Karnataka High Court
Deepu vs State By Kunigal on 5 August, 2014
Author: Jawad Rahim
Bench: Jawad Rahim
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 05TH DAY OF AUGUST 2014
BEFORE
THE HON'BLE DR.JUSTICE JAWAD RAHIM
CRIMINAL PETITION NO.3365/2014
BETWEEN:
1. DEEPU @ MAHALINGAIAH
S/O.CHANNAVEERAIAH
AGED ABOUT 24 YEARS
NAGANAHALLI VILLAGE
HUTHRIDURGA HOBLI
KUNIGAL TALUK
TUMKUR DISTRICT - 572 130.
2. SRI MALLIKARJUNA
S/O.CHANNABASAVAIAH
AGED ABOUT 34 YEARS
NAGANAHALLI VILLAGE
HUTHRIDURGA HOBLI
KUNIGAL TALUK
TUMKUR DISTRICT - 572 130.
3. SRI SIDDALINGAIAH
S/O.VEERABADRAIAH
AGED ABOUT 38 YEARS
NAGANAHALLI VILLAGE
KUNIGAL TALUK
HUTHRIDURGA HOBLI
TUMKUR DISTRICT - 572 130.
...PETITIONERS
(BY SRI R.RAMACHANDRAN, ADV.)
AND:
1. STATE BY KUNIGAL POLICE STATION
KUNIGAL, KUNIGAL TALUK
TUMKUR DISTRICT - 572 130.
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2. GOVINDE GOWDA N.C.
S/O.CHENNIGAPPA
AGED ABOUT 27 YEARS
NAGANAHALLI VILLAGE
KUNIGAL TALUK
HUTHRIDURGA HOBLI
TUMKUR DISTRICT - 572 130.
...RESPONDENTS
(BY SRI NASRULLA KHAN, HCGP)
THIS CRL.P. IS FILED U/S.482 CR.P.C. PRAYING TO
SET ASIDE THE IMPUGNED ORDER DATED 15.5.2014
PASSED IN S.C.NO.47/2013 ON THE FILE OF II ADDL.
DIST. AND S.J., TUMKUR AND ENLARGE THE PETITIONER
ON BAIL.
THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:-
ORDER
This petition is by accused Nos.2, 4 and 6 and is directed against the order dated 15.5.2014 in S.C.No.47/2013 cancelling bail granted to them exercising power under Section 439(2) of Cr.P.C.
2. The petitioners have presented this petition under Section 482 Cr.P.C against the order impugned. Hence, a question as to whether the petition could be entertained under Section 482 Cr.P.C or revisional power under Section 397 Cr.P.C is right remedy needs consideration.
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3. Learned counsel for the petitioners submits and reiterates that the petitioners could have invoked only the provisions of Section 482 Cr.P.C to question the order impugned and cannot avail benefit of revision. To sustain this ground, he submits that the order impugned has been passed by the trial court exercising power under Section 439(2) Cr.P.C during trial in S.C.No.47/2013. That the order is interlocutory in nature and not amenable to revision under sub- Section 2 of 397 Cr.P.C. Thus the petitioners can seek redressal or question the order only invoking inherent powers of this Court under Section 482 Cr.P.C.
4. He seeks citational support from the decision of the Apex Court rendered in the case of Puran vs. rambilas reported in AIR 2001 SC 2023 and quotes the observation of the Apex Court in paragraph 15 which is extracted below:
"We see no substance in this submission. In the hierarchy of Courts, the High Court is the Superior Court. A restrictive interpretation which would have 4 effect of nullifying Section 439(2) cannot be given. When Section 439(2) grants to the High Court the power to cancel bail, it necessarily follows that such powers can be exercised also in respect of the orders passed by the Court of Session. Of course cancellation of bail has to be on principles set out hereinabove and only in appropriate cases."
5. As is seen more than once, the orders of the trial court cancelling grant of bail or even grant of bail is being questioned under the provisions of Section 482 Cr.P.C. Necessarily, a decision needs to be taken as to what is the right course. In the circumstances, I have taken this issue for consideration at the first instance.
6. Needless to emphasize that grant or refusal of bail, impacts right of liberty of the person which is his substantive right. The conspectus of the provisions of Sections 436 Cr.P.C to 439 of the Cr.P.C which is part of Chapter 33 is necessary. Amongst the provisions governing grant of bail, Section 439 Cr.P.C confers 5 jurisdiction on the Court of Session and the High Court as concurrent jurisdiction to grant bail or to cancel the bail. Grant of bail, therefore, is not, in legal terminology, an interlocutory order. It decides the question whether the person is entitled to be at liberty during trial or investigation. As it affects the fundamental right of freedom, a substantive right is involved and is considered judiciously. Besides, once the bail is granted in exercise power either under Section 439 Cr.P.C or Section 437 Cr.P.C., it can only be cancelled on the basis of certain circumstances enumerated in Section 439(2) Cr.P.C. Therefore, there is judicial consideration as to whether such circumstances exist, as are contemplated. Such an order is a considered judicial order. Once, a Court passes such a judicial order which is subordinate to the High Court, the provisions of Section 397 Cr.P.C is attracted.
7. The revisional power conferred upon the High Court by Section 397 Cr.P.C. spells out High Court's 6 and Sessions Courts jurisdiction over all the Courts. It provides:
"The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
Explanation: All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398."
8. This provision undoubtedly confers concurrent jurisdiction on the High Court and Sessions Court but 7 the difference is if the High Court exercises power under Section 397 Cr.P.C., and calls fir records then, the scope gets furthermore enlarged by virtue of Section 401 Cr.P.C which reads:
"In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392."
