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2004 DIGILAW 340 (PAT)

Union Of India v. Anil Kumar Yadav @ Anil Yadav

2004-03-24

M.L.VISA

body2004
Judgment 1. This application under Section 482 of the Code of Criminal Procedure, 1973 in short "Cr.P.C") has been filed by Union of India through Superintendent of Police, Central Bureau of Investigation, S.I.C. IV, New Delhi for modifying the order dated 1.9.2003, passed by a Bench of Single Judge (since superannuated) of this Court in Cr. Misc. No. 21335 of 2003 by recalling the direction to the trial Court for releasing Anil Kumar Yadav @ Anil Yadav, opposite party, on bail if the trial is not concluded within three months by repeating the direction. 2. The facts of the matter, as per petitioner in short, are that opposite party is in jail in connection with Sessions Trial No. 976 of 1999, relating to the murder of Ajit Sarkar, the then M.L.A. and others and the case was entrusted to Central Bureau of Investigation (In short "CBI") by the Government of India with the consent of Government of Bihar in the year, 1998 and during investigation, it was fond that co-accused Rajesh Ranjan @ Pappu Yadav had hatched conspiracy alongwith this petitioner and others to eliminate Ajit Sarkar with whom he was having political rivalry and it further transpired that on the day of occurrence, co-accused Rajesh Ranjan @ Pappu Yadav, sitting at Delhi, gave instructions on telephone to co-accused Rajan Tiwary for eliminating Ajit Sarkar. According to CBI, during investigation it transpired that on 14.6.1998 at about 4.45 p.m., the opposite party, driving a motorcycle with co-accused Harish Choudhary and on another motorcycle co-accused Rajan Tiwary and Amar Yadav intercepted the car of Ajit Sarkar and, thereafter, Ajit Sarkar, his friend Ashfaqur Rahman and his driver were killed. After investigation, chargesheet was submitted and presently the case is at the stage of evidence and till now twenty seven prosecution witnesses have already been examined and among prosecution witnesses, two witnesses have categorically stated and identified opposite party to be one of the members who intercepted the car of Ajit Sarkar and committed murder of Ajit Sarkar alongwith his friend and driver. The further case of CBI is that opposite party moved this Court for grant of bail in Cr. Misc. No. 10880 of 2000 but his prayer was rejected on 28.4.2000. He again filed a petition for bail vide Cr. Misc. The further case of CBI is that opposite party moved this Court for grant of bail in Cr. Misc. No. 10880 of 2000 but his prayer was rejected on 28.4.2000. He again filed a petition for bail vide Cr. Misc. No. 29959 of 2000 and his prayer was again rejected considering the statement of CBI on counter-affidavit that on the date fixed for evidence, he did not attend the Court and practically he refused to be produced before the Court. Opposite party then again filed his third bail application vide Cr. Misc. No. 21335 of 2003 annexing an order dated 23.5.2003 passed by a Bench of this Court in Cr. Misc. No. 28179 of 2003 granting bail to co-accused Rajesh Ranjan @ Pappu Yadav but his prayer, after hearing him and CBI, was rejected but with a direction to the trial Court to take up the trial on day- to-day basis and conclude the same within three months next from the date of presentation of the copy of the order from the side of opposite party and it was further observed that if the trial was not concluded within the time-frame, as mentioned above, trial judge will release opposite party on bail to his satisfaction. The further case of the petitioner is that during the intervening period, Patna Civil Court, where the trial is being held, was closed during the entire month of October, 2003 for Puja vacation and it reopened on 1st November, 2003 and for this reason, the prosecution could not avail the entire period of three months and it is difficult to conclude the evidence within the time-frame because all the witnesses hail from different districts and some from different States. Shri Rakesh Kumar, learned ,counsel for the petitioner has submitted that nature of allegation against opposite party is very serious and there is every likelihood that after release on bail, opposite party will abscond causing obstruction in running of trial or he will try to obstruct the remaining prosecution witnesses from appearing in Court by giving them threatening. 3. Petitioner has prayed for deleting the direction to the trial Court for releasing opposite party on bail if the trial is not concluded within three months from 1.9.2003 which is the date of order passed in Cr. Misc. No. 21335 of 2003. 4. 3. Petitioner has prayed for deleting the direction to the trial Court for releasing opposite party on bail if the trial is not concluded within three months from 1.9.2003 which is the date of order passed in Cr. Misc. No. 21335 of 2003. 4. On issuance of notice, opposite party has appeared through his counsel who has opposed the prayer of petitioner. 