R.B. Lal, J.

1. This is an application under Section 439(2) Code of Criminal Procedure for cancellation of bail granted to Awadesh Kumar and Anurudha Kumar, opposite parties Nos. 1 and 2 by Ilnd Additional Sessions Judge, Etawah, by his order dated 17-3-83.

2. Opposite parties Nos. 1 and 2 are facing trial for an offence under Section 302 IPC of police station Bakewar, District Etawah. They surrendered in Court on 19-11-81. They twice moved the learned Sessions Judge Etawah for granting bail to them but their bail applications were rejected. Then they approached this Court for grant of bail but their bail application was rejected on merits on 4-11-82. Thereafter, the opposite parties Nos. 1 and 2 moved bail application before the Second Additional Sessions Judge, Etawah on 8-3-83 (Annexure I to the bail cancellation application). The complainant applicant opposed the bail application and filed a reply (Annexure II to the bail cancellation application). The IInd Additional Sessions Judge, allowed this bail application by the impugned order dated 17-3-83. The complainant requested the IInd Additional Sessions Judge to stay the operation of the order dated 17-3-83 to enable him to approach this Court. A weeks time was allowed. The complainant filed the present application in this Court and obtained stay of the operation of the bail order dated 17-3-83.

3. The opposite parties Nos. 1 and 2 have opposed the application for cancellation of bail and have filed a counter-affidavit.

4. In the bail application dated 8-3-83 the accused said that they were in jail for more than one and a half years and there had been no progress in the trial of the case except the framing of charge and, therefore, in view of the Supreme Court pronouncement that speedy trial was fundamental right of accused enshrined in Article 21 of the Constitution, they were entitled to grant of bail. Reference was made to Supreme Court cases of Hussoinara Khatoon v. State of Bihar : AIR 1979 SC 1360 [LQ/SC/1979/115] and Kadra Pehadiya v. State of Bihar : 1981 CriLJ 481 (SC). In the reply (Annexure II) the complainant pointed out that the accused had not mentioned in their bail application that their bail application had been rejected by the High Court by order dated 4-11-82. He explained the reasons for delay and contended that delay was due to the own conduct of the accused He also averred in paragraph 5 that if the accused came out of jail there would be danger to the life of the witnesses. The IInd Additional Sessions Judge observed that the ground taken up in the bail application dated 8-3-83 was a new ground, which was not taken up earlier. The Supreme Court had held that the period of confinement in jail should not be more than a year. In the instant case the accused were in jail for more than one year. He, therefore, allowed bail to the accused.

5. The contention of the learned Counsel for the applicant is that after rejection of the ball application of the opposite parties Nos. 1 and 2 by the High Court the IInd Additional Sessions Judge could not allow their bail application and he should have directed them to approach the High Court for bail on the alleged new ground. Judicial propriety and decorum also required that the Sessions Judge did not proceed to allow the bail application. The complainant was all along anxious for an early conclusion of the trial. The accused had themselves delayed the trial by telling the Sessions Judge that they had no faith in him and the Sessions trial should be transferred to some other Court The date was changed from 22-3-83 to 15-4-83 at the request of the Counsel for defence. If the Court was without a Presiding Officer for some time, it was beyond the control of the complainant. The Additional Sessions Judge had misconstrued the observations of the Supreme Court made in the cases of Hussainara Khatoon and Kadra Pehadiya. The order of bail, therefore, deserves to be set aside. In reply the learned Counsel for the opposite parties Nos. 1 and 2 has urged that the Sessions Judge could entertain and allow a bail application even after the rejection of bail by the High Court, if there existed a new ground. There was delay in the progress of the trial without any fault of the accused. The IInd Additional Sessions Judge was, therefore, well within his jurisdiction to pass the impugned order of bail and the same could not be challenged.

6. Section 439(2), Code of Criminal Procedure empowers a High Court to direct that any person who has been released on bail under Chapter XXXIII be arrested and committed to custody. The scope of this power of High Court was considered by the Supreme Court in Gurcharan Singh v. State (Delhi Admn.) AIR 1978 SC 179 [LQ/SC/1977/334] . Their Lordships observed :

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 have cropped 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 Sessions vis-a-vis the High Court.

Their Lordships further observed:

There is no provision in the new Code excluding the jurisdiction of the High Court in dealing with an application under Section 439(2) Code of Criminal Procedure to cancel bail after the Sessions Judge had been moved and an order had been passed by him granting bail.

7. Thus, the power of High Court under Section 439(2) Code of Criminal Procedure is wide and over-riding. The High Court has power to review the propriety of bail granted by the Sessions Judge even if no new circumstances have come into existence, and it can on a consideration of the existing circumstances, in an appropriate case, cancel the bail order and commit the person already admitted to bail to custody.

