Criminal Revision Application No.148 of 2005

16th September, 2005

Petitioner Counsel: Dr. ANJAN DE, APURV DE
Respondent Counsel: Shri. A. S. FULZELE

JUDGMENT

JUDGMENT : - Heard finally by consent of parties.

The applicant is one of the accused persons facing trial for the offence punishable under Sections 302, 201, 304-B r/w Section 34 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act in Sessions Trial No.90/2003. The applicant failed to secure bail on merits. Thereafter, by order dated 10th May, 2004 the applicant was released by the trial Court as it was found that the applicant was of unsound mind and was incapable of making his defence. It seems that after the release of the applicant he ceased to be of unsound mind and the trial not only resumed but had proceeded in as much as on 5th November, 2004 PW Nos.1 and 2 were examined by the prosecution. It seems that thereafter, no prosecution witness turned up and the trial was adjourned from time to time.

2. On 30th March, 2005 the learned A.P.P., incharge of the trial, moved an application for cancellation of the bail of the applicant on the ground that the applicant became of sound mind and was capable of making his defence. By order dated 18th July, 2005 the learned trial Judge allowed the application, cancelled the bail of the applicant and took him in custody. The applicant has challenged the said order by this application under Section 397 r/w Section 482 of the Code of Criminal Procedure.

3. Dr. Anjan De, the learned counsel for the applicant vehemently urged that the order cancelling the bail of the applicant is without jurisdiction insofar as there is no provision in the Code of Criminal Procedure authorising the trial Court to cancel the bail to an accused who was released under Section 330 of the Code of Criminal Procedure. In this respect Dr. De pointed out that Chapter XXV which contains the provisions as to the accused persons of unsound mind, does not provide for cancellation of the order of release. It indicates the intention of the Legislature to treat the accused of unsound mind on a footing different from other accused persons who are of sound mind. Dr. De submitted that there is only one provision in the Code of Criminal Procedure in the form of sub-section (2) of Section 439 which authorises the High Court or the Court of Session to direct arrest of an accused person who has been released on bail. Dr. De pointed out that sub-section (2) of Section 439 of the Code of Criminal Procedure specifically lays down that "A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody." Dr. De urged that the power given under sub-section (2) of Section 439 is apparently restricted to the release of the accused under Chapter XXXIII and that power cannot be imported in Chapter XXV. He, therefore, submitted that the order dated 18th July, 2005 is without jurisdiction and cannot be sustained. Dr. De pointed out that no allegations have been made that the applicant misused his liberty in any way.

4. Shri. A. S. Fulzele, the learned A.P.P., on the other hand, submitted that though there is no specific provision for cancellation of bail of an accused who was released under Section 330 of Code of Criminal Procedure, the release under Chapter XXV is merely a temporary phase. The benefit of release is extended for limited purpose i.e. during the unsoundness of the accused and that cannot be extended after he ceases to be of unsound mind. According to Shri. Fulzele, after the accused ceases to be of unsound mind and trial resumes, the bail granted to the said accused automatically stands cancelled. Shri. Fulzele, therefore, justified the impugned order.

5. I have carefully considered the rival submissions. It may be seen that Chapter XXV deals with the accused persons who are of unsound mind and who are incapable of making their defence. Section 300 in the said Chapter provides for their release on sufficient security being given, irrespective of the nature of the offence. In Chapter XXV of the Code of Criminal Procedure, power of cancellation of bail is not specifically given to any Court. Unlike Chapter XXXIII wherein sub-section (2) of Section 439 empowers the Courts to cancel the bail. But again the power given under sub-section (2) of Section 439 is restricted to the bail granted under Chapter XXXIII only which clearly shows that the power of sub-section (2) of Section 439 cannot be used for canceling the bail granted under Chapter XXV.

6. In view of this position, the learned trial Court had no jurisdiction to cancel the bail and to take the applicant in custody. The impugned order is thus illegal and it cannot be sustained. Hence, I pass the following order.

.... O R D E R ....

(i) The application is allowed.

(ii) The applicant be released forthwith on the same terms and conditions on which he was released by order dated 10th May, 2004.

Application allowed.