JUDGMENT
Madan Mohan Prasad, J.
1. This is an application for cancellation of bail granted by the Chief Judicial Magistrate, Bhagalpur and a recall of the anticipatory order of bail passed by this court in the following circumstances. A first information report was lodged against the opposite party alleging him to be the owner of a firm M/s. Bharat Agencies dealing in cement under the Bihar Cement Control Order, 1972. A raid was made by the officers of the Supply Department and it was found that the licensee had sold cement at a rate in excess, of fixed price, that he had sold cement without issuing cash memo therefor or obtaining signature of purchasers and had committed certain other irregularities. In that respect a case under Sections 7 and 9 of the Essential Commodities Act and Rule 114 of the Defence of India Rules was instituted. The opposite party then filed an application for anticipatory order for bail in this court on the 6th of July, 1976. It was heard by this court on the 9th of July, 1976 and the application was allowed and the opposite party was directed to be released, if arrested, on furnishing bail of Rs. 3,000/-with two sureties of the like amount to the satisfaction of the Chief Judicial Magistrate.
2. In the persent application for recall of the aforesaid order as also for cancellation of order of bail granted by the Magistrate, it has been pointed out that the opposite party had already surrendered before the Magistrate on the 7th of July, 1976 and thus it is urged that the petition to this court
Under Section 438 of the Code become infructuous and the order passed by this court in such circumstances ought to be recalled. Next it has been urged that the order for bail passed by the Magistrate was without considering the case on merits and only in pursuance of the order of this court and, therefore, it ought to be cancelled.
3. A counter-affidavit has been filed on behalf of the opposite party stating that the Karpardaz of the opposite party had come to Patna and entrusted the papers to the lawyer and gone back to Bhagalpur on the 15th July, 1976. Not having received any information about the filing and the result of the application, the opposite party had, surrendered in the court of the Chief Judicial Magistrate on the 7th of July, 1976 and prayed for bail because the police had already got processes issued against him on the 6th of July, 1976. It is further said that he could not inform his counsel regarding his surrender in such circumstances ; that he could not even inform the Magistrate about the result of the application for anticipatory bail and that there was no wilful suppression of the fact of his surrender before the Magistrate which was necessitated on account of the aforesaid, circumstances.
4. It appears that after his surrender the opposite party had filed an application for bail on the 7th of July, 1976. The learned Magistrate had called for the document and directed the application to be put up on the 10th of July, 1976 for hearing. Meanwhile, he was remanded to custody. When the matter came up before him on the loth of July, 1976, some additional grounds for bail were filed. On that very date the learned Magistrate, however, received a copy of the anticipatory order for bail passed by this court. The opposite party prayed for his being enlarged on bail on the basis of that order. On the other hand, the Senoir A. P. P. contended that the opposite party having surrendered before the said order, his bail application should be heard on merits. The learned Magistrate, therefore, adjourned the hearing of the matter to the 12th of July, 1976. On that date the opposite party again filed a petition to be released from custody in view of the order of the High Court and he also furnished bail bond on his behalf. It was contended, that he should be released only on the basis of the High Court’s order and in any event, in view of the observations of the Hon’ble court that the State counsel could not point out as to what provision of law violated and also that it was not shown that any notification under Rule 144 D.I.R. had been promulgated.” The learned Magistrate said as follows:
The State has not produced the documents as ordered on 7-7-76. Hence in view of the order dated 9-7-76 passed by the Hon’ble High Court in Cr. Misc. No. 2998/76, let the accused be released on bail of Rs. 3,000/- with two sureties of the like amount each.
5. The question thus arises as to whether in view of the fact that the opposite party had already surrendered before the Magistrate, his application under Section 438 of the Code of Criminal Procedure was at all maintainable and if not maintainable, whether the order if passed thereon can be allowed to subsist. Section 438 of the Code is a new provision of law not to be found in the earlier Codes. It is obvious that the Legislature has provided for an order under Section 438 to be passed in a case where a person has reason to believe that he may be arrested. Obviously, therefore, it does not apply to a case where a person has already been arrested and is in custody. It will appear from the wordings of Section 438 of the Code that the order passed by this court under that section can be only a direction that, in the event of such arrest, he shall he released on bail. There is thus no escape from the conclusion that once a person has been taken into custody Section 438 has no application to his case.
6. In the light of the aforesaid principle of law undoubtedly the petition filed by the opposite party before this court could not be entertained on the 9th of July, 1976 nor could be order passed oa that date, in view of the fact that the opposite party had already surrendered before the Magistrate. Whatever the reasons may be which led to the opposite party not to bring it to the knowledge of this court that the accused had surrendered for the proposition of law, there is no difference. It is a matter which goes to the root of jurisdiction given to this court under Section 438 of the Code. The jurisdiction is to be exercised only in cases where an accused apprehends arrest and has not been taken into custody. In my view, it cannot be extended to a case where an accused had at the date of the hearing of this application been already into custody. In the circumstances aforesaid, I am, therefore, inclined to recall the order passed by this court on the 9th of July, 1976.
