Allahabad High Court
Sachin Singhal vs Central Bureau Of Investigation, New ... on 26 September, 2019
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 33 Case :- CRIMINAL APPEAL No. - 6613 of 2018 Appellant :- Sachin Singhal Respondent :- Central Bureau Of Investigation, New Delhi Counsel for Appellant :- Nitin Sharma,Sharique Ahmed,Sr. Adv. Sri Gopal S Chaturvedi Counsel for Respondent :- Gyan Prakash Hon'ble Dr. Kaushal Jayendra Thaker,J.
Ref: Criminal Misc. Application for Modification )
1. Heard Sri Oza, Senior Advocate for the applicant who has requested for return of the passport for a fixed period up to December, 2019. This request has been vehemently objected by Sri Gyan Prakash, learned Senior Advocate appearing for Central Bureau of Investigation (hereinafter referred to as "C.B.I.").
2. Sri Gyan Prakash, learned Senior Advocate appearing for C.B.I. has vehemently relied on Section 362 of Code of Criminal Procedure,1973 ( hereinafter referred to as "Cr.P.C.") so as to contend that this Court cannot alter the order and has contended that this Court has no jurisdiction to entertain this application for modification of the orders or for alternation of conditions laid down while entertaining the appeal and granting bail on conditions during pendency of the appeal. This Court in Criminal Misc. Bail Application No.1 of 2018 whereby this Court directed the appellant herein to submit the passport before the Trial Court and or surrender the passport before the Registrar General of this High Court in seal cover. The appellants now wants temporary release of his passport for a period of three months from today which has been vehemently objected by Sri Gyan Prakash, Senior Advocate placing reliance on Section 362 of Cr.P.C. Sri Oza, Senior Advocate took this Court to the subsequent order of this Court in the matter of co-accused who is the main accused where no such condition is laid by the coordinate Bench of this High Court.
3. The copy of the application was served to the Senior Advocate appearing on behalf of C.B.I. but no reply has been filed except the oral objection under Section 362 Cr.P.C. has been taken. The objection under Section 362 of Cr.P.C. cannot be countenanced, as the appeal is still pending and it was an interim order of bail which is sought to be modified to the limited extent due to change in circumstances.
4. Learned Senior Advocate appearing on behalf of C.B.I. states that Section 362 Cr.P.C. is applicable and as bail application is disposed of, no subsequent order can be passed for modifying or altering the condition.
5. The appeal is pending under Chapter XXIX of Cr.P.C. Which relates to appeal and is different from Chapter XXVII which relates to judgment. Section 362 Cr.P.C. reads as under :
"Section 362. Court not to after judgement. Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."
6. It is very clear that in this case, there is no final judgment nor final order, all that this Court is requested is to vary one condition in the bail and bail bonds for the time being during the pendency of appeal, Hence, provision of 386 would apply. Section 386 reads as under :
"Section 386. Power of the Appellate Court. After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-
(a) in an appeal from an order or acquittal, reverse such order and direct that further inquiry be made, or that the accused be re- tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;
(b) in an appeal from a conviction-
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re- tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the Same;
(c) in an appeal for enhancement of sentence-
(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re- tried by a Court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse such order;
(e) make any amendment or any consequential or incidental order that may be just or proper; Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal."
7. Section 389 of Cr.P.C. Specifically overlooks Section 362 of Cr.P.C. Which reads as under :
389. Suspension of sentence pending the appeal; release of appellant on bail.
(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.
(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.
(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,-
(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or
(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub- section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.
(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.
8. It cannot be said that there is any judgment pronounced as grant of bail is always an interim order and conditions can be varied looking to the circumstance of the matter. It is different then modification in the main judgment or final order. A reference to the provisions of Section 374 of Cr.P.C. which reads as under would be necessary:-
374. Appeals from convictions.
(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court.
(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years 2 has been passed against him or against any other person convicted at the same trial], may appeal to the High Court.
(3) Save as otherwise provided in sub- section (2), any person,-
(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class, or
(b) sentenced under section 325, or
(c) in respect of whom an order has been made or a sentence has been passed under section 360 by any Magistrate, may appeal to the Court of Session.
9. The appeal is continuation of proceedings and Section 362 of Cr.P.C. Cannot be made applicable to the present proceedings as this is appeal filed under Section 374 of Cr.P.C.
10. Learned Senior Advocate again after the aforesaid order was dictated states that Section 362 Cr.P.C. is applicable as bail application is a different procedure. The appeals are pending under Chapter XXIX of Cr.P.C. and not under the Chapter of XXVII relating to judgment, it cannot be said that there is any judgment pronounced or order passed which has the form of final order grant or refuse of bail is always an interim order and is always separate from modification which can be done by the concerned Court. As the provisions of Section 374 of Cr.P.C. Would be applicable .
11. Chapter of judgment namely Chapter XXVII relates to the trial in any criminal case in the original jurisdiction.
12. I am afraid that the submission made by the learned Senior Advocate for C.B.I. cannot be accepted as provision for application of Section 362 of Cr.P.C. is there in Chapter XXIX of Cr.P.C. Section 374 and 389 would be applicable and Section 386 of Cr.P.C. which are reproduced herein-above would be applicable. Section 362 does not apply to the present proceeding nor will Chapter XXVII apply.
13. Section 389 of Cr.P.C. is very clear and, therefore, I do not find any reason to accept the submission of Senior Advocate for CBI that the order or further direction cannot be given during the pendency fo the appeal altering condition of bail.
14. Meanwhile, the passport be handed over to the appellant herein through his Advocate who may apply for Visa and give all the details of his travel plans whether he wants of travel with his family and the date of his return to this Court by next date of hearing.
15. The Registrar General of this High Court shall give the passport on or before 1st October, 2019 with an intimation to learned Senior Advocate appearing on behalf of C.B.I.. The appellant may apply to the Embassy concerned where he wants to travel but he shall not leave India before the next date of hearing without express order of this Court this is the oral undertaking given by the Senior Advocate.
16. List the matter on 14th October, 2019 for further hearing and compliance.
Order Date :- 26.9.2019 Mukesh