Calcutta High Court
Dukhi Shyam Benupani, Assistant ... vs Parasmal Rampuria on 13 May, 1998
Equivalent citations: 1998(2)ALD(CRI)900, 1998(61)ECC17
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT P.S. Mishra, C.J.
1. Could in exercise of revisional power under Section 397 of the Code of Criminal Procedure, a Single Judge of the Court interfere with the order of the Chief Judge. City Sessions Court at Calcutta who acted in obedience to the direction of a Division Bench of the Court and decided afresh the application of the opposite party for bail in a case allegedly falling under Section 35 of the Foreign Exchange Regulation Act, 1973 on the accusation of contravention of the provision of Sections 8(1), 9(1)(b), 9(1)(d), 16(1)(a)(b), 18(2) and 18(3) read with Section 68 of the said Act?
2. The fact of the matter lies in a very narrow compass. The opposite party was arrested on 25.5.96 for the aforementioned offences allegedly committed by him involving about Rs. 53 crores during the period March to October, 1995. He was remanded to custody by the Chief Metropolitan Magistrate, Calcutta by the order dated 26th May, 1996. He filed an application for bail in terms of Sub-section (1) of Section 439 of the Code of Criminal Procedure before the Chief Judge, City Sessions Court at Calcutta being Criminal Misc. Case No. 573 of 1996. On 30.5.96, the Chief Judge, City Sessions Court, ordered for the release of the opposite party. The petitioner filed an application under Section 439(2) of the Code of Criminal Procedure before this Court seeking direction that the opposite party who had been released on bail be arrested and committed to custody. The Division Bench of the Court which heard the application delivered a detailed judgment and order as follows:
Accordingly, we set aside the order of bail, dated 30.5.96 directing the learned City Sessions Judge to hear the matter afresh within 10 days or earlier than that if not inconvenient after notice to the parties. We do not make any inflated or deflated remark about the merit of the matter and it is left open for the learned City Sessions Judge for adjudication. However, considering the circumstances, we also direct that the investigating agency is to refrain from rearresting the accused until decision rendered by the learned City Sessions Judge within the period stipulated by us but the accused-petitioner is not to leave the jurisdiction of the Court.
It appears, however, although the order granting bail to the opposite party was set aside by the above order of the Division Bench of the Court, the petitioner filed an application before the City Sessions Judge for cancellation of bail to the opposite party. The City Sessions Judge disposed of the matter as directed by the Division Bench of the Court and the application for cancellation of bail holding inter alia as follows:
In this case I find that the petitioner is involved in a scam to the tune of Rs. 50 crores. It is true that the punishment as codified, does not fluctuate with the amount involved, but it cannot be denied that the said amount involved in this case is definitely a high one, rather skyscrapping as stated by me earlier. This gravity of the offence, being influenced by the medical ground, as discussed above, has not been properly given consideration by this Court. And, having been given the opportunity by the Hon'ble High Court to reconsider the same, I am of the opinion that the said amount is too high to give facility to the petitioner to the privileges of bail. Therefore, on consideration of the circumstances, the bail order which has already been set aside by the Hon'ble High Court is not being revived and the same is being cancelled.
The opposite parry, however, moved this Court and labelled his application as one under Section 397/401 of the Code of Criminal Procedure read with Section 482. Thereafter the application was placed before a Single Judge of this Court. Although it was urged before him that the impugned order or the City Sessions Judge was interlocutory and the revisional application was not maintainable, the learned Single Judge set aside the order of the City Sessions Judge and directed for grant of bail to the opposite party.
3. A fresh application under Section 439(2) has been filed. When the said application was placed before a Bench of two Judges of this Court, they referred the matter to the Chief Justice to constitute a larger Bench in the interest of justice and for interpretation of law for a decision on the following questions:
1) Whether a single Bench could exercise revisional power under Section 397/401 of the Code of Criminal Procedure to consider bail when officenes alleged to have been committed under the Foreign Exchange Regulation Act, 1973 and/or such matters which fall under Rule 9 of the Rules of the High Court?
2) Whether the Court of revision, independent of Section 439 of the Code of Criminal Procedure, could decide the matter ?
3) Whether the use of Auxilliary verb 'shall' in the aforementioned Rule has made the Rule mandatory and the proceedings accordingly must always be entertained by the Division Bench or the Single Judge, as the case may be and departure in no case, is permissible ?
and
4) Whether there is a need to re-examine and if necessary, to amend the said Rule to meet the exigencies ?
Since the matter has been placed before the larger Bench and under the administrative orders of the Chief Jusitce of the Court, the case has been placed for hearing not only to answer the aforementioned questions but also to dispose of the application on merits.
4. Before we advert to the Rules we may, for convenience, take up some of the provisions of the Code of Criminal Procedure, 1973. After making general provisions and provisions for investigation, enquiry and trial of a person who is accused of an offence, the Code in Chapter XXIX provides for appeals from any judgment or order of a criminal court after declaring in Section 372 thereof that no appeal shall lie from any judgment and order of a Criminal Court except as provided for by the Code or by any other law for the time being in force. Cases which are not covered by the provisions for appeals are covered by the provisions in Chapter XXX of the Code. Section 397 provides for calling for records to exercise powers of revision and reads as follows:
397.(1) 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.
(2) The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.
The above is supplemented by Section 399 in respect of Sessions Judges' power of revision and by Section 401 in respect of High Court's power of revision. Section 401 reads as follows:
Section 401. (1) 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, 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.
(2) No order under this Section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Nothing in this Section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.
(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.
(5) Where under this Code an appeal lies but an application for revision has been made to High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.
Granting of bail pending investigation, enquiry and/or trial is separately treated in Chapter XXXIII of the Code and while speaking when bail may be taken in cases of non-bailable offences, it has, under Section 437, provided that when any person accused of or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before the Court other than the High Court or Court of Session, he may be released on bail, but such person shall not be/so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life and if such an offence is cognizable and he had been previously convicted of an offience punishable with death, imprisonment for life or imprisonment for seven years or more or he has been previously convicted on two or more occasions of a non-bailable or cognizable offence provided that such a person also be released on bail if he is under the age of sixteen years or is a woman or is sick or infirm or if the Court is satisfied that it is just and proper to do so for any other special reason.
5. Relevant provision, however, which the opposite party invoked at the first instance and moved the court of Sessions is Section 439 which reads as follows:
439. (1) A High Court or Court of Session may direct--
(a) that any person accused of an offence and in custody, be released on bail and if the offence is of the nature specified in Sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
(2) A High Court or Court of Sessions may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.
Anyone, thus, can see that the Code has prescriptions for appeal against judgments or orders of a Criminal Court and in cases where right of appeal is not available from any judgment or order of a Criminal Court and such judgment made or passed is not an interlocutory order passed in any appeal enquiry, trial or other proceedings for revision by the High Court and the Court of Sessions, Section 482 of the Code has reiterated the inherent power to act ex debito justified to do real and substantial justice by the High Courts (Courts of Record) and said 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. Ordinary and extraordinaiy criminal jurisdiction of this Court including this Court's superintendence in all criminal matters as in Clauses 22, 30 of the Letters Patent of this Court, subject to such specific provisions of the Code which are made in this behalf is saved by Section 5 of the Code which says--"nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force or any special jurisdiction or power conferred, or any sepcial form of procedure prescribed, by any other law for the time being in force.
