DIBYENDU BHUSAN DUTTA , J. ( 1 ) THIS is an application under Section 439 (2) of the Code of Criminal Procedure for cancellation of bail granted to the opposite parties Nos. 1 and 2 namely Prosenjit Chowdhury and Santanu Deb Roy by the learned Chief Judge, City Sessions Court, Calcutta by order No. 3 dated 26th Nov. 1998 passed in the Criminal Misc. Case No. 527 of 1998. The facts relevant for the purpose of disposal of this application are as follows :the petitioner is an Assistant Director, Enforcement Directorate, Foreign Exchange Regulation Act (for short, 'fera'), Regional Office, Calcutta. To work out an information regarding clandestine deals in regard to transfer of huge amount of foreign exchange under the guise of Import of Jamdani sarees of the low, inferior and non marketable quality, the officers of the petitioner searched on 24th Sept. 1998 the residence -cum-official premises of one Abhijit Chowdhury, the elder brother of the opposite party No. 1, under Section 37 of the Foreign Exchange Regulation Act, 1973 and seized seven highly incriminating documents. From the said documents, the petitioner came to know that both the opposite parties Nos. 1 and 2 were also involved in the Hawala transactions as the owner of M/s. Magnolia International in transferring huge amount of foreign exchange namely the US Dollars equivalent to multi-crores of Indian rupees outside India and to one Md. Monir Hossain of Bangladesh under the guise of bogus import of the machine woven (and not hand woven) Jamdani sarees priced per piece within the range of Rs. 100 to Rs. 250 equivalent to U. S. Dollars 6 to 7 claiming the said sarees as hand woven Jamdani Sarees which are priced per piece US $ 80 to US $ 100 being equivalent to the Indian rupees Rs. 3500/- to Rs. 4000/ -. Such illegal transactions were carried on by the opposite parties during the period from June, 1997 till the later half of Sept. 1998 involving violation of the Foreign Exchange Regulation Actto the tune of Rupees fifteen crores 95 lacs 98 thousand. From the statements of Md. Monir Hossain recorded under Section 40 of the Foreign Exchange Regulation Act on 24-9-1998, the petitioner also came to know that the opposite parties were engaged in the above illegal hawala transactions with similar modus operandi along with ten other Bangladeshi exporters of Jamdani Sarees. From the statements of Md. Monir Hossain recorded under Section 40 of the Foreign Exchange Regulation Act on 24-9-1998, the petitioner also came to know that the opposite parties were engaged in the above illegal hawala transactions with similar modus operandi along with ten other Bangladeshi exporters of Jamdani Sarees. The petitioner issued two summons on 28-9- 1998 and 14-10-1998 in exercise of the power conferred under Section 40 of the FERA upon the opposite parties for their appearance. But they did not appear and made two separate applications under Section 438 of the Cr. P. C. before the Chief Judge, City Sessions Court, Calcutta for anticipatory bail which were registered as Criminal Misc. Cases Nos. 488 and 489 of 1998 respectively. The petitioner filed two written objections against those applications on 9th Nov. 1998 that the opposite parties being substantially involved in the commission of economic offences of serious nature were not entitled to anticipatory bail and that the grant of bail at the preliminary stage of investigation would reduce the investigation into a mere ritual. The petitioner also cited decisions of the Supreme Court in support of his objections. The learned Chief Judge disposed of the said Criminal Misc. Cases by his order dated 9-11-1998 by granting anticipatory bail on conditions that they should see the I. O. every Monday, Wednesday and Friday between 2 and 5 p. m. at the office of FERA and should not leave Calcutta without and shall hand over their passports, if any, to the I. O. This order of anticipatory bail was directed to remain in force for a period of two weeks. The order granting anticipatory bail suggests as if the learned Judge perused the Case Diary but the petitioner alleged that he was not given any opportunity to produce any investigation record maintained in this behalf and as such, there was no question of perusal and/or consideration of such records by the learned Judge. Armed with the anticipatory bail, the opposite parties appeared before the I. O. but either avoided or straightway refused to answer the relevant questions that were put to them as a result of which the investigation was hampered. Before the expiry of the duration of the anticipatory bail, on 19-11-1998, the opposite parties filed applications before the learned Chief Metropolitan Magistrate, Calcutta for regular bail. The petitioner filed two written objections on 20th Nov. Before the expiry of the duration of the anticipatory bail, on 19-11-1998, the opposite parties filed applications before the learned Chief Metropolitan Magistrate, Calcutta for regular bail. The petitioner filed two written objections on 20th Nov. 1998 against the said applications for bail raising, amongst others, the contentions that in the conspicuous absence of any direction in the anticipatory bail order there could not be any voluntary surrender or appearance before the ld. Chief Metropolitan Magistrate by the opposite parties for obtaining regular bail. The opposite parties were neither arrested in exercise of the power conferred under Section 35 of the FERA nor produced before the Court of Chief Metropolitan Magistrate and no judicial process such as warrant of arrest was also issued by the Court of Metropolitan Magistrate and as such, the ld. Magistrate could not entertain the application for bail. It was also contended in the said written objections that the cases of Salahuddin v. State of Maharashtra, AIR 1996 SC 1042 : (1996 Cri LJ 1368) and K. L. Sharma v. State, 1997 Cal Cri LR (SC) 88 which were relied on by the opposite parties were not applicable to the fact situation prevailing at the point of