- (1.) N. L. Ganguly, J. The applicant was granted bail by the orders of the High Court on 30. 4. 91. The applicant could not appear before the learned Sessions Judge and his bail bonds were forfeited. The learned Sessions Judge observed that the facility of filing fresh bail bonds should not be granted to the accused applicant and rejected the application for permission to file fresh bonds by order dated 16. 5. 91.
(2.) THE accused-applicant stated that he could not appear on the date fixed on account of sickness, but the explanation submitted by the applicant was not accepted by the Sessions Judge and the court observed that it appears that ground of sickness was a pretention for wilfully absenting from the court. THE provision of cancellation of bail is contained in Section 439 (1) by proviso quoted as under : "439 (1) (b): that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified. Provided the High Court or the Court of Session, shall before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which though not so triable is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for the reasons to be recorded in writing, of opinion that it is not practicable to give such notice. " (2) A High Court Sessions may direct that any person who has been released on bail under this chapter be arrested and commit him to custody. " The law on the point of cancellation of bail was considered by the Supreme Court in AIR 1978 SC 961 (State through Delhi Administration v. Sanjay Gandhi observed ). "the prosecution, therefore, can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or his tampered with its witnesses. Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail. " From the facts and circumstances of the present case, it is abundantly clear that the learned Sessions Judge had not applied its mind while cancelling the bail of the applicant to the correct prospective of law as laid down by the Supreme Court. It is always not necessary to cancel the bail if an accused person has failed to appear unless it is shown that the accused applicant who is on bail was deliberately avoiding his atten dance before the court or was tampering with the witnesses or his conduct was such which may amount to abuse of bail granted to him. None of these conditions appear to have been taken into account before passing the order cancelling the bail by the Sessions Judge.
(3.) FURTHER the learned Sessions Judge passed order for forfectitng the bail bonds of the sureties who stood sureties for the applicant. Thus, what was the justification for the court below for passing such an order that the applicant would not be entitled to the benefit of submitting fresh bail bonds for his release. The bail order was granted by the High Court and the learned Sessions Judge was impliedly thus cancelling the order passed by the High Court which in my opinion was not proper for him to do. In view of facts and circumstances of the case I consider that the order passed by the court below as far as directing that the applicant shall not be permitted to file fresh bail bonds for his release is liable to be quashed. Now it shall be open for the applicant to file fresh bail bonds before the court below for his being released for the offences he was already granted bail by the High Court.;