Bombay High Court
Mohan @ Mannu Radhamal Basantani vs State Of Maharashtra on 28 September, 1988
Equivalent citations: 1988(4)BOMCR203, 1989MHLJ613
JUDGMENT A.D. Tated, J.
1. A short question involved in this revision is whether the Sessions Judge can entertain the revision against the order of the Judicial Magistrate granting bail to the accused notwithstanding the provisions of section 397(2) of the Criminal Procedure Code.
2. The above question arises on the following facts. On 30th of March, 1988 on the report of one Vinod Kishanchand Rajesh, Police Station Vithalwadi, registered an offence under sections 302, 354, 323, 336, 147, 148 and 149 I.P.C. against the petitioner alias Mohan Mannu Radhamal Basantani for having committed the murder of Vinod's brother Narendra Kishanchand Basantani. During the investigation of the crime, the petitioner was arrested on 16th April, 1988. The petitioner moved the Sessions Court for the grant of bail vide his Application No. 476 of 1988. The Sessions Court by an order dated 7-5-1988 rejected his application for bail. Thereafter on 27th May, 1988 the petitioner moved an application for bail before Mr. S.B. Tamboli, learned Judicial Magistrate, F.C. Thane, on Deputation to Ulhasnagar, on the ground that he was sick and was suffering from polyarthritis. The ground of sickness was not raised in the earlier bail application submitted to the Sessions Judge. The petitioner's application for bail before the Magistrate was strongly opposed by the learned Assistant Police Prosecutor on the ground that the petitioner had earlier applied to the Sessions Court for bail and that it was rejected on merits. The learned Magistrate relying on the medical certificate dated 15th March, 1988 issued by Dr. P.S. Kolvekar found that the petitioner was chronic patient of polyarthritis and that he was advised to take treatment after consulting orthopaedic surgeon, granted bail to the petitioner invoking the powers under the proviso to sub-section (1) of section 437 Cri.P.C. As per the said proviso Judicial Magistrate can release the accused alleged to have been guilty of the offence punishable with death or imprisonment for life, if he is under sixteen years of age or is a woman or is a sick or infirm. The learned Magistrate allowed the petitioner's application for release on bail on executing three sureties of Rs. 1000/- each in the like amount. He was also ordered to attend the Police Station on Sunday and Thursday from 5 p.m. to 6 p.m. and he was directed to remain within Ulhasnagar area and not to leave that area without the permission of the Court except for medical treatment at Bombay.
3. The State being aggrieved by the order of the learned Magistrate releasing the petitioner-accused on bail, submitted an application to the Sessions Court under section 439(2) read with section 437(5) of the Criminal Procedure Code for cancellation of bail. Both the parties were heard by the learned Additional Sessions Judge regarding the maintainability of the application for cancellation of bail and after hearing both the parties it was found that the challenge was to the legality of the order of the learned Magistrate and, therefore, by order dated 29th June, 1988 the application was treated as revision against the order of the learned Magistrate and both the parties were again heard. After hearing both the parties, the learned Additional Sessions Judge under his revisional powers set aside the order passed by the learned Magistrate granting bail to the petitioner and thus allowed the revision. Feeling aggrieved, the petitioner accused has preferred this criminal application.
4. The learned Counsel for the petitioner-accused contends that the order granting or refusing the bail is an interlocutory order and in view of the provisions of sub-section (2) of section 397 Cri.P.C. the revision is not tenable. In support of his contention he relied on the decision in Amar Nath and others v. State of Haryana and others, . In that case the term "interlocutory order" appearing in section 397(2) of 1973 Criminal Procedure Code was considered and it has been held that the term has been used in restricted sense and not in broad or artistic sense. At page 2189 Their Lordships laid down the law thus :---
"...It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights of the liabilities of the parties. Any order which substantially affects the rights 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 order 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."
The Supreme Court in the case of Madhu Limaye v. State of Maharashtra, considered their earlier decision in Amar Nath's case. At page 51 of the report their Lordships observed thus :---
"...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 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. 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."
5. The learned Counsel for the petitioner also relied on the decision of the Supreme Court in Usman Dawoodbhai Memon and others v. State of Gujarat, . At page 291 of the report while considering the provisions of section 19(1) of Terrorist and Disruptive Activities (Prevention) Act, 1987, their Lordships of the Supreme Court observed thus :---
"...It cannot be doubted that the grant or refusal of a bail application is essentially an interlocutory order. There is no finality to such an order for an application for bail can always be renewed from time to time. It is however contended that the refusal of bail by a Designated Court due to the non-fulfilment of the conditions laid down in section 20(8) cannot be treated to be a final order for it affects the life or liberty of a citizen guaranteed under Article 21. While it is true that a person arraigned on a charge of having committed an offence punishable under the Act faces of prolonged incarceration in view of the provision contained in section 20(8) which places limitation on the powers of a Designated Court to grant bail but that by itself is not decisive of the question as to whether an order of this nature is not an interlocutory order. The Court must interpret the words `not being an interlocutory order' used in section 19(1) in their natural sense in furtherance of the object and purpose of the Act to exclude any interference with the proceedings before a Designated Court at an intermediate stage. Their is no finality attached to an order of a designated Court granting or refusing bail. Such an application for bail can always be renewed from time to time. That being so the contention advanced on behalf of the State Government that the impugned orders passed by the Designated Courts refusing to grant bail were not interlocutory orders and therefore appealable under section 19(1) of the Act, cannot be accepted."
The decision relied on by the learned Counsel does support his contention that an order granting or refusing bail is an interlocutory order and the reason is that the application for grant of bail can be renewed from time to time. Similarly, if the bail is wrongly granted, the application can be made to the Sessions Court or the High Court for cancellation of the bail. In fact, in the present case, the application for cancellation of bail, as stated earlier was made but, unfortunately, that application was treated as revision as there was a challenge to the legality of the order of the learned Magistrate and under the revisional powers the learned Sessions Judge set aside the order of the learned Magistrate. As stated earlier, the order granting or refusing bail is an interlocutory order and in view of sub-section (2) of section 397 the revisional powers could not be exercised in respect of such interlocutory order. Consequently, the order passed by the learned Sessions Judge will have to be set aside and the order of the Magistrate will have to be restored. The learned Public Prosecutor submitted that the State may be allowed to press their application for cancellation of bail before the learned Additional Session Judge. As initially their application was for cancellation of bail the learned Additional Sessions Judge took the view that the order of the learned Magistrate could be set aside by treating the State's application for cancellation of bail as revision application, the learned Sessions Judge treated the application as revision application and passed the impugned order in the revisional jurisdiction. The learned Counsel for the petitioner states that after the learned Additional Sessions Judge took the view that the order of Magistrate could be challenged in revision, the State preferred a fresh application for revision under section 397 Cri.P.C. and that the earlier application for cancellation of bail did not survive. Thus, according to him, if the State so desired, they will have to file a fresh application for cancellation of bail. Whatever may be the position the State is at liberty either to press their application for cancellation of bail or, if necessary, they can file a fresh application for cancellation of bail. With these observations, the application is allowed and the rule is made absolute.
At this stage Mr. Samant appears for the petitioner and says that it is necessary to make it clear that the order of the learned Additional Sessions Judge in Criminal Revision Application No. 671 of 1988 cancelling the bail has been set aside, and the order of the Magistrate granting bail has been restored. He submits that unless such clear directions are there the Court below has declined to grant bail and as such it is further made clear that the impugned order of the learned Additional Sessions Judge is set aside and that of the learned VIth Jt. Civil Judge and Judicial Magistrate, First Class, Thane on Deputation to Ulhasnagar is restored.