time when the opposite parties approached the Court of Chief Metropolitan Magistrate for regular bail. The regular bail applications came up for hearing on 23rd Nov. 1998 on which day the petitioner filed another additional written objection. The ld. CMM by his order dated 23-11-1998 rejected the bail prayer but at the same time in view of the decision in K. L. Verma's case (1997 Cal Cri LR 88) (supra), was pleased to grant time to the opposite parties to move the higher Court if so advised, for bail directing the opposite parties to be present in Court in 1-12-1998. On 24th Nov. 1998 the opposite parties jointly filed an application under sub-section (1) of Section 439 before the learned Chief Judge, City Sessions Court, Calcutta. The said application was registered as Criminal Misc. Case No. 527 of 1998 and the petitioner on 26-11-1998 filed a written objection questioning the maintainability of that application on the ground that they were not in custody at the time of making the above application. The said application was registered as Criminal Misc. Case No. 527 of 1998 and the petitioner on 26-11-1998 filed a written objection questioning the maintainability of that application on the ground that they were not in custody at the time of making the above application. The petitioner also raised objections to the grant of bail on the ground that the materials collected prima facie established commission of serious economic offences under the FERA by the opposite parties and that the grant of bail at that stage would reduce the investigation into a mere ritual but the ld. Chief Judge granted bail to the opposite parties by his order dated 26-11-1998. And hence the present applicationfor cancellation of that bail. ( 2 ) MR. Thakur, the ld. Counsel appearing for the petitioner, assailed the legality of the orders passed by the ld. Chief Judge in, first, admitting the opposite parties to the anticipatory bail and, thereafter, to bail by his orders dated 9-11-1998 and 26-11-1998 respectively. It has been urged on behalf of the petitioner that the ld. Judge acted illegally in not taking into consideration all the factors relevant for granting anticipatory bail as well as bail. The impugned orders of the ld. Chief Judge amounted virtually to an interference with the investigation at its nascent stage into the economic offences involving huge amount of foreign exchange and unless the bail is cancelled, the petitioner shall suffer an irreparable loss and injury. Mr. Thakur seriously argued that the cases of Salahuddin and K. L. Verma (1997 Cal Cri LR 88) (supra) do not at all apply to the fact situation prevailing in the instant case and as such there was no legal scope for the ld. Chief Metropolitan Magistrate to entertain the bail applications of the opposite parties under Section 437, Cr. P. C. and also to grant them time to move the higher Court for bail under Section 439, Cr. P. C. In course of hearing, Mr. Thakur referred to a number of decisions and chronologically, they may be referred to as AIR 1978 SC 179 : ( 1978 Cri LJ 129) Gurcharan Singh v. State (Delhi Administration), AIR 1978 SC 961 : (1978 Cri LJ 952 ). P. C. In course of hearing, Mr. Thakur referred to a number of decisions and chronologically, they may be referred to as AIR 1978 SC 179 : ( 1978 Cri LJ 129) Gurcharan Singh v. State (Delhi Administration), AIR 1978 SC 961 : (1978 Cri LJ 952 ). The State through the Delhi Administration v. Sanjay Gandhi, AIR 1980 SC 1632 : (1980 Cri LJ 1125), Gurbaksh Singh Sibbia v. State of Punjab, AIR 1992 SC 1618 : (1992 Cri LJ 330); Mool Chand v. The State through the Director, C. B. I. , AIR 1994 SC 1775 : (1994 Cri LJ 2269 ). The Directorate of Enforcement v. Deepak Mahajan, Unreported decision dated 30-8-1994 of this Court in C. O. No. 28 (W) of 1994, (1996) 2 SCC 37 : (1996 Cri LJ 1354), State of H. P. v. Pirthi Chand, AIR 1996 SC 1042 : (1996 Cri LJ 13 (8) (Salahuddin's case), AIR 1996 SC 1100 : (1996 Cri LJ 1623), Director of Enforcement v. M/s. MCTM Corpn. Pvt. Ltd. Unreported decision dated 8-10-1996 of a Division Bench of this Court in Criminal Misc. Case No. 690 of 1996 with Cri. Misc. Case No. 612 of 1996, 1997 (1) CHN (SC) 54 (K. L. Verma's case), 1997 (1) Cal LT HC 302; The State of West Bengal v. Nebulal Shaw, 1997 C Cr LR (SC) 159 : (1997 Cri LJ 4634; Directorate of Enforcement v. P. V. Prabhakar Rao, (1997) 7 SCC 187 : 1997 Cri LJ 4414); State v. Anil Sharma, AIR 1998 SC 696 : (1998 Cri LJ 841) Dukhishyam Benupani v. Arun Kumar Bajoria, 1998 C Cri LR (Cal) 212 ; Manish Bhowmik v. The State of W. B. , 1998 C Cr LR (SC) 129 : (1998 Cri LJ 86 1) ; Directorate of Enforcement v. Ashok Kr. Jain and 1998 C Cr. LR (SC) 224 : (1998 Cri LJ 2527; State of W. B. v. Pranab Ranjan Roy. ( 3 ) THE State supported the petition for cancellation of bail and virtually adopted the arguments advanced on behalf of the petitioner. ( 4 ) IN opposing the application for cancellation of bail, Mr. Adhya, the ld. Jain and 1998 C Cr. LR (SC) 224 : (1998 Cri LJ 2527; State of W. B. v. Pranab Ranjan Roy. ( 3 ) THE State supported the petition for cancellation of bail and virtually adopted the arguments advanced on behalf of the petitioner. ( 4 ) IN opposing the application for cancellation of bail, Mr. Adhya, the ld. senior Counsel appearing on behalf of the opposite parties, contended that this Court is now to consider the question whether the bail already granted to the opposite parties should be cancelled or not and not whether bail should be granted to the opposite parties or not and that since the petitioner has not come forward with any case of any misuse of the liberty granted to the opposite parties by the impugned bail orders, the petitioner cannot ask for cancellation of bail. Mr. Adhya did not, however, refer to any decision. ( 5 ) IN AIR 1978 SC 179 : (1978 Cri LJ 129); Gurcharan Singh v. State, the Supreme Court dismissed two appeals by Special Leave directed against the judgment and order of the Delhi High Court cancelling the