Patna High Court - Orders
Shivshankar Choudhary & Ors. vs State Of Bihar & Anr on 13 May, 2014
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.17672 of 2013
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1. Shivshankar Choudhary son of Late Bishwanath Choudhary
2. Rajesh Kumar Choudhary son of Shivshankar Choudhary
3. Dipak Kumar Choudhary son of Shivshankar Choudhary
All are resident of village- Khambhuradih, P.S.- Katara, District-
Muzaffarpur
.... .... Petitioner/s
Versus
1. The State of Bihar
2. Digamber Choudhary son of Late Bishwanath Choudhary, resident of
village- Khambhuradih, P.S.- Katara, District- Muzaffarpur
.... .... Opposite Party/s
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Appearance :
For the Petitioners : Mr. Ganesh Prasad Singh, Advocate
Mr. Prabhat Kumar Singh, Advocate
For the Opposite Party No.2: Mr. Mahendra Thakur, Advocate
For the State : Mr. Prameshwar Mehta, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL ORDER
6 13-05-2014Heard learned counsel for the petitioners and learned counsel for the State.
The petitioners seek quashing of the order dated 26th February, 2013 passed by the learned 3rd Additional Sessions Judge, Muzaffarpur in Cr. Revision No.191 of 2012 by which he has set aside the order dated 7th August, 2012 passed by the learned Chief Judicial Magistrate, Muzaffarpur whereby he had refused to cancel the bail of the petitioners.
The petitioners were made accused in Katara P.S. Case No.77 of 2012 dated 8th June, 2012 registered for the offences punishable under sections 341, 323, 387, 379 and 325 read with 34 of the Indian Penal Code. They surrendered in the court of Chief Patna High Court Cr.Misc. No.17672 of 2013 (6) dt.13-05-2014 2 Judicial Magistrate, Muzaffarpur on 19th June, 2012 and prayed for bail. The learned Chief Judicial Magistrate allowed their prayer for bail by a reasoned order on 19th June, 2012 itself. Thereafter, the informant of the case filed an application under section 437(5) of the Code of Criminal Procedure (hereinafter referred to "as the Code") in the court of Chief Judicial Magistrate, Muzaffarpur on 2nd July, 2012 seeking cancellation of bail of the accused persons. By order dated 7th August, 2012, the prayer for cancellation of bail of the petitioners was rejected by the learned Chief Judicial Magistrate.
Being aggrieved by the aforesaid order passed by the learned Chief Judicial Magistrate, the informant of the case filed a revision application under section 397 of the Code. The learned 3rd Additional Sessions Judge, Muzaffarpur vide his order dated 26th February, 2013 passed in Cr. Revision No.191 of 2012 allowed the prayer of the informant and cancelled the bail of the petitioners granted by the learned Chief Judicial Magistrate, Muzaffarpur.
The aforesaid order dated 26th February, 2013 is under challenge before this Court.
Learned counsel for the petitioners has stated that the order passed by the learned Chief Judicial Magistrate, Muzaffarpur refusing to cancel the bail of the petitioners was an Patna High Court Cr.Misc. No.17672 of 2013 (6) dt.13-05-2014 3 interlocutory order. In that view of the matter, the revision application under section 397 of the Code was not maintainable before the Sessions Court. He has submitted that the bail granted to an accused by a Magistrate can either be cancelled under section 437(5) of the Code by the Magistrate or under section 439(2) of the Code by the Sessions Court or the High Court. He has contended that powers of revision conferred by sub section (1) of section 397 of the Code cannot be exercised in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceedings in terms of specific bar created under sub section (2) of section 397 of the Code.
Learned counsel for the State has also supported the submissions made by the learned counsel for the petitioners.
Learned counsel for the informant, however, opposes the contentions advanced by the learned counsel for the petitioners and learned counsel for the State. He has contended that the impugned order passed by the learned 3rd Additional Sessions Judge, Muzaffarpur is reasoned one. According to the informant, if the Sessions Court has power to cancel the bail under section 439(2) of the Code, there is no harm in passing such order in exercise of revisional jurisdiction.
Learned counsel for the informant has further Patna High Court Cr.Misc. No.17672 of 2013 (6) dt.13-05-2014 4 contended that the objection regarding maintainability of the revision petition was never raised by the petitioners in the court below and thus, it was not open to the petitioners to raise the issue of maintainability before this Court.
I have heard the parties at length.
It is well settled that an order granting or refusing bail is not a final order. Such orders are interlocutory in nature. The provisions of section 397(2) of the Code expressly bar revision against interlocutory order.
In the above view of the matter, impugned order dated 26th February, 2013 passed in Cr. Revision No.191 of 2012 by the learned 3rd Additional Sessions Judge, Muzaffarpur cannot be sustained.
Accordingly, the same is set aside and the application is allowed.
Before parting, I would like to clarify that the informant and/or the State would be at liberty to seek cancellation of bail granted to the petitioners by the learned Magistrate by filing an appropriate petition under section 439(2) of the Code.
(Ashwani Kumar Singh, J) Md.S./-