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2016 DIGILAW 1575 (ALL)

B. K. TIWARI v. STATE OF U. P.

2016-04-27

KARUNA NAND BAJPAYEE

body2016
JUDGMENT Hon’ble Karuna Nand Bajpayee, J.—This application under Section 482 of Cr.P.C. has been filed on behalf of the applicant seeking the quashing of order dated 4.2.2016 passed by the learned Session Judge, Kanpur Nagar in Criminal Appeal No. 15 of 2016 (B.K. Tiwari v. State of U.P.) under Section 409 I.P.C., arising out of Case Crime No. 519 of 2005, Police Station-Kalyanpur, District-Kanpur Nagar and also seeking the release of the applicant on bail exercising the inherent powers of the Court under Section 482 Cr.P.C. 2. Heard Shri V.P. Srivastava, learned Senior Counsel, assisted by Shri Manish Tiwary for applicant; Shri G.S. Chaturvedi, learned Senior Counsel, assisted by Shri Shishir Tandon and Shri Rahul Agarwal appearing on behalf of opposite party No. 2 and Shri Vimlendu Tripathi, learned Additional Government Advocate for the State. 3. The background of filing this application appears to be this that the accused-applicant after facing the trial in the lower Court was convicted to undergo sentence of imprisonment for 6 years alongwith a fine of Rs. 5000/- vide judgment and order dated 23.1.2016 passed by the A.C.M.M., Court No. 2, Kanpur Nagar. Aggrieved by this judgment of conviction the accused preferred a Criminal Appeal No. 15 of 2016 in the Court of Sessions Judge, Kanpur Nagar. This appeal has been admitted and is still pending for its final adjudication. But the bail application which was moved on behalf of the accused in the lower appellate Court after conviction, has been rejected vide order dated 4.2.2016. It is this order of rejection passed by the learned Sessions Judge, which has been challenged in this Court by way of filing this application under Section 482 of Cr.P.C. 4. As the filing of an application under Section 482 Cr.P.C. and thereby invoking the inherent jurisdiction of this Court with regard to the prayers made in this application i.e., the prayer of seeking the release of accused on bail and the other prayer of seeking the quashing of bail rejection order passed by the Sessions Judge, both looked quite anomalous, a query was raised by the Court in this regard. The counsel was asked to explain as to why the normal statutory provisions to get bail as have been provided under the Code of Criminal Procedure have not been invoked and as to what has prompted or necessitated the counsel to undertake the extra-ordinary course of filing this application under Section 482 of Cr.P.C. for the purposes of seeking such conventional relief of bail. In response to the query raised by the Court, counsel appearing for the applicant has submitted that actually the same legal course was initially adopted and an application under Section 389(2) of Cr.P.C. was drafted and filed on behalf of the accused. But the same was not accepted by the Registry of this Court. The reason offered by the officials of the Registry was that till then the Registry was not having any appropriate head or the adequate category in the system of computers under which such an application may be accepted. According to the counsel, when the Registry declined to accept the application, a revision on behalf of the applicant against the impugned order was filed in the High Court as Criminal Revision No. 427 of 2016. But for certain reasons the same was not pressed and was got dismissed with liberty to seek appropriate relief from appropriate Court. Later on another Criminal Revision No. 560 of 2016 was filed on behalf of accused against the impugned bail rejection order passed by lower appellate Court. But another bench of this Court exercising the revisional jurisdiction vide its order dated 4.3.2016 was pleased to dismiss the revision after holding the same to be not maintainable. According to the counsel it was in this background that the applicant felt compelled to move present application seeking inherent jurisdiction of this Court. 5. Applicant’s counsel has been fair enough to concede that there is specific provision under Section 389(2) provided in the Code of Criminal Procedure whereby the High Court has been conferred with the powers to grant bail in such matters to an accused who has filed his appeal in lower Appellate Court after conviction. But it was primarily because of the refusal of the Registry to accept such application moved under Section 389(2) of Cr.P.C. that he had to come up to this Court seeking the extra-ordinary remedy by invoking the inherent powers of the Court. 6. But it was primarily because of the refusal of the Registry to accept such application moved under Section 389(2) of Cr.P.C. that he had to come up to this Court seeking the extra-ordinary remedy by invoking the inherent powers of the Court. 6. Shri G.S. Chaturvedi, learned senior counsel appearing for opposite party has also been heard who too has emphasized upon the applicability of aforesaid Section 389(2) of Cr.P.C. in such matters and has also reiterated the same legal aspect of the matter. It was submitted that the Registry should be directed to take necessary steps in this