order of bail passed by the Sessions Judge. The appellant were arrested in connection with a murder and the Magistrate declined to release them on bail. They approached the Sessions Judge under Section 439 (1) and secured release on bail. Charge-sheet was submitted thereafter against the appellants under Section 120b read with Section 302 and also under other sections. High Court was moved under Section 439 (2) against the order of the ld. Sessions Judge for cancellation of the bail. The High Court cancelled the bail and ordered the appellants to be taken into custody forthwith. In paragraph 25, the Supreme Court observed :"the question on cancellation of bail under Section 439 (2) Cr. P. C. of the new Code is certainly different from admission of bail under Section 439 (1) of Cr. P. C. . . . in considering the question of bail justice to both sides governs the judicious exercise of the Court's judicial discretion. P. C. of the new Code is certainly different from admission of bail under Section 439 (1) of Cr. P. C. . . . in considering the question of bail justice to both sides governs the judicious exercise of the Court's judicial discretion. "in the said paragraph, the Supreme Court was considering the case of State v. Captain Jagjit Singh; AIR 1962 SC 253 : (1962 (1) Cri LJ 215) in which the Supreme Court had cancelled the bail granted by the High Court as it had found a basic error in the order of the High Court. In paragraph 26, the Supreme Court proceeded to examine whether the order of the Sessions Judge admitting the appellants to bail was vitiated by any serious infirmity for which it was right and proper for the High Court in the interest of justice to interfere with his discretion in granting the bail. The Supreme Court came to the conclusion that the Sessions Judge did not take into proper account the grave apprehension of the prosecution that there was a likelihood of the appellants tampering the prosecution witnesses. In paragraph 29, the Supreme Court held that the two paramount considerations namely likelihood of the accused fleeing from justice and his tampering with prosecution evidence relate to ensuring of a fair trial of the case in a Court of justice. In paragraph 29, the Supreme Court observed :"there cannot be inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail. " ( 6 ) IN AIR 1978 SC 961 : (1978 Cri LJ 952 ). The State v. Sanjay Gandhi, the Supreme Court was hearing an appeal by Special Leave against the High Court's order dismissing an application for cancellation bail during the committal proceedings of case in which charge sheet was submitted under Sections 409, 435 and 201 read with 120b of IPC. The Supreme Court allowed the appeal partly cancelling the bail of certain period. It observed at page 957 (of Cri LJ) :"the 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 non bailable case than to cancel a bail granted in such a case. It observed at page 957 (of Cri LJ) :"the 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 non bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and 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. "the Supreme Court also held that in an application for cancellation of bail it is not necessary for the prosecution to prove every incidental matter by a mathematical certainty or even beyond a reasonable doubt. If the prosecution wants to prove that the accused has abused his liberty and that there is a reasonable apprehension that he will interfere with the course of justice, all that is necessary for the prosecution to do so in order to succeed for cancellation of bail is to prove that fact by the test of preponderance of probabilities. It has also held that the power to cancel bail has to be exercised with care and circumspection and that such, power, though of an extraordinary nature, is meant to be exercised in appropriate cases. The Supreme Court also observed at page 960 (of Cri LJ) :"refusal to exercise that wholesome power in such cases, few though they may be, will reduce it to dead letter and will suffer the Courts to be silent spectators to the subversion of the judicial process. We might as well wind up the Courts and bolt their doors against all than permit a few to ensure that justice shall not be done. " ( 7 ) IN AIR 1980 SC 1632 : (1980 Cri LJ 1125) Gurbaksh Singh v. State of Punjab, the Supreme Court was determining the scope of Section 438, Cr. P. C. and was confronted with the question as to how best the two conflicting interests - one of personal liberty and the other of investigational powers - could be balanced. The Supreme Court observed :"generalisation on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. The Supreme Court observed :"generalisation on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. "the Supreme Court did not find any risk involved in the legislative entrustment of wide discretion to the Court of Sessions and the High Court in granting anticipatory bail because their orders are not final but are open to appellate and revisional scrutiny and above all, also because discretion has always to be exercised by Courts judicially with care and circumspection depending on circumstances justifying its exercise and not according to whim, caprice and fancy. The Supreme Court also held that if an application for anticipatory bail is made to the High Court or the Court of Sessions, it must apply its own mind and decide whether a case has been made out for granting such relief and cannot leave the question for the decision of the Magistrate under Section 437as and when an occasion arises. ( 8 ) IN AIR 1992 SC 1618 : (1992 Cri LJ 2330); Mool Chand v. The State, the allegation against the accused was that he deals illegally in foreign exchange commonly known as hawala transaction, an offence involving international ramification and intensive investigation in India and abroad. The Supreme Court observed that the investigation has to go a long way and hence sufficient time is required to complete the investigation and