01. This Criminal Petition is filed by the petitioner-accused No.28 seeking to quash the impugned order dated 22.07.2024 passed by the learned IV Additional District & Sessions Judge at Karimnagar (hereinafter referred as the ‘learned Sessions Judge’) in CRL.M.P.No.128 of 2024 in P.R.C.No.69 of 2019 in Crime No.1 of 2008 of Karimnagar Rural Police Station, wherein the application filed by the prosecution under Section 439(2) of the Code of Criminal Procedure seeking to cancel the bail against the petitioner, was allowed and the bail granted to the petitioner was cancelled.

02. Heard Sri B. Nalin Kumar, learned Senior Counsel representing Sri G. Jabali, learned counsel for the petitioner and Sri M.Ramachandra Reddy, learned Additional Public Prosecutor for the State. Perused the record.

03(a). Learned Senior Counsel for the petitioner submitted that the petitioner who is arrayed as accused No.28 was produced in Crime No.1 of 2008 on 01.02.2010 and since then he has been in judicial custody. On 19.10.2010 the learned II Additional Judicial Magistrate of First Class, Karimnagar granted default bail to the petitioner but he could not furnish sureties, subsequently, charge sheet was filed and numbered as PRC No.69 of 2019 and on bail application filed by the petitioner, the learned Sessions Judge vide orders dated 30.01.2014 granted bail to the petitioner. The prosecution has filed an application seeking cancellation of bail vide CRL.M.P.No.128 of 2014 before the learned Sessions Judge, prior to the furnishing of sureties by the petitioner and the learned Sessions Judge erroneously allowed the same and cancelled the bail of the petitioner vide impugned order. It is further submitted that there are no new circumstances brought before the learned Sessions Judge and there is no violation of any conditions of the bail order as the petitioner-accused No.28 still remained in the judicial custody. Exercise of power under Section 439(2) of the Code of Criminal Procedure by the same Court which granted bail, without the presence of any new circumstances or the violation of any of the conditions imposed, would be gross violation of Section 362 of the Code.

               03(b). While praying to quash the impugned order passed by the learned Sessions Judge, the learned counsel for the petitioner relied upon a decision in Gurcharan Singh and others v. State (Delhi Administration) ((1978) 1 SCC 118) wherein the Hon’ble Supreme Court at Paragraph No.16 held that:

               “16…..under Section 439 (2) of the new Code, the High Court or the Court of Session may direct any person who has been released oil bail to be arrested and committed to custody. In the old Code, Section 498(2) was worded in somewhat different language when it said that a High Court or Court of Session may cause any person who been admitted to bail under subsection (1) to be arrested and may commit him to custody. In other Words, under Section 498(2) of the old Code, a person who had been admitted to bail by the High Court could be committed to custody only by the High Court. Similarly, if a person was admitted to bail by a Court of Session, it was only the Court of Session that could commit him to custody. This restriction upon the power of entertainment of an application for committing a person, already admitted to bail, to custody, is lifted in the new Code under Section 439(2). under Section 439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIII by any Court including the Court of Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court. If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that leave copied up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court.”

               03(c). Further, he relied upon a decision in the case of Abdul Basit v. Mohd. Abdul Kadir Choudhary ((2014) 10 SCC 754) wherein the Hon’ble Supreme Court at Paragraph Nos.19, 21 and 26 held that:

               “19. Therefore, the concept of setting aside an unjustified, illegal or perverse order is different from the concept of cancellation of a bail on the ground of accused’s misconduct or new adverse facts having surfaced after the grant of bail which require such cancellation and a perusal of the aforesaid decisions would present before us that an order granting bail can only be set aside on grounds of being illegal or contrary to law by the Court superior to the Court which granted the bail and not by the same Court.

               21. It is an accepted principle of law that when a matter has been finally disposed of by a Court, the Court is, in the absence of a direct statutory provision, functus officio and cannot entertain a fresh prayer for relief in the matter unless and until the previous order of final disposal has been set aside or modified to that extent. It is also settled law that the judgment and order granting bail cannot be reviewed by the Court passing such judgment and order in absence of any express provision in the Code for the same. Section 362 of the Code operates as bar to any alteration or review of the cases disposed of by the Court. The singular exception to the said statutory bar is correction of clerical or arithmetical error by the Court.

               26. In the instant case, the order for bail in the bail application preferred by the accused-petitioners herein finally disposes of the issue in consideration and grants relief of bail to the applicants therein. Since, no express provision for review of order granting bail exists under the Code, the High Court becomes functus officio and Section 362 of the Code applies herein barring the review of judgment and order of the Court granting bail to the accused- petitioners. Even though the cancellation of bail rides on the satisfaction and discretion of the Court under Section 439(2) of the Code, it does not vest the power of review in the Court which granted bail. Even in the light of fact of misrepresentation by the accused- petitioners during the grant of bail, the High Court could not have entertained the respondent/informant’s prayer by sitting in review of its judgment by entertaining miscellaneous petition.”