6. Apart from the plenary powers of the Court, Calcutta Court first chartered and later constituted under the Letters Patent of the British Crown has enjoyed the Rule Making Power which has been preserved and continued by Section 108 of the Government of India Act, 1915, Section 223 of the Government of India Act, 1935 and by Article 225 of the Constitution of India. The Court has, thus, from time to time framed procedural Rules for convenience of its judicial business and Rule 9 aforementioned, after amendments, reads as follows:
9. All appeals, reference or revision in respect of sentence or order of any Criminal Court shall be be heard by a Single Judge:
Provided, however, that the following matter shall be placed before a Division Bench consisting of two or more Judges:--
(i) All appeals or reference relating to an order of sentence of Death and sentence of Rigorous Imprisonment for a period exceeding 7 years and all appeals from order of acquittal from offences where the sentence may be of death, imprisonment for life or any term of imprisonment exceeding 7 years:
(ii) All Ball applications pertaining to Terrorist and Disruptive-Activities Act, Narcotic Drugs & Psychotropic Substances Act, 1986 and Foreign Exchange Regulation Act;
(iii) All Bail applications at the preconviction stage involving offence where sentence may exceed imprisonment for 7 years;
(iv) Bail applications relating to appeals involving a sentence of Death or Imprisonment for life or imprisonment for a period exceeding 7 years;
(v) Anticipatory Bail applications under Section 438 Cr. PC.:
9A. Transfer applications under Section 407 of the Criminal Procedure Code shall be heard by a Single Judge.
9(1). A Division Bench for the hearing of cases on appeal, reference, or revision in respect of the sentence or order of any Criminal Court shall consist of two or more Judges.
7. Objection is raised on behalf of the opposite party to the maintainability of the instant application under Section 439(2) of the Code of Criminal Procedure. It is urged that the order by the learned Single Judge in exercise of power under Section 397 read with Section 401 of the Code even though has resulted in the release of the opposite party on bail is not an order under Section 439(1) of the Code and thus Sub-section (2) of the said Section is not attracted. Even otherwise, according to the learned Counsel for the opposite party, this Court cannot exercise inherent power under Section 482 of the Code to interfere with the final judgment by the learned Single Judge in the revision application under Section 397 read with Section 401 of the Code. Reliance is placed for the said purpose on Section 362 of the Code which says--
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 arithmatical error.
Two questions, thus, arise from the submissions of the learned Counsel for the opposite party--
1) Whether the order passed by the learned Single Judge after setting aside the order of the City Sessions Judge, rejecting the application for bail and/or cancelling the bail which he had earlier granted after hearing afresh as directed by this Court, is an order granting bail to the opposite party and thus is an order falling under Section 439 of the Code and therefore the instant application under Section 439(2) is maintainable ? and
2) Whether although the opposite party has been directed to be released on bail by the learned Single Judge, it is a final order disposing of a case and thus is covered by Section 362 of the Code?
8. It is so obvious in the scheme of the Code that a person who is arrested ans released on bail when he applies under Section 439(1) of the Code before the Sessions Judge can be subject to an application under Sub-section (2) of Section 439. When the opposite party was granted bail by the Sessions Judge, application under Section 439(2) was filed and the same was allowed by the Division Bench of this Court. The order of the learned Sessions Judge, after hearing the application afresh, thus, was an order refusing bail and the only remedy to the opposite party in such a case, was to move for bail before the High Court under Section 439(1) of the Code of Criminal Procedure and not by way of a revision, under Section 397 read with Section 401 of the Code. Since specific provision for seeking bail in the Code was available, to the opposite party, he could not invoke this Court's revisional or inherent jurisdiction under Sections 307, 401 or 482 of the Code. By labelling the application thus as an application in revision against the order of the Sessions Judge and /or an application invoking inherent power of the Court, the opposite party could not change the nature of the application. It was obviously an application for bail and for no other relief to the opposite party. Even though the learned Single Judge disposed of the application of the opposite party as one purportedly under Sections 397 and 401 of the Criminal Procedure Code read with Section 482 thereof, the order granting bail to the opposite party has been one under Section 439(1) of the Code and thus the instant application under Section 439(2) is maintainable. The nature of the order of the learned Single Judge being one granting bail to the opposite party, it is difficult to accept the same as a final order under Section 362 of the Code and to exclude the Court's inherent power to review the case. Even though the order is one ostensibly made under Section 397 read with Section 401 of the Code or under 482 of the Code it is not a final order disposing of any case.
9. According to Halsbury's Laws of England, interlocutory order means--'an order which does not deal with the final rights of the parties, but either--(1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or--(2) is made after judgment, and merely directs how the declarations of right already given in the final judgment are to be worked out, is termed "interlocutory".
10. In respect of exercise of inherent power of the Court under Section 482 of the Code in criminal proceedings and Section 151 of the Code of Civil Procedure, it has been pointed out, these provisions do not confer upon the Court any such power, the power is inherent and is only preserved to remove any doubts by showing specific provisions in the two Codes for the said purpose. Since the concept of finality by an order in criminal proceedings is developed as corresponding to the Rule of double jeopardy and in civil proceedings to the Rule of res judicata as well as issue estoppel in respect of the findings on questons of fact, it is, no doubt, necessary to know that a Civil Court and a Criminal Court having ordinary jurisdiction or exercising ordinary jurisdiction determines in a proceeding all that is specifically raised and said and also that could have been raised and said.
11. In S. Kuppuswaml Rao v. The Governor General of India , the Federal Court dealt with this aspect of the matter. Under the old Code of Criminal Procedure and in several cases under the present Code, reference is made to the issue as to when Rule of double jeopardy is applied, with reference, how ever, to the provision in Section 397 of the Code, the Supreme Court, in Amarnath v. State of Haryana , categorised the interlocutory orders. In Madhu Limaye v. State of Maharashtra reported in AIR 1988 SC 4 it, however, pointed out--
...the real intention of the legislature was not to equate the expression 'interlocutory order' as invariably being converse of the words 'final order'. There may be an order passed during the course of proceedings which may not be final in the sense noticed in Kuppuswami's case (Supra) but yet it may not be an interlocutory order-pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in Sub-section (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purpose of Article 134 of the Constitution, yet it would not be correct to characterize them as merely interlocutory orders within the meaning of Section 397(1).
