ORDER 17.9.2003 — This application under Section 482, Cr.P.C. stands disposed of at the stage of admission on consent of both the parties- 2. Factual aspect involved in the case is that petitioners are two of the accused persons in G.R. Case No.123 of 2002 of the Court of S.D.J.M., Birmaharajpur arising out of Birmaharajpur P.S. Case No.88 of 2002. F.I.R. was lodged by the informant relating to an incident which took place around 1. A.M. in the night between 14/15-12-2002. According to the F.I.R., petitioner No.1 with another named offender and about 5 unnamed offenders tres¬passed into the shed of the informant where he was camping for undertaking construction work of a bridge. Accused persons de¬manded Rs.20,000/-from the informant for celebration on the eve of the incoming new year. When he informant declined to pay not only he was man-handled and assaulted but also a sum of Rs. 5,000/- was forcibly taken away from him. On the basis of that F.I.R. both the petitioners wee arrested and produced before the S.D.J.M., Birmaharajpur on 17.2.2002 with a forwarding report in which involvement of the offences under Sections 457/385/323/379/506/34 IPC was quoted. Investigating Officer also produced the F.I.R. and statements of witnesses so far recorded besides the seizure-list along with the forwarding report. Learned S.D.J.M., Birmaharajpur ascertained from both the accused persons i.e., the petitioners that there was no ill-treatment on them by the Police. None the less learned S.D.J.M. found stitched wound on the chin of accused Debraj Bagh. That accused stated that he sustained that injury due to assault by the informant. He also brought to the notice of learned S.D.J.M. that P.S. Case No.87 dated 15.12.2002 is a Counter case which has been lodged against the said informant at the instance of the accused party. Thus, considering all facts and circumstances, learned S.D.J.M. allowed the two petitioners to go on bail by imposing conditions as indicated in the order passed on 17.12.2002. At that stage, therefore, learned S.D.J.M. was of the opinion that the offences alleged were in the manner noted in the forwarding report and accordingly, he allowed the prayer for bail. On a later date i.e., on 2.1.2003, some of the co-accused persons surrendered and applied for bail. Learned S.D.J.M called for the up-to-date case diary. At that stage, therefore, learned S.D.J.M. was of the opinion that the offences alleged were in the manner noted in the forwarding report and accordingly, he allowed the prayer for bail. On a later date i.e., on 2.1.2003, some of the co-accused persons surrendered and applied for bail. Learned S.D.J.M called for the up-to-date case diary. The Investigating Officer submitted the case diary upto 17.12.2002 along with the statements of the witnesses recorded by him on 15.12.2002. On perusal of such records, learned S.D.J.M found that the accused group extorted the informant by demanding “dadabati” and in that process they committed the offence of dacoity punishable under Section 395, I.P.C. Therefore, while rejecting the contention of the said accused persons to grant them parity with the two accused persons because of the involve¬ment of the offence U/s. 395, I.P.C., on 8.1.2003, learned S.D.J.M. passed order under Sub-section (5) of Section 437, Cr.P.C. directing the petitioners to surrender in his Court by 16.1.2003. That order is under challenge in this application under Section 482, Cr.P.C. 3. Mr. D. P. Dhal, learned counsel for the petitioner states that in view of the settled position of law by this Court in the case of Prafulla Kumar Nayak v. State of Orissa*, (1994) 7 OCR 818, the aforesaid order of learned S.D.J.M. amounts to cancellation of bail only because at a later stage of the pro¬ceeding learned S.D.J.M. has formed an opinion of involvement of an offence exclusively tria¬ble by the Court of Session and therefore that order is not only illegal but also against the interest of justice. Accordingly, he prays to quash that direction issued against the petitioners. On the other hand, Mr Aswini Kumar Mishra, learned Standing Counsel referring to the case of State v. Surendranath Mohanty, 1990 (II) OLR 213, states that the impugned order under Sub-section (5) of Section 437, Cr.P.C. is legal and sustainable and therefore, inherent power should not be invoked to quash it. 4. The factual position noted above, is not in dispute between the parties. Therefore, no further deliberation is neces¬sary in that respect. 4. The factual position noted above, is not in dispute between the parties. Therefore, no further deliberation is neces¬sary in that respect. The only question which falls for considera¬tion is that under the given facts and circumstances, whether learned S.D.J.M. was justified in exercising the discretion vested on him under Sub-section (5) of Section 437, Cr.P.C. so as to direct the petitioners to surrender which in other words is cancellation of bail granted to them ? 