Allahabad High Court
Sudhindra Kumar Singh vs District And Sessions Judge And Ors. on 23 May, 1997
Equivalent citations: 1998(1)ALT(CRI)16, 1998CRILJ1042, 1998 CRI. L. J. 1042, 1998 A I H C 443, 1997 ALL. L. J. 2329, 1997 (21) ALLCRIR 680, 1997 (3) CURCRIR 340, 1997 (35) ALLCRIC 23, 1997 UP CRIR 543, 1998 (1) CRIMES 270, 1998 (1) RECCRIR 388
Author: O.P. Garg
Bench: O.P. Garg
ORDER O.P. Garg, J.
1. By means of this application moved under Sections 482/407 of the Code of Criminal Procedure, the order dated 7th May, 1997 passed by Sri B. K. Rathi, learned District and Sessions Judge, Allahabad releasing S/Sri Asharfi Lal, Sarva Singh and Smt. Nirja Singh, opposite party Nos. 2,3 and 4, who are inolved in case under Sections 302/201, I.P.C. on interim bail during the pendency of the bail application has been challenged and it is prayed that the aforesaid order be quashed and the opposite party Nos. 2, 3 and 4 be directed to be taken in custody immediately. The prayer that bail application filed by the opposite parties Nos. 2, 3 and 4 be transferred to some adjoining district or to the Court of Additional Sessions Judge at Allahabad has also been made.
2. Counter and rejoinder affidavits have been exchanged. On behalf of the applicant, Sri Prem Prakash and Sri Sarvesh, learned counsel, have been heard, On behalf of opposite parties Nos. 2 to 4, S/Sri Ravi Kiran Jain and S. D. N. Singh, learned counsel were heard at considerable length. Learned A.G.A. has also been heard on behalf of the State.
3. The case pertains to the alleged murder of one Dr. Sushil Singh of Allahabad. It is alleged that in the night of 30th April, 1997 Dr. Sushil Singh had gone to see this friend Dr. Ravindra Kalia. Dr. Sushil Singh was found missing in the morning of 1-5-1997 and his Maruti car was found parked in front of the house of the applicant in mysterious circumstances. Ultimately, the dead body of the deceased Dr. Sushil Singh was found lying on the pucca road in village Suthnari P.S. Hatigama in district Pratapgarh. Opposite party No. 2 is the father-in-law and opposite part No. 3 is the brother-in-law (Saala) of the deceased Dr. Sushil Singh. Opposite party No. 4 is the wife of opposite party No. 3. During investigation of the case by the local police, opposite party, Nos. 2 to 4 were taken in custody. On 7-5-1997, they were remanded to judicial custody by the Chief Judicial Magistrate, Allahabad. On the same day, an application for bail, being Bail Application No. 1976 of 1997, was moved on behalf of opposite party Nos. 2 to 4 before the learned Sessions Judge, Allahabad who on the same day passed the following order :-
7-5-1997.
ORDER Heard. Admit. Register. Issue .notice fixing 26-5-1997 for disposal.
It is contended that all the three applicants are Advocates. It is further contended that the only evidence against them is extrac judicial confession. It is further contended that applicant Asarfi Lal is aged 70 years. Considering circumstances, I find it proper to enlarge the applicant for short term bail.
Let the applicants be enlarged on their furnishing P. B. for Rs. 10,000/- with two sureties each in the like amount to the satisfaction of the Magistrate concerned, upto 25-5-1997. They shall surrender before this Court on 26-5-1997.
Sd/- B.K. Rathi, Sessions Judge, Allahabad.
Accordingly in pursuance of the above order for short term bail, the opposite parties Nos. 2 to 4 were released.
4. On behalf of the applicant, who is the real brother of the deceased Dr. Sushil Singh, it was urged that the learned Sessions Judge has exceeded his jurisdiction in readily granting short term bail to the opposite party Nos. 2 to 4 and that his order is clearly in violation and in disregard of the law laid down by a Full Bench of this Court in Dr. Vinod Narain v. State of U.P. 1995 (32) Allahabad 375 : 1996 All LJ 628. Sri Prem Prakash learned counsel for the applicant emphatically urged that the learned Sessions Judge has no jurisdiction to grant the interim or short term bail during the pendency of the bail application filed on behalf of opposite party Nos. 2 to 4. Learned A.G.A. on behalf of the State frankly stated that he is not in a position to support and defend the order passed by learned Sessions Judge. He also joins in making the submission that the order passed by the learned Sessions Judge is without jurisdiction. Sri Ravi Kiran Jain, learned counsel for opposite party Nos. 2 to 4, with all firmness at his command, repelled the submissions made by learned counsel for the applicant as well learned A.G.A. It was also urged that the present application is beyond the scope of the provisions of Section 482, Cr.P.C. and since other remedies are available to the applicant, under various provisions of the Code, particularly under Section 439(2), Cr.P.C., inherent powers of this Court under Section 482, Cr.P.C. cannot be invoked in the present matter.