12. We shall deal with however, whether the order of the City Sessions Judge was an order cancelling the bail and whether the order cancelling the bail is a final order and although an intermediate order is not interlocutory but has some finality in some details. As noticed by us earlier, the order of the learned Single Judge by which he has set aside the order of the City Sessions Judge and as a consequence allowed the application for bail in respect of which application the Division Bench of this Court had given direction to the City Sessions Judge to hear afresh, in our view, is not a judgment or final order disposing of a case and this Court's inherent power as preserved in Section 482 of the Code can be invoked to review the same. That part of the judgment of the learned Single Judge under which he has granted bail to the accused--opposite party is one falling under Section 439(1) of the Code and the same can be cancelled in a proper case in exercise of the power under Section 439(2) of the Code. Review to undo great miscarriage of justice or creating inadvertant prejudice to the mandatory provision of law by an order of the Court which is passed in purported exercise of the revisional or the appellate power, if not permitted, the same shall stifle the course of justice and sanction in quite a few cases, abuse of the process of law by astute litigants. Several types of orders which appear to intervene in a criminal proceeding are not acknowledged as judgments or final orders. In English Law, judgment in a criminal proceeding is intended to indicate the final order in a trial terminating in the conviction or acquittal of the accused (Halsbury--2nd Ed. Vol 9 paras 260 - 264). The order of discharge of an accused is not a judgment or final order as there is no pronouncement of the Court as to the truth or otherwise of the accusation. Thus an order setting aside an order refusing to grant bail or an order cancelling bail granted, cannot be taken as a final order. Even assuming that the order cancelling bail, when set aside, is not that interlocutory that it would not be revisable under Section 397 of the Code when the order cancelling bail is set aside and thereafter order granting bail is passed, it is, indeed interlocutory in character and thus does not fall under Section 362 of the Code.
13. The Bench of the Court while making the reference however, obviously has thought why the opposite party instead of moving this Court for...bail under Section 439(1) of the Code, when the City Sessions Judge refused the prayer of bail, preferred to move this Court under Section 397 of the Code? Excuse for such an application is made by referring to application for cancellation of bail before the City Sessions Judge after the Division Bench Order, dated 16.7.96 by which the order of bail passed by the City Sessions Judge was set aside. The City Sessions Judge however was considering the application for bail afresh as directed by the Division Bench of the Court. The order of bail to the accused-opposite party was already set aside by the Division Bench of the Court. There was no bail, thus, which was required to be cancelled. Nonetheless, the City Sessions Judge while disposing of the bail application, said, "...Therefore, on consideration of the circumstances, the bail order which has already been set aside by the Hon'ble High Court is not being revived and the same is being cancelled." It was, out and out, as we have said earlier, a case of refusal of bail by the City Sessions Judge. The accused-opposite party could renew his prayer for bail or move this Court for bail under Section 439(1) of the Code. He, however, instead, invoked this Court's jurisdiction under Section 397 of the Code of Criminal Procedure.
14. The contention of the learned Counsel for the accused-opposite party that since the City Sessions Judge cancelled the bail recourse to Section 439(2) of the Code was not possible and the only course open was to invoke this Court's jurisdiction under Section 397 of the Code and thus, the application for revision of the order of the City Sessions Judge was perfectly in order, has intrinsic fallacy which is quite eloquent. It cannot be suggested that the City Sessions Judge instead of carrying out the.... (c) In any case where a Magistrate grants bail to an accused person and the Sessions Judge cancels it illegally and unjustly in exercise of his power under Section 439(2) the High Court can grant bail to such person under Section 439(1). The order of the Sessions Judge cancelling bail is not revisable in exercise of the Court's power under Section 397 of the Code.
15. The issue, however, as to what orders are interlocutory which do not fall under Section 397 of the Code received attention of the Supreme Court in Amar Nath v. State of Haryana (Supra) and in Madhu Limayes case (Supra) and V.C. Shukla v. State . Amarnath's case fell for a critical examination in Madhu Limaye's case. After quoting from the 3rd Edition of Halsbury vol. 22 page 742 para 1606 and para 1608 and pages 744 and 745 and referring to several cases majority decision culled out the tests from some English decisions to decide whether the order is a final order and stated as follows:
In Amar Nath's case reference has been made to the decision of this Court in Mohan Lai Magan Lal Thacker v. State of Gujarat . After an enquiry under Section 476 of the 1898 Code an order was made directing the filing of a complaint against the appellant. It was affirmed by the High Court. The matter came to this Court on grant of a certificate under Article 134(1)(c). A question arose whether the order was a "final order" within the meaning of the said constitutional provision. Shelat J., delivering the judgment on behalf of himself and two other learned Judges, said that it was a final order. The dissenting judgment was given by Bachawat J., on behalf of himself and one other learned Judge. In the majority decision four tests were culled out from some English decisions. They are found enumerated at page 688 (of SCR) : (at P. 737 of AIR). One of the tests is "If the order in question is reversed would the action have to go on?" Applying that test to the facts direction of the Division Bench of this Court, to hear the application for bail afresh, passed an order on the application of the petitioner for cancellation of bail which order alone the accused-opposite party challenged by the application under Section 397 of the Code. One can reasonably have the uneasy feeling that the accused-opposite party took advantage of the expression--"the bail orderis not being revived and the same is being cancelled" to seek interference by the Court under Section 397 of the Code and succeeded in undoing what the Division Bench of the Court has intended.
16. For the view that order granting or refusing to grant ball at a pre-trial stage is an interlocutory order and in a case of cancellation of bail at a pre-trial stage, the order is interlocutory and not a judgment or a final order. Reference may be made to a judgment of Andhra Pradesh High Court in Thakur Hari Prasad v. State of A.P. reported in 1977 Cr. L.J. 471. After referring to the judgment of the Supreme Court in the Central Bank of India v. Karpoor Chand reported in AIR 1967 S.C. 797 and other judgments of the Courts including Bhola v. State 1975 Cr. L.J. 1274 it is held in the said case that,--
(a) If the trial Magistrate improperly grants bail, the Court of Sessions or the High Court can cancel the bail under Section 439(2) even though the Court of Sessions cannot revise the order of the Magistrate under Section 397(2) of the Code.
(b) If the trial Magistrate refuses bail or cancels the bail under Section 437(5) illegally and unjustly the Sessions Judge can grant bail under Section 439(1) though he cannot revise the order of the Magistrate under the said Section. Of the instant case it would be noticed that if the plea of the appellant succeeds and the order of the Sessions Judge is reversed, the criminal proceeding as initiated and instituted against him cannot go on. If, however, he loses on the merits of the preliminary point the proceeding will go on. Applying the test of Kuppuswami's case such an order will not be a final order. But applying the fourth test noted at page 688 in Mohan Lal's case it would be a final order. The real point of distinction, however, is to be found at page 693 (of SCR) : (at p. 738 of AIR) in the judgment of Shelat, J. The passage runs thus:--
As observed in Ramesh v. patni the finality of that order was not to be judged by correlating that order with the controversy in the complaint, viz. whether the appellant had committed the offence charged against him therein. The fact that the controversy still remained alive is irrelevant.
