Bail Granted U/S 436 CrPC Can Be Cancelled Only By High Court Or Sessions Court U/S 439(2): Orissa High Court

While clarifying the position of law, the Single Judge Bench of Justice Sashikanta Mishra observed,

“Section 436 Cr.P.C. itself does not contain any provision for cancellation of bail. However, Sub-Section (2) of Section 439 of Cr.P.C. appears to be only the provision conferring such power, but only on the High Court or Court of Session…”

The petitioner was accused for allegedly committing offences under Section 304/34 of the IPC. By order dated March 29, 2023 he was granted bail by the JMFC-IV, Cuttack taking note of the fact that the alleged offences are bailable in nature.

Subsequently, the I.O. made a prayer for cancellation of the bail on the ground that in course of investigation further offences were found to have been committed by the accused. Considering such prayer, the JMFC cancelled the bail bond furnished by the petitioner permitting the I.O. to arrest him.

Being aggrieved by the said cancellation of bail, the petitioner approached the High Court assailing the order of the lower Court.

Court’s Observations

The main moot question before the High Court was whether the Magistrate had jurisdiction to cancel the bail. The Court cited Section 437(5) of the CrPC where power of the Magistrate to cancel the bail already granted is conferred. It reads as follows:

“If a court has granted someone bail under subsections (1) or (2) of Section 1, it can order that person to be arrested and taken into custody if it deems it appropriate”.

After going through the above the provision, the Court held that such power is relatable only in case where bail has been granted under Sub-Section (1) or Sub-section (2) of Section 437 of CrPC. However, in this case, the petitioner was not granted bail under the provisions of Section 437 (1) or (2) but under Section 436, Cr.P.C.

The Court held that Section 436 itself does not contain any provision for cancellation of bail. However, Sub-Section (2) of Section 439 of CrPC provides that a High Court or Court of Session may direct that any person who has been released on bail under the Chapter XXIII be arrested and can commit him to custody.

“The words ‘under this chapter occurring in Sub-Section (2) are highly significant inasmuch as Section 436 of Cr.P.C. also is included under Chapter XXXIII. Therefore, bail granted under Section 436 of Cr.P.C. can only be cancelled by invoking the power under Sub-Section (2) of Section 439 of Cr.P.C,” the Court added.

The Court also cited the ratio laid down in Madhab Chandra Jena & Anr. v. State of Orissa and also in Kalia v. State of Orissa, wherein the High Court had taken similar views.

Having regard for the aforesaid position of law, the Court was of the considered opinion that the impugned judgment of the lower Court cannot be sustained and accordingly, set aside the same.

Case Title: Chinmaya Sahu v. State of Orissa

Case No.: CRLMC No. 2452 of 2023

Date of Judgment: July 20, 2023

Counsel for the Petitioner: Mr. B.P. Pradhan, Advocate

Counsel for the State: Mr. S.K. Mishra & Mr. S.N. Das, Addl. Standing Counsel

Citation: 2023 LiveLaw (Ori) 78