5. Relying upon a number of decisions, Mr. Ashwani Kumar, learned counsel for the opposite party has argued that once this Court has passed an order, it cannot review it in view of Section 362, Cr.P.C. According to him, in the case of Mosst. Simrikhia V/s. Smt. Dolley Mukherjee @ Smt. Chabbi Mukherjee and another, AIR 1990, Supreme Court 1605, it has been held that the Court is not empowered to review its own decision under the purported exercise of inherent power. In the case of Smt. Sooraj Devi V/s. Pyare Lal and another, AIR 1981 Supreme Court 736, it has been held that it is true that the prohibition in Section 362 against the Court altering or reviewing its judgment is subject to what is "otherwise provided by this Code or by any other law for the time being in force." Those words, however refer to those provisions only where the Court has been expressly authorised by the Code or other law to alter or review its judgment. The inherent power of the Court is not contemplated by the saving provision contained in Section 362 and, therefore, the attempt to invoke that power can be of no avail." He has further argued that para-556 of Halsburys Laws of England (Fourth Edition Valume 26). states that "as a general rule, except by way of appeal no Court, judge or master has power to rehear, review, alter or vary any judgment or order after it has been entered either in an application made in the original action of matter or in- a fresh action brought to review the judgment or order. The object of the rule is to bring litigation to finality, but it is subject to a number of exceptions. For example, a clerical error or an error arising from an accidental slip or omission may be corrected under rules of Court of the Courts inherent jurisdiction. The object of the rule is to bring litigation to finality, but it is subject to a number of exceptions. For example, a clerical error or an error arising from an accidental slip or omission may be corrected under rules of Court of the Courts inherent jurisdiction. According to iearned counsel for opposite party, the decisions reported in the case of The State of Uttar Pradesh V/s. Mohammad Nairn, AIR 1964 SC 703 , which has been relied upon by learned counsel for the petitioner is not applicable to the facts of the present case because that case was in respect of expunging some remarks passed against police force of State. 6. Mr. Rakesh Kumar, learned counsel for the petitioner has submitted that when petitioner filed the application under consideration, at that time, appeal before Supreme Court by the informant of the case against the order dated 23.5.2003 passed by this Court in Cr. Misc. no. 28179 of 2003 granting bail to co- accused Rajesh Ranjan @ Pappu Yadav was pending but now the appeal has been allowed by the Supreme Court and the aforesaid order of this Court granting bail to co-accused Rajesh Ranjan @ Pappu Yadav has been set aside and bail bonds of co-accused Rajesh Ranjan @ Pappu Yadav have been cancelled. He has produced the copy of order dated 12.3.2004, of Supreme Court passed in Cr. Appeal No. 324 of 2004 arising out of SLP (Cri) No. 4774 of 2003 showing that the order granting bail to co-accused Rajesh Ranjan @ Pappu Yadav by this Court has been set aside. According to Mr. Rakesh Kumar, the allegation against the petitioner is more serious than that of co-accused Rajesh Ranjan @ Pappu Yadav because co-accused Rajesh Ranjan @ Pappu Yadav was a conspirator who, while sitting at Delhi, had given instructions on telephone to co-accused Rajan Tiwary for eliminating Ajit Sarkar whereas petitioner has been identified by witnesses as one of the members who intercepted the car of Ajit Sarkar and committed his murder alongwith his friend and driver. He further submits that co- accused Rajesh Ranjan @ Pappu Yadav was granted bail by this Court considering the period of his incarceration but then this order has been set aside by the Supreme Court but opposite party, in case impugned order is not modified, will be released on bail inspite of the fact that his prayer for bail on merit was earlier rejected twice by this Court and by the impugned order also and direction to Court below to release him on bail if trial is not concluded within three months suggests that this direction has been given considering the period of incarceration of opposite party. Mr. Rakesh Kumar further submitted that when opposite party was not released on bail in view of the direction in the impugned order because of the fact that CBI brought to the notice of the Court below that it had already filed the present petition for modification of the impugned order, he filed a writ of habeas corpus which was numbered as Cr.W.J.C. No. 9 of 2004 before this Court for his release but that writ was dismissed as premature (Annexure-3 of supplementary affidavit). He submits that opposite party is still in custody. Mr. Ashwani Kumar learned counsel for the opposite party submits that the direction in the impugned order releasing the opposite party on bail if not trial is concluded within three months was passed in presence of the petitioner but the petitioner did not file any application for modification of order so long the Bench of Honble Judge who had passed the impugned order was available and it has chosen to file the application under consideration only when the Honble Judge has superannuated and besides this, instead of filing any appeal, as done by informant of this case against the order of this Court granting bail to co-accused Rajesh Ranjan @ Pappu Yadav before Supreme Court, the petitioner has come up before this Court in the present application. 