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Criminal Miscellaneous No. 730 of 1968, decided on 25th March 1968.
Bail-Accused admitted to bail by High Court till termination of his trial-Magistrate or Sessions Judge, held, not empowered to cancel such bail and consign accused to jail.
Adam Chattha for Petitioner.
Nemat Khan for the State.
This is an application for bail on behalf of Bahadur Ali, who has been committed to the Court of Session at Bahawalpur, by a Magistrate of First Class on a charge under section 302/109, P. P. C.
2. The applicant was admitted to an interim bail by the order of this Court on 17th March 1967, and the bail order was confirmed on 14th June 1967. The learned Sessions Judge, Bahawalpur, cancelled the bail by his order dated 6th February 1968, as he took the view that the accused has made a pretence of renal cholic in order to avoid to stand the trial while the report of the Medical Superintendent, B. V. Hospital, Bahawalpur, shows that he was fit to face the trial. Taking the entire circumstances into consideration, the learned Sessions Judge in exercise of power under section 497 (5), cancelled the bail of the petitioner.
3. The contention raised on behalf of the applicant before me is that when the bail has been granted by this Court it is not within the power of a subordinate court to cancel it at a subsequent stage of the proceedings. Therefore, the order of the learned Sessions Judge, dated the 6th February 1968, canceling the bail granted to the applicant was illegal. . Furthermore, in case, the learned Sessions Judge found that the accused was intentionally avoiding to attend the Court the proper remedy was under section 514, Cr. P. C. Subsection (5) of section 497, Cr. P. Code, runs as under :-
"A High Court or Court of Session and, in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody."
From the plain reading of this language it is obvious that in case the bail is granted by the High Court, this Court alone can vary or rescind any order passed under section 498, Cr. P. Code and the Magistrate or the Sessions Judge is not empowered to cancel the bail and to consign the accused to jail. It was nowhere mentioned in my order that it was of a temporary character and.4 was applicable only to a certain stage in the proceedings. The accused was to remain on bail till the termination of the trial. In this view of the matter, I hold that the order of the learned Session Judge canceling the bail of the petitioner was without jurisdiction and is a nullity in the eye of law. In the circumstances) I allow the application and direct that the petitioner be released on bail in the sum of Rs. 10,000 (ten thousand) with one surety in the like amount to the satisfaction of the A. D. M . , Babawalpur, pending the decision of the case against him.
4. A copy of this order be given dasti on payment of usual fees.
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