having regard to the seriousness of the allegations, the Supreme Court was of the view that the release of the accused on bail at the crucial stage may frustrate the effort of the investigating agencies in collecting evidence and in such view of the matter, the special leave petition directed against the order rejecting regular bail was dismissed by the Supreme Court. ( 9 ) IN AIR 1994 SC 1775 : (1994 Cri LJ 2269), Directorate of Enforcement v. Deepak Mahajan, the Supreme Court held that the word 'investigation' cannot be limited only to police investigation and that the operation of Section 42 of the Code is attracted to the area of investigation, inquiry, trial and offences under the Special laws including the FERA and Customs Act and consequently Section 167 of the Code can be made applicable during the investigation or inquiry into offences under the said Acts. ( 10 ) IN the unreported case of C. O. 28 (W) of 1994, a single Bench of this Court was dealing with a writ petition wherein the petitioner prayed for a direction upon the respondents not to implicate him in any case and not to arrest or detain him without any basis and not to take any further or other coercive step and the ld. Judge dismissed the writ petition with the observation that before issuance of a notice under Section 40 of FERA for interrogation and before the writ petitioner appears before the officials of the Enforcement Directorate, it would not be safe to hold that the writ petitioner would be subject to physical and mental torture if such appearance is made. It is not understood how case is of any relevance to the point at issue. ( 11 ) IN (1996) 2 SCC 37 : (1996 Cri LJ 1354); State of H. P. v. Pirthi Chand, the question arose as to when the High Court was competent to exercise its inherent power under Section 482, Cr. P. C. for quashing FIR/charge-sheet/complaint. It is also not understood how this case can have a bearing to the point that falls for our decision in this case. ( 12 ) IN AIR 1996 SC 1042 : (1996 Cri LJ 1368), Salauddin Abdulsamad Shaikh v. State of Maharashtra, the petitioner filed an application in the High Court u/s. 438 and secured an ad interim bail order which was to enure up to 26-9-1995. The High Court imposed condition that he would report at the Police Station every day till 25-9-1995. When the matter came up on 26-9-1995 for final disposal before the same learned Judge, he directed the petitioner to move a regular bail application before the Court which was in seisin of the criminal case pending against him and observed that the bail application should be disposed of uninfluenced by the observations made in the earlier order granting ad interim anticipatory bail. It is against this order of the learned Single Judge of the High Court that the Supreme Court was considering an SLP. It is against this order of the learned Single Judge of the High Court that the Supreme Court was considering an SLP. The Supreme Court held :"anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular Court, which is to try the offender is sought to be by-passed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the regular Court for bail. That is the correct procedure to follow because it must be realised that when the Court of Session or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted. It should be realised that an order of anticipatory bail could even be obtained in cases of serious nature as for example murder and, therefore, it is essential that the duration of that order should be limited and ordinarily the Court granting anticipatory bail should not substitute itself for the original Court which is expected to deal with the offence. It is that Court which has then to consider whether, having regardto the material placed before it, the accused person is entitled to bail. " ( 13 ) IN AIR 1996 SC 1100 : (1996 Cri LJ 1623), Director of Enforcement v. M/s. MCTM Corpn. Pvt. Ltd. , the Supreme Court made some pronouncements in relation to certain provisions of the Foreign Regulation Act and it is not understood how those pronouncements would be relevant for our present purpose. ( 14 ) IN the unreported Division Bench decision dated 8-10-1996 of our High Court in Criminal Misc. Cases Nos. 690 and 612 of 1996, what was decided was that submission of charge sheet brings to an end the right to pray for anticipatory bail. ( 14 ) IN the unreported Division Bench decision dated 8-10-1996 of our High Court in Criminal Misc. Cases Nos. 690 and 612 of 1996, what was decided was that submission of charge sheet brings to an end the right to pray for anticipatory bail. Such a decision cannot obviously have any bearing on the question that confronts us in this case. ( 15 ) IN 1997 (I) CHN (SC) 54, K. L. Verma v. State, the Apex Court explained Salahuddin's case may be saying that by that decision it desired to convey that an order of anticipatory bail does not enure till the end of the trial but it must be of limited duration as the regular Court cannot be by-passed and that the limited duration must be determined having regard to the facts of the case and the need to give the accused sufficient time to move the regular Court for bail and to give the regular Court sufficient time to determine the bail application. In other words, till the bail application is disposed of one way or the other, the Court may allow the accused to remain on anticipatory bail. ( 16 ) IN Cal LT 1 997 (1) HC 302 ; The State of W. B. v. Nebulal Shaw, a Division Bench of our High Court held that the following facts amongst others are relevant for deciding the question of cancellation of bail : (i) The person on bail commits similar offence or any other heinous offence during the period of bail. (ii) The accused has misused the privilege of bail. (iii) The Lower Court granting bail has exercised its judicial power wrongly. It would be useful to quote here the following observations of S. K. Mookherjee, J. one of the ld. Judges of the aforesaid Division Bench:"the decision of