17. The majority is based upon the distinction pointed out in the above passage and concluding that it is a final order within the meaning of Article 134(1)(c) while Bachwat, J., said at page 695 (of SCR) : (at p. 739 of AIR) "it is merely a preliminary step in the prosecution and therefore an interlocutory order." Even though there may be a scope for expressing different opinions apropos the nature of the order which was under consideration in Mohan Lai's case, in our judgment, undoubtedly, an order directing the filing of a complaint after enquiry made under a provision of the 1973 Code, similar to Section 476 of the 1898 Code, will not be an interlocutory order within the meaning of Section 397(2). The order will be clearly revisable by the High Court. We must, however, hasten to add that the majority decision in Mohan Lai's case treats such an order as an order finally concluding the enquiry started to find out whether a complaint should be lodged or not, taking the prosecution launched on the filing of the complaint as a separate proceeding. From that point of view the matter under discussion may not be said to be squarely covered by the decision of this Court in Mohan Lai's case. Yet, for the reasons already alluded to, we feel no difficulty in coming to the conclusion, after due consideration, that an order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of Section 397(2).
The Supreme Court, in the said judgment, has also referred to another judgment by it in Parameshwari Devi v. State and stated as follows:
We may also refer to the decision of this Court in Parameshwari Devi v. State that an order made in a criminal proceeding against a person who is not a party to enquiry or trial and which adversely affected him is not an interlocutory order within the meaning of Section 397(2). Referring to a passage from the decision of this Court in Mohan Lal's Case AIR 1968 SC 733 the passage which is to be found in Halsbury's Laws of England, Volume 22, it has been said by Shinghal J., delivering the judgment of the Court, at page 164 (of SCR) : (at p. 406 of AIR):
It may thus be conclusive with reference to the stage at which it is made, and it may also be conclusive as to a person, who is not a party to the enquiry or trial against whom it is directed.
As already mentioned, the view expressed in Mohan Lal's case may be open to debate or difference. One such example is to be found in the decision of this Court in Prakash Chand Agarwal v. Hindustan Steel Ltd. wherein it was held that an order of the High Court setting aside an ex parte decree in the suit and restoring the suit to the file of the trial court is not a final order within the meaning of Article 133. It is to be noticed that if the High Court would have refused to set aside the ex parte decree, the proceeding for setting it aside would have finaly ended and on some of the principles culled out by the majority in Mohan Lal's case, such an order would have been a final order, we are, however, not under any necessity to enter into this controversial arena. In our opinion, whether the type of the order aforesaid would be a final order or not, surely it will not be an interlocutory order within the meaning of Sub-section (2) of Section 397 of the 1973 Code.
19. It is of importance, however, to remember that the judgment in Kuppuswami Rao's case to exclude intermediary or interlocutory orders from the category of judgment/final orders has received a critical reapprisal in several cases and in Amarnath's case and Madhu Limaye's case view therein is reiterated in the following words:--
More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by introducing Sub-section (2) in Section 397. On the one hand a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code.
20. Speaking in Madhu Limaye in respect of 482 of the Code the Supreme Court has observed:
On a plain leading of Section 482, however, it would follow that nothing in the Code, which would include Sub-section (2) of Section 397 also, shall be deemed to limit or affect the inherent powers of the High Court". But if we were to say that the said bar is not to operate in the exercise of inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out ? In our opinion, a happy solution of this problem would be to say that the bar provided in Sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the order assaued, is purely 01 an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. Take for example a case where a prosecution is launched under the Prevention of Corruption Act without a sanction, then the trial of the accused will be without jurisdiction and after his acquittal a second trial after proper sanction will not be barred on the doctrine of Autrefois Acquit. Even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing processes is an interlocutory order, does it stand to reason to say that inherent power of the High Court cannot be exercised for stopping the criminal proceeding as early as possible, instead of harassing the accused upto the end ? The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers.
It follows, thus, from the above that the Court's revisional power shall not be available to revise interlocutory order yet its inherent power can be used if it is held by the Court that continuance of the proceeding is an abuse of the process of the Court or it is necessary for securing the ends of justice to interfere.
21. Supreme Court in V.C. Shukla's case (Supra) dealing with Section 11 of the Special Courts Act (1979) and Sections 397 and 482 of the Code has said in its majority judgment as follows:
It may be mentioned here that in the Codes of Criminal Procedure, prior to the Code of 1973, the word "interlocutory" was not used at all and, therefore, it has to be interpreted for the first time only after the Code came into force. Section 397(2) of the Code which contains the powers of revision against interlocutory orders runs thus--
(2) The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
It will be important to note that the words 'interlocutory order' used in this sub-section relates to various stages of the trial, namely appeal, inquiry, trial or any other proceeding. The object seems to be cut-down the delays in stages through which a criminal case passes before it culminates in an acquittal, discharge or conviction. So far as the Code of Criminal Procedure, 1973 is concerned, it has got a wide and diverse area of jurisdiction inasmuch as it regulates the procedure of trial not only of the large number of offences contained in the Indian Penal Code but also in other Acts and Statutes which apply the Code of Criminal procedure or which are statutes in pari materia the Code. Having regard, therefore, to the very large ambit and range of the Code, the expression 'interlocutory order' would have to be given a broad meaning so as to acchieve the object of the Act without disturbing or interfering with the fairness of the trial. Fortunately, however, there are a few decisions which have interpreted the expression 'interlocutory order' as appearing in Section 397(2) of the Code. Before we come to the decisions, certain features may be noticed here. In the first place, the concept of appeal against interlocutory order seems to be by and large foreign to the scheme of the Code or for that matter the scheme of the Code of Criminal Procedure right from 1872 up-to-date, Appeal has been provided only against final orders and not against interlocutory orders. Instead of Appeal, the Code of 1898 as also the Code 1872 contained powers of revision which vested in the High Court to revise any order passed by a criminal court. In the previous Codes, the term 'interlocutory' was not used. Therefore, the revisional jurisdiction was wide enough to embrace within its scope any order whether interlocutory, intermediate or final. Secondly, by virtue of scores of decisions of the various High Courts in India and the Privy Council, it was well settled that the revisional jurisdiction possesed by the Sessions Judge and the High Court could be exercised only to examine the legality or propriety of the order impugned and more particularly the Courts were to interfere only if there was an error of law or procedure. Previous to the Code, the powers of revision enjoyed by the Session Judge or the District Magistrate or the Chief Judicial Magistrate through various amendments were rather limited whereas the power of the High Court was wide and unlimited. Apart from the revisional power the High Court under the Code of 1898 possessed an inherent power to pass orders ex debito justitiae in order to prevent the abuse the process of the Court. This was a special power which was to be exercised by the High Court to meet a particular contingency not expressly provided for in the Code of Criminal Procedure. Even in the present Code, the inherent power of the Court has been fully retained under Section 482 which runs thus--
482. 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.
22. One of the questions that arose was as to whether an interlocutory order which could be revised by the Sessions Judge, can be further revised under Section 482 of the Code by the High Court because Section 397(3) permitted the power of revision to be exercised only by the High Court or the Sessions Judge but not by both of them. The limitation contained in Section 397 runs as follows:--
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.