5. Sub-section (5) of Section 437, Cr.P.C. reads as here¬under: “(5)” Any Court which has released a person on bail under Sub-section (1) or Sub-section (2), if it considers it necessary so to do, direct that such person be arrested and commit him to custody.” The above quoted provision provides the authority with the Court which had granted the bail to direct the person on bail to be arrested and committed to custody if he considers it necessary so to do. What should be the circumstance or circumstances to curtail the liberty of a person on bail is a matter of judicial interpretation. This Court as well as the Apex Court in series of decisions have provided the para-meters in that aspect. Without nothing the list of reported cases in that respect, it can be summed up that circumstances of the following nature may be good ground for a Magistrate to pass order under Sub-section (5) of Section 437, Cr.P.C. or event the Court of Session or High Court under Sub-section (2) of Section 439, Cr.P.C. Such circumstances are : (1) An order of bail granted illegally i.e., without juris¬diction or on extraneous consideration. (2) Order of bail was obtained by suppressing material facts or such information that if that would have come to the notice of the Court then the accused would not have been allowed to go on bail. (3) Breach of the he conditions undertaken by the accused while released on bail. (4) Making any overt act, indulging in criminal activities or influencing the prosecution or terrorising the witnesses etc. the supervening circumstances. The above noted circumstances are illustrative and not ex¬haustive in the above context. 6. (3) Breach of the he conditions undertaken by the accused while released on bail. (4) Making any overt act, indulging in criminal activities or influencing the prosecution or terrorising the witnesses etc. the supervening circumstances. The above noted circumstances are illustrative and not ex¬haustive in the above context. 6. In the case of State v. Surendranath Mohanty, 1990 (II) OLR 213, this Court dealt with a case that relevant facts and material were withheld from the scrutiny of the Court when the accused was granted bail though accused persons were involved of a serious offence under N.D.P.S. Act for possession of heroin and charas. Therefore, while considering the application under Sub-section (2) of Section 439, Cr.P.C., this Court considered the above noted circumstance, nature and gravity of the offence and the rigority of law on bail against offenders of such offences to cancel the bail. It thus appears that the fact involved in that case and the principle on the basis of which that bail was can¬celled is quite distinguishable from the facts and circumstances involved in this case. 7. In the case of Prafulla Kumar Nayak v. State of Orissa* (1994) 7 OCR 818, this Court after referring to a catena of decisions has held that : “Merely because cognizance has been taken of an offence which is exclusively triable by Court of Session or the puni¬shment provided for is higher than the offence relating to which there was earlier accusation and on the basis of which an order of bail was granted, the order of bail does not automatically lapse.” That ratio squarely applies to the facts and circumstances of the present case. 8. Therefore, even if not finding any fault, in the opin¬ion expressed by learned S.D.J.M. and though the allegations in the F.I.R. and the 161 statement of witnesses, disclose a prima facie case for the offence under Section 395, I.P.C., but it appears that learned S.D.J.M basing on such materials and consid¬ering that to be a case of 385 or 379, I.P.C. allowed the peti¬tioners to go on bail. As rightly argued by Mr. Mishra, learned Standing Counsel, all the statements under Section 161, Cr.P.C. were not available to learned S.D.J.M. by the date of order for bail. As rightly argued by Mr. Mishra, learned Standing Counsel, all the statements under Section 161, Cr.P.C. were not available to learned S.D.J.M. by the date of order for bail. But it appears that while considering the prayer for bail of the petitioners and forming opinion on the basis of the F.I.R. and the statement of the informant, learned S.D.J.M. might have acted hastily, but not illegally because, one of the petitioner is named in the F.I.R. and the other petitioner was arrested on the basis of the statement of witnesses relating to his partici¬pations in the occurrence. Therefore, relevant evidence was avai¬lable to learned S.D.J.M. when he considered the prayer and allowed the petitioners to go on bail. As it appears that while rejecting the prayer for bail of the co-accused on the opinion that the offence involved is under Section 395, I.P.C. learned S.D.J.M. has passed the order to cancel the bail of the petition¬ers only to cover the hasty order of bail passed by him. That cannot be regarded as a supervening circumstance. 9. Therefore, for the reasons indicated above, this Court finds no legal backing and factual justification for upholding the impugned direction for surrender of the petitioners and accordingly quashed that part of the order. However, on existence of adequate reasons, prosecution is not debarred to take steps for cancellation of bail of the petitioners. So long as their bail is not cancelled, petitioners are to enjoy the liberty granted to them by the S.D.J.M. on 16.12.2002. The Criminal Misc.Case is accordingly allowed. Crl. Misc. Case allowed.