BHANDARI, J. - (1.) THE petitioners Ramkishan and eight others are standing trials for offence of murder in the Court of the Additional Sessions Judge, Merta.
(2.) BRIEFLY the prosecution story is that on the 29th Sept. , 1955, Shaitana deceased along with his three companions was going from his village Balaya to witness the Karnal fair. When they reached the field of Issa Teli, they were attacked by the accused. Shaitana to save himself fled in one direction and the rest of his companions in another. Shaitana is alleged to have been attacked by all the accused. He received as many as 15 injuries by Pharsi and lathies with the result that he died at the spot. On a report being made, the police arrested all the accused and they were challaned before the Sub-Divisional Magistrate, Nagour. When the enquiry was going on in his Court, the accused made an application for granting bail to the Additional Sessions Judge, Merta, under sec. 498 Cr. P. C. That application was granted and it was ordered that the accused be released on bail if they furnish sureties specified in that order. The accused furnished the surities and they were released on bail. At the end of the commitment proceedings all the accused were sent for trial to the court of the Additional Sessions Judge, Merta, and they were taken in custody. The accused made an application in the court of the Additional Sessions Judge, Merta for granting them bail, but that application has been rejected on the 1st May, 1956. In the present application before this Court, the accused pray for grant of bails on two grounds: - 1. That the Sub-Divisional Magistrate, Nagaur had no jurisdiction to cancel the bail granted to them by the learned Additional Sessions Judge Merta, under sec. 498 Cr. P. C. 2. That on merits the case is of the nature in which the learned Additional Sessions Judge should have granted them bail. The application of the accused is under secs. 498 and 439 Cr. P. C. Shri Nauratanmal on behalf of the applicants pray that so far as the first prayer is concerned, the present application may be treated as an application for revision against the order of the Sub-Divisional Magistrate dated the 29th April, 1956 by which the accused were taken in to custody and so far as the second prayer is concerned, the present application may be treated as an independent application under sec. 498 Cr. P. C. The learned Deputy Government Advocate has contested both these prayers on behalf of the accused. 3. Now taking up the first point, I find that there is a conflict of judicial authority on this point. In the Full Bench case of Allahabad High Court Seoti Vs. Rex (1), it has been held that: - "the committing Magistrate has no power while committing the accused, to cancel bail granted to them without any limitation before they were committed, by the High Court to some of them and by the Sessions Judge to others. " But the Division Bench of Patna High Court has dissented from this authority, in the case of Sheobachan Pandey & others Vs. The State (2 ). This difference of opinion arises mainly on account of the difference between these two High Courts on the interpretation of Sec. 220 Cr. P. C. Sec. 220 Cr. P. C. runs as follows: - "until and during the trial, the Magistrate shall subject to the provisions of this Code regarding the taking of bail, commit the accused by warrant, to custody. " According to Patna High Court, the aforesaid section imperatively directs the Magistrate to commit the accused to custody at the end of commitment proceedings if the accused are committed. Even if the accused be on bail under the orders of the superior court i. e. , the Sessions court or the High Court passed under sec. 498 Cr. P. C. still the Magistrate must direct that the accused be taken into custody at the end of the proceedings before him. But in my opinion this view does not take proper notice of the words "subject to the provisions of this code regarding taking of bail" in sec. 220 Cr. P. C. The provisions in the Criminal Procedure Code regarding taking of bail are contained in Chapter XXXIX and the heading of Chapter is 'of bail' Sec. 496 Cr. P. C. lays down the conditions when the bail is to be taken. In all bailable cases bail can be claimed as a right by the accused persons. This section has reference mainly to bailable offences. Then there follow two other sections namely 497 and 498. I am directly concerned with Sec. 498 Cr. P. C. Under Sec. 498 Criminal Procedure Code the High Court or court of Session may in any case direct that any person be admitted to bail. This section gives unfettered jurisdiction to the Sessions court or the High Court to grant bail. When exercising jurisdiction under Sec. 498 Cr. P. C. both these courts may grant the bail subject to certain conditions. They may also grant bail to an accused against whom the case is being enquired in the court of the Magistrate that he shall remain on bail not only during the course of inquiry but also during the course of trial if eventually he is committed to stand his trial before a Sessions Court. Usually unconditional granting of bail conveys this is clear from form No. 42 of schedule 5 of the Criminal Procedure Code. Now sec. 220 Cr. P. C. is subject to all the provisions regarding taking of bail and taking of bail during the course of inquiry under Sec. 498 Cr. P. C. is a matter which is covered by the words "subject to the provisions of this Code regarding taking of bail. " In my opinion the words "taking of bail" not only mean taking of the bail in future after commitment, but also to the taking of bail previous to the end of commitment proceedings. If the accused had already been granted bail under sec. 498 Cr. P. C, then he is entitled to say to the Magistrate that he can not be taken into custody until the conclusion of the trial. This interpretation is accepted by the Allahabad High Court with which I am in humble agreement. In this view of the matter the Sub-Divisional Magistrate, Nagaur, had no jurisdiction to take the accused in custody when he passed the order of committal on the 25th April, 1956. It is urged on behalf of the State that the order passed under sec. 498 Cr. P. C. by the learned Additional Sessions Judge granting bail to the accused on the 9th November, 1955 was a conditional order. The learned Additional Sessions Judge while passing the order on the 1st May, 1956 has also treated the order conditional. I have gone through that order. I do not find that the order is conditional. The order ends as follows: - "in these circumstances if the accused furnished bail of the amount of Rs. 2000/-each; they may be released if not wanted in any other case. " There is no time or stage specified in the order upto which the accused are to remain on bail. Reliance is placed on a remark in the judgment of the learned Additional Sessions Judge dated the 9th November, 1955 regarding the medical opinion expressed on the injuries by the doctor who conducted the post-mortem examination. The learned Additional Sessions Judge noted that that was a circumstance which could be considered after all the evidence had been recorded and when final orders would the passed. This observation is dubious. It can very well mean that due weight should be given to the medical opinion at the time of the passing of the orders against the accused on their guilt. I do not think that this remark can lay down any conditions under which the accused is to be on bail. It has also been argued that the judgment of the learned Additional Sessions Judge dated the 1st May 1956 rejecting the application on behalf of the applicants for the grant of bail may be treated to be an order cancelling the bail under Sec. 497 Cr. P. C. Of course the learned Additional Sessions Judge has ample powers to cancel the bail, but for that he must give sufficient notice to the accused. It appears that nobody moved the learned Additional Sessions Judge to cancel the bail. The learned Add:tional Sessions Judge himself did not issue any notice to the accused showing cause why the bail should not be cancelled, nor did he give them opportunity to contest it. I do not think the order refusing the application for the grant of bail should be construed as an order cancelling the bail. I express no opinion on the merits of the case. I, therefore allow the present application and order that the applicants Ramkrishen and eight others be released on bail if each of them furnishes one surety in the amount of Rs. 2000/- and also executes bonds in the like amount to attend the court of the Additional Sessions Judge, Merta on the 23rd July, 1956 or any other subsequent date. .;