section 439(1) of the new Code, which are neither, in any way, controlled by nor subject to any restrictions or limitations under section 437 of the new Code and, therefore, there should be no interference in the orders unless it is shown that the non-applicants misused the bail in any manner or the order granting bail is patently erroneous or passed in wrong exercise of the discretionary powers. In deciding the respective controversies and the contentions raised by the learned counsel for parties it is necessary to examine the relevant part of the provisions of section 437 as it now stands amended by the amending Act No. 63 of 1980 as well as the provisions of section 439 of the new Code. “437-When bail may be taken in case of non-bailable offence- (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police-station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-

(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;

(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence;

Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:

Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:

Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on and gives an undertaking that he shall comply with such directions as may be given by the Court.

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court may impose any condition which the Court considers necessary-

(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or

(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or

(c) otherwise in the interests of justice.

(4) An officer or a Court releasing any person on bail under subsection (1) or sub-section (2), shall record in writing his or its reasons or special reasons for so doing.

(5) Any Court which has released a person on bail under subsection (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody,”

xxx xxx xxx

“439-Special powers of High Court or Court of Session regarding bail.

(1) A High Court or Court of Session may direct-

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in subjection (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

(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.”

6. It may be pointed out that section 437 of the new Code corresponds to section 497 of the old Code with slight change inasmuch as that in sub-section (1) of section 437 the words “a Court” have been qualified by addition of words “other than the High Court or Court of Session” and a new second proviso has also been added. Similarly sub-section (1) of section 439 of the new Code corresponds to section 498(1) of the old Code with a slight change by adding (a) provisions regarding imposition conditions while granting bail similar to the conditions as mentioned in section 437(3) and (b) provisions to set aside or modify conditions imposed by Magistrate under section 437(3) and further by addition of a proviso which provides for the issue of notice to the Public Prosecutor before granting bail in heinous and grave offences.

7. A careful perusal of section 437 of the code reproduced above will go to show that the section deals with the powers of Courts other than High Court or Court of Session in respect of the admission of an accused on bail or refusal, thereof in non-bailable offences. The Magistrate is invested with absolute and uncontrolled discretion to admit bail in non-bailable offences except in those which are punishable with death or imprisonment for life. The power to admit bail in heinous and grave non-bailable offences punishable with death or imprisonment for life is subject to two conditions laid down in sub-clauses (i) and (ii) of sub-section (1) of section 437, that is to say that there should not appear reasonable ground for believing that the accused is guilty of an offence punishable with death or imprisonment for life and that he is not previous convict of an offence the punishment of which is as specified in sub-clause (ii) of sub-section (1) of section 437. These conditions may be relaxed if the accused falls in any of the categories of persons enumerated in the first proviso which provides an exception for grant of bail even in offences punishable with death or imprisonment for life. The second proviso again provides relaxation of the conditions imposed by clause (ii) of sub-section (1) of section 437 by empowering the Magistrate to admit bail to a previous convict of a cognizable offence The punishment of which is the one specified in that sub-clause (ii), on the satisfaction of the Court that it was just and proper to enlarge him on bail for any other special reason. The third proviso relates to the grant of bail even though the accused may be required for test identification, if he is otherwise entitled for bail under the provisions of section 437. Further sub-section (3) of section 437 speaks about the discretion of Court regarding imposition of conditions while granting bail in respect of certain offences the punishment of which extends to seven years or more or other offences specified therein. As discussed above, the Magistrate can grant bail tinder section 437(1) only when there do not appear reasonable grounds for believing that the accused is guilty of an offence punishable with death or imprisonment for life. When the Magistrate is satisfied that the statutory restriction does not stand in his way, that is to say, there do not appear reasonable grounds for such belief and feels that the accused is otherwise entitled for grant of bail in offences specified in sub-section (3) of section 437, he may so release him on bail imposing such other additional conditions, which be, in his discretion considers necessary, in order to ensure the compliance of clauses (a) or (b) or (c) of sub-section (3).