the apex Court in the case of Delhi Administration v. Sanjay Gandhi, reported in AIR 1978 SC 961 : (1978 Cri LJ 952) is often interpreted to sustain a view that a bail can be cancelled only on availability of restricted grounds as fell for consideration of the apex Court in that case, namely, that supervening circumstances had come into existence for which it would no longer be conducive to a fair trial to allow the accused to retain his freedom during the trial. In other words, it is often thought that the said decision laid down a principle for cancellation of bail by taking into consideration the conduct of the accused person after the bail only and in no other circumstances. A careful reading of the said decision, however, shows that in it was inbuilt a proposition that cancellation of bail involved a review of a decision already made and that it never prevented the Courts, in exercise of their powers under Section 439 (2) of the Code of Criminal Procedure, in a case where bail was improperly granted, to cancel the same. Ton construe the decision otherwise would be militating against the basic concept of justice and would render even a perverse order by which a bail is granted to remain un-disturbed. Indeed, the aforesaid interpretation of the judgment of the apex Court finds support from the ratio laid down in the case of Gurcharan Singh v. State (Delhi Administration) reported in the same volume of the AIR Supreme Court at page 179. "the Division Bench appears to have held that it will be within the jurisdiction of the High Court to adjudicate the propriety of the order of the Sessions Judge granting bail and if the order is found to be improper, to reverse the same. ( 17 ) IN 1997 C Cr. LR (SC) 159 : C. B. I. v. Chandraswami, the only question that arose for decision of the Supreme Court in the appeals by Special Leave related to the purport of the direction given in an order of anticipatory bail. How this case is of any help in deciding the question as to whether the opposite parties' bail should be cancelled or not is not clear. ( 18 ) (1997) 6 SCC 647 : (1997 Cri LJ 4634), Directorate of Enforcement v. P. V. Prabhakar Rao, was a case in which substantial amount as kickbacks was received by the middlemen in violation of the provisions of FERA and the Enforcement Directorate also came into the picture and started investigation into the offences involving FERA. During investigation it appeared to the Directorate that the respondent was also involved in that fraud and efforts were made to question him but the respondent avoided suchinterrogation by the officials of the Directorate. During investigation it appeared to the Directorate that the respondent was also involved in that fraud and efforts were made to question him but the respondent avoided suchinterrogation by the officials of the Directorate. The respondent on his own approached the High Court for anticipatory bail under Section 438 of the Code and a single Bench of the High Court granted ad interim anticipatory bail and finally made the interim order absolute. The Directorate moved the Supreme Court in a Special Leave Petition. The reasoning of the learned single Judge of the High Court was attacked by the Supreme Court and it was contended that the discretion under Section 438 of the Code was very improperly exercised in that case. The ld. counsel on behalf of the respondent, on the contrary, defended the impugned order relying on the case of Gurbaksh Singh, (1980 Cri LJ 1125) (supra ). The Supreme Court held that legal position concerning the grant of anticipatory bail has been settled by the Constitution Bench of the Supreme Court in Gurbaksh Singh's case (1980 Cri LJ 1125) (supra ). The Supreme Court made it clear that the order contemplated under Section 438 is to be granted or refused by the High Court or a Court of Session after exercising its judicial discretion wisely. It quoted the following observations from Gurbaksh Singh's case (1980 Cri LJ 1125) :"21. . . . . . A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. "upon consideration of the magnitude of the criminal conspiracy hatched and the meticulousness with which it was implemented and the colossal amount of foreign exchange siphoned off from the country, the Supreme Court held that the ld. single Judge of the High Court went wrong in exercising its discretion by granting anticipatory bail and allowed the appeal. "upon consideration of the magnitude of the criminal conspiracy hatched and the meticulousness with which it was implemented and the colossal amount of foreign exchange siphoned off from the country, the Supreme Court held that the ld. single Judge of the High Court went wrong in exercising its discretion by granting anticipatory bail and allowed the appeal. ( 19 ) IN (1997) 7 SCC 187 : (1997 Cri LJ 4414) State v. Anil Sharma, the Supreme Court accepted the submission of the CBI and held that custodial interrogation is qualitatively more elucidation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438. The Supreme Court observed (at page 4415 of Cri LJ) :"effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. "the Supreme Court finally upset the anticipatory bail order upon a conclusion that the High Court has misdirected itself in exercising its discretionary power under Section 438. ( 20 ) IN AIR 1998 SC 696 : (1998 Cri LJ 841), Dukhishyam Benupani v. Arun Kumar Bajoria, there was a serious case of FERA violation involving whopping sum of 37 crores. The officials of the Directorate wanted to interrogate the respondent in connection with recovery of certain documents and other materials in a raid conducted in the residential premises of the respondent. They issued summons under Section 40 of the FERA to appear before the officials. But the respondent, instead of appearing in response to the summons, approached the High Court with a writ petition challenging the summons praying for interim orders. A ld. single Judge of the High Court refused to grant any interim relief. While