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2015 DIGILAW 3633 (ALL)

Surendra Kuwar Singh v. State of U. P.

2015-11-20

AKHTAR HUSAIN KHAN

body2015
JUDGMENT Akhtar Husain Khan, J. -- Heard learned counsel for revisionist as well as learned A.G.A. and learned counsel for opposite party no.4. 2. Learned A.G.A. as well as learned counsel for opposite party no.4 have raised a preliminary objection regarding maintainability of this revision moved under Section 397 /401 of Cr.P.C. 3. It has been contended by learned A.G.A. as well as learned counsel for opposite party no.4 that impugned order dated 22.09.2015 passed by learned District & Sessions Judge, Barabanki under Section 439(2) of Cr.P.C. in Criminal Misc. Case No.965 of 2014 relating to Case No.2509 of 2014 arising out of Crime No.436 of 2013, under Sections 467, 468, 471, 419, 420, 120-B IPC, Police Station Kotwali City Barabanki, District Barabanki is an interlocutory order and petitioners have opportunity to move bail application before this Court under Section 439 of Cr.P.C. Therefore, neither revision under Section 397 /401 of Cr.P.C. nor petition under Section 482 of Cr.P.C. is maintainable before this Court in view of bar provided in sub-section (2) of Section 397 of Cr.P.C. 4. Learned A.G.A. as well as learned counsel for opposite party no.4 has placed reliance upon following judicial pronouncements: "(i) Madhu Limaye Vs. State of Maharashtra; 1978 (15) ACC 184 (SC)= AIR 1978 SC 47 (ii) Arun Shankar Shukla Vs. State of U.P. and others; 1999 (2) JIC 570 (SC)= (1999) 6 SCC 146 (iii) Mohit alias Sonu and another Vs. State of Uttar Pradesh and another; 2013 (3) JIC 297 (SC)= AIR 2013 SC 2248 (iv) Amar Nath and others Vs. State of Haryana and others; AIR 1977 SC 2185 (v) Bhola and others Vs. State; 1979 (16) ACC 155=1979 Cri.L.J. 718 (vi) Surya Narain and others Vs. State of U.P. and others; 1999 Cri.L.J. 496" 5. Learned A.G.A. as well as learned counsel for opposite party no.4 has further placed reliance on judgments of High Court Allahabad in following cases: "(i) Sri Pal Singh Vs. State of Uttar Pradesh decided on 05.04.1988 (ii) Nafisul Hasan Vs. State of U.P. and another decided in Application (u/s 482 of Cr.P.C.) No.21187 of 2015 decided on 27.07.2015 (iii) Jitendra Kumar Vs. State of Uttar Pradesh decided on 23.02.1994." 6. Learned counsel for revisionist contended that impugned order is not an interlocutory order. State of Uttar Pradesh decided on 05.04.1988 (ii) Nafisul Hasan Vs. State of U.P. and another decided in Application (u/s 482 of Cr.P.C.) No.21187 of 2015 decided on 27.07.2015 (iii) Jitendra Kumar Vs. State of Uttar Pradesh decided on 23.02.1994." 6. Learned counsel for revisionist contended that impugned order is not an interlocutory order. Therefore, revision under Section 397 /401 of Cr.P.C. as well as petition under Section 482 of Cr.P.C. both are maintainable before this Court. 7. Learned counsel for revisionist has relied upon the judicial pronouncements of the Hon'ble Apex Court rendered in the case of Sami Ullaha Vs. Superintendent, Narcotic Central Bureau; 2009 (65) ACC 303 (SC)= 2009 AIR (SC) 1357 in support of his contention: 8. I have gone through the case laws referred by learned counsel for the rival parties. 9. In the case of Sami Ullaha Vs. Superintendent, Narcotic Central Bureau (Supra), revision was filed against cancellation of bail before High Court but the High Court dismissed revision. Thereafter, feeling aggrieved, accused revisionist moved Criminal Appeal No.1748 of 2008 arising out of SLP (Crl.) No.2175 of 2008 before Hon'ble Apex Court and Hon'ble Apex Court allowed the criminal appeal and passed following order: "19. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. The order dated 15.03.2005 cancelling the bail is set aside and the revision application filed in the High Court stands allowed." 10. In the case of Amar Nath and others Vs. State of Haryana and others (Supra), petition was moved under Section 482 of Cr.P.C. as well as under Section 397 of Cr.P.C. before High Court against summoning order but High Court dismissed the petition in limine and refused to entertain on the ground that the summoning order passed by Judicial Magistrate is an interlocutory order, therefore, revision is barred by virtue of sub-section (2) of Section 397 of Cr.P.C. High Court further held that since the revision is barred, the court could not take up the case under Section 482 of Cr.P.C. also. Feeling aggrieved, petitioner/ revisionist moved Criminal Appeal No.124 of 1977 before Hon'ble Apex Court, wherein, Hon'ble Apex Court has held that summoning order cannot be said to be an interlocutory order and petition against this order was fully competent under Section 397 (1) or under Section 482 of Cr.P.C. 11. In the case of Madhu Limaye