Bapna, J. - (1.) THIS is a petition by one Multanmal for cancellation of the bail granted to one Parbatsingh by the learned Sessions Judge, Jodhpur, in exercise of the powers under section 498 of the Criminal Procedure Code. The accused Parbatsingh was arrested on the 12th of June, 1949 and was committed to the court of Additional Sessions Judge, Balotra on 11th of May, 1950. By 5th of January, 1951, seven witnesses were examined for the prosecution and on that date he applied to the learned Sessions Judge for being released on bail. His earlier application to the trial Judge had been dismissed. The learned Sessions Judge by an order dated 16th of February, 1951 directed his release on bail on his executing a personal bond of Rs. 10,000/- and two sureties of Rs. 5,000/- each, The operative portion of the order is that the prosecution did not suggest that the accused would abscond or tamper with the prosecution evidence and that there has been an undue delay on the part of the prosecution to bring witnesses to the court although it was a right of the accused to demand a speedy trial. He also observed that he had considered all the facts and circumstances of the case together with the question of delay in the trial and had come to the conciusion that it was a fit case for the grant of a bail.
(2.) ONE Multanmal moved this petition on 21st of February, 1951 that the bail should be cancelled. Mr. Chandmal, the learned counsel for the petitioner conceded that Multanmal was neither the person who lodged the first information report nor a witness in the case. In criminal cases in which the State is the prosecutor, it is only the State who may be affected by the grant of bail. In this case, the state has not preferred any revision or petition for cancellation of the bail. On notice being issued to the Government Advocate, he made a statement that according to the certain instructions of the Law Department he is unable to file such petitions unless instructed to do so by the Government and that in this particular case, he had not moved the Government and no instructions had been received. He, however, supported Multanmal and argued that in this court on several occasions, the support made by the Government was considered as a motion by the Government. Reference was made to an unreported decision Virdi Shanker vs. The State, revision No. 212 of 1950 decided on 6th September, 1950. I however, find from the judgment in that case delivered by Mr. Justice Bhardwaj that the Government had presented a petition soon after a motion by a private person. In my opinion, in the absence of a motion from the State, Multanmal had no locus standi to present this petition and the contention of the learned Government Advocate that his support to a motion like this without instructions of the Government should be taken as a motion by the Government cannot be accepted. Although the above decision is sufficient to dispose of this petition, elaborate arguments were advance 1 as to power of the High Court to interfere with order granting bail by the learned Sessions Judge and in deference to the very learned arguments made before me I propose to address myself to this question as well. Under section 498 of the Criminal Procedure Cole the powers of a Sessions Judge and of the High Court are concurrent in the matter of grant of bail and there is no specific provision in the Code empowering the High Court to cancel a bail granted by the Sessions Judge. The power, if any, is to be found either in section 439, or 561 A of the Code. Various authorities were cited at the bar and 1925 Nag. 228 (1) (Local Govt. vs. Gulam Jilani.) supports the condition that an order of the Sessions Judge under section 498 Cr. P. C. is like any other order revisable by the High Court in exercise of the power under section 439 of the Code. Some more authorities were cited but they do not relate to the matter under consideration in this case. In 1948 All. 366 (2) (Seoti and others vs. Rex.) the question was whether the High Court had power to vary or rescind any order issued under section 498 by it. The court was not concerned with any order of the Sessions Judge. In 1943 Oudh 419 (3) (Emperor vs. B. B. Singh.) it was held that the bail granted by the Sessions Judge could be cancelled by the High Court where since the grant of bail the accused tampers with the evidence or new materials are brought on record, pointing to the guilt of the accused. In 1945 Mad. 250 (4) (The Crown Prosecutor vs. N. S. Krishna and another.) the High Court ordered re-arrest of a person after the completion of the investigation by the police when the previous order of the High Court was one granting bail only pending the investigation of the police. The utmost that could be said for the petitioner is that an order granting bail by a Sessions Judge may be revisable by the High Court if the order passed by the Sessions Judge amounts to an improper exercise of discretion. If support is to be drawn from section 561 A it has further to be held that the cancellation is necessary to secure the ends of justice or to prevent the abuse of the process of the court. An authority direct on the point is found in 8 Cr. L. J. 94 (5) (Emperor vs. Badri Prasad.) in which it has been held that section 498 of the Code of Criminal Procedure gives the court of Sessions and the High Court wide powers to admit an accused to bail even if he is charged with a non-bailable offence. The admission to bail is a matter within the discretion of the Sessions Judge and unless the Sessions Judge has exercised his discretion without proper care, no interference can be made. The learned Sessions Judge in this case has passed the order after having considered the facts and circumstances of the case together with the question of delay in the trial. The matter of delay referred to by the learned Sessions Judge is borne out by the record and with the exception of an adjournment of eleven days sought by the counsel for the accused, the case has been adjourned from time to time, each adjournment being of about a month for witnesses to come and depose in the court, two to three witnesses being summoned on each occasion. Although a period of seven months elapsed before the accused made his petition in the court of Sessions only seven out of twenty-seven witnesses mentioned in the challan or sixteen as mentioned in the list of witnesses presented by the Public Prosecutor have been examined. It was stated in court that under the practice in Jodhpur the Sessions cases are not taken from day to day particularly when there are other Sessions cases pending in the court. If this is the state of procedure followed in the lower courts,it is time,it should be amended & the Sessions trials are held day to day as that once when they begin, they may be completed at an early date. Even before a trial starts, the accused usually remains in custody during the course of the enquiry as in this case for about a year. As to the provisions contained in section 561 A, it has not been shown how the release of the accused on bail would be an abuse of the process of the court or would be contrary to the ends of justice. As stated in the earlier part of this judgment, there is no allegation that there was a danger of the witnesses being tampered with or that the accused will abscond. In the circumstances, this petition fails and is dismissed. .;