the said writ petition was pending, the respondent filed an application in the City Sessions Court for an order under Section 438. The City Sessions Judge granted ad interim bail order with a condition that he should report to the office of the Directorate on every Monday. The appellant challenged the order before the High Court in revision and a ld. The City Sessions Judge granted ad interim bail order with a condition that he should report to the office of the Directorate on every Monday. The appellant challenged the order before the High Court in revision and a ld. single Judge of the High Court directed the City Sessions Court to hear both parties and take a final decision on merits. The City Sessions Judge heard the parties and passed a final order in favour of the respondent. The aggrieved appellant moved the High Court under Section 439 (2) for cancellation of the bail. A Division Bench of the High Court directed the Enforcement Directorate not to arrest till the application pending disposal was decided. It also specified the dates, venue and the hour when, where and how long the petitioner was to attend and face interrogation. Against this order, the Supreme Court was approached and it was contended on behalf of theenforcement Directorate that the High Court's order would very badly affect the effectiveness and utility of the inquiry investigation which the Directorate has to conduct as enjoined by the statutory provisions into the serious allegations of FERA violations glaringly observed against the respondent. The Supreme Court held that the High Court had gone wrong in passing the impugned order. The Supreme Court was also of the view that the order granted by the City Sessions Court should not remain alive and accordingly both the orders of the City Sessions Court and the High Court were annulled. ( 21 ) IN 1998 C Cr LR (SC) 129 : (1998 Cri LJ 861), Directorate of Enforcement v. Ashok Kumar Jain, officials of the Enforcement Directorate conducted raid in the residence of the respondent and started investigation against him regarding violations of FERA involving millions of US Dollars. Summons were issued to the respondent to appear before the Enforcement Directorate for interrogation. The respondent did not reciprocate to such summons. On the other hand he moved the Sessions Court for anticipatory bail. The Sessions Court dismissed the application for anticipatory bail and on appeal, the Delhi High Court expressed the view that the Directorate can arrest the respondent and carry out custodial interrogation on condition that such arrest shall be subject to the opinion of the cardiologists of the All India Institute of Medical Sciences. The Directorate preferred appeal before the Supreme Court against this order. The Directorate preferred appeal before the Supreme Court against this order. The Supreme Court held that it was not a fit case for granting anticipatory bail. The Supreme Court was of the view that imposition of condition that the arrest shall be subject to the opinion of the cardiologist would considerably impair the efficient functioning of the investigating authorities under FERA. According to the Supreme Court, such anticipatory stipulations are interference with the efficient exercise of statutory functions when dealing with economic offences. The Supreme Court quoted with approval the following observations of the Sessions Court which dismissed the application for anticipatory bail :"anticipatory bail definitely hamper the proper and effective investigation. Therefore, extra care and caution has to be taken while dealing with the application for grant of pre-arrest bail. The demand of an individual's liberty has to be matched with the larger interest of the public and the State. For instance, in the instant case, there are allegations for clandestine siphoning of big amount of precious foreign exchange. Such an offence is against the whole nation. The investigators have to be given full freedom for investigation. The allegations against the petitioner being of very grave and serious nature, the grant of anticipatory bail to this accused will certainly hamper proper investigation. . . . . . . . . . . . ". ( 22 ) THUS upon a careful scrutiny of the foregoing decisions which I have so far discussed above, this much can be said that by and large the following legal principles, amongst others, would be relevant in the matter of consideration of the question of cancellation under Section 439 (2) by the High Court of anticipatory bail granted under Section 438 or of bail granted under Section 439 (1) by the Sessions Judge. 1) An order granting anticipatory bail under Section 438 or bail under Section 439 (1) is amenable to appellate/revisional scrutiny and may be cancelled if it was made in arbitrary or improper (and not judicial) exercise of the discretionary power or was made without application of mind or without consideration of all relevant circumstances or was based upon irrelevant considerations or was vitiated by any basic error of law or was otherwise perverse. 2) An order granting bail may be cancelled in case new or supervening circumstances arise after the release on bail such as abuse of the liberty by hampering the investigation or tampering with witnesses or by committing same or similar offence but existence of any supervening circumstance following the grant of anticipatory bail or bail is not the only criterion for cancellation of such bail. 3) Although the discretionary power to cancel bail is extraordinary and is to be exercised sparingly, nevertheless, it is meant to be exercised in appropriate cases, however few those cases might be. 4) Order granting anticipatory bail or bail must not tantamount to interference with efficient exercise of statutory functions when dealing with economic offences such as those under the FERA. 5) Advantage of custodial interrogation should be taken into account in granting anticipatory bail or bail. ( 23 ) THE allegations against the opposite parties