Sub-section (3) , however, does, not limit at all the inherent power of the High Court contained in Section 482, as mentioned above. It merely curbs the revisional power given to the High Court or the Sessions Judge under Section 397(1) of the Code. We need not dilate on this aspect because we are not called upon to consider the interpretation of Section 397(3) of the Code, although in one of the cases cited before us this aspect has been gone into and that is why we have indicated the same. Mr. Mridul contended that as the Special Courts Act has fully applied the procedure of the Code to the trial of the offences by the Special Judge, the expression 'interlocutory order' has been used exactly in the same sense as in Section 397(2). In other words, the contention was that Section 11 of the Act is modelled on Section 397(2) of the Code by telescoping Sub-section (2) of the said section into Section 11(1) of the Act. In support of his contention reliance was placed in the case of Amar Nath v. State of Haryana and particularly to the following observations made by this Court:--
It seems to us that the term 'interlocutory order' in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substanitally affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court.
In that case, one of us (Fazal Ali, J.) was a party to the decision and spoke for the Court. It is no doubt true that this Court held that an order summoning an accused was not an interlocutory order but being a matter of moment it decided an important aspect of the trial and was, therefore, in a sense a final order which could be revised by the Sessions Judge or the High Court under Section 397 of the Code. The observations made by this Court, however, have to be read in the light of the peculiar facts of the said case. What had happened in that case was that ah FIR was lodged at police station Butana, District Karnal mentioning a number of acccused persons as having participated in the occurrence. The police, after holding investigations, submitted a charge sheet against the other accused persons except the appellants before the Supreme Court against whom a final report under Section 173 or the Code was given by the police. The report was placed before a Judicial Magistrate, First Class who, after perusing the same, accepted the report and released the appellants. Thereafter the complainant filed a revision before the Additional Sessions Judge against the order of the Judicial Magistrate releasing the appellants but the revision petition was dismissed by the Judge. Thereafter the informant filed a regular complaint before the Judicial Magistrate against all the accused including the appellants. The learned Magistrate after having examined the complaint found that no case against the appellants was established. A further revision was taken up before the Sessions Judge who accepted the revision and directed further inquiry, on receipt of which the Magistrate Issued summons to the appellants stratightway. Against this order the appellants went up in revision to the High Court which dismissed the petition in limine, obviously on the ground that the order passed by Magistrate was an interlocutory one. That is how the matter came up by special leave before this Court. It would thus be seen that before the stage of trial of the case reached the appellants had been released by the Magistrate who accepted the final report that no case was made against them. Even a complaint which was in the nature of a protest petition against the final report filed before the Magistrate was also dismissed. When the Magistrate issued summons in pursuance of an order of further inquiry by the Sessions Judge cognizance was taken against the appellants who were ordered to be put on trial because the order summoning the appellants virtually amounted to asking the accused to face the trial. It was in the background of these circumstances that this Court held that such an order being a matter of moment affecting important rights of the parties, could not be said to be purely an interlocutory order. We have no doubt that the decision of this Court, referred to above, was absolutely correct. In fact this part of the decision was endorsed by a later decision of this Court in the case of Madhu Limaye v. The State of Maharashtra . The Court observed thus--
In Aniar Nath's case, as in this, the order of the trial Court issuing process against the accused was challenged and the High Court was asked to quash the criminal proceeding either in exercise of its inherent power under Section 482 of the 1973 Code corresponding to Section 561A of the Code of Criminal Procedure, 1898- hereinafter called the 1898 Code or the old Code, or under Section 397(1) of the new Code corresponding to Section 435 of the old Code. Two points were decided in Aniar Nath's case in the following terms:--
(1) While we fully agree with the view taken by the learned Judge that where a revision to the High Court against the order of the Subordinate Judge is expressly barred under Sub-section (2) of Section 397 of the 1973 Code the inherent powers contained in Section 482 would not be available to defeat the bar contained in Section 397(2).
(2) The impugned order of the Magistrate, however, was not an interlocutory order.
...But we are going to reaffirm the decision of the Court on the Second point.
23. A Division Bench consisting of three Judges held that, an order framing a charge was not an interlocutory order and, therefore, a revision against such an order was competent before the Sessions Judge or the High Court. In dwelling on the various shades and aspects of an interlocutory order, Untwalia, J. who spoke for the court, referred to previous decisions of the Court regarding the scope and ambit of a final order in order to highlight the nature and signification of the term 'interlocutory order'. Before analysing the decision, it may be necessary to state the facts on the basis of which the aforesaid decision was rendered. The prosecution case was that in a press conference held at New Delhi on September 27, 1974, the appellant before the Supreme Court is said to have made certain statements and handed over a press hand-out containing allegedly some defamatory statements regarding Shri A.R. Antulay, the then Law Minister of Government of Maharashtra. The State Government decided to prosecute the appellant for an offence under - Section 500 of the Indian Penal Code after obtaining the necesary sanction under Section 199(4) of the Code. Armed with the sanction, the Public Prosecutor filed a complaint in the Court of the Sessions Judge, Greater Bombay. The Sessions Judge took cognizance of the complaint and issued process against the appellant. At the time when the appellant was being heard in the Sessions Court, the allegation against him was resisted on three grounds--
(1) that the Court of Session had no jurisdiction to take cognizance of the offence without a formal commitment of the case to it;
(2) that the sanction given was bad inasmuch as it was not given by the appointing authority; and (3) that the sanctioning authority, had not applied its mind to the facts of the case and accorded sanction in a casual manner.
24. The Sesions Judge rejected all these contentions and framed charges against the appellant under Section 500 IPC. Thereafter, the appellant moved the High Court in revision against the order framing the charges. Before the High Court a preliminary objection as to the maintainability of the revision application was taken. Before proceeding further., it may be observed that the objections taken by the appellant in the aforesaid case related to the root of the jurisdiction of the Sessions Judge and if accepted, would have rendered the entire proceedings void ab initio. The case before this Court was not one based on allegations of fact on which cognizance was taken by a trial court and after having found that a prima facie case was made out, a charge was framed against the accused. Even so, the ratio decided in the aforesaid case was, in our opinion absolutely correct and we are entirely in agreement with the learned Judges constituting the Bench that the order or the Sessions Judge framing charges, in the circumstances of the case, was not merely an interlocutory order but partook of the nature of a final order or, at any rate, an intermediate order so as to be taken out of the bar contained in Section 397(2) of the Code. In that case, Untwalia, J. speaking for the Court, observed as follows:
It is to be noticed that the test laid down therein was that if the objection of the accused succeeded, the proceeding could have ended but not vice versa. The order can be said to be a final order only if, in either event, the action will be determined. In our opinion, if this strict test were to be applied, in interpreting the words 'interlocutory order' occurring in Section 397(2) then the order taking cognizance of an offence by a Court, whether it is so done illegally or without jurisdiction, will not be a final order and hence will be an interlocutory one.... But in our judgment such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by Section 397(1).
On the one hand, the Legislature kept intact the revisional power of the High Court and, on the other, it put a bar on the exercise of that power inrelation to any interlocutory order. In such a situation it appears to us that the real intention of the lagislature was not to equate the expression 'interlocutory order' as invariably being converse of the words final order'. There may be an order passed during the course of a proceeding which may of the High Court under Section 397(3) of the Code. We find ourselves in complete agreement with the exposition of the law by the learned Judges who decided the said case. We will deal with a broader and wider aspect of the matter in a later part of our judgment when we deal with the scope and ambit of the Act. We might reiterate here even at the risk of repetition that the term 'interlocutory order' used in the Code of Crimnal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial because the bar contained in Section 397(3) of the Code would apply to a variety of cases coming up before the Courts not only being offences under the Penal Code but under numerous Acts. If, therefore, the right of revision was to be barred, the provision containing the bar must be confined within the four corners of the spirit and letter of the law. In other words, the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final.