5. It is an indubitable fact that the bail application moved on behalf of opposite party Nos. 2 to 4 is still pending before the learned Sessions Judge, Allahabad and that the opposite party Nos. 2 to 4 have been granted short terms bail upto 25-5-1997 and they have been required to surrender on 26-5-1997 on which date, perhaps, the bail application is to be taken up for disposal on merits. The moot point for consideration, therefore, by this Court is whether during the pendency of the bail application moved on behalf of the opposite party Nos. 2 to 4, could they be released by extending the benefit of short term/ interim bail.
6. Parties would swim or sink with the law as has been laid down by a Full Bench of this Court in Dr. Vinod Narain's case (supra). Learned counsel for the opposite parties Nos. 2 to 4 painstakingly and strenuously argued that reading of the separate judgements delivered by Hon'ble five Judges, who constituted the Full Bench would indicate that there was no unanimity on the point that a Sessions Judge can or cannot grant interim or short term bail during the pendency of the bail application. It was pointed out that Hon'ble B. M. Lal, J. had taken the view that interim or short term bail can be granted during the pendency of the bail application and that Hon'ble G. S. N. Tripathi, J. had also concurred with Hon'ble B.M. Lal, J. on the point. It was further urged that certain observations made by Hon'ble Palok Basu, J. also do not run counter to that view taken by Hon'ble B. M. Lai, J. The entire decision of the Full Bench was scanned before me. Sri Ravi Kiran Jain went to the extent of making the submission that since the Full Bench decision is per incurium it is required to be referred to a larger Bench and it is a fit case where this Court, even though, sitting singly, should make a reference in the matter. In support to his contention the learned counsel placed reliance on a number of decision. I have read and re-read the Full Bench decision in Dr. Vinod Narain's case (supra) and find that the law has been laid down in its explicit terms and does not require any reference. I feel found by the said authority and, therefore, proceed to decide the present application with reference to the law laid down in the aforesaid Full Bench decision.
7. Though there are different observations in the opinions of the learned Judges, who constituted the Full Bench, the fact remains that the majority view taken in the case was :-
...
The view taken in Dr. Hidayat Hussain Khan's case (supra) to the extent it fixes outer limit for disposal of the bail application same day and directs for releasing the applicant on bail in the event of failure to dispose of bail application the same day, stands overruled and the view taken in Noor Mohd's case (supra) to the extent it is in conformity with the conclusions arrived at by us above, is confirmed.
Hon'ble Palok Basu, J. has made categorical observations, which run as follows :
...Thus, in dealing with the application for release on bail the concerned Court has to hear the prosecution; and the State or the complainant has the right to place facts and circumstances before the Court in order to oppose the prayer for release on bail. Law does not permit any compromise on these mandatory provisions. The examination of facts and circumstances by the Court being thus prerequisite for deciding a bail application release of an accused or suspect before facts and circumstances can be produced by taking recourse to what is referred to 'interim bail' would be without any legal sanction and thus not permissible.
8. The law, as has been authoritatively pronounced by the said Full Bench, is that no Magistrate, Sessions Judge, or any other Court has jurisdiction to grant interim bail during the pendency of bail application in that Court.
9. The order passed by the learned Sessions Judge, Allahabad on 7-5-1997 releasing opposite party Nos. 2 to 4 on short term bail during the pendency of the bail application was obviously in disregard of the law laid down in Vinod Narain's case (supra).
10. Sri Ravi Kiran Jain learned counsel for the accused-opposite party Nos. 2 to 4 further urged that even if it be taken that the learned Sessions Judge has committed an honest mistake in passing the impugned order it cannot be treated as without jurisdiction as the said order has been passed after hearing both the sides. There is a dispute on the point whether the order of short term bail was passed by the learned Sessions Judge after hearing counsel on behalf of the State or not. In the rejoinder affidavit, it has been stated that the copy of the bail application was received by the D.G.C. (Criminal) at 5 p.m. on 7-5-1997 and therefore, at the time of the passing of the order for short term bail, the State Counsel was not heard. It was also pointed out that the Opposite Party No. 3, Sarva Singh, who has filed acounter-affidavit, was not present in the Court as he was in custody and in the lock up, and therefore, his affidavit verified on his personal knowledge that the Stale counsel was heard had to be ignored. The tone and tenor of the order passed by the learned Sessions Judge clearly indicates that the counsel for the State was not heard before passing the order. If the counsel for the State had been heard, there was hardly any occasion to order for issue of notice as has been incorporated in the order. I, therefore, proceed on the assumption that the order, in question, was passed without hearing the learned counsel for the State.
