Chattisgarh High Court
Satish Jaggi vs State Of Chhattisgarh And Ors. on 20 September, 2007
Equivalent citations: 2008(1)MPHT13(CG)
Author: Sunil Kumar Sinha
Bench: Sunil Kumar Sinha
ORDER Sunil Kumar Sinha, J.
1. This Criminal Revision had been filed under Sections 397/401 of the Code of Criminal Procedure against the order dated 20-3-2007 passed by the Special Judge under SC & ST (Prevention of Atrocities) Act, Raipur in Bail Petition No. 338/2007, whereby respondent No. 2 was admitted to regular bail under Section 439 of the Code of Criminal Procedure.
2. Briefly stated the facts are as follows:
(i) On 4-3-2007, the petitioner herein filed a private complaint against respondent N. 2 and one Mukesh Gupta (the then Inspector General of Police, Raipur) for offences punishable under Section 302 read with Sections 120B, 323, 324, 427 and 217, IPC and Sections 25 and 27 of the Arms Act in the Court of Additional Chief Judicial Magistrate (ACJM), Raipur. The complaint was based upon the FIR No. 105/2003, dated 4-6-2003, registered at P.S. Moudhapara, Raipur, which was later on sent for investigation by Central Bureau of Investigation (CBI). The complaint was registered as Criminal Case No. 429/2007 by the said Court. It is stated that the complainant had annexed the list of 171 witnesses along with the complaint.
(ii) On 14-3-2007, the complainant/petitioner was examined and by order dated 16-3-2007, ACJM took cognizance in the matter and after registration of criminal case under Section 302 read with Sections 120B and 427, IPC against respondent No. 2, issued non-bailable warrant against him. In pursuance of the aforesaid warrant of arrest, respondent No. 2 was arrested on 18-3-2007 but on account of his health, he was admitted in Escorts Heart and Research Centre, Raipur by the police personnels instead of producing him before the Court.
(iii) On 19-3-2007, the police informed the Court about arrest of respondent No. 2 in execution of aforesaid warrant of arrest and also informed that due to ill-health, respondent No. 2 has been admitted in the said hospital for treatment and shall be produced before the Court as soon as, he is discharged from the hospital.
(iv) Thereafter, on 19-3-2007, an application under Section 437, Cr.PC was filed before the ACJM for grant of bail to respondent No, 2, but the same was dismissed by the said Court and the Court directed the police to produced respondent No. 2 as and when, he is discharged from the hospital.
(v) After rejection of the said application filed under Section 437, Cr.PC, another application under Section 439, Cr.PC was filed in the Court of Sessions Judge, Raipur, which was registered as Bail Petition No. 338/2007 and was made over for disposal to the Court of the Special Judge and Additional Sessions Judge on the same day. When this matter came up for hearing before the said Court, the Counsel for the complainant appeared before the Court and took notice of the bail application and prayed for time to file reply to the said application. The Special Judge granted time and adjourned the matter for 20-3-2007, on which, reply/objection (Annexure P-2) was filed by the Counsel for the petitioner. Thereafter, after hearing the respective Counsel, the bail application filed by respondent No. 2 under Section 439, Cr.PC was allowed. He was directed to be released on bail on certain grounds.
3. Though a prayer for setting aside the order of grant of bail has been made by the petitioner, but, instead of filing an application under Section 439(2), Cr.PC, this Criminal Revision under Section 397 read with Section 401 has been filed.
4. When Counsel for the petitioner was directed to satisfy on maintainability of this petition in view of provisions of Sub-section (2) of Section 397 of the Cr.PC, he argued that though the petition has been drafted and filed as criminal revision but it may be treated as the petition under Section 482, Cr.PC and even if the order of grant of bail was an interlocutory order, the High Court can interfere with the order, which causes miscarriage of justice. He reminds the principle that the nomenclature of the petition makes no difference and unfettered jurisdiction of the High Court saved under Section 482, Cr.PC can well be invoked to prevent the miscarriage of justice. He referred to the decision of the Apex Court rendered in the matters of Puran v. Rambilas and Anr. ( and State through Special Cell, New Delhi v. Navjot Sandhu alias Afshan Guru and Ors. .