9. Thus, if the High Court entertains or decides to suo moto exercise of power under Section 397 Cr.P.C and calls for records it gets the power of appellate court. This needs to be understood rationally because the revisional power conferred on the High Court by Section 397 Cr.P.C has been held by catena of decisions to enable the High Court to consider not 8 only the legality but even propriety of an order passed. By virtue of Section 401, the High Court gets the power even to examine the case with reference to the facts. Therefore, exercise of power under Section 397 Cr.P.C is much larger and beneficiary to the litigant.
10. As against this provision, Section 482 Cr.P.C. reads thus:
"Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
11. Now placing both these provisions, it could be seen, the limit of exercise of power under Section 482 Cr.P.C is much narrow and such an exercise is permissible only to give effect to the orders passed under the Code. This has been considered by the Apex Court as disabling the High Court from interfering with 9 the orders of the lower court passed judicially and also restraining the High Court from reviewing its own order. This has been held in the case of the State of Orissa vs. Ramachandra reported in AIR 1979 SC 87 and subsequently confirmed in other decisions by this Court in Criminal Revision No.794/2008 rendered by me. It is thus clear that an order granting or refusing bail is not an interlocutory order and therefore could be tested in exercise of revisional power where the scope is larger and not under Section 482 Cr.P.C.
12. As regards the decision of the Apex Court cited by the learned counsel at bar in the case of Puran vs. Rambilas, the same has been referred to by the learned single Judge of this Court in Criminal Petition No.6476/2013 dated 19.12.2013. But with respect, I would observe that the view taken by the Supreme Court is not on this issue. The facts that were taken into consideration by the Apex Court and the opinion of the Apex Court is in different context and fact situation.
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13. In the case of Puran vs. Rambilas, an individual has approached the High Court seeking cancellation of bail granted to the accused in a bride burning case, the High Court had accepted the application and cancelled the bail granted, exercising power under Section 439(2) Cr.P.C. That order was assailed before the Supreme Court on the ground that the order cancelling bail was an interlocutory order and therefore, the High Court could not have granted bail as an interlocutory order and thus High Court could not have exercised power to cancel the bail in view of bar of sub-Section (3) of Section 397 Cr.P.C The Apex Court discounted that contention.
14. In that context, the Apex Court observed, power conferred under Section 439(2) Cr.P.C is by way of concurrent jurisdiction on the High Court and Sessions Court. The High Court could be approached for cancellation of bail not only by the State but by any person interested. It also held the High Court may suo moto exercise that power and pass an appropriate 11 order. Thus, it first rejected the contention that only State can seek cancellation and none else. It held, if the circumstances exist such an order could be passed. The Apex Court also further observed, even if it is treated as an interlocutory order, the High Court's power under Section 397 Cr.P.C is not a bar. The observations of the Apex Court have to be understood in the context in which it is made and not to the disadvantage.
For example, the observations of the Apex Court in the preceding para is very relevant.
15. In para 13, the Apex Court dealing with this question about third party applying to the cancellation of bail and in the course of dealing with a submission in the same para, in the middle, the Apex Court held, "this Court held that the frame of sub-Section (2) of Section 439 indicates that it is a power conferred on the Courts mentioned therein. It was held that there was nothing to indicate that the said power can be exercised only if the State or investigating agency or a Public Prosecutor 12 moves by a petition. It was held that, therefore, any member of the public, whether he belongs to any particular profession or otherwise could move the High Court to remind it of the need to exercise its power suo motu. It was held that there was no barrier either in Section 439 of the Criminal Procedure Code or in any other law which inhibits a person from moving the High Court to have such powers exercised suo motu. It was held that if the High Court considered that there was no need to cancel the bail then it could dismiss the petition. It was held that it was always open to the High Court to cancel the bail if it felt that there were sufficient enough reasons for doing so.
Sri Lalith in the case of Usmanbhai Dawoodbhai Memon vs. State of Gujarat, reported in (1988) 2 SCC 271 : (AIR 1988 SC 922 : 1988 Cri LJ 938), Amar Nath vs. State of Haryana, reported in AIR 1977 SC 2185 : (1977 Cri LJ 1891) and M/s. India Pipe Fitting Co. vs. Fakruddin M.A. Baker, reported in AIOR 1978 SC 45. Relying on these, he submitted that an order granting bail was an interlocutory order, and the 13 High Court could not exercise powers under Section 482 of Cr.P.C and thus could not cancel bail. Sri Lalith submitted that Section 439 of Cr.P.C gives the power of cancellation of bail both to the Court of Sessions and the High Court. He submitted that thus, the High Court and Sessions Court were co-ordinate Courts under this Section. He submitted that the High Court could not thus sit in appeal or revision over an order of the Court of Session. He submitted that under Section 439(2) Cr.P.C, it is only the orders of the Magistrate, which could be set aside by the High Court or the Court of Session.
In the hierarchy of Courts, the High Court is the Superior Court. The restrictive interpretation which would have affect of nullifying Section 439(2) Cr.P.C cannot be given. When Section 439(2) Cr.P.C., grants the High Court a power to cancel bail, such power even it is an interlocutory order, the High Court's inherent power under Section 482 Cr.P.C is not affected by the provisions of Section 397(3) Cr.P.C." 14
16. The above observations makes it clear that the Apex Court has not held that Section 397 of Cr.P.C is a bar. In fact, the Supreme Court has elaborated that the grant or cancellation of bail is not an interlocutory order. In the circumstances, it is amenable to revision under Section 397 Cr.P.C.
17. In this view, entertaining petition under Section 482 Cr.P.C will narrow down the scope of consideration. Hence, I decline to entertain this petition under Section 482 Cr.P.C., of course, reserving liberty to the petitioners to resort to appropriate legal remedy.
Sd/-
JUDGE nas.