- (1.) THIS is a petition in revision against the order of the learned Sessions Judge cancelling the bail granted to Kan Dan. It appears that originally when the case was pending against him under s. 302 of the Penal Code in the Court of First Class Magistrate, Parbatsar. he was released on bail by the learned Sessions Judge, Nagaur in exercise of the powers under s. 498 Cr. P.C. Ultimately the accused was committed to the Court of the learned Sessions Judge under s. 302 of the Penal Code but the charge against him was amended to one under s. 304 (2) of the Penal Code and at the same time, the bail which had been granted to him was cancelled and he was sent to judicial lock -up.
(2.) IT is urged by the learned counsel appearing on his behalf that s. 498 Cr. P.C. empowers the High Court or the Sessions Court only to admit a person to bail but that it does not contain a provision for the cancellation of the bail. In support of this proposition, the learned counsel relies upon the plain language of s. 498 as distinguished from that of s. 497 clause 5 and 1932 Allahabad 534(1. Mirza Md. Ibrahim v. emperor.) 1945 Madras 250(2. Crown Prosecutor v. Krishnan.) and 1925 Nagpur 288(3. Local Govt. v. Gulam Jilani.), A comparative reading of the two sections of the Code namely 497 (5) and 498 leads to the irresistible conclusion that while under the first section power to cancel the bail has been reserved to the Courts under certain circumstances, under s. 498, it has been expressly withheld. The authorities cited by the learned counsel fully support the stand taken by him. The learned Public Prosecutor, however, urges that report can till be had to the provisions of s. 497 (5) and that it is open to the court of sessions to cancel the bail granted by him to a person at any previous stage. The Public Prosecutor, however, conveniently ignores an important phrase in this section and that is that the bail can be cancelled only where a person has been released under s. 497. On his attention being drawn to these words in this section, he gave up the contention, 1945 Madras 250(1. Crown Prosecutor v. Krishnan) cited by the learned counsel for the petitioner is a complete reply to the contention put forward by the learned Public Prosecutor. In this case the accused were arrested on a charge of criminal conspiracy and murder. They were refused bail by the High Court under s. 498 pending the investigation of the case. On completion of the investigation and referring of the charge sheet by the police, the Public Prosecutor applied to the High Court under s. 497(5) for cancellation of bail of the accused. It was held that the power conferred by s. 497(5) to cancel bail and re -arrest the accused was limited to cases in which the accused had been released under s. 497 and that since the accused was released on bail under s. 498, s. 497 (5) had no application. 1925 Nagpur 228(2. Mirza Md. Ibrahim v. emperor.) is another authority for the same proposition and it was further held that under s. 498, the High Court and for that matter the court of Session, because the powers are co -extensive, can only release the accused on bail and cannot order the arrest and commission to custody of persons already released on bail under that section. The High Court indeed has inherent powers to cancel the bail under s. 561 -A but that question does not arise in this case. 1932 All. 534(3. Local Govt. v. Gulam Jilani.) is another authority in support of the proposition that the High Court and we may state here the Court of Session are not specifically empowered by s. 498 to cancel bail granted by them although the High Court may under the wide powers with which it is endowed by s. 56] -A. In order that such cases may not present insuperable difficulty in the Court below, it would be expedient to point out that where the order granting bail concludes with a saving clause such as "or until further orders of the Court," the court reserves to itself the liberty to amend its orders as circumstances require. Where, however, no such liberty has been reserved to itself by the Court granting bail, there is no escape from the conclusion that the Court of Session or even the High Court has no power to cancel the bail once granted by it under s. 498 unless in the case of the High Court, resort is had to s. 561 -A Criminal Procedure Code. In the present case, the order passed by the learned Sessions Judge was not conditional and did not reserve to himself the liberty to cancel the bail. The only question which may arise is whether it is a fit case for the exercise of the inherent powers of this Court. The bail was originally granted by the learned Sessions Judge when the case against Kan Dan was pending under s. 302 of the Penal Code and was ultimately cancelled after he had amended the charge to one under s. 304(2) which is a lighter offence. In the circumstances, there seems to be no justification whatsoever for exercise of the powers of this Court under s. 561 -A. We accordingly hereby accept this revision and set aside the order passed by the learned Sessions Judge. ;