25. In Prashant Kumar v. Manchartal Bhagatram Bhatia and Ors. reported in 1988 Cr. L.J. (1463) a learned Single Judge of the Bombay High Court has held that an order granting bail under Section 437(1) of the Criminal Procedure Code or under Section 439(1) of the Code is a final order. Learned Judge has said if such an order is passed by a Magistrate the same can be challenged in the Sessions Court or the High Court in their revisional powers and there cannot be any bar in entertaining a revision application under Section 397(2) of the Code and added:
If an order for bail is passed by the Sessions Court under Section 439(1) Cr. PC, the same can be challenged in revision in the High Court. Even in this case there cannot be any bar under Section 397(2) Cr. PC.
The only authority for the above proposition in Prashant Kumar's Case that the learned Judge referred was the judgment in the case of Miss R. Shakuntala v. Roshanlal Agrwal 1985 Cr. L.J. 68 by a learned Single Judge of the Bombay High Court. The said judgment, however, has not gone so far as the learned Judge in Prashant Kumar's case has gone to state the law so broadly. In R. Shakuntala's Case the learned Judge has said as follows:--
But every kind of bail order is not interlocutory in nature. In the instant case the order rejecting the Customs Department's application, made when the matter was only at the investigation stage, for remand of the accused to judicial custody and granting bail to the accused is a final order and not an interlocutory order. Once the application for remand is rejected and once the bail is granted by the Magistrate, no proceeding remains pending before him at all. The right of the Department to have the particular facility for further investigation is finally negatived.
Whether such a view on the facts of the case in either Prashant Kumar or Miss. R. Shakuntala is justified is a different issue. What is relevant for us to notice is that if intervening facts show that although it is an order either granting bail or refusing bail, there is something in it which renders the order final, only in such respect revisional power can be exercised but not otherwise. If the order is not revisable the Court's inherent power can be used only if it is demonstrated that--
(1) interference is necessary to undo the abuse of the process of law;
and (2) to prevent miscarriage of justice.
26. The revisional power of the Court under Section 397 and 397 of the Code of Criminal Procedure, the Inherent power of the Court, the power to grant ball or to cancel the bail are powers of the Court and not one or two Judges of the Court. Rules, however, of procedure framed under Section 108 of the Government of India Act, 1915 read with corresponding provision in Section 223 of the Government of India Act, 1935 and Article 225 of the Constitution subject to the power of the Chief Justice of the Court to allot case or cases for hearing by one Judge of the Court, two Judges of the Court or more than two Judges of the Court constituting the quorum, are provisions of convenience for effective and efficient administration of Justice made by the Court. Such procedural rules are not mandatory. In Sohanlal v. State, , it has been pointed out:
The cardinal position cannot be overlooked that before jurisdiction over the subject matter is exercised, the case must be legally brought before the concerned court for the hearing and determination and that a judgment pronounced by Court without investment of jurisdiction is void.
The view, however, that power to decide what matters should be placed before a particular Judge sitting alone or a Bench of two Judges Is vested In the Chief Justice and no Judge can exercise jurisdiction with respect to any case which does not fall in the class or type of cases which are alloted to him and which case has not been earmarked or posted before him. Is stated in a judgment of the Madras High Court in the case of Mayavaram Financial Corporation Ltd., Maylladuturai v. The Registrar of Chits. Pondicherry reported in (1991) 2 Mad. L.W. 80 in these words:
A statement of law in the authorities aforementioned as well as in the scheme of the Letters Patent of this Court read with Article 225 of the Constitution of leaves no manner of doubt that what matters should be placed before a particular Judge of this Court, who should sit alone and who should constitute a Division Bench has been preserved for and vested in the Hon'ble the Chief Justice. No Judge of this Court would exercise jurisdiction with respect to any case, which does not fall in the class or type of cases, which are allotted to him and which case has not been earmarked or listed before Him.
In A. Srinath v. The Andhra Pradesh State Road Transport Corporation and Ors. reported in AIR 1996, AP 309, a Full Bench of the Andhra Pradesh High Court has taken a similar view and said --
There is no mandate of law that review must be done by the Judge or the Judges whose order is sought to be reviewed.
In a judgment of the Supreme Court in Pandurang v. State of Maharashtra it is stated --
What can be done only by at least two Judges cannot be done by one Judge. Even if the decision is right on merits, it is by a forum which is lacking in competence with regard to the subject matter. Even a right decision by a 'wrong forum' is no decision. It is non-existent in the eye of law. And hence a nullity.
Rule 9 of the High Court Rules aforequoted has to be understood thus to be procedural subject to the power of the Chief Justice to assign the matter or case to one or the other Judge and even if a particular matter, according to the said Rules, is required to be placed before a Single Judge, in a given case, the Chief Justice can make departure and place the matter before a Division Bench or a matter which is required to be heard by a Division Bench before a single Judge or a larger Bench depending upon the need of administration of Justice and the facts and circumstances of the case.
27. The facts which are clearly established show that the accused-opposite party being charged for the alleged contravention of the provision of the Foreign Exchange Regulation Act moved an application for bail before the Sessions Judge who granted the prayer for bail. Enforcement Directorate, the petitioner, herein, invoked this Court's jurisdiction under Section 439(2) of the Code. The Division Bench which heard the application set aside the order of bail and directed for hearing the matter afresh within 10 days or earlier than that, if not inconvenient, after notice to the parties. The Court, however, while setting aside the order of bail, protected the accused opposite party by ordering that the Investigating Agency would refrain from re-arresting him until the decision was rendered by the City Sessions Judge within the period stipulated by the Court and restrained him, that is, the accused-opposite party from leaving the jurisdiction of the Court. As directed by the Division Bench of this Court, thus, the application for bail was required to be heard afresh not withstanding the order that the Investigating Agency was restrained from re-arresting the accused-opposite party and not to take him in custody or remand to judicial custody. The application for bail, in such a situation, however, was one by the accused who appeared before the court and thus placed him self in the hands of the Court. If over-enthusiastic Investigating Agency filed a petition for cancellation of bail before the City Session Judge, the same was not at all to be considered as application for cancellation of bail as any such application presupposes that the accused is on bail and that there are grounds to cancel the bail. Since the order of bail dated 30.5.96 by this City Sessions Judge had been set aside by the Division Bench of the Court, the accused-opposite party was not enjoying any privilege of bail at all. He, of course, was benefited after the bail order was set aside by the Division Bench order that the Investigating Agency was restrained from rearresting him until the City Sessions Judge passed order afresh upon the bail application Original bail application, in view of the order of the Division Bench of the Court had become / was pending. The City Sessions Judge, after considering afresh the prayer for bail found no merit in the application for bail. The words in the order of the City Sessions Judge aforequoted--"Therefore, on consideration of the circumstances, the bail order which has already been set aside by the Hon'ble High Court is not being revived and the same is being cancelled."--must be understood to mean that the City Sessions Judge rejected the bail application. The accused-opposite party could not, in such circumstances, move this Court for revision of the order of the City Sessions Judge. He could only seek this Court's indulgence under Section 439(1) of the Code for bail. This Court's inherent power too could not be invoked in the matter, for after rejection of the bail application by the City Sessions Judge, the accused-opposite party could move for bail under Section 439(1) of the Code.