11. Hearing of both the parties at the stage of bail is almost an essentiality. By granting an easy bail, or for that matter, interim bail, indirectly the State is condemned. Therefore, State has a right to be heard in all cases, like bail, unless in some exceptional cases, in which the court considers it proper to exempt itself from this obligation. In the instant case, the learned Sessions Judge has not mentioned any reason or exceptional circumstances which impelled him to pass the order for short term bail without hearing the counsel for the State. There is not even a faint suggestion as to what were ,the compelling circumstances which necessitated the grant of short term bail then and there. Normally in the heinous crime like the present one bail applications are not taken up on the same day by the Sessions Judge was reasonable opportunity is required to be afforded to the prosecution in view of the proviso to Sub-section (1) of Section 439 of the Code of Criminal Procedure if the hearing of the counsel for the State, in opposition, is to be dispensed with, the court is required to record the reasons in writing for adopting such a course, but surprisingly enough, the opposite party Nos. 2 to 4 were released on short term bail without hearing learned counsel for State.
12. Sri Ravi Kiran Jain, learned counsel appearing on behalf of accused-opposite party Nos. 2 to 4 argued that there was nothing to prevent the learned Sessions Judge to grant interim bail or a short term bail taking into consideration the special circumstances of the case and, therefore, no exception should be taken to the order passed by learned Sessions Judge. Learned counsel pointed out that the order itself mentions that the opposite parties-accused were Advocates and that one of the accused, namely, Asharfi Lal is aged 70 years. In support of his submission, learned counsel placed reliance on the observations made by Hon'ble Palok Basu, J. in Dr. Vinod Narain's case (supra). The observations relied upon are as follows at page 659 (of All LJ).
Let there be no confusion in what the expression such as 'interim bail' or 'temporary bail' or 'time bound bail' or 'parole' or 'fixed term bail' etc. convey. These types of bail orders are often passed by competent courts or 'special reasons' for example, treatment of accused or his close relatives or appearing at an examination or interview, or performing marriages of son or daughter, or file nomination in some election process, or the like. These' special reasons depend the physical presence of the accused somewhere outside the jail or custody. As noted above, such 'special reasons' are traceable to the second proviso to Sub-section (1) of Section 437, Cr.P.C. It is notable that even grant of bail under Section 167, Cr.P.C. is reviewable if cancellation thereof is proved after filing of charge-sheet, (see Aslam B. Desai AIR 1993 SC 1 : (1992 Cri LJ 3712). Similarly, if bail has been granted during trial, it terminates on conviction and if bail has been granted pending appeal, it ceases on the dismissal of the appeal. Likewise, if a bail is granted to an accused for 'special reasons' for a fixed term or for achieving special purpose, the release on bail would end on completion of that term or achieving of that purpose....
In the instant case, short term bail has not been granted for any special reason. No special purpose was sought to be achieved by granting short term bail.
13. There appears to be much weight in the submission of learned counsel for the applicant that the learned Sessions Judge granted the short term bail to the accused persons, who were involved in the heinous crime of murder on account of pressure of the lawyers, who had collected in the court room of the Sessions Judge. It was also pointed out that the ground that the accused persons are Advocates can also not be taken to be a valid ground for enlarging them on short term bail. This fact cannot go unnoticed that there is a growing tendency to take the plea that the persons involved in the .case is an Advocate, and therefore, a special treatment be meted out to him. Sometimes, piquent situation is created in the court and it is a frequent phenomenon that the court proceedings are disturbed. The Courts cannot afford to succumb to the pressure of any kind. The cases have to be approached in true perspective without excitment, exaggeration or eclipse of sense of proportion. No body is above the law. Advocates are insaparable part of the judicial system. They add glory, dignity and prestige to the institution. They are equal partners in the process of dispensation of justice. The very existence of the lawyers is to uphold and promote the majesty of law. How can they, in their self interest, seek the subversion of law? No Advocate and for that matter, howsoever high one may be, can claim to be above or beyond the reach of law. No special treatment can be accorded to the members of a particular profession unless such a distinction is recognised by law. The only concession which appears to have been made is with regard to the persons under the age of 16 years, or a woman, or a sick or infirm person as is contemplated by proviso to Sub-section (1) of Section 437, of the Code. The learned Sessions Judge has not taken recourse to the aforesaid provision. The order itself indicates that the learned Sessions Judge was swayed away by the consideration that the opposite parties accused were the Advocates. The consideration which weighed with the learned Sessions Judge is obviously not tenable under the law.
