Decided on August 24,1978

Matia Chalan And Ors. Appellant


S.K. Ray, J. - (1.) THIS is an application by four Petitioners for bail under Section 482 read with Section 439, Code of Criminal Procedure. They are accused of offences under Section 302/307/34, Indian Penal Code which are said to have been committed on 23 -6 -1977. F. I. R. was lodged on the following day and these Petitioners were apprehended being suspected of commission of the aforesaid non -bailable offences. As no charge -sheet was submitted under Section 173, Code of Criminal Procedure within 60 days of their arrest by the police, they were released on ball under the provisions of Section 167(2) proviso (a) Code of Criminal Procedure by order of the Magistrate dated 17 -9 -1977.
(2.) AFTER completion of the Investigation, the police submitted charge -sheet on 31 -1 -1978 accompanied with all documents or relevant extracts thereof on which the prosecution proposed to rely, other than those already sent to the Magistrate during investigation and statements recorded under Section 161 of all the persons whom the prosecution proposed to examine as witnesses. Copies of police papers were also supplied to the defence counsel in Court on 13 -2 -1978. A petition for bail on behalf of the Petitioners and a petition for cancellation of bail by Assistant Public Prosecutor were filed that day. It appearing to the Magistrate that the offences with which the Petitioners were charged were triable exclusively by the Court of Sessions in pursuant to the provisions of Section 209, Code of Criminal Procedure, committed their to the Court of Session on 13 -2 -1978, cancelled the bail granted earlier under Section 167(2) by exercising his power under Section 437(5), Code of Criminal Procedure and remanded them to the jail custody during and until the conclusion of the trial in the Court of Sessions. The Petitioners, therefore, filed a petition for bail before the Sessions Judge, Bolangir which was later converted to a petition of appeal against the order of the S D. J. M. cancelling bail. The Sessions Judge not only rejected the appeal petition but even considering the prayer for bail independently otherwise than by way of appeal refused the same.
(3.) THE Petitioners have thereupon filed this application in this Court for bail. The principal contention of the learned Counsel for the Petitioners is that when the Petitioners have been released under the proviso to Section 167(2), Code of Criminal Procedure, that bail order cannot be withdrawn or cancelled, unless there are allegations of misconduct or misuse of the terms of the bail bond. To enable a Magistrate to cancel bail under the provisions of Section 437(5), be must come to the conclusion from the materials collected after the chalan is filed that there are sufficient grounds to believe that the accused had committed a non -bailable offence and further that it was necessary that they should be arrested and committed to custody. Secondly, it is alternatively contended that considering all the materials collected by the police, the nature and gravity of the offences with which they are charged, the position and status of the accused with reference to the victim and the witnesses, the likelihood of the accused fleeing from justice, or of repeating the offences, or jeopardising his own life being faced with a grim prospect of possible conviction in the case, or of tampering with witnesses, this is a fit case where bail should be granted.;

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