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Bholai Mistry and anr. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1977CriLJ492
AppellantBholai Mistry and anr.
RespondentThe State
Excerpt:
- .....bail. this is laid down in section 209, sub-section (b) of the code of criminal procedure, 1973, bail granted by the high court under section 438 of the code of criminal procedure can only be cancelled by the high court under section 439(2) of the code. a learned magistrate or even a sessions judge has no power to cancel the bail which has been granted by the high court. the learned magistrate had no authority to take the first petitioner into custody and the learned sessions judge was also wrong in rejecting the prayer for bail.4. we accordingly allow this application, make the rule absolute and direct that the petitioners will continue on the same bail as granted by this court on 13-9-75 till the conclusion of the trial, or until the bail is cancelled by this court.h.n. sen, j.5. i.....
Judgment:

P.C. Borooah, J.

1. The two accused petitioners have obtained this Rule against an order passed by Shri C. Sammadar, Sessions Judge, Nadia on February 10, 1976 rejecting their application for bail.

2. Both the petitioners were granted anticipatory bail under Section 438 of the Code of Criminal Procedure by this Bench on September 13, 1975. On February 3, 1976 when the second petitioner attended Ranaghat court in connection with the pending case he was taken into custody as on that date the learned Magistrate committed both the petitioners to the Court of Session for being tried under Section 396 of the Indian Penal Code. Thereafter an application for bail moved before the learned Sessions Judge, Nadia was dismissed by him on February 10, 1976 and the first petitioner thereafter surrendered in court on February 11, 1976.

3. When committing an accused to a court of session the learned Magistrate can remand him to custody during or until the conclusion of the trial but subject to the provisions of the Code relating to bail. This is laid down in Section 209, Sub-section (b) of the Code of Criminal Procedure, 1973, Bail granted by the High Court under Section 438 of the Code of Criminal Procedure can only be cancelled by the High Court under Section 439(2) of the Code. A learned Magistrate or even a Sessions Judge has no power to cancel the bail which has been granted by the High Court. The learned Magistrate had no authority to take the first petitioner into custody and the learned Sessions Judge was also wrong in rejecting the prayer for bail.

4. We accordingly allow this application, make the Rule absolute and direct that the petitioners will continue on the same bail as granted by this Court on 13-9-75 till the conclusion of the trial, or until the bail is cancelled by this Court.

H.N. Sen, J.

5. I agree.


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