28. On the facts of the case as above, it is difficult to comprehend why the accused-opposite party invoked this Court's jurisdiction under Sections 397/401 /482 of the Code. If it was not a deliberate attempt to escape, the consequence of refusal of the prayer for bail by the City Sessions Judge, why then instead of moving an application for bail, the accused-opposite party moved the application for revision of the order of the City Sessions Judge and/or interference in exercise of its inherent power with the order of the City Sessions Judge. Limited revisional jurisdiction of the Court could not and cannot be extended to an order to grant bail. If at all this Court, in exercise of its revisional power could examine the legality or propriety of the order of the City Sessions Judge, it could at best set right the wrong and set aside the order and issue such directions that were necessary to meet the ends of justice. Direction by the learned Single Judge to grant bail to the accused-opposite party resulted in restoration of the order granting bail dated 30.5.96 and thus amounted to setting aside the order of the Division Bench of the Court under which the order of the City Sessions Judge dated 30.5.96 was set aside and he was directed to hear the application for bail afresh. Judicial discipline demands that a Judge sitting alone respects the Division Bench Order of the Court and if he has any view of his own which conflicts with the view of the Division Bench, refers the matter to the Chief Justice of the Court for placing it before a larger Bench. It is indeed of utmost importance and is followed by all Courts in India as a Rule of Prudence and Propriety that a Single Judge accepts the verdict of the Division Bench of two Judges and Bench of two Judge accepts the verdict of a larger Bench. In other words, larger the quorum, more is the binding effect. (See, Union of India v. Raghubir Singh--. Assuming for a moment, that the application under Section 397/401/482 of the Code in this Court was maintainable and since such application was required to be placed under the aforementioned Rule, before a Single Judge and accordingly it was placed before the learned Judge, having seen, in course of hearing, that he was required to examine some of the findings and directions of the Division Bench of the Court, he would have taken the golden path of referring the matter to the Chief Justice of the Court for placing the matter before an appropriate Bench. Learned Single Judge has commented upon the Division Bench Order as follows:
I am constrained to point out that the learned Judges did not spell out the angle from which the learned Sessions Court ought to have approached the matter. The learned Sessions Judge ultimately reconsidered the matter and cancelled the bail granted to the petitioner.
This observation would not have occurred had the application been heard as an application for bail or referred to a larger Bench of the Court, which without violating propriety and judicial norms would have gone into the scope and ambit of the Division Bench Judgment under which the bail granted by the City Sessions Judge was set aside.
29. After setting aside the order of the City Sessions Judge by which after a fresh consideration the City Sessions Judge refused the prayer for bail, (although he had said in the order that the bail granted was cancelled) the learned single Judge has ordered:-- "I hereby order that the petitioner shall be enlarged on his entering into fresh bail and bonds on the same terms and conditions as imposed by the Ld. Sessions Court in the order dated 30.5.96. The petitioner is directed to furnish fresh bail bond within a week from the date of communication. Till then, status quo shall be maintained."
30. The above is an order granting bail, although purportedly in exercise of the Court's revisional or inherent power. Since the same is an order granting bail, in course of investigation it must be held to be an order passed in exercise of this Court's power under Section 439(1) of the Code. The instant application under Section 439(2) of the Criminal Procedure Code for cancellation of bail which is granted by the learned Single Judge vide his order dated 4.10.96 is maintainable. Even otherwise, the order passed by the learned Single Judge is not one falling under Section 362 of the Code as the same is passed at an intermediate stage of the proceeding in course of the investgation of the case, it has neither closed the investigation nor finally decided in respect of the case in any manner. The issue as to whether the accused-opposite party is entitled to the privilege of bail, cannot be said to have been finally decided by the learned Single Judge. Learned single Judge has not decided the question of entitlement of the accused-opposite party for bail. Contrary view that the order passed by the learned single Judge is final would grant to the accused - opposite party absolute freedom from the law that a person who is suspected to have committed any cognizable offence, can be refused bail or the bail granted to him can be cancelled. Even if it is held that Section 439(2) of the Code is not attracted and the instant petition be treated as one under Section 482 of the Code, it would be appropriate to hold that this Court can exercise its inherent power under Section 482 of the Code of Criminal Procedure and review the order passed by the learned Single Judge. This view finds support from the judgments of the Supreme Court in Madhu Limaye's case (Supra) and Municipal Corporation of Delhi v. Ram Klshan Rohatgi . In madhu Limaye's case it is said:-
On a plain reading of Section 482, however, it would follow that nothing in the Code, which would include Sub-section (2) of Section 397 also," shall be deemed to limit or affect the inherent powers of the High Court, "But if we were to say that the said bar is not to operate in the exercise of inherent powers at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out? In our opinion, a happy solution of this problem would be to say that the bar provided in Sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principle enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the order assailed, is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power....
And in Municipal Corporation of Delhi v. Ram Kishan Rohatgi (Supra) it is said:-
It may be noticed that Section 482 of the present Code is the ad verbatim copy of Section 561-A of the old Code. This provision confers a separate and independent power on the High Court alone to pass orders ex debito justitiae in cases where grave and substantial injustice has been done or where the process of the Court has been seriously abused. It is not merely a revisional power meant to be exercised against the orders passed by subordinate courts. It was under this section that in the old Code, the High Courts used to quash the proceedings or expunge uncalled for remarks against witnesses or other persons or subordinate courts. Thus, the secope, ambit and range of Section 561-A (which is now Section 482) is quite different from the powers conferred by the present Code under the provisions of Section 397. It may be that in some cases there may be overlapping but such cases would be few and far between. It is well-settled that the inherent powers under Section 482 of the present Code can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. Further, the power being an extraordinary one, it has to be exercised sparingly. If these considerations are kept in mind, there will be no inconsistency between Sections 482 and 397(2) of the present Code.
This Court can exercise its revisional power, we have already noticed under Section 397 only for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceeding of the inferior court. When any illegality or irregularity, which justifies rectification, is found upon examination of records, the Court can set right the defect or error and interfere when the decision of the subordinate court is grossly erroneous; there is no compliance with the provision of law; the judicial discretion is exercised arbitrarily or perversely and/or on other similar grounds.
