ORDER
G.B. Pattnaik, J.
1. Though this application has been filed Under Section 439, CrPC for releasing the petitioner Chandramani Swain on bail, in course of hearing the application Mr. Mishra for ths petitioner challenges the legality of the older of the learned 1st Additional Sessions Judge, Puri dated 24-1-1993 inter alia on the ground that the petitioner having been released on bail by the learned 1st Addl. Sessions Judge, Puri in exercise of his power Under Section 439, CrPC by order dated 6-8-1992, it was not open for the 1st Addl. Sessions Judge to hold that the said order was not maintainable and to recall the same by the impugned order. The short facts necessary for deciding the legality of the aforesaid contention are that, the petitioner was arrested on the allegation of having committed an offence Under Section 302/149 1PC along with several other offences and in course of investigation his prayer for being released on bail having been rejected by the learned Sessions Judge, he had moved this Court in Crl. Misc. Case No. 282/92 along with three other co-accused persons. This Court considered the application for bail on 11-3-1992 and in view of the materials available against the petitioner Chandramani rejected his prayer for bail but so far as two other accused persons, Nabaghana and Karunakar, are concerned, they ware released on bail of Rs. 5000/- (five thousand) each with two sureties each for the like amount. Subsequent to the filing of charge-sheet Chandramani and Pravakar, the two accused persons whose application for bail had been rejected earlier by this Court in Crl. Misc. Case No. 282/92, moved the learned Sessions Judge invoking his jurisdiction Under Section 439, CrPC. That application stood transferred to be disposed of by the Additional Sessions Judge. The learned Additional Sessions Judge by order dated 6-8-1992 considered all the relevant materials available on record and came to the conclusion that since there was no allegation either in the FIR or in the statements of the material witnesses that the petitioner Chandramani assaulted the deceased by means of a lathi on his head, he is entitled to be released on bail. Accordingly the petitioner Chandramani was enlarged on bail on furnishing bail bond to the tune of Rs. 10,000/- with two solvent sureties for the like amount. The accused persons on being committed to the Court of Session, the learned Sessions Judge also accepted the bail bonds furnished by order date 27-11-1992. When the case was thereafter transferred to the Court of the 1st Addl. Sessions Judge, the said 1st. Addl. Sessions Judge passed the impugned order on 24-1-1993. Suo motu he recalled the earlier order passed by him on 6-8-1992 in Crl. Misc. Case No. 483/92 on the ground that the High Court having rejected the prayer for bail of the petitioner in Crl. Misc. Case No. 282/92 by order dated 11-3-1992, the Sessions Judge had no further jurisdiction to release the petitioner Chandramani on bail and the subsequent application was not maintainable. The petitioner having been remanded to custody pursuant to the aforesaid order of the learned Addl. Sessions Judge, he has moved this Court.
2. Mr. Mishra appearing for the petitioner contends that the Addl. Sessions Judge was totally in error in recording a finding that the subsequent application for bail before the learned Sessions Judge was not maintainable inasmuch as, successive applications for grant of bail by invoking jurisdiction of the learned Sessions Judge Under Section 439, CrPC can be maintained, but whether on merit the Sessions Judge would pass an order releasing the accused on bail is a different matter. Mr. Mishra further contends that the Addl. Sessions Judge having exercised his power Under Section 439, CrPC and after applying his mind to the materials on record on being satisfied that there exists no prima facie material against the petitioner Chandramani and having released him on bail by order dated 6-8-1992, the only way by which an accused can be again brought under custody is by cancelling the bail and for such cancellation power can be exercised only if the conditions precedent provided in Section 437(5), CrPC are satisfied. That not having been done, the impugned order is wholly unsustainable in law.
3. The learned Addl. Govt. Advocate appearing for the State and Mr. Panda appearing for the informant did not dispute the contention of Mr. Mishra appearing for the petitioner that the conclusion of the Additional Sessions Judge that subsequent application for bail was not maintainable is erroneous but they contend that in view of the gravity of charges against the petitioner, the High Court having considered the same and having rejected his prayer for being released on bail, it was not appropriate for the learned Sessions Judge to release him on bail by order dated 6-8-1992 and in that view of the matter when the accused obtained an order of bail by suppressing the order of this Court rejecting his prayer for bail, the Additional Sessions Judge was entitled to bring the accused again into custody and, therefore, there is no legal infirmity in the same.
4. Having heard the learned counsel for the parties, two questions really require adjudication-(i) whether an application for bail by an accused person having been rejected by this Court, a second application by him before the Sessions Judge is at all maintainable Under Section 439, CrPC and (ii) whether the Sessions Judge having considered the application and having released the accused on bail could cancel the same without being satisfied about the requirements of cancellation as contained in Section 437(5) of the Code of Criminal Procedure.
5. So far as the first question is concerned, there cannot be any manner of doubt that the power of the Sessions Judge to con aider an application for bail Under Section 439, CrPC has not been taken away merely because in course of investigation, the application for bail by an accused is rejected by the High Court. In that view of the matter, the conclusion of the Additional Sessions Judge in the impugned order that the subsequent application was not maintainable is wholly erroneous and cannot be sustained.
6. So far as the second question is concerned, the same no longer remains res integra. It has been held by the Supreme Court in several cases that once an accused is released on bail, he cannot be taken back into custody unless special reasons for doing so exist and unless the bail granted to him is cancelled for reasons germane to cancellation as provided Under Sections 437(5) and 439(2), CrPC. In a recent case of Aslam Babalal Desai v. State Maharashtra AIR 1993 SC 1, their Lordships of the Supreme Court he!d that the grounds for cancellation of bail Under Sections 437(5) and 439(2) are identical, namely, bail granted Under Section 437(1) can be cancelled where the accused misuses his liberty by indulging in similar activity, Interferes with the course of investigation, attempts to tamper with evidence of witnesses, threatens witnesses or indulges in similar activities which would hamper smooth investigation or there is likelihood of his fleeing to another country or attempts to make himself scarce by going underground or becoming unavailable to the investigating agency or attempts to place himself beyond the reach of his surety etc. These grounds have been stated to be illustrative and not exhaustive. But a word of caution has been added there that the cancellation of bail is a harsh one since it interferes with the liberty of the individual and, therefore, it must not be lightly resorted to. This being the position and the Additional Sessions Judge having released the petitioner on bail by considering the materials by order dated 6-8-1992 was not entitled to recall the same by the impugned order dated 24-1-1993. I may notice at this stage that the legality of the order releasing the petitioner on bail by order dated 6-8-1992 is not under challenge before me. Consequently, I have no hesitation to conclude that the impugned order dated 24-1-1993 is wholly erroneous and the same is liable to be quashed. Accordingly the impugned order dated 24-1-1993 passed by the learned first, Addl. Sessions Judge, Puri is quashed and the accused is entitled to be released forthwith. While the accused is entitled to be released forth with from custody, I would make it clear that it would be open for the learned Addl. Sessions Judge to cancel his bail bond on being satisfied that the conditions precedent for exercising the power of cancellation as provided in Sections 437(6) or 439(2), CrPC as have been enumerated in the aforesaid Supreme Court decision are satisfied. This application is allowed with the aforesaid observation and directions.
Urgent certified copy may be given on proper application.