P (PLP)

This case was referred by Mr. Muhammad Munir, Chief Justice, on the 30th March 1950, to the Division Bench consisting of Mr. Justice Muhammad Sharif and Mr. Justice M. R. Kayani. Petition under section 498/439, Criminal Procedure Code, praying that the order of Sessions judge, Montgomery, dated the 16th March 1950, be set aside and the petitioners be released on bail. Criminal Procedure Code (V of 1898), Ss. 497 (5), 498, 439 and 561‑A‑Concellation of bail‑Whether Sessions judge could cancel bail granted by him under section 498‑‑Powers of High Court. Per Muhammad Sharif, J.‑‑The powers to grant bail by the High Court or Court of Session under section 498, .Criminal Procedure Code, are very wide. These may be exercised at any stage in a pending case, uncontrolled by any of the limitations mentioned in section

497. There is, however, under this section no corresponding power to cancel bail. Whenever, therefore, bail is granted by the Sessions judge under section 498, he cannot countermand his own order, and the High Court, as a Court of revision, alone shall have the power to do it. Similarly, where the bail was granted by the High Court; it has no power to cancel it under section 498, and resort must be had to its inherent powers under section 561-A, Criminal Procedure Code. The Legislature has intentionally placed difficulties in the way of the cancellation of bail where it was once granted. This, however, might sometimes lead to a curious position. A Magistrate holding the inquiry or trial might at a subsequent stage of the inquiry or trial withdraw his own order of bail, but the Sessions judge who in the course of the inquiry or trial in the lower Court, might have allowed bail under the influence of the consideration relevant under section 497, Criminal Pro cedure Code, would have no such powers. His action was under section 498 which knows of no cancellation of bail. This apparent anomaly is for the benefit of the accused. Per Kayani, J.‑As a Court, that can release a person on bail under section 497, the Court of Session has power only after the committal of the accused, but not before. If the release by the Court of Session took place before com mittal, it must have been under the' wide powers conferred by section 498, but that section does not provide for the cancellation of bail, and as subsection (5) of section 497 clearly provides for the re‑arrest of a person "released under this section," it is reasonable to assume that section 498 was not intended to give any power of re‑arrest. Except where a power is inherent in a Court (as in the High Court) it cannot be argued that if a Court has power to do a thing, the power to undo is implied in it. There is no provision analogous to that o section 21 of the General Clauses Act of 1897‑which says that the power to issue a notification, order, rule or bye‑law includes a power, to rescind or modify it‑by which a Court is empowered to cancel its own order. Ch. Muhammad Sharif, Assistant to Advocate‑General,' for Crown.