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Anil Nanda vs State And Anr on 7 September, 2021

Author: Subramonium Prasad

Bench: Subramonium Prasad

$~54
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CRL.M.C. 1439/2021 & CRL.M.As. 9646/2021 & 9723/2021
       ANIL NANDA                                                ..... Petitioner
                            Through     Mr. Arjun Syal and Mr.Shreyan
                                        Dasm, Advocates

                            versus

       STATE AND ANR                                         ..... Respondents
                    Through             Ms.Meenakshi Chauhan, APP for the
                                        State with SI Rajender, PS Badarpur
                                        Mr. Vikas Pathak, Advocate for the
                                        complainant
    CORAM:
    HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
            ORDER

% 07.09.2021 HEARD THROUGH VIDEO CONFERENCING

1. On 09.07.2021, an issue arose as to whether an order cancelling bail by the Metropolitan Magistrate is an interlocutory order or not and if it is not an interlocutory order then petition under Section 397 Cr.P.C be maintainable before the learned Additional Session Judge or not.

2. The learned counsel for the petitioner places reliance on the following judgments :

(i) Bhola and Ors. v. State, MANU/UP/0341/1979

(ii) Dhanpal v. State of U.P., MANU/UP/1683/1997

(iii) Janapala Krishna v. The State of Andhra Pradesh, MANU/AP/2035/2014

(iv) Sri Pal Singh v. State of U.P., MANU/UP/0790/1988 to contend that an order cancelling bail is an interlocutory order and CRL.M.C. 1439/2021 Page 1 of 5 therefore the remedy of approaching the Sessions Court under Section 397 Cr.P.C was not available to the petitioner and hence the petitioner approached this Court by filing a petition under Section 482 Cr.P.C.

3. When the matter came up for hearing on 03.08.2021, Ms. Meenakshi Chauhan, learned APP for the State, placed reliance on para three of the judgment of the Supreme Court in Amar Nath v. State of Haryana, (1977) 4 SCC 137, to contend that if the High Court or the Sessions Court does not have the power to entertain revision petitions under Section 397(2) CrPC against an interlocutory order, the High Court ought not exercise its power under Section 482 CrPC and entertain a petition under Section 482 Cr.P.C. Para three of the said judgment reads as under:

"3. 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). Section 482 of the 1973 Code contains the inherent powers of the Court and does not confer any new powers but preserves the powers which the High Court already possessed. A harmonious construction of Sections 397 and 482 would lead to the irresistible conclusion that where a particular order is expressly barred under Section 397(2) and cannot be the subject of revision by the High Court, then to such a case the provisions of Section 482 would not apply. It is well settled that the inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject-matter. Where there is an express provision, barring a particular remedy, the Court cannot resort to the exercise of inherent powers."

4. Today, the learned counsel for the petitioner relies on the judgment of the Supreme Court in Madhu Limaye v. State of Maharashtra, (1977) 4 SCC

551. He relies on the Para 6 and 10 of the said judgment to contend that the petitioner cannot be rendered remediless against an order passed by the learned Metropolitan Magistrate cancelling bail, and therefore, the petition under Section 482 Cr.P.C would be maintainable. The Supreme Court in Girish Kumar Suneja v. CBI, (2017) 14 SCC 809, observed as under:

"35. It was submitted on behalf of the appellants that para 10 of the order passed by this Court prohibits the appellants from approaching the High Court under Articles 226 and 227 of the Constitution. In this context, it was submitted that it is now well settled that judicial review by the High Court and by this Court is a part of the basic structure of the Constitution and this has been recognised in L. Chandra Kumar v. Union of India [L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 : 1997 SCC (L&S) 577] .

36. It was submitted by relying upon Shalini Shyam Shetty v. Rajendra Shankar Patil [Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329 : (2010) 3 SCC (Civ) 338] that the jurisdiction of the High Court under Articles 226 and 227 of the Constitution is very vast and the principles for the exercise of jurisdiction have been culled out in that decision by this Court on an analysis of several earlier decisions.

The principles have been stated in para 49 of the Report and are not repeated here.

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38. The Criminal Procedure Code is undoubtedly a complete code in itself. As has already been discussed by us, the discretionary jurisdiction under Section 397(2) CrPC is to be exercised only in respect of final orders and intermediate orders. The power under CRL.M.C. 1439/2021 Page 3 of 5 Section 482 CrPC is to be exercised only in respect of interlocutory orders to give effect to an order passed under the Criminal Procedure Code or to prevent abuse of the process of any court or otherwise to serve the ends of justice. As indicated above, this power has to be exercised only in the rarest of rare cases and not otherwise. If that is the position, and we are of the view that it is so, resort to Articles 226 and 227 of the Constitution would be permissible perhaps only in the most extraordinary case. To invoke the constitutional jurisdiction of the High Court when the Criminal Procedure Code restricts it in the interest of a fair and expeditious trial for the benefit of the accused person, we find it difficult to accept the proposition that since Articles 226 and 227 of the Constitution are available to an accused person, these provisions should be resorted to in cases that are not the rarest of rare but for trifling issues." (emphasis supplied)

5. In view of the above, this Court is not going with the question as to whether a petition under Section 482 would be maintainable or not against an order cancelling bail by the Metropolitan Magistrate and as to whether such an order is an interlocutory order or not. It is well settled that the High Court while exercising its power under Artilce226 of the Constitution of India will have the power to entertain the petition against an order passed by the Metropolitan Magistrate cancelling bail of the accused.

6. Issue Notice.

7. Ms. Meenakshi Chauhan, learned APP for the State, accepts notice on behalf of the State and seeks time to file a Status Report.

8. Mr. Vikas Pathak, learned counsel accepts notice on behalf of the respondent No.2 and seeks time to file a reply.

9. Let the replies be filed within a week's time.

10. The petitioner is also directed to file a written submission.

11. List on 20.09.2021, for final disposal.

12. Interim orders to continue.

SUBRAMONIUM PRASAD, J SEPTEMBER 07, 2021 Rahul CRL.M.C. 1439/2021 Page 5 of 5