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1974 DIGILAW 205 (ORI)

RAJANIKANTA MEHTA v. STATE

1974-10-15

S.ACHARYA

body1974
JUDGEMENT 1. The petitioner along with other accused persons has been committed for trial to the Court of the Sessions Judge, Cuttack and that case has been registered in that Court as S. T. No. 65-C of 1974. On being moved by the petitioner the learned Sessions Judge by his order dated 12-9-1974 has released the petitioner on bail awaiting further orders in the matter from the Supreme Court and till the disposal of Special Leave Petition (Criminal) No. 861 of 1974 and has also imposed some conditions therein to be observed by the petitioner during the period he continues on bail by the said order. After the aforesaid order of the Sessions Judge this petition under Section 439, Criminal P.C. 1973 has been filed in this Court. Mr. B. M. Patnaik, the learned counsel for the petitioner, has submitted that the Sessions Judge while granting bail to the petitioner was not justified, in the facts and circumstances of this case, to limit the scope and duration of the said order only till the disposal of S. L. P. (Criminal) No. 861 of 1974 in the Supreme Court. According, to Mr. Patnaik the learned Sessions Judge should have dealt with the petition for bail on its own merits and in accordance with the tests laid down for that purpose in the Supreme Court decision reported in AIR 1962 SC 253 : ((1962) 1 Cri LJ 215). (The State v. Jagjit Singh), and he should, not have been influenced in any matter by the fact of the pendency of the abovementioned S. L. P. case in the Supreme Court or the order so far passed therein by that Court. Mr. Patnaik has also submitted that the interim bail, granted by the Supreme Court to the petitioner in the said Special Leave Petition was at a time when the charge sheet in the case had not been filed, and now that the charge sheet has been filed and the petitioner has been committed to the Court of Session, the Sessions Court was legally competent to consider and dispose of the said petition for bail on its own merits. In short, and in, effect Mr. In short, and in, effect Mr. Patnaik submits that the Court below while granting bail to the petitioner should have allowed him to stay on bail till the disposal of the case in the trial Court, and not till the disposal of the S. L. P. (Criminal) No. 861 of 1974 in the Supreme Court. 2. Mr. Patra, the learned Standing Counsel for the States apart from opposing the said petition on other grounds, at first urged by way of a preliminary objection, that this petition under Sec. 439. Criminal P.C. 1973, was not maintainable in law in view of the fact that the petitioner had already been release on bail by the trial Court. Mr. Patra's contention in short in this respect is that as the petitioner has already been released on bail, this application under Section 439 is not maintainable in this Court. This preliminary objection opposing the maintainability of this petition, in my view, is not sustainable. Section 439 apart from providing the power to this Court to release an accused in custody on bail under sub-section (1)(a) thereof, also provides under sub-section (1)(b) thereof that this Court may direct that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified. Therefore, a petition under Section 439, Criminal P.C. 1973, can be filed praying either for releasing an accused in custody on bail or for modifying the conditions imposed, by the Court below while granting bail to an accused. So if the accused has already been granted bail then this Court (or the Sessions Court) has the jurisdiction to set aside or modify any term, condition, or any other item in the said bail order which might illegally, unfairly or unnecessarily have been laid down in that order. The said order can also be set aside or modified if it appears to the Court exercising jurisdiction under Section 439, Criminal P.C. that there is anything therein which should not be there in the interest of justice or which hampers the investigation of the case, or in any way affects the due process of law. The said order can also be set aside or modified if it appears to the Court exercising jurisdiction under Section 439, Criminal P.C. that there is anything therein which should not be there in the interest of justice or which hampers the investigation of the case, or in any way affects the due process of law. To limit the scope and application of the provision of sub-section (1)(b) of Section 439, Criminal P.C. only to the conditions laid down in the said order for the observance by the accused during the period he is allowed to remain on bail, as suggested by the learned Standing Counsel, is to fetter or circumscribe the power of this Court and of the Sessions Court to a great extent, disabling these Courts to mend and/or eradicate error or mistakes appearing in the other parts of the said order or arising otherwise from the same. As the Courts granting bail have powers to set forth any condition which they consider necessary in the interest of justice, as provided under Section 437(3)(c), the higher Courts exercising power under Section 439, Criminal P.C. should have the power to examine the correctness of that order in all its aspects, and to modify or set aside any portion of the same if it is considered necessary. Section 439 gives the power to the higher-Courts to examine or scrutinise the exercise of the power vested in the lower Courts in matters relating to bail, and I do not see anything in Section 439 or any-where in the Criminal Procedure Code to fetter, circumscribe or limit the said power of the higher Courts. On the above considerations, this petition under Section 439, Criminal P.C. 1973, is maintainable, as by this petition it is in effect prayed that the portion of the Sessions Judge's order by which the petitioner has been released on bail only till the disposal of the aforesaid Special Leave Petition in the Supreme Court may be set aside. In the above view of the matter this petition is maintainable in law. 3. In the above view of the matter this petition is maintainable in law. 3. With regard to the merit of the-prayer of the petitioner to the effect stated above, the learned Standing Counsel submits that the Court while granting bail was legally competent and justified to lay down any suitable condition for the same, and on good grounds he was also legally competent to release the petitioner only for a limited period, and so his order granting bail to the petitioner till the disposal of the abovementioned Special Leave petition in the Supreme Court, being in accordance with the order passed by the Supreme Court in the said S. L. P. Case, is perfectly legal and correct. He further submits that in granting bail the Court has to take into consideration various facts, circumstances and materials before him, and so the learned Sessions Judge was legally competent and was perfectly justified in taking into consideration the pendency of the said Special Leave Petition in the Supreme Court and the interim order for bail passed by that Court in favour of the petitioner. 