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Allahabad High Court · body

1985 DIGILAW 116 (ALL)

RAKESH CHANDRA v. THE STATE OF U. P.

1985-01-29

I.P.SINGH

body1985
I. P. SINGH, J. ( 1 ) THIS Criminal Misc. Application has been moved under Section 482, Criminal Procedure Code for staying the execution/operation of the order dated 11. 8. 81 passed by Munsif Magistrate, Mainpuri in Crime No. 122a of 1981, P. S. Kishni, Mainpuri under Sections 147/323, ( 2 ) IT appears that in above mentioned crime case originally Rajesh Chandra, present applicant was granted bail for offences punishable under Section 147/323, Indian Penal Code. These were bailable offences and as such bail was granted by the Munsif Magistrate under Section 436, Cr. P. C. ( 3 ) IT appears from the reading of paras 5 to 11 of this application that other four cc. accused, namely Abhay Ram, Bharat Singh, Chhote Singh and Rambir had moved applications for release on bail twice. Their first bait application was rejected on 27. 7. 81, annexure 1, on the ground that the offences prima facie appeared to be punishable under Sections 395/397 Indian Penal Code and the second bail application was rejected on 1. 8. 81, annexure 2, and in that order it was inter alia observed as follows: - I have also been informed that one co. accused Rakesh was granted bail in this case under Section 147/323, Indian Penal Code and as the case is under Section 396/397 Indian Penal Code, notice be issued to him for appearance and to show cause why his bail be not cancelled and for that fix 11. 8. 81. ( 4 ) IT is against this order that the present application has been moved by Rakesh chandra. ( 5 ) THE argument is that, when a bail has been granted under Section 436, Cr. P. C. for a bailable offence there is DO provision in the Code whereby the said bail can be caneelled. I agree with this contention that there is no, general power in the Code in exercise of which the Magistrate can cancel a bail granted for bailable offences. The only provision connect ed with the matter is Section 80, Cr. P. C. which provides as under: 89. It, Arrest on breach of bond for appearance. When any person who is bound by any bond taken under this Code to appear before a. Court, does not appear; the officer presiding in such Court may issue a warrant directing that such person be arrested and produced before him. P. C. which provides as under: 89. It, Arrest on breach of bond for appearance. When any person who is bound by any bond taken under this Code to appear before a. Court, does not appear; the officer presiding in such Court may issue a warrant directing that such person be arrested and produced before him. ( 6 ) IT is, therefore, obvious that such bail can only be cancelled if the accused fails to appear on a particular date on which his appearance was required by the Court. The same view was expressed in the case of Panna Lal v. R. K. Sinha1. ( 7 ) OBVIOUSLY this situation has not arisen in the present case and the learned counsel for the - applicant has contended that since the learned Magistrate bad no jurisdiction to cancel the bail so he had no jurisdiction to issue notice to the applicant to appear and show cause as to why the bail granted to him be not cancelled. ( 8 ) BUT I de not agree with the contention of the learned counsel for the applicant. The impugned order is in two parts. In the first part notice is to go for his appearance. Certainly the Magistrate can always enforce. his appearance in the court and to that extent the impugned order cannot be challenged. Of course, the second part requires him to show cause only as to why his bail is not cancelled. This show cause only requires the applicant to plead, justify and show to the court that his bail bonds need not be cancelled. The said show cause notice does not actually amount to cancelling the bail. The reasons which, the learned counsel bas advanced before the Court can also be advanced before the Magistrate and it would be open to the learned Magistrate that if he feels satisfied he may withdraw the notice. ( 9 ) IN Khacheru Singh v. State of U. P. 2 the facts presented even a harder situation. In that case the Magistrate had issued summons to the accused under Section 204, Cr. P. C. to answer the offence contemplated. The Supreme Court held asunder: All that the learned Magistrate had done was to issue a summons to respondent No. 2 Satyavir Singh. In that case the Magistrate had issued summons to the accused under Section 204, Cr. P. C. to answer the offence contemplated. The Supreme Court held asunder: All that the learned Magistrate had done was to issue a summons to respondent No. 2 Satyavir Singh. If, eventually, the learned Magistrate comes to the conclusion that no offence was made out against Satyavir Singh, it will be open to him to discharge or acquit him as the case may be. But it is difficult to appreciate why the order issuing summons to the accused should be quashed. ( 10 ) ON the same analogy, since it would be open to the Magistrate to withdraw the notice if he is satisfied with the contention of the applicant which may be placed before him in compliance of the show cause notice issued to him. There seems no force in the present application. No interference by this Court in exercise of its powers under Section 482, Cr. P. C. is called for. ( 11 ) THE application is hereby dismissed. Application dismissed. .