CHHANGANI, J. - (1.) PADAMSINGH, Nakhatsingh, Aamsingh and Takhatsingh have submitted this application to this Court under sec. 498, Criminal P. C. praying for their release on bail.
(2.) THE facts relevant for the disposal of the present application may be stated as follows - It is stated that on 30th October, 1964, when Nagsingh was going from Nanadiya to village Modardi Amarsingh and Takhatsingh who had been hiding themselves, appeared on the scene and attacked Nagsingh. THEy inflicted some lathi blows on him Nagsingh, however, managed to run away. When he covered a distance of about 100 poundas the two other accused Padamsing and Nakhatsingh who were also hiding themselves, came forward and assaulted Nagsingh. Padam Singh was armed with an axe and Nakhatsingh was armed with a lathi and they inflicted injuries with these weapons. In all Nagsingh received seven injuries - three simple and four grievous. On these facts the police submitted a charge sheet against the four applicants in the court of Sub-Divisional Magistrate, Pokran, for offence under sec. 307, Indian Penal Code. It appears that during the course of enquiry all the four applicants were enlarged on bail by the Sub Divisional Magistrate on 24. 11. 1964. THE enquiry was concluded and the Sub Divisional Magistrate passed an order for commitment of the four petitioners to the court of Session, Jodhpur, for trial under sec. 307, Indian Penal Code. He, however, did not commit them into custody but directed that they shall remain on bail and shall appear in the court of session and face their trial. After commitment, the case came before the Sessions Judge, who transferred it to the court of Additional Sessions Judge No. 1, Jodhpur. Before the Additional Sessions Judge a question arose whether the accused-petitioners should be permitted to remain on bail or not. On behalf of the Public Prosecutor it was argued that under the terms of sec. 207-A sub-sec. 16 the Magistrate had no jurisdiction to keep the petitioners on bail. He should have committed them in to custody until and during the trial before the court of session. THE accused-petitioners also submitted an application praying for their release on bail. THE Additional Sessions Judge by his order dated 1st August, 1966, rejected the application of the accused petitioners and cancelled the bail granted to them by the Magistrate. THE accused-petitioners were remanded to judicial custody. THE petitioners thereafter approached the Sessions Judge, Jodhpur, for bail but the Sessions Judge, rejected the bail application by his order dated 3rd August, 1966. THE petitioners have approached this Court under sec. 498, Cr. P. C. The counsel for the petitioners in the first instance submitted that the Sub-Divisional Magistrate having passed an order to commit the petitioners on bail the Additional Sessions Judge had no jurisdiction to set aside the order of the Magistrate and to cancel the bail. Reliance was placed upon the language of sec. 497 sub-sec. (5) which lays down that the bail can be cancelled either by the High Court or by the court of session or by a court which granted the bail. According to the petitioners, the Additional Sessions Judge having not granted bail he was not competent to cancel the bail under sec. 497 sub-sec. (5), Cr. P. C. The learned counsel also relied upon a case of this Court reported in Kalu vs. State (1 ). Reference was also made to Maung Ba Maung vs. Emperor (2 ). The Deputy Government Advocate appearing for the State, however, contended that the facts of the case of Kalu vs. State (l) relied upon by the petitioners' counsel are distinguishable. In that case the Magistrate granted bail and while the case was pending before the Magistrate the prosecution approached the Additional Sessions Judge for cancellation of the bail. In those circumstances, it was rightly held that the Additional Sessions Judge was not competent to cancel the bail. In the present case the case no longer remained before the Magistrate but stood committed for trial in the court of Additional Sessions Judge and the Additional Sessions Judge having been seized of the case was quite competent to pass an order under sec. 497 sub-sec. (5), Criminal P. C. The Deputy Government Advocate placed reliance upon Emperor vs. Rautmal Kanumal Marwadi (3) & Emperor vs. Abubakar Muhammad Baksh Sheikh (4 ). Proceeding to examine the cases relied upon by the Deputy Government Advocate, I may point out that in the Bombay case after the accused was released on bail by one Magistrate the case was transferred to another Magistrate. Before the Magistrate to whose court the case was transferred, the prosecution applied for the cancellation of the bail on the ground that the accused had been found tampering with the witnesses and the Magistrate thereupon cancelled the bail. The Sessions Judge on revision did not approve of the order of the Magistrate cancelling the bail and made a reference to the High Court of Bombay. A Bench of the Bombay High Court presided over by Beaumont G. J. rejected the order of reference made by the Sessions Judge with the following observations: - "i am unable to agree with the view of the learned Sessions Judge. In my opinion every Judge or Magistrate trying a criminal case has inherent power to see that the trial is properly conducted and that the ends of justice are not defeated, and if facts are brought to its attention, which suggest that unless the person who is being tried is placed under arrest the ends of justice will be defeated, the Court has inherent power to direct his arrest. " In my opinion, the case does not render much assistance to the prosecution. Obviously, the Bombay High Court did not rely upon the provisions of sec. 497 sub-sec. (5) in upholding the order of the Magistrate cancelling the bail. On the other hand, the Bombay High Court relied upon inherent powers of the Court. Now, so far as the inherent powers of the Magistrate to cancel the bail are concerned, it will be useful and relevant to refer to the judgment of the Supreme Court in Talab Haji Hussain v. Madhukar Purshottam Mondkar (5 ). A proper appreciation of the judgment in that case shows that the Supreme Court recognised the right of the High Courts only to cancel bail in the exercise of inherent power under sec. 56l-A, Criminal P. C. and it is difficult to hold that the courts other than the High Court, are competent to cancel bail in the exercise of inherent power. In the Sind case, namely, Emperor vs. Abubakar Muhammad Baksh Sheikh (4) the Magistrate having granted anticipatory bail subsequently cancelled the bail and the Sind Chief Court approved of the order subsequently cancelling the bail. Not much useful guidance can be available from this case also because in that case the bail was cancelled by the Magistrate himself, and there was no question of an Additional Sessions Judge exercising powers under sec. 497 (5) in respect of an order of a committing magistrate granting bail. The cases relied upon by the Deputy Government Advocate do not persuade me to ignore the basic principle laid down in Kalu vs. State (l) As I look at the matter, I find it difficult to hold that an Additional sessions Judge after the transfer of a case committed to the court of Session to his court can immediately proceed to examine the correctness or propriety of the committing court's order granting bail. The mere fact that the case after commitment is transferred to the court of an Additional Sessions Judge cannot be permitted to authorise him to treat himself as constituting the court which granted bail and on that assumption to exercise revisional powers to set right or rectify the mistake of the committing Magistrate. Under sec 497 sub sec. (5) only the High Court and the Sessions Judge have been authorised to consider the propriety or otherwise of the orders of Subordinate Magistrate granting bail and to cancel them save in cases of special authorisation as contemplated by sec. 17 of the Criminal P. C. and an Additional Sessions Judge cannot be permitted to circumvent these limitations merely on account of the transfer of the case to his court for trial, I must however make it clear that I need not be understood to express any opinion on the question of competence of the Additional Sessions Judge to consider the question of cancelling bail on various grounds arising during the course of trial; for example, when the Additional Sessions Judge is satisfied that after commitment the accused is proved to have tampered with evidence In this view of the law, I am constrained to hold that the Additional Sessions Judge was not correct in cancelling the bail granted to the petitioners. This, however, does not conclude the matter. As the Deputy Government Advocate suggests the entire case is before me and the question whether the petitioners should remain on bail or not has to be decided not merely with reference to the correctness or otherwise of the Additional Sessions Judge's order but with reference to over-all consideration of the case. I should not and need not closely examine the merits of the case but considering the nature of the allegations and the fact that the incident took place on 30. 10. 1964 and that the petitioners were on bail tor about two years during the enquiry stage and that they were committed on bail to the court of session, I consider it proper to enlarge the petitioners on bail. The application is allowed. The petitioners shall be released on bail on each one of them executing a personal bond in the amount of Rs. 5,000/- (Rupees Five Thousand) and producing one surety each in like amount to the satisfaction of the Additional Sessions Judge No. 1, Jodhpur, stipulating to appear in his Court on each date of hearing and face the trial. .;