               03(d). Further, he relied upon a decision in the case of Javed Gulam Nabi Shaik v. State of Maharashtra (2024 SCC OnLine SC 1693) wherein it was held at Paragraph Nos.19, 20 and 21 that:

               “19. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.

               20. We may hasten to add that the petitioner is still an accused; not a convict. The over-arching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be.

               21. We are convinced that the manner in which the prosecuting agency as well as the Court have proceeded, the right of the accused to have a speedy trial could be said to have been infringed thereby violating Article 21 of the Constitution.”

04. On the other hand, learned Additional Public Prosecutor appearing for the State filed counter submitting that the petitioner-accused No.28 is a politburo member of the banned CPI (Maoists) and operating pan-India and that if the petitioner is released on bail, he is likely to re-join the Maoist organization and to go underground as a full time terrorist/extremist and likely to evade to face the trial and that the accused is a dangerous criminal and planning to commit further acts of violence and sabotage and it is possible that he will destroy evidence and will threaten witnesses and will tamper with the evidence and that he was already convicted and sentenced to undergo Rigorous Imprisonment for Life and eight years of imprisonment in two cases vide Crime No.166 of 2009 of Chutia, Ranchi District and Crime No.RC01/2011/NIA/GAW, National Investigating Agency, respectively. Hence, while praying to dismiss this Criminal Petition, the learned Additional Public Prosecutor for the State relied upon a decision in the case of Ajwar v. Waseem and another ([2024] 5 S.C.R. 575 : 2024 INSC 438) wherein it was held by the Hon’ble Supreme Court at Paragraph No.27 that:

               “27. It is equally well settled that bail once granted, ought not to be cancelled in a mechanical manner. However, an unreasoned or perverse order of bail is always open to interference by the superior Court. If there are serious allegations against the accused, even if he has not misused the bail granted to him, such an order can be cancelled by the same Court that has granted the bail. Bail can also be revoked by a superior Court if it transpires that the courts below have ignored the relevant material available on record or not looked into the gravity of the offence or the impact on the society resulting in such an order.”

05. This Court has carefully considered the rival submissions and perused the material available on record. It is not in dispute that bail was granted to the petitioner by the learned Sessions Judge by order dated 30.01.2024. The petitioner had not furnished sureties and was continuing in judicial custody. The prosecution filed an application seeking cancellation of bail. The impugned order dated 22.07.2024 cancelling bail was passed by the same Court which granted bail.

06. The settled legal position is that cancellation of bail stands on a different footing from setting aside an illegal bail order. Cancellation of bail shall be founded on any violation of bail conditions, or misuse of liberty, or interference with investigation or trial, or likelihood of absconding, or emergence of new adverse circumstances after grant of bail.

07. Further, once a Court grants bail and finally disposes of the bail application, in the absence of statutory provision for review, the Court becomes functus officio. Section 362 of the Code of Criminal Procedure bars alteration or review of such final order except for clerical or arithmetical errors. In the present case, a perusal of the impugned order does not disclose any supervening circumstances arising after grant of bail, or violation of any bail condition by the petitioner, or material showing misuse of liberty, more particularly when the petitioner was still in custody for want of sureties.

08. It is to be noted that the grounds urged by the prosecution in the application for cancellation of bail relate mainly to the seriousness of the allegations, antecedents of the petitioner, and the possibility of his future conduct. These are all matters which were available, or could have been considered, at the time of granting bail. In the absence of any new or supervening circumstances, the proper course open to the prosecution, if aggrieved by the order granting bail, was to approach the superior Court, but not to seek cancellation of bail before the same Court on the very same set of facts. It is also well settled that bail granted can be set aside by a superior Court if it is found that the courts below have ignored relevant material available on record, or have failed to consider the gravity of the offence or the impact of the offence on society, resulting in the grant of bail.

09. In the above view of the matter, the impugned order which is in effect, appears to be passed mechanically which amounts to re-appreciation of the earlier bail order and operates as a review of the order granting bail, which is impermissible in law. Though the allegations against the petitioner are serious in nature, gravity of the offence, by itself, cannot be a ground to cancel bail once it has been granted, in the absence of any supervening circumstances, subsequent conduct of the accused, or emergence of new material warranting such cancellation, more particularly, cancellation of bail by the very same Court and Judge who granted bail, amounts to an illegality and material irregularity. In view of the above discussion, this Court is of the considered opinion that the learned Sessions Judge was not justified in invoking powers under Section 439(2) of the Code of Criminal Procedure in the absence of supervening circumstances and, therefore, the impugned order is liable to be set aside.

10. Accordingly, this Criminal Petition is allowed and the impugned order dated 22.07.2024 passed by the learned IV Additional District & Sessions Judge at Karimnagar, is hereby set aside. However, it is made clear that, if the prosecution is aggrieved by the order granting bail, the proper course open to it is to approach the superior Court and liberty is accordingly granted to the prosecution to avail such remedy, in accordance with law.

As a sequel, pending miscellaneous applications, if any, shall stand closed.