8. A perusal of section 439(1) will go to show that it provides concurrent jurisdiction to the High Court and the Court of Session in matters of grant of bail which is a power considerably far wider than the power with which the Magistrate is invested under section 437 in the sense that the restrictions contained in section 437 and the distinction drawn between non-bailable offences punishable with death or imprisonment for life and other non- bailable offences with some lesser punishment are not to be found in section 439(1) nor do I find any statutory bar or any condition to the effect that the bail shall be refused if there appear reasonable grounds for believing that the accused is guilty for an offence punishable with death or SS. life imprisonment. The only condition about which the later part of clause (a) of section 439(1) speaks is that if the offence is of the nature specified in sub-section (3) of section 437, the High Court or the Court of Session, may impose any condition which are considered to be necessary for the purposes mentioned in sub-clauses (a) to (c) of sub-section (3) of section 437 while granting bail under section 439 of the new Code. But the imposition of such a condition is left entirely at the discretion of the Court. Thus the power exercised under section 439 are uncontrolled by any limitations other than that which control all discretionary powers vested in a Court based on the sound and well-recognised judicial principles.

9. The provisions contained in clause (b) of sub-section (1) of section 439 of the new Code further lend support an assurance to the aforesaid view that I have taken. It may be noted that the said sub clause (b) of section 439(1) unequivocally provides that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified, by the High Court or Court of Session while directing release of a person accused of an offence. If the conditions and restrictions contained in section 437 had to be read as part of section 439 and the said conditions were so indispensable even for the High Court and the Court of Session, then the absolute power as contained in clause (b) of section 439 of the new Code to entirely set aside or modify those conditions would not have been given. This provision itself is indicative of the 'fact that the imposition of any condition in the bail order by High Court or Court of Session is not a must and that the exercise of discretionary powers under section 439 are not subject to any restrictions or limitations except that the discretion should be guided and governed by well-established judicial principles. The consideration for grant of bail are well-settled, which have been laid down by the Supreme Court in State v. Captain Jagjit Singh, AIR 1962 SC 253; Gurubaksh Singh Sibbis and others v. State of Punjab, (1980) 2 SCC 565 and State of Rajasthan v. Balchand, AIR 1977 SC 2447.

10. No direct decision of the Supreme Court, covering the question in controversy was brought to my notice. Indeed, there are various decisions, though on different grounds, of the High Courts which support the aforesaid view that I have taken. To quote a few, see Champalal v. State, AIR 1952 M B 189. in which a Full Bench took the view that it is obvious from the provisions of section 497 of the old Code (corresponding to section 437 of the new Code) that it gives ample discretion to order release on bail in cases of non-bailable offences subject to the restrictions mentioned in sub-sections 1, 2 and 4. But the power of the High Court and the Court of Session in the matter of grant of bail under section 498 (corresponding to section 439 of the new Code) is clearly unfettered by any conditions or limitations imposed by section 497 of the old code. almost similar was the view expressed by this Court in Gulam Mohammed Azimudain v. State, 1959 M P L J 322 = A I R 1959 M P 147. A Division Bench of Calcutta High Court In re Sasti Charan Mondal and others, 1974 (2) Cr. L J 1326. held that the provisions of section 439 are clearly distinct as specifically mentioned in section 437(1) excepting with regard to the imposition of condition, as mentioned in section 439(1)(a) if the offence is of the nature specified in section 437(3); but the said condition is discretionary. It has been observed that the provisions contained in the second part of section 439(1)(a) of the new Code only relate to conditions of bail and not considerations for bail. It was on these considerations that the Calcutta High Court took the view that the discretion of High Court and Court of Session under section 439 of the new Code is much wider being untrammelled and unfettered by the considerations mentioned in section 437(1) of the new Code.

11. Learned counsel for the applicant in support of his contention relied on the decision in Gurucharan Singh v. State, AIR 1978 SC 179. but in my opinion, the said decision is not directly on the point and it does not squarely cover the controversy with which I am confronted with, here in the instant case. Learned counsel for the applicant drew my attention to the observations of their Lordships of the Supreme Court contained in paragraph 14 at page 182 which is reproduced hereunder:--

“Front the above change of language it is difficult to reach a conclusion that the Sessions Judge or the High Court need not even bear in mind the guidelines which the Magistrate has necessarily to follow in considering bail of an accused”;. It is not possible to hold that the Sessions Judge or the High Court, certainly enjoying wide powers, will be oblivious of the considerations of the likelihood of the accused being guilty of an offence punishable with death or imprisonment for life. Since the Sessions Judge or the High Court will be approached by an accused only after refusal of bail by the Magistrate, it is not possible to hold that the mandate of the law of bail under section 437, Criminal Procedure Code for the Magistrate will be ignored by the High Court or by the Sessions Judge.”