31. What is the error that the City Sessions Judge committed? According to the learned Single Judge, the Sessions Judge had granted bail by the order which was set aside by the Division Bench on three grounds:-
(i) No chance of absconsion; (ii) Not likely to tamper with the prosecution evidence; and (iii) petitioner is a patient of bronchial asthama and commented - "the only ground Sessions Court found for cancellation of the bail was that the petitioner was involved in a scam to the tune of Rs. 50 Crores" and observed- "this gravity of the offence, being influenced by the medical ground... has not been given proper consideration. And, having been given the opportunity by the Hon'ble High Court to reconsider the same, I am of the opinion that the said amount is too high to give facility to the petitioner to the privilege of bail." The learned Single Judge, thereafter has referred to the judgment of the Supreme Court in Gurcharan Singh v. State of Gujarat and said.- 'Hence the question whether the alleged crime was of a serious nature or not is not at all relevant while considering the point of cancellation of bail. Thus the Ld. Sessions Judge relied on an extraneous matter in passing the impugned order.
32. It is indeed a gross error that the order of the City Sessions Judge has been treated as one of cancellation of bail. The City Sessions Judge was considering the application for bail of the accused-opposite party afresh. Reasons assigned by him, thus, could not be jacketed only in the cancellation of bail provision. Taking, thus, into consideration the actual factual position of the case and the proceeding for bail, cancellation of bail and the proceeding for setting aside the order of the City Sessions Judge after this Court set aside the bail granted to the accused- opposite party, we are of the view that the order passed by the City Sessions Judge, properly construed, was an order refusing the prayer for bail and thus no revision application could lie against the same in view of Sub-section (2) of Section 397 of the Code of Criminal Procedure. In any view, in course of correcting the error even if application for revision was maintainable, learned Single Judge could not grant bail to the accused-opposite party as under the High Court's Rule aforequoted, bail applications pertaining to Foreign Exchange Regulation Act could be disposed of by the Division Bench only. Even if the revisional application was maintainable and was so entertained by the learned Single Judge, he could set aside the order of the City Sessions Judge but could not exercise the power to grant bail as any application, for bail, in fact, could not be placed before him. Accordingly, the order of the learned Single Judge granting bail to the accused-opposite party is wholly without jurisdiction and illegal and thus a nullity.
33. Actus curaie nemenim gravabit is the maxim which indicates no one- neither prosecution nor the accused can suffer because of the mistake on the part of the Court. In A.R. Antualy v. R.S. Naik the Supreme Court has said--
But the superior Court can always correct its own error brought to its notice either by way of petition or ex debito justitiae.
In Smt. Ujjam Bal v. State of U.P reported in AIR 1962 SC 1621 the Supreme Court has said--
We recognise that the distinction between an error which entails absence of jurisdiction and an error made within the jurisdiction is very fine. So fine indeed that it is rapidly being eroded as observed by Lord Wilberforce in Anisminic Ltd. v. Foreign Compensation Commission (1969) 1 All Er 208 at p. 244. Having regard to the enormity of the consequence of the error to the appellant and by reason of the fact that the directions were given suo motu, we do not find there is anything in the observations of Itlabira Mathai v. Varkey Varkey which detract the power of the Court to review its judgment ex deblto justitiae in case injustice has been caused. No Court, however, high, has jurisdiction to give an order unwarranted by the Constitution and, therefore, the principles of Bhatia Co-operative Housing Society Ltd. v. D.C. Patel would not apply.
Since the order of the learned Single Judge is one which, in our view, has gone contrary to the view of the Division Bench of the Court and the bail is granted by him in exercise of power under Section 397(1) read with Section 401 read with 482 of the Code, we are of the view that least which can be said is that it is without jurisdiction.
34. The instant application for cancellation of bail on the ground that the same has been granted without jurisdiction, in our view, is maintainable and has merit. Even if jurisdiction is conceded to the learned Single Judge to entertain the revision application against the order of the City Sessions Judge, the order granting bail by him is in excess of jurisdiction and thus without jurisdiction. Even otherwise, since the order granting bail is without jurisidiction and erroneous for the reasons aforementioned, the Court can exercise its inherent jurisdiction ex debito justitiae and correct the error which is such that if not corrected shall benefit the accused-opposite party without there being any serious consideration by this Court of the question whether on the facts and in the circumstances of the case the accused-opposite party deserved bail.
35. Learned Counsel for the accused-opposite party has repeatedly tried to impress upon us that when bail is granted to the accused-opposite party on merit by the learned Single Judge, this Court should not cancel the same, he has urged that very cogent and overwhelming circumstances are necessary for an order seeking cancellation of bail. According to him, it is now well-settled by a catena of decisions of the Supreme Court that the power cancell bail is not to be exercised as if punishment before trial is imposed. According to him, the only material considerations in such a situation are whether the accused would be readily available for trial or he is likely to abuse the discretion granted in his favour by tampering with evidence. He has cited some judgments before us which appear to suggest that when bail is granted, the same should not be cancelled unless there are compleling reasons.
36. We find no reason, however, to add anything to the above principle and express unhesitatingly that when bail is validly granted to the accused, cancellation be always ah exception and for reasons which are substantially compelling. Compelling reasons, however, which prevailed before the Division Bench in this Court when it set aside the order of the City Sessions Judge granting bail, and directed for a hearing afresh are, however, not adverted to by the learned Single Judge at all when he has ordered for release of the accused-opposite party on bail. The Division Bench while setting saide the order of the City Sessions Judge has said that while granting bail by the order dated 30.5.96 the learned City Sessions Judge had not taken into account the relevant factors in consideration. The Division Bench said- "Having given our anxious consideration to the submissions made by the learned Advocates for the parties and after having gone through the lanes and bye-lanes of the order inpugned dated 30.5.96, we cannot agree with it as the same cannot be said to have conformed to all the required criteria, as apparent from the factors taken into consideration by the Trial Court and as decipherable from the order granting bail. We have taken this view as the decisions of the Apex Court unequivocally have laid down that the factors laid down by it for application in the matters of cancellation of bail are merely illustrative and not exhaustive.
37. The Division Bench, thus, found fault with the order granting bail, for according to it, the City Sessions Judge had not applied his mind to relevant factors. While setting aside the order of the City Sessions Judge which it made following the direction of the Division Bench of this Court, the learned Single Judge has not examined at all whether all factors relevant for consideration were taken into account by the City Sessions Judge when he refused to grant bail to the accused-opposite party. Judicial exercise, as we have noticed above, has gone astray and outside of the relevant materials for the order by the learned Single Judge for releasing accused-opposite party on bail.
38. It is a fit case, in our view, to hold that the order of the learned Single Judge granting bail to the accused-opposite party is without jurisdiction and a nullity. The same has to be recalled and cancelled.
39. There is no such need to take any step to amend the High Court's Rule aforementioned for the reason of the application of the accused-opposite party for revision or setting aside of the order of the City Sessions Judge refusing to grant bail to the accused-opposite party/to cancel bail granted to him.
40. The instant application is accordingly allowed. The order in Criminal Revision Petition No. 2752 of 1996 dated 4th October, 1996 enlarging the accused-opposite party on bail is recalled / set aside / cancelled.
41. The accused-opposite party, however, may surrender before the City Sessions Judge and seek bail in accordance with law by making appropriate application for bail before this Court, which application, if made, shall be heard by the Division Bench in accordance with the afore quoted Rules of the High Court.