1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal Application (APL) No. 425/2011 Mukesh Chintaman Bante V/s. State of Maharashtra through P.S.O. P.S. Nandanvan, Nagpur ----------------------------------------------------------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. ----------------------------------------------------------------------------------------------------------------------------------------- Mr. R. S. Sirpurkar, Counsel for Applicant Coram: A.P. Bhangale, J Dated : 3rd August 2011 1. Heard. 2. By means of this application, the applicant has prayed to quash and set aside the order dated 15/07/2011, passed by the learned 2nd Additional Sessions Judge, Nagpur in Session Trial No. 226/2009. 3. It is the grievance of the learned Advocate for the applicant that the applicant is facing Sessions trial on the basis of FIR lodged by one Mrs. Kalpana w/o. Sanjay Kaikade, upon accusations punishable under Sections 363, 364(A), 386, 120(B) & 34 of the Indian Penal Code, arising from Crime No. 43/2008, reported at Nandanvan Police Station, Nagpur. The applicant was granted benefit of bail by the learned 2 Adhoc Additional Sessions Judge, Nagpur since 24/02/2008. The applicant was and is ready to abide by the condition mentioned in the bail order and conditions therein which includes attendance of the applicant during the course of the trial till it is concluded. The applicant never took any disadvantage of the liberty by reason of bail granted in his favour and was attending the Sessions trial regularly on each date of hearing. However, the learned trial Judge, on the ground that the evidence of eleven witnesses is recorded, has come to a conclusion that it is not desirable to keep free the accused no. 1 to 3 in the Sessions trial no. 226/2009, apprehending that presence of accused would not be easily available during further trial, decided to remand the accused no. 1 to 3 to Judicial Custody till conclusion of trial by suo- moto canceling their bail. 4. It is the grievance of the learned Advocate for the applicant there was no misuse of liberty nor there was any application on behalf of the prosecution for cancellation of bail nor there was any notice to the accused from the Court before cancellation of their bail and, therefore, it is submitted that the impugned order is contrary to the principles of natural justice as opportunity of hearing was not granted to the accused before cancellation of their bail. Learned 3 Advocate for the applicant made a reference to the ruling in the case of Rajendra Prasad Arya Vs. State of Bihar reported in (2000) 9 SCC 514, in order to submit that opportunity of hearing was necessary for the accused before cancellation of the bail order. In other words, bail cannot be canceled without hearing the accused. Reference is also made to the ruling in the case of State of Gujarat Versus Salimbhai Abdulgaffar Shaikh and others reported in (2003) 8 SCC 50, wherein in paragraph 9, the Apex Court has observed with reference to cancellation of bail under Section 439(2) of the Code of Criminal Procedure that the Courts generally do not examine the merits of the order granting bail. What is normally relevant to be examined in such a proceeding is whether the accused is trying to tamper with the evidence subsequent to his release on bail or has threatened the witnesses or has committed any other offence while on bail or is trying to adopt dilatory tactics resulting in delay of trial or has absconded or that the offence committed by him has created serious law and order problem. Thus, court has to see as to whether the accused has misused the privilege of bail granted to him. Only in the exceptional cases where the order granting bail is vitiated by any serious infirmity and in the interest of justice, it becomes necessary to interfere with the discretion exercised in granting bail. 4 5. Learned Advocate for the applicant submitted that there was no any grievance on behalf of the prosecution regarding misuse of liberty by the applicant or other co- accused in the Sessions trial, therefore, the impugned order is not only in violation of the principles of natural justice but also bad in law as the learned trial Judge was not justified to cancel the bail suo-moto without any application moved by the Public Prosecutor concerned or without issuing notice to the accused as to why his bail shall not be canceled. It is true that the Court has power under Section 439(2) of the Code of criminal Procedure to issue direction that any person who has been released from bail may be arrested and committed to the custody. But then, before any drastic order is passed necessary precaution was required to be taken such as issuance of the notice to the accused to give him an opportunity of hearing before canceling his liberty or bail bond as held in Rajendra Prasad Arya’s case. 6. Learned A.P.P. tried to support the impugned order on the ground that the learned trial Judge mentioned in the impugned order that there is some evidence which came on record and, therefore, it is not desirable to keep the accused free while continuing the bail order. However, it is 5 not disputed that notice was not issued to the accused before cancellation of their bail granted in his favour. It is also not disputed that no application was filed by the Public Prosecutor for cancellation of bail. 7. Under these circumstances, the impugned order is not sustainable in the eye of law, particularly, in reference to the ruling (cited supra). Therefore, the impugned order is set aside. The Learned trial Judge may issue notice to the accused if he is intending to cancel his bail and then hear and pass an order according to law. 8. Application is allowed accordingly. JUDGE Punde