A reading of the aforesaid observations go to show that there is nothing specifically said that the powers of the High Court and the Court of Sessions in the matter of grant of bail under section 439 of the new Code are subject to the conditions and limitations contained in section 437 of the new Code. If it were so there would be no distinction between sections 437 and 439 which is clearly not the intention of legislature. All that their Lordships observed is that while considering the bail to an accused, the High Court and the Court of Session should bear in mind the guidelines, the Magistrate has necessarily to follow. These observations seem to have been made with a view to appreciate the order of the Magistrate refusing bail, in order to see whether the mandate of law of bail under section 437 of the new Code is followed or not because normally the Sessions Court or High Court are approached by an accused only after refusal of bail by the Magistrate. If the bail is granted or refused by the Magistrate under section 437 for an offence punishable with death or for life imprisonment, he cannot do so by ignoring the mandate of law, that is, the conditions and restrictions contained in section 437 and if the matter comes up before the High Court or Court of Session, it has to be examined in the light of the provisions contained in section 437 of the new Code to see whether the Magistrate has acted within the guidelines and mandate of law of bails or not. It may, however, be pointed out that in the same Supreme Court case Gurucharan Singh v. Stale (supra) it has been observed in paragraph No. 24 page 186, that section 439(1) of the new Code confers special powers on the High Court or the Court of Session in respect of bail and that unlike under section 437(1) there is no ban imposed under section 439(1) of the new Code against grant of bail by the High Court or Court of Session to persons accused of an offence punishable with death or imprisonment for life. It, therefore, follows that the powers under section 439(1) of the new Code are unfettered and not subject to any conditions or limitations contained in section 437. Therefore, the mere fact that the non-applicant No. 1 Bala Prasad was previously convicted under section 302 read with section 34 of the Indian Penal Code on 14-8-1968 could not debar the Sessions Court from enlarging him on bail if the circumstances so permitted.

12. Learned counsel for the applicant then submitted that an offence under section 302 read with section 34 of the Indian Penal Code was registered against non-applicants and having regard to the nature and gravity of the said offences, the Additional Sessions Judges should not have enlarged the non-applicants on bail. He also urged that in any case the learned Additional Sessions Judges who passed the impugned orders should not have observed at this stage that a perusal of the case diary revealed only a prima facie case under section 304, Part II of the Indian Penal Code against the non-applicants on the basis of medical report.

13. As regards the reasons and considerations for cancellation of bail already granted, they are well-settled. In Slate through Delhi Administration v. Sanjay Gandhi, AIR 1978 S C 961. it was observed that “rejection of bail when bail is applied for is one thing, cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailahle case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial”. Similarly in State of Rajasthan v. Balchand (supra) it was observed that “the basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court”. In the present case, the Additional Sessions Judges have admitted the non-applicants to-bail by recording their reasons and, therefore, I will have to see whether the said orders suffer from my serious infirmity which deserve interference by this Court or there are any supervening factors, circumstances indicating that the non-applicants are intimidating the witnesses or otherwise thwarting the course of justice and creating any other troubles or are likely to abscond by reason of which it was not conducive to allow the non applicants to remain on bail.

14. A perusal of the contents of the application for cancellation of bail will go to show that there are no allegations at all whatsoever against the conduct of the non-applicants after they were enlarged on bail except that the offence was serious and the motive was to do away with the deceased. It is evident that the Additional Sessions Judges had perused the case diary and after applying their mind to the material on record had granted the bail I had also perused the case diary and the medical report and find that the bail orders call for no interference. In the absence of any supervening factors as also there being no complaint or any allegation regarding misuse of the bail in any manner whatsoever, I find no reasons to cancel the bail already granted. It is, however, true that the learned Additional Sessions Judges who granted the bail should not have, when the case is at the investigation stage, made observations that the offence prima facie, falls under section 304, Part II of the Indian Penal Code as it would be difficult as well as hazardous to attribute any intention or knowledge to cause death, at this stage. These observations shall, however, have no bearing on the ultimate decision of the case on merits.

15. In the result, the application fails and is hereby dismissed, accordingly.

Application for cancellation of bail dismissed.