8. I am conscious of the proposition that rejection of bail when applied for, is one thing and cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. This proposition however does not negative the power of the High Court to cancel bail granted by the Sessions Court in an appropriate case. It only means that the power to take back in custody an accused who has been enlarged on bail has to be exercised with great care and circumspection.

9. The proposition that where bail application of an accused has been rejected by High Court, the Sessions Court cannot allow a subsequent bail application of the same accused, is, in my opinion, too widely worded and cannot be accepted without qualification. Accepting the proposition would amount to placing a total bar on the power of the Sessions Court which does not appear to be expedient and desirable. Such a bar is likely to work considerable hardship in many a deserving cases where new substantial grounds have come into existence since the rejection of bail application by High Court. The correct position appears to be that even after rejection of a ball application by High Court, the Court of session may entertain and consider an application for bail of the same accused provided new substantial grounds for bail have arisen since the last order of rejection of ball and a reasonably long interval, has also elapsed. While dealing with such a bail application the sessions Court should be circumspect and bear in mind the question of propriety and judicial decorum. If it feels that passing an order of bail in the face of an earlier order of rejection of bail by the High Court, would appear to over step the limits of propriety and judicial decorum, it should direct the accused to approach the High Court for bail. This kind of exercise of discretion will also be conducive to clean administration of justice.

10. The facts of the present case lie in a short compass. The accused opposite parties 1 and 2 had surrendered in Court on 19-11-81. The case was committed to the Court of Session on 12-3-82 and was listed on the cause list of the Sessions Judge for framing charges. By order dated 29-5-82, the sessions trial was transferred to the Court of IIIrd Additional Sessions Judge, Etawah and charge was framed by the Transferee Court on 9-6-82. The Court of the IIIrd Additional Sessions Judge remained without a Presiding Officer from July 1982 onward. Under orders of this Court, the Sessions trial was transferred to the Court of IInd Additional Sessions Judge on 22-2-83. The IInd Additional Sessions Judge fixed 22-3-83 and onwards for recording evidence. At the request of the learned Counsel for the accused this date was changed from 22-3-83 to 15-4-83 and onwards. On 15-4-83, hearing was adjourned to 2-5-83. On 2-5-83 Counsel for the State applied for framing an additional charge under Section 25 Arms Act and 3-6-83 was fixed for disposal of this prayer. The prosecution witnesses had come to Court both on 15-4-83 and 2-5-83. On 3-6-83 the APP moved an application for adding a charge under Section 27, Arms Act as well. The complainant moved an application on that date saying that the evidence should be recorded at an early date. However, nothing could be done on 3-6-83 because the Presiding Officer of the Court of IInd Additional Sessions Judge, had been transferred in the meantime. Till 7-7-83 a new Presiding Officer had not taken over. It is not known if a Presiding Officer had taken over at any later date.

11. Though it has been contended on behalf of the complainant-applicant that the delay in trial of the case was on account of the conduct of the accused, it does not appear from orders on the Hindi order sheet of the Court below that the accused had tried to delay the trial of the case. The Court of the IIIrd Additional Sessions Judge was without a Presiding Officer from July 1982 till February 1983 and, therefore, no progress could be made in the trial of the case. The case was transferred by this Court to the IInd Additional Sessions Judge. Some dates were fixed but before anything substantial could be done, the Presiding Officer was transferred. The delay was for reasons which were beyond the control of the accused as also of the complainant. The presence of witnesses on 15-4-83 and 2-5-83 and the application dated 3-6-83 show that the complainant was anxious for an early trial and was not guilty of any delaying tactics or laches.

12. The Additional Sessions Judge referred to the decisions Hussainara Khatoon v. State of Bihar : AIR 1979 SC 1360 [LQ/SC/1979/115] and Kadra Pehadiya v. State of Bihar : 1981 CriLJ 481 (SC) and observed that these authorities laid down the principle that if an accused has remained in jail for more than a year and the trial has not commenced, he should not be confined in jail. He added that as a subordinate Court he was bound to follow the aforesaid principle laid down by the Supreme Court. The accused who were in jail for more than a year were, therefore, entitled to bail. In my view, the Additional Sessions Judge failed to comprehend the real spirit of the observations of the Supreme Court and took a very narrow and literal view of the observations.