5. In Puran's case (supra), a contention was raised before the Apex Court on the authorities in the case of Usmanbhai Dawoodbhai Memon v. State of Gujarat, ; Amar Nath v. State of Haryana and India Pipe Fitting Co. v. Fakruddin M.A. Baker , that an order granting bail was an interlocutory order and the High Court could not exercise the powers under Section 482 of the Criminal Procedure Code and thus the Court could not cancel the order of bail. It was also argued that Section 439 of the Criminal Procedure Code gives the power for cancellation of bail both to the Sessions Court and the High Court, therefore, the High Court and the Sessions Court were Co-ordinate Courts under this Section and the High Court could not thus sit in appeal or revision over an order of the Court of Sessions. It was also submitted that under Section 439(2), Cr.PC, it is only the orders of the Magistrate, which could be set aside by the High Court or the Court of Session. The Apex Court ruled that in the hierarchy of Courts, the High Court is the Superior Court. A restrictive interpretation which would have the effect of nullifying Section 439(2) cannot be given. When Section 439(2) grants to the High Court the power to cancel bail, it necessarily follows that such powers can be exercised also in respect of orders passed by the Court of Session. Of course cancellation of bail has to be on principles set out for that and only in appropriate cases. The Apex Court further ruled that even if it is an interlocutory order, the High Court's inherent jurisdiction under Section 482 is not affected by the provisions of Section 397(3) of the Code of Criminal Procedure. That the High Court may refuse to exercise its jurisdiction under Section 482 on the basis of self-imposed restriction is a different aspect. The Apex Court finally ruled that it cannot be denied that for securing the ends of justice, the High Court can interfere with the order which causes miscarriage of justice or is palpably illegal or is unjustified. The Apex Court also referred to the decisions of Madhu Limaye v. State of Maharashtra and Krishnan v. Krishnaveni .
6. In Navjot Sandhu's case (supra), the Apex Court held that Section 482, Cr.PC starts with the words "Nothing in this Code". Thus, the inherent jurisdiction of the High Court under Section 482 can be exercised even when there is a bar under Section 397 or some other provisions of the Criminal Procedure Code. However, this power cannot be exercised if there is a statutory bar in some other enactment. The Apex Court said that if the order assailed is purely of an interlocutory character, which could be corrected in exercise of revisional powers or appellate powers, the High Court must refuse to exercise its inherent power. The inherent power is to be used only in cases where there is an abuse of the process of the Court or where interference is absolutely necessary for securing the ends of justice. The inherent powers must be exercised very sparingly as cases which require interference would be few and far between. The. Apex Court also said that the most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without jurisdiction. It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party.
7. In view of the above principles, laid down by the Apex Court, it is clear that even if the order of grant of bail was an interlocutory order, and a criminal revision would not be maintainable in view of Sub-section (2) of Section 397, Cr.PC, but, that never prohibits the High Court to exercise its inherent jurisdiction saved under Section 482, Cr.PC for securing the ends of justice against the order, which causes "a miscarriage of justice" or is "palpably illegal" or is "unjustified". Therefore on the above principles treating this petition as under Section 482, Cr.PC, it would be maintainable for hearing and I hold it accordingly.
8. For admission, Shri Sharma has argued that the order passed by the Special Judge was without jurisdiction, null, void and non-est because respondent No. 2 had neither appeared nor was producing by police before the Court, therefore, he was not in "custody" and his application for grant of regular bail under Section 439, Cr.PC was not maintainable. Referring to the decision in the matter Niranjan Singh and Anr. v. Prabhakar Rajaram Kharote and Ors. , he vehemently argued that the word "Custody" in the context of Section 439 would mean physical control or atleast physical presence of accused in the Court coupled with submission to the jurisdiction and orders of the Court and includes Judicial Custody when the accused actually surrenders before the Court and submits to his directions.
I have carefully considered the arguments advanced by learned Counsel for the petitioner.