7. A question may arise as to whether this court can recall the order on the aforesaid ground in the absence of any provision in the Code to coyer cases like the present one. I am conscious of the provisions of Sub-section (2) of Section 439 which enables this court to direct that any person who has been released on bail under Chapter XXXIII of the Code be arrested and committed to custody. It may not necessarily be that in a case where this court has to recall an order of bail already passed, it may feel inclined to order re-arrest of an accused and direct his being committed to custody. That covers a case generally of cancellation of bail already granted on consideration which are well established to be good grounds for such cancellation. The provisions of Sub-section (2) or Section 439 have thus, in my opinion, no application to a case where a court does not intend to order the accused to be arrested, but it is well known that it is within the inherent power of this court to pass such orders as may be necessary in the interest of justice. It is also well established that a court has an inherent power to correct its own wrong. Thus this court having passed the anticipatory order for bail in the absence of the knowledge that the accused had surrendered before that date, it can recall its own order. It is for this reason that I have decided to do so.
8. The next question is whether the order for bail passed by the Chief Judicial Magistrate was merely on the basis of the order of this court or an independent order of his own. In case it was former-in other words, if the Magistrate merely carried out the anticipatory order of bail passed by this court without applying his mind to the merits of the case, that order must also logically disappear in view of the order of this court having been recalled. If on the other hand, it appears that irrespective of the order of this court, the Magistrate in the circumstances of the case, decided to release him on bail, the question would be as to whether any good ground has been made out in this court for cancellation of the order passed by the learned Magistrate. I have already stated at some length what the Magistrate did on the relevant dates. Even at the risk of repetition, I would mention that the opposite party surrendered on the 7th of July. 1976 and asked for bail, the Magistrate wanted to look into the documents and called for them and adjourned the hearing to the 10th of July, 1976, On the date the order of this court had been received, yet the Magistrate did not release the opposite party on bail granted by this court, in view of the argument before him of the counsel for the State that the accused having surrendered his case should be considered on merits. If the Magistrate had not intended to apply his mind, he could not have postponed the release of the opposite party on bail until the 12th of July, 1976 when he decided to hear both the sides on the matter. That would have resulted in disobedience of the order of this court and, therefore, contempt. But the undisputed fact before him being that the opposite party had surrendered before him on the 7th of July, 1976 and the order of bail of this court was of the 9th of July, 1976, the learned Chief Judicial Magistrate obviously did not want to rely on the order of this court and in the circumstances of this case, I think he acted rightly and properly. So on the 12th of July, 1976 when he decided to release the opposite party on bail, he was obviously not acting in pursuance of the order of this court.
9. Reading the order of the Magistrate dated the 12th of July, 1976, as stated earlier, the contention before the learned Magistrate was to take into account the observations made by the court regarding the absence of any mention of the provision of law violated and the absence of any notification said to have been promulgated under Rule 114 of the Defence of India Rules. The learned Magistrate specifically said that the State also had not produced the documents as ordered by him on the 7th July, 1976. It is obvious thus that in substance it was in view of the observations of this court which were not controverted before him on facts and the absence of the documents to support the prosecution case on the point that the Magistrate had decided to release the opposite party on bail. True he did not use happy expression when he said “hence in view of the order” passed by this court the accused should be released on bail. It seems to me obvious after reading the order as a whole that he exercised his independent judgment and that he had adopted the reasoning given by this court which were not controverted, either orally or by documents. In respect of the amount of bail, he seems to have adopted the same as mentioned by this court. When the substance of the matter is looked into, I have no doubt that the Chief Judicial Magistrate in this case exercised his own discretion and not merely obeyed the order of this court passed on the 9th of July, 1976.
10. Now comes the question as to whether this order of bail should be cancelled. Counsel for the State has not given any reasons on merits which should entail cancellation of bail granted by the learned Magistrate, The only fact stated in the argument is that the petitioner had suppressed the fact of his surrender before this court, so as to able to circumvent the requirement that he should first move the Magistrate and next the Sessions Judge, if necessary, and then come to this court for bail in the usual manner. There is no reason for suspecting a resort to such a device by the opposite party. There is no dispute that his application for anticipatory bail was filed in this court before he was arrested. He points out that in view of the process issued against him on the 6th of July, 1976, he had to surrender on the 7th of July, 1976 and he had no time to inform the lawyer of this court about it. This explanation commends itself to my acceptance. I cannot, therefore, hold the opposite party guilty of playing any fraud upon this court. If he had that intention, he would not have filed a bail application before the Magistrate as he did on the very day he surrendered. His application to this court could have even been rejected on merits and in such circumstances the order of the Magistrate could have been there on the basis of his application. There is thus no substance in this contention.
11. It has been pointed out on behalf of the opposite party that he has been now on bail for nearly nine months and there is no allegation that he has abused the privilege granted to him by the Magistrate. It is not claimed on behalf of the State that there is any other good reason for cancellation of his bail ordered by the Magistrate other than the one mentioned above and rejected by me.
12. In the aforesaid circumstances, I find no merit in this application. It is accordingly dismissed.