13. In Hussainara Khatoons case the Supreme Court had laid down that reasonably expeditious trial of a criminal case is an integral and essential part of the fundamental right to life and personal liberty enshrined in Article 21 of the Constitution. In paragraph 5 (page 1365 column I) their Lordships observed that " even a delay of one year In the commencement of the trial is bad enough ". In the cases which were before their Lordships the accused were under detention in cases for as long as 3 or 5 or 7 or even 10 years without the trial having been commenced. In Kadra Pehadiyas case their Lordships were considering the case of four goat-herds who were arrested in November and December 1972. They were committed to the Court of Session after a lapse of twenty months and the trial commenced only in name after an interval of another three years. Thereafter there was no progress in the case till December 1980 when the matter came up before the Supreme Court. In this state of affairs, their Lordships observed " we bad occasion in Hussainara Khatoons case to criticise this shocking state of affairs, and we hoped that after the anguish expressed and the severe strictures passed by us, the justice system in the State of Bihar would improve and no one shall be allowed to be confined in jail for more than a reasonable period of time, which we think cannot and should not exceed one year for a sessions trial, but we find that the situation has remained unchanged ". It is noteworthy that despite the inordinate delay their lordships did not direct release of the accused on bail. They, on the other hand, directed the Sessions Judge to take up the case of the accused immediately and proceed with it from day-to-day without any Interruption.

14. In my opinion, the observation of the Supreme Court in Kadra Pehadiyas case (supra) that" the reasonable period of time cannot and should not exceed one year for a sessions trial "should not be taken as laying down an absolute and invariable rule for conclusion of sessions trials without having regard to the nature of offence and other circumstances of each particular case. This observation provides a guideline about the period of time during which a sessions trial should ordinarily conclude. However, this does not mean that special circumstances of a case which prolonged the period of trial, are to be ignored while considering the question of inordinate delay. The question of inordinate delay in conclusion of trial of a case should be decided in the light of its own facts and circumstances.

15. Prior to 17-3-83, twice prayer for bail was rejected by the Sessions Judge and once by this Court. This was enough to show that these accused had no case for bail on merits. On 17-3-83 when the bail application was allowed, only a year had elapsed since the time of committal of the case. During a substantial portion .of this period the case could not make much progress because the Court of the IIIrd Additional Sessions Judge remained without a Presiding Officer. The IIIrd Additional Sessions Judge had framed a charge in the case on 9-6-82 and, therefore, the case had become part-heard. It appears that the Sessions Judge felt that he had no power to transfer a part-heard Sessions trial to another Court and, therefore, sought orders of this Court and the order of transfer was passed some time in February 1983. The IInd Additional Sessions Judge should have taken all these facts and circumstances into consideration while deciding the question of delay, in these circumstances, it could not be said that there was an undue delay in the conclusion of the trial which entitled the accused to grant of bail. Even from 22-3-83 the Additional Sessions Judge had sufficient time at his disposal to expedite the trial of this case. He should have instead of allowing bail to the accused on the ground of delay, proceeded to expedite the trial by fixing reasonably short dates. The grant of bail to the accused on 17-3-83 was not justified, The order was also against propriety and judicial decorum inasmuch as it was made after bail had been rejected on merit by this Court a few months earlier. The proper course for the Additional Sessions Judge in the instant case would have been to direct the accused to approach this Court.

16. Since the beginning of June 1983 the sessions trial is lying without further progress because the Presiding Officer of the Court of IInd Additional Sessions Judge has been transferred and his successor has not taken over. It appears that the Presiding Officer has been transferred to some other sessions division. In such eventuality the learned Sessions Judge could transfer the sessions trial, though a part-heard one, to another Additional Sessions Judge for disposal according to law. This principle has been laid down in the decision Abdul Hamid v. State : 1982 AWC 663. Where the Presiding Officer has been shifted to another Court of Additional Sessions Judge in the same sessions division and is exercising sessions power, he continues to have seized of his part-heard sessions trial and he should continue the trial of such a case. This view finds support from the decision Punjab Singh v. State of U.P. 1983 AWC 55 DB. The learned Sessions Judge Etawah, should pass an appropriate order in connection with this part-heard sessions trial in the light of these decisions.

17. In view of what has been discussed above, the application for cancellation of bail must succeed and is allowed. The order of bail dated 17-3-83 passed by the IInd Additional Sessions Judge, Etawah is set-aside and the bail of the opposite parties Nos. 1 and 2 is cancelled. They are already in jail. If the sessions trial is not concluded by 15th December 1983 for no fault of the accused, they will be free to move this Court for bail. The learned Sessions Judge, Etawah is directed to take steps in the light of the fore-going observations for an early conclusion of this part-heard sessions trial.

18. The office shall send a copy of this order to the learned Sessions Judge, Etawah under a covering letter inviting his special attention to this order. The letter shall be sent under registered cover by Monday the 12th September 1983.