Vs. Feeling aggrieved, petitioner/ revisionist moved Criminal Appeal No.124 of 1977 before Hon'ble Apex Court, wherein, Hon'ble Apex Court has held that summoning order cannot be said to be an interlocutory order and petition against this order was fully competent under Section 397 (1) or under Section 482 of Cr.P.C. 11. In the case of Madhu Limaye Vs. State of Maharashtra (Supra), Hon'ble Apex Court has considered its earlier judgment rendered in the case of Amar Nath and others Vs. State of Haryana and others (Supra) and has held as follows: "10. As pointed out in Amar Nath's case (supra) the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding is to bring about expeditious disposal of the cases finally, More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by introducing sub-section (2), in Section 397 . On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain reading of Section 482 , however, it would follow that nothing in the Code, which would include subsection (2) of Section 397 also, "shall be deemed to limit or affect the inherent powers of the High Court". But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out? 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. 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. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. Take for example a case where a prosecution is launched under the Prevention of Corruption Act without a sanction, then the trial of the accused will be without jurisdiction and after his acquittal a second trial after proper sanction will not be barred on the doctrine of Autrefois Acquit. Even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing processes is an interlocutory order, does it stand to reason to say that inherent power of the High Court cannot be exercised for stopping the criminal proceeding as early as possible, instead of harassing the accused upto the end? The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High Court in accordance with section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible." 12. In the case of Mohit @ Sonu and another Vs. State of Uttar Pradesh and another (Supra), Hon'ble Apex Court has held as follows: "23. So far as the inherent power of the High Court as contained in Section 482 of Code of Criminal Procedure is concerned, the law in this regard is set at rest by this Court in a catena of decisions. However, we would like to reiterate that when an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction, then there should be a bar in invoking the inherent jurisdiction of the High Court. In other words, inherent power of the Court can be exercised when there is no remedy provided in the Code of Criminal Procedure for redressal of the grievance. It is well settled that inherent power of the court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged." 13. In the case of Bhola and others Vs. State (Supra), Division Bench of High Court Allahabad has held that cancellation order of bail is an interlocutory order and it cannot escape the bar imposed in Section 397 (2) of Cr.P.C. 14. In the case of Surya Narain and others Vs. State of U.P. and others (Supra), Hon'ble Single Judge of this High Court has held that when an order has been passed under Section 439 of Cr.P.C. cancelling the bail order passed under Section 437 of Cr.P.C., the accused would have two courses open. Either he may move petition under Section 482 of Cr.P.C. challenging the validity of the cancellation order or to move application under Section 439 of Cr.P.C. before this Court for granting bail. Either he may move petition under Section 482 of Cr.P.C. challenging the validity of the cancellation order or to move application under Section 439 of Cr.P.C. before this Court for granting bail. In this Case, Hon'ble Single Judge of this High Court has also held that cancellation order of bail is an interlocutory order and revision under Section 397 of Cr.P.C. does not lie. 15. In view of above, two pronouncements of this High Court, it is apparent that cancellation of bail is an interlocutory order. 16. In the case of Sami Ullaha Vs. Superintendent, Narcotic Central Bureau (Supra), Hon'ble Apex Court has allowed the appeal and has allowed revision filed before High Court by setting aside impugned order of said revision, whereby, bail has been cancelled but perusal of this judgment shows that in this case, Hon'ble Apex Court has not specifically considered this issue as to whether cancellation order of bail is an interlocutory order. 17. In view of above case laws, if impugned bail cancellation order is an interlocutory order and revision is barred by Section 397 (2) of Cr.P.C., even then petition can be entertained under Section 482 of Cr.P.C. 18. Connect and list with Criminal Misc. Case (U/s 482 of Cr.P.C.) No.5572 of 2015.