- (1.) THIS criminal revision application is directed against the order dated 6 -3 -1978, passed by the Sessions Judge, Kamrup, Gauhati, cancelling the bail granted to the accused -petitioner by the Chief Judicial Magistrate by his order dated 3 -3 -1978 in G. R. Case No. 725 of 1978, which relates to possession and carrying of 259 KGs of ivory purchased from the Forest Department, Assam by one Samson Das and subsequently sold to the petitioner for Rs. 1,18,000/ -.
(2.) ON a bail petition moved before him, the Chief Judicial Magistrate by his order dated 3 -3 -1978 allowed the accused -petitioner to go on cash bail of Rupees 8,000/ - "as he is a man from outside the State". Later, on, Sri Brij Das, deposited the entire Rs. 8,000/ - in cash which was received by the Assistant Nazir and was kept in safe custody. It appears from the records that no bond was executed at this stage. On 4 -3 -1978, an application was moved before the learned Sessions Judge, who fixed 6 -3 -1978 for its hearing. It appears that some attempt was made to serve notice on the petitioner at the Rajhansh Hotel, where he hitherto stayed; but he was not found there, he having left the hotel in the meantime. On 6 -3 -1978, the learned Sessions Judge ex parte, hearing the Public Prosecutor, observed that when a person is released on bail by the court, it must impose some conditions in order to secure his attendance in terms of the bond executed. But in the instant case, no such bond was executed by the surety. Only one Brijdas, claiming to be a man of Banaras filed a petition stating that he deposited Rs. 8,000/ -, but there was no condition or assurance of producing the accused Gokul Das in the court as may be directed by the court. As a result, the learned Judge observed that Gokul Das was released for good. Even Brij Das (an unidentified person) was not bound down with the condition of securing the attendance of the accused Gokul Das in compliance with any security bond. No security bond was executed at all in this case. The court further observed that provision of Sub -section (3) of Section 437, Cr. P.C. was not complied with, there being no instrument by virtue of which the Chief Judicial Magistrate could ask anybody to produce the accused Gokul Das before his court. Accordingly, taking into consideration the provisions of Section 439(2), Cr. P.C. the bail order dated 3 -3 -1978 was set aside and the bail of the accused petitioner Gokul Das was cancelled; and the Chief Judicial Magistrate was directed to issue warrant of arrest immediately against the accused Gokul Das and to commit him to custody. Further he directed the Chief Judicial Magistrate to ask Brij Das to produce the accused before his court, failing which the Chief Judicial Magistrate should take action for forfeiting the cash security furnished by him.
(3.) AGAINST this order, this Rule was obtained on 22 -3 -78 and this Court was pleased to stay the operation of the impugned order, subject to the condition that the petitioner shall make himself available if and when required by the police during investigation.;