are very serious involving violation of FERA to the tune of rupees 15 crores. The investigation is at its very early stage. The petitioner has also complained that he is deprived of the advantage of custodial interrogation to unearth the clandestine deals. The order dated 9-11-98 whereby the ld. Chief Judge granted the anticipatory bail is conspicuously silent as to the reasons that weighed with the ld. Judge in admitting the opposite parties to the anticipatory bail. The petitioner filed written objections setting out in details the grounds on which the prayer for anticipatory bail was being opposed. But the ld. Judge did not care to deal with any of the objections that were made on behalf of the petitioner. The order does not at all make it clear that there was any application of mind by the ld. Judge in granting the anticipatory bail. It is the allegation of the petitioner supported by affidavit that the petitioner was not given any opportunity to produce the investigation records and that there was no occasion for the ld. Chief Judge to peruse those records at the stage of granting anticipatory bail though the impugned order suggests as if the ld. Judge had perused the case diary. The order, indeed, per se suffers from serious infirmities inasmuch as there is nothing in it to show that the discretion was judicially exercised in admitting the opposite parties to anticipatory bail. Chief Judge to peruse those records at the stage of granting anticipatory bail though the impugned order suggests as if the ld. Judge had perused the case diary. The order, indeed, per se suffers from serious infirmities inasmuch as there is nothing in it to show that the discretion was judicially exercised in admitting the opposite parties to anticipatory bail. Then again, the order dated 9-11-98 made it clear that it would remain in force for a period of two weeks from the date of the order. The order did not contain any direction upon the opposite parties to approach the magistrates Court for regular bail. The opposite parties approached the C. M. M's Court on 19-11-98 for bail before the expiry of the duration of the anticipatory bail. Presumably, the ld. C. M. M. was considering the bail application under Section 437, Cr. P. C. in the absence of any specific direction contained in the anticipatory bail order. The jurisdiction of the magisterial Court to entertain the bail application under Section 437 would arise only if there was arrest or detention of a person suspected of a commission of non-bailable offence or he appears or is brought before the Court. The fact remains that the opposite parties were yet to be arrested. The order passed by the ld. Chief Metropolitan Magistrate does not suggest that there was appearance on behalf of the opposite parties before the ld. Chief Metropolitan Magistrate. The order shows that the opposite parties moved the application for bail through their lawyer. Now, in 1998 C Cr LR 224 : (1998 Cri LJ 2527) State of W. B. v. Pranab Ranjan Roy, it has been held by the Supreme Court that the appearance mentioned in Section 437 can only mean physical appearance of the accused and not appearance by the counsel because the very notion of bail presupposes restraint of the accused and hence the person released on bail is to appear and surrender before the Court. Although the order granting anticipatory bail was not made subject to the decision of the K. L. Verma's case by the ld. Chief Judge, the ld. CMM was pleased to grant two weeks time to the opposite parties to higher Court for bail even after he had refused to grant them bail. In doing so, the ld. CMM was influenced by the decision in K. L. Verma's case. Chief Judge, the ld. CMM was pleased to grant two weeks time to the opposite parties to higher Court for bail even after he had refused to grant them bail. In doing so, the ld. CMM was influenced by the decision in K. L. Verma's case. It is submitted on behalf of the petitioner that the ratio in K. L. Verma's case does not apply to the facts and circumstances of the present case. In K. L. Verma's case, the case was pending before the magisterial Court against Mr. K. L. Verma and he was ordered to be released on bail by a single Judge of the High Court. He was admitted to anticipatory bail by a single Judge of the High Court with a direction to apply for regular bail. The magisterial Court took cognizance without any sanction u/s. 197, a sine qua non for cognizance, and issued non-bailable warrant of arrest against Mr. Verma and the anticipatory bail application was filed in order to arrest the execution of that warrant. In 1998 C Cr LR (Cal) 212, Manish Bhowmik v. The State of W. B. , a Division Bench of our High Court culled out the ratio decidendi of K. L. Verma's case and set it out in para 7 as under :". . . . . . It as a condition of bail in the event of arrest, in exercise of its power under Section 438 of the Code of Criminal Procedure, the High Court or the Court of Session fixes its duration, the accused, if so advised or if so directed by the Court, can seek bail under Section 437 of the Code and/or 439 of the Code and if regular bail is refused but outer limit of the anticipatory bail is not yet over the accused shall not be taken into custody until the expiry of the said period of anticipatory bail and he may, if so advised, move the higher Court for regular bail. If, however as a condition of bail in the event of arrest, it is ordered by the Court while exercising its power under Section 438 of the Code that the anticipatory bailshall enure until regular bail application is heard and ordered, once regular bail application is heard and ordered there would be no surviving order of anticipatory bail which in accordance with prescribed procedure of law must follow the surrender of the accused for regular bail. If the regular bail application is moved within the limited duration of anticipatory bail it is obvious on the expiry of the duration the accused can be arrested and taken in custody. There may