7. Considering the entire facts on record, I find that the order of this Court granting bail to co-accused Rajesh Ranjan @ Pappu Yadav after considering his period of custody has been set aside by the Supreme Court in Cr. Appeal No. 324 of 2004 on 12.3.2004. In the judgment of Supreme Court dated 12.3.2004 passed in Cr. 7. Considering the entire facts on record, I find that the order of this Court granting bail to co-accused Rajesh Ranjan @ Pappu Yadav after considering his period of custody has been set aside by the Supreme Court in Cr. Appeal No. 324 of 2004 on 12.3.2004. In the judgment of Supreme Court dated 12.3.2004 passed in Cr. Appeal No. 324 of 2004, the Supreme Court has referred its earlier order dated 25.7.2001, passed in Cr. Appeal No. 745 of 2001 where it was held that "the fact that the accused was in custody for more than one year (at that time) and the further fact that while rejecting his earlier application, the High Court had given liberty to renew the bail application in future, were not grounds envisaged under Section 437(l)(i) of the Code." As stated above, the order granting bail to co-accused Rajesh Ranjan @ Pappu Yadav has already been set aside by the Supreme Cour although it is a fact that the informant of this case before the Supreme Court stated that after release of co-accused Rajesh Ranjan @ Pappu Yadav, a number of witnesses who were examined, had turned hostile obviously due to the threats given to them but then I find that this was not the only ground on which bail of co-accused Rajesh Ranjan @ Pappu Yadav has been cancelled by the Supreme Court. Gravity of offence alleged was also considered as one of the grounds for cancelling the bail which is clear from the following observation : "In such cases, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to being enlarged on bail, nor the fact that the trial is" not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail" 8. If the prayer of petitioner is not allowed, if will give rise to the situation that bail granted to an accused considering his period of incarceration is cancelled by Supreme Court whereas another accused of the same case having serious allegation against him than the former one is granted bail by this Court on the same ground of incarceration. This will be against the interests of justice. It is true that in the case of Mosst, Simrikhia, AIR 1990 SC 1605 (supra), it has been held that the Court is not empowered to review its own decision under the purported exercise of inherent power and such power cannot be exercised to do something which is expressly barred under Section 362 of the Code but then in the same judgment, it has also been held that "The inherent power under Section 482 is intended to prevent the abuse of the process of the Court and to secure ends of justice. Such power cannot be exercised to do something which is expressly barred under the Code. If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the Court to exercise its inherent power to reconsidering the matter and record a conflicting decision. If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the Court. Besides this, Section 362 of the Code bars a Court from altering or reviewing a judgment when it has signed it or has passed an order which is final disposing of the case". Admittedly, the impugned order is not a judgment and it cannot be said to be a final order disposing of the case. It is an interlocutory order. As discussed above, if the direction in the impugned order is allowed to continue, it will result in the abuse of the process of Court and, therefore, I find that in the ends of justice, it is a fit case in which this Court is required to exercise its inherent powers as authorise by Section 482, Cr.P.C. 9. As discussed above, if the direction in the impugned order is allowed to continue, it will result in the abuse of the process of Court and, therefore, I find that in the ends of justice, it is a fit case in which this Court is required to exercise its inherent powers as authorise by Section 482, Cr.P.C. 9. In the result, this application is allowed and the direction in the last para of order dated 1.9.2003, passed by this Court in Cr. Misc. No. 21335 of 2003 to Court below for releasing opposite party on bail in case trial is not concluded within three months from the date of presentation of copy of the aforesaid order from the side of opposite party is hereby recalled. The last para of impugned order stands modified to the above extent.