4. After the arrest of the petitioner in connection with this case and after the refusal of his prayer for bail in the Court ? below and by this Court, that petitioner has filed the abovementioned Special Leave Petition in the Supreme Court and that Court by order dated 19-8-1974 in the matter has directed the release of the petitioner on bail pending hearing and final disposal by that Court of the said Special Leave petition. As the petitioner has been released on bail by the Supreme Court, he, in connection with the matter, will remain on bail on the terms, conditions skid for the period mentioned in the aforesaid order and no other Court can any way annual or modify that order whatever may be the other considerations for or against the same, so long that order of the Supreme Court remains in force. It is not correct to say that now that the charge sheet has been filed in the case the Sessions Judge is competent to deal with the petitioner's case for bail on its own merits, without at all considering or being influenced by the aforesaid order of the Supreme Court. It is not correct to say that now that the charge sheet has been filed in the case the Sessions Judge is competent to deal with the petitioner's case for bail on its own merits, without at all considering or being influenced by the aforesaid order of the Supreme Court. In assessing merits of the petitioner's case the trial Court (the Sessions Court in this case) can decide the matter for or against the petitioner, but as the Supreme Court has granted bail to the petitioner in the terms aforesaid (till the disposal of the Special Leave Petition) the Sessions Judge cannot remand the accused to custody even if he finds that there are good grounds for the same. Therefore, in the of the context of the facts stated above the Sessions Judge was perfectly justified in granting bail to the petitioner for the aforesaid limited period without, at that stage. considering, deciding and/or expressing any opinion for or against that matter. The consideration of the bail matter on its own merits and in all its aspects can only be taken up after the disposal of the said Special Leave Petition in the Supreme Court. Even at that stage also the Court has to take into consideration any observation and/or finding of the Supreme Court to that effect. On the above considerations, the order as passed by the learned Sessions Judge is perfectly correct. The said order not being without jurisdiction, and being a perfectly legal and correct order I am not going to interfere with the same in any manner. 5. After the hearing of this petition on 24-9-1974 a petition for amendment of the original petition under Section 439, Criminal P.C., 1973, was filed in this case on behalf of the petitioner. By this amendment petition it is prayed that Sections 40l and 482. Criminal P.C., 1973, be added to the cause list of the original petition and the following paragraph may be incorporated into that petition. "3. That the order of the learned Sessions Judge granting bail for a limited period is bad in law and liable to be revised. Non-consideration of the contention raised in the bail application and at the argument and non-consideration of test, laid down in AIR 1962 253 : ((1962) 1 Cri LJ 215) vitiates the order of the learned Sessions Judge. That the order of the learned Sessions Judge granting bail for a limited period is bad in law and liable to be revised. Non-consideration of the contention raised in the bail application and at the argument and non-consideration of test, laid down in AIR 1962 253 : ((1962) 1 Cri LJ 215) vitiates the order of the learned Sessions Judge. In the facts and circumstances of the case, the applicant should have been released on bail." Against the said petition for amendment, the learned Standing Counsel for the State filed a memo opposing the petitioner's aforesaid prayer for amendment. 6. If the amendments craved for are allowed the Misc. Petition has to be converted into and registered as a Criminal Revision and consequentially the scope and ambit of the case would be changed and so both the parties have to be heard afresh. After the conclusion of the hearing of the original petition, and in view of my above finding and conclusion that the impugned order is perfectly legal and correct I do not deem it necessary and/or proper to allow the amendments prayed for by the petitioner at this stage. 7. Moreover, the aforesaid amendments were mostly sought for in order to meet the preliminary objection of the learned Standing Counsel that the original petition under Section 439, for reasons stated by him, was not maintainable in law and that the contentions raised on behalf of the petitioner were not worthy of consideration in a matter under Section 439, Criminal P.C. as no revision had been filed by the petitioner. As I have held that the original petition is maintainable, and this Court has the jurisdiction to examine the legality and propriety of the impugned order in all its aspects on the original petition, filed-under Section 439, Criminal P.C., the amendments sought for would not be of any avail or consequence for the petitioner. On the above considerations the amendment petition is dismissed. 8. In the result, therefore, the original petition under Section 439. Criminal P.C., 1973 and the aforesaid amendment petition are both dismissed. Petitions dismissed.