be a situation, however when application for regular bail is moved within the duration of anticipatory bail so granted but the order is delayed and it is likely to come after the expiry of the duration the Court hearing the regular bail application can always grant interim regular bail. As a condition however for grant of interim regular bail if it has to operate on and from a date after the expiry of the duration of the anticipatory bail the accused must surrender and be in the custody of the Court on the date of the order. If however no interim order of regular bail is made or the regular bail application is refused and there is no remaining period of anticipatory bail available to the accused he must surrender and if he has not done so he can always be arrested in accordance with the prescribed procedure of law. "the Division Bench was of the view that the operative part of the order of the Supreme Court in K. L. Verma's case was made in view of the fact that the anticipatory bail was valid upto 14th October, 1996 and only a day earlier of the expiry of the anticipatory bail order of the High Court, the Supreme court was dealing with the SLP of K. L. Verma. While modifying the order to thus enable Mr. While modifying the order to thus enable Mr. Verma to seek regular bail and if the regular Court refused bail to enable him to move the superior Court, the Supreme Court modified the order by directing that the anticipatory bail will enure till the regular Court decides the question of grant of bail and for a week thereafter in case the regular Court refused the bail, the accused could move the higher Court. Here the fact and situation are quite different from those in K. L. Verma's case. The ld. Chief Judge while granting anticipatory bail by his order dated 9-11-98 unconditionally fixed its duration which was undisputedly to last till 22-11-98. There was no direction in that anticipatory bail order for appearing before the CMM's Court and approaching that Court for regular bail. There was also no condition in the anticipatory bail order to suggest that it was to enure till regular bail application was heard and disposed of by the regular Court and in the event of refusal to extend the duration of the anticipatory bail beyond the date of refusal till such time as to enable the accused to move the higher Court as was done by the Apex Court in K. L. Verma's case. The application for bail was filed before the CMM's Court during the subsistence of the anticipatory bail but it was heard and disposed of on 23-11-98 the date on which the anticipatory bail was no longer in force. The ld. CMM refused to grant bail and did not grant any interim bail so as to enable the opposite parties to move the higher Court. Even if the CMM had intended to grant interim bail such bail was to operate from the date of the order on which the duration of the anticipatory bail order had already expired, such interim bail could not be effective in view of the fact that the opposite parties did neither physically surrender nor were in the custody of the CMM's Court on that particular date. Following the refusal of the bail no part of anticipatory bail granted by the ld. Chief Judge was then remaining so as to be available to the opposite parties. It was certainly not within the jurisdiction of the CMM's Court to extend the duration of the anticipatory bail granted by the Sessions Court. Following the refusal of the bail no part of anticipatory bail granted by the ld. Chief Judge was then remaining so as to be available to the opposite parties. It was certainly not within the jurisdiction of the CMM's Court to extend the duration of the anticipatory bail granted by the Sessions Court. As such, following the ration of Manish Bhowmick's case (1998 C Cri LR 212) (supra) it can be safely said that there was legally no scope for the ld. CMM to grant the opposite parties to move higher Court for bail without first taking them into custody and granting them interim bail for the period. It is also clear that the ld. Chief Judge by his subsequent order dated 26-11-98 while admitting the opposite parties to bail, did not at all apply his mind to the written objections that were raised against the application for bail and in fact was pleased to grant bail only because the ld. P. P. did not complain of misuse of the interim bail that was already granted by him. ( 24 ) HAVING bestowed our anxious consideration to all the facts and circumstances relevant for our present purpose revealed from the materials on record as also the judicial pronouncements referred to above and the submissions made on behalf of the parties, we are fully convinced that the ld. Chief Judge, City Sessions Court, Calcutta acted illegally in not considering all facts andcircumstances which were relevant for the purpose of granting anticipatory bail as also for granting bail while admitting the opposite parties to anticipatory bail and thereafter to bail and it must be said that the ld. Judge did not exercise his discretion judicially and properly in granting such bails. Having regard to the seriousness of the allegations, the stage of the investigation, the non-availability of the advantage of the custodial interrogation to the investigating agency particularly in such a case of FERA violation involving colossal amount of foreign exchange, we are of the view that this is a fit and proper case where the opposite parties should not be allowed to remain on bail, particularly at this stage of the investigation. We accordingly allow this application and cancel the bail that was granted to the opposite parties by the ld. Chief Judge, City Sessions Court, Calcutta. We accordingly allow this application and cancel the bail that was granted to the opposite parties by the ld. Chief Judge, City Sessions Court, Calcutta. The opposite parties may be taken into custody and dealt with by the investigating agencies in accordance with law. The application is thus disposed of. ( 25 ) AMIT TALUKDAR, J. :- I agree.