9. TO. In Niranjan Singh's case (supra), the Apex Court in the context of Section 439 held that a person is in custody when he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the Court having been remanded by judicial order, or having offered himself to the Court's jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the Court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide and seek niceties sometimes heard in Court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law.
10. Therefore, it is clear that in the context of Section 439, Cr.PC, if a person is in duress either because he is held by the investigating agency or other police or allied authority, he shall be held to be in custody. In the present case, as has been stated to this Court, in pursuance of warrant of arrest issued by the ACJM on 16-3-2007 after registration of criminal case against respondent No. 2, respondent No. 2 was arrested by the police on 18-3-2007 and thereafter, he was admitted in the hospital on the health account and the matter was reported to the concerned ACJM. Therefore, admittedly, the said respondent was in duress and he was in custody for the purpose of Section 439, Cr.PC. The arguments advanced by Shri Sharma that respondent No. 2 was not in custody is totally misconceived in the facts and circumstances of the case.
11. Shri Sharma next argued about the completion of procedure of hearing in haste-hurry manner because respondent No. 2 was the Ex-Chief Minister of the State of Chhattisgarh.
13. I have gone through the list of events filed along with criminal revision. According to the said information, the petitioner filed a private complaint on 4-3-2007 along with the list of 171 witnesses. The statement of the petitioner was recorded on 14-3-2007 and thereafter on 16-3-2007, the ACJM on the strength of the statement of the petitioner only issued warrant of arrest against respondent No. 2 for his production, which was executed by the concerned policy authority on 18-3-2007. Thereafter, on 19-3-2007, the arrest was informed to the ACJM and it was also informed that on the health ground, after the arrest, accused has been admitted in Escorts Heart and Research Centre, Raipur. Thereafter on 19-3-2007, an application under Section 437, Cr.PC was filed before the ACJM, which was rejected and then on the same day, i.e., on 19-3-2007, another application under Section 439 was filed before the Sessions Judge, who transferred the matter for its disposal to the concerned Special Judge. On 19th Counsel for the complainant/petitioner appeared before the Special Judge and took notice of the matter and prayed for time to file reply to the bail application. The Special Judge granted time and adjourned the matter to 20-3-2007, on which the reply/objection was filed by the learned Counsel for the petitioner and after hearing the arguments of parties, the bail application filed under Section 439, Cr.PC was disposed of. It does not appear that a haste-hurry manner has been adopted by the Court in this case. Normally the cases of bail etc., are dealt with like this and in the facts and circumstances of the case, the allegations raised by the petitioner appeared to be baseless.
13. A perusal of the order passed by the Special Judge would show that all the listed witnesses of the complaint case appear to be the same witnesses, who are there in the CBI case, in which, the charge-sheet, regarding the same incident, was filed against 31 accused persons including the son of respondent No. 2 Amit Jogi. The Special Judge has observed that when respondent No. 2 was involved in the said case, and was exonerated by CBI, the matter was not agitated by the petitioner at the said instance. It was argued before the Special Judge that this petitioner was examined as a prosecution witness in the said sessions trial and if some evidence was there against respondent No 2, the action must have been taken under Section 319, Cr.PC but it was not done. The Court has observed that from 4-6-2003 till February, 2007 the petitioner did not take any action against respondent No. 2 and ultimately for an incident, which took place on 4-6-2003, first time, on 4-3-2007, the above complaint was filed before the ACJM. Apart from this, the Court has also observed that among 171 enlisted witnesses, the petitioner/complainant had examined himself only and on the basis of his evidence alone, the ACJM registered the case and issued warrant of arrest against respondent No. 2 and considering all these facts, the respondent No. 2twas admitted to regular bail.
14. After going through the contents of the impugned order as also the other documents filed along with the petition, it does not appear that the order passed by the Special Judge can be classified either as an order which causes miscarriage of justice or palpably illegal or unjustified warranting interference under Section 482. Cr.PC.
15. There is no force in the arguments advanced by the learned Counsel for the petitioner, the petition deserves to be dismissed and the same is accordingly dismissed at the motion state itself.