14. Now it is the time to consider the question of maintainability of the application under Section 482, Cr.P.C. The submission of the learned counsel for the accused-opposite party Nos. 2 to 4 is that the Code of Criminal Procedure has laid down complete and exhaustive provisions on the matters of bail and where there is a forum and remedy provided, it will be in accordance with the process of law to resort to that forum, and, therefore, the powers under Section 482, Cr.P.C. cannot be invoked. The learned counsel urged that under Sub-section (2) of Section 439, the Court of Sessions or High Court may direct that any person who has been released on bail under Chapter XXX III be arrested and commit him to custody. On the basis of this provision, it was urged that since the learned Sessions Judge, or for that matter, the High Court has power to commit a person released on bail to custody, recourse to the exercise of inherent powers cannot be taken. In support of his contention, the learned counsel placed reliance on 1983 All LJ 1370 Om Prakash v. State of U.P. In that case, certain conditions imposed while granting the bail were sought to be modifed in exercise of inherent powers of the Court. It was held that since specific remedy for modification of the bail order has been provided under Section 439(1)(b), application under Section 482, Cr.P.C. was not maintainable. The learned counsel for the applicant placed reliance on the decision of Hon'ble Supreme Court reported in AIR 1967 SC 1639 : 1967 Cri LJ 1576, Rati Lal Bhanji Mithani v. Assistant Collector of Customs in which it was held that inherent powers of the High Court as preserved by Section 561-A of the old Cr.P.C. (now Section 482) can be exercised to cause an accused person to be arrested and to commit him to custody for such period as the High Court thinks fit. Even otherwise, a complete answer to the various submissions raised on behalf of the accused-opposite parties is to be found in a recent decision of Supreme Court reported in 1997 (1) JT SC 657 : AIR 1997 SC 987, Krishna v. Krishnaveni in which the scope of revisional power, vis-a-vis, inherent power was considered. The Supreme Court observed as follows-at page 991 (of AIR):
It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of process of the courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensure. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified under such circumstances to exercise the inherent power....
In the backdrop to above, law, inherent power of this court is available under Section 482 of the Code and as it is paramount power of continuous superintendence of the High Court under Section 483, this Court would be justified in interferring with the order leading to serious miscarriage of justice and in setting aside the order passed by learned Sessions Judge.
15. In this application, a prayer has also been made that the bail application pending before the learned Sessions Judge be transferred to a Sessions Division other than Allahabad or in the alternative, it may be made over to any Additional Sessions Judge at Allahabad. Learned counsel for the applicant relied upon certain observations made in AIR 1963 SC 1 R. Vishwanathan v. Abdul Wazid AIR 1996 SC 309 : 1996 Cri LJ 381 Mrs. Rupan Deol Bajaj v. K.P.S. Gill. I have studied the said rulings and find that the observation/ made therein are not of universal Application it is true that the learned Sessions Judge has passed an interim order, which has been found to be illegal and without jurisdiction but the fact remains that no bias or prejudice can be imputed to him. The circumstances in which the order appears to have been passed, do not justify the transfer of the bail application from his court to any other court. Moreover, since it is a matter concerning the Advocates, it would be proper if the seniormost court in the district deals with the case. The prayer for transfer of the bail application is not justified and it is, therefore, rejected.
16. Shorn of all superfluities and to sum up, it may be observed that no Magistrate or a Sessions Judge is empowered to grant interim bail to the accused during the pendency of his bail application. This is the precise and exact majority view expressed in the Full Bench decision in the case of Dr. Vinod Narain (supra). The order passed by learned Sessions Judge is clearly against the parameters laid down in the aforesaid authoritative pronouncement. The reasons and circumstances, which impelled the learned Sessions Judge to grant short term bail to the accused-opposite parties do not stand the test or scrutiny of law. The order has violated the provisions of law and has thus resulted in subverting the process inherent in the bail determination. On factual and legal matrix there was no ground to release the accused-opposite party Nos. 2 to 4 on interim bail, particularly when they were involved in a heinous crime of murder.
17. After adverting to the above aspects and bestowing my anxious considerations, I unhasitatingly reach the conclusion that the order dated 7-5-1997 passed by learned Sessions Judge, Allahabad granting short term bail to the accused-opposite parties Nos. 2 to 4 is without jurisdiction, illegal and against the well settled norms. This order, therefore, has to be set aside.
18. The application under Section 482, Cr.P.C. succeeds. The order dated 7-5-1997 passed by learned Sessions Judge, Allahabad granting short term bail during the pendency of the bail application No. 1976 of 1997 is hereby quashed with the result normal and natural consequence are to follow.