D.K.SINHA, J. - (1.) MR . Ram Awatar Sharma, the learned Counsel appearing for the petitioner submitted that the petitioner, Madan Mahto was admitted to bail after his detention for more than a month by the order of the Sessions Judge, Giridih in Bagodar P.S. Case No. 287 of 2002 for the alleged offence under Section 413/414 of the Indian Penal Code and Section 33 of the Indian Forest Act on 20.1.2003 after hearing the learned APP as well. But his bail was cancelled on the subsequent date i.e. on 21.1.2003 without giving notice to the petitioner on the ground that the petitioner had sworn false affidavit that no anticipatory or regular bail petition was earlier filed on his behalf either before the Sessions Judge, Giridih or before the High Court nor the same was pending any where else but, as a matter of fact, a bail petition No. 1107 of 2002 was filed on his behalf which was pending for disposal in the Court of the Additional Sessions Judge, Giridih in which the learned Court below called for the case diary. On the basis of the submission and fact being pointed out by the learned APP bail granted to the petitioner in B.P No. 55 of 2003 was cancelled by order dated 21.1.2003.
(2.) MR . Sharma submitted that the cancellation order passed by the Sessions Judge, on 21.1.2003 is illegal and unsustainable since no opportunity was accorded to the petitioner to show his cause. The petitioner is an illiterate and rustic Mazdoor who soon after filing and presenting the bail bond after the bail order was passed by the Sessions Judge had gone out for the livelihood. Mr. Sharma further submitted that the learned Sessions Judge after application of his judicial mind and upon being satisfied had granted bail to the petitioner. Section 439 of the Cr PC deals with the special power of the High Court or the Court of the Sessions regarding bail. The petitioner was admitted to bail under Section 439(l)(a) of the Cr PC. The Court of the Sessions Judge is functus officio i.e. when an order is passed by the Sessions Judge/ Criminal Court it cannot be recalled in ordinary course. In the present case I find that the learned Sessions Judge, Giridih has recalled his bail order by canceling bail of the petitioner who was admitted to bail earlier on the sole ground that he had sworn false affidavit for which a separate provision has been made to launch prosecution against such erring person. Once bail is granted cannot be recalled or cancelled in the same vein. Granting of bail is one thing and its refusal is another and both cannot be weighed on the same scale. In the circumstances, I find that order passed by the Sessions Judge on 21.1.2003 cancelling the bail of the petitioner is unsustainable in law and hence the order impugned dated 21.1.2003 passed by the Sessions Judge, Giridih in B.P. No. 55 of 2003 is set aside with the direction to the concerned Court to proceed in accordance with law. This application is allowed. Let a copy of this order be communicated to the concerned Court through Fax on the cost their being deposited by the petitioner. Application allowed. ;