Research › Browse › Judgment

Madhya Pradesh High Court · body

1978 DIGILAW 861 (MP)

Saiyyad Shabbirali v. State of M. P.

1978-11-17

S.R.VYAS

body1978
Short Note : 1. On an application made by the applicant to the Court of Session an order for grant of anticipatory bail was passed in favour of the applicant on 1-3-78. While the said order was in force an application was moved by one Nandoobai in which she alleged that despite an order of injunction passed by the Civil Court the applicant interfered with her possession of agricultural lands and committed theft of wheat crop. She also alleged that on making false representation of facts the applicant obtained an order for the grant of anticipatory bail. A prayer, therefore, was made that the order of anticipatory bail be cancelled. The learned Additional Sessions Judge heard the counsel for the applicant and considering the material placed before him cancelled the order previously passed by him under section 438 of the Criminal Procedure Code as in his opinion the said order could be cancelled by him under section 482 of the Criminal Procedure Code in the exercise of inherent powers. Held : It is clear from the record of the tower Court that merely on an application made by the complainant and the report of the Police Officer the bail order previously passed has been cancelled. In case the learned Judge was inclined to cancel the bail order then notice should have been issued to the applicant to show cause as to why the order of anticipatory bail passed earlier may not be cancelled. No doubt the counsel who appeared for the applicant in the case under section 438 Cr. P. C. was heard but it was necessary that the applicant should have been given an opportunity of controverting the facts alleged by the complainant and in the report of the Police Officers. To accept the allegations made by the complainant and Police Officers without any opportunity being given to the applicant was not proper. Since the applicant denies the fact alleged against him it is necessary that the matter should be re-examined by the learned Additional Sessions Judge so that after considering all the necessary facts reported to him, he can pass such order as the merits of the case require. 2. The learned Judge purports to have exercised his inherent powers for cancellation of bail under section 482 of the Code of Criminal Procedure. 2. The learned Judge purports to have exercised his inherent powers for cancellation of bail under section 482 of the Code of Criminal Procedure. Section 482 refers to the inherent powers of the High Court and not of the subordinate Courts, A reference may in this connection be made to sub-section (2) of section 439 of the Cr.P.C. which reads as under: "439 (1) … …. (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." 3. According to aforesaid provisions jurisdiction is given to the Court of Sessions to direct that any person who has been released on bail under Chapter 33 be arrested and committed to custody. In view of this provision' where was a question of invoking the provisions under section 482 which prima facie do not refer to subordinate Courts. The exercise of powers under section 482 of the Cr. P. C. by the learned Additional Sessions Judge was, therefore, totally misconceived. Such powers cannot be exercised when there are specific provisions in the Code. Revision allowed.