IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.28851 of 2009 ABHAY KUMAR SINHA, SON OF LATE JAMANGAL PD. SHRIVASTAVA, RESIDENT OF VILLAGE AND P.O. NAURA, P.S. SARAIYA, DISTRICT MUZAFFARPUR AT PRESENT PATLIPUTRA, NEHRU NAGAR, IN FRONT OF FOREST DEPARTMENT’S OFFICE AT PATNA--- PETITIONER Versus THE STATE OF BIHAR THROUGH VIGILANCE --- OPPOSITE PARTY ----------- 3 16.12.2009 The petitioner is aggrieved with the order dated 3.6.2009 whereby the Special Judge, Vigilance-I, Patna has granted bail to the petitioner stating as follows: “In view of the facts and circumstances of the case and the legal position, the petitioner cannot be remanded further either under Section 167 Cr.P.C. or under Section 309 Cr.P.C. as chargesheet has been submitted without sanction order. Hence, the petitioner is directed to be released on his furnishing bail bond of Rs. 10,000/- (ten thousand) with two sureties of the like amount each till cognizance is taken against him, on condition that one of the sureties must be a govt. servant and another surety must be his relative.” This Court has already decided this issue vide Cr. Misc. No. 33606 of 2009 disposed of on 16.9.2009 and held that a condition granting bail till taking of cognizance is not proper in view of the provisions of Sections 167 and 309 of the Indian Penal Code. This case would obviously be covered by order and judgment dated 16.9.2009. Learned counsel appearing on behalf of the Vigilance Department however, raises an objection with respect to maintainability of this application. According to the learned counsel for the Vigilance Department this application under Section 482 2 would not be maintainable in view of Section 439 (1) (b) of the Code of Criminal Procedure. Section 439 reads as follows: 439. Special powers of High Court or Court of Session regarding bail.-(1) A High Court or Court of Session may direct- (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub- section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section. (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified. Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. The language of the section is quite clear inasmuch as it is said that the condition imposed by the Magistrate may be modified or set aside by the High Court or Session Court. In the present case, the petitioner has preferred to come to this Court to get the conditions set aside. This Court while deciding to modify the conditions imposed can certainly consider whether the conditions imposed are practicable or impracticable or in accordance with law. In the present case the Court finds that the conditions imposed is not in accordance with law and as such sets aside the conditions imposed that bail has been granted till order of cognizance. This application is thus allowed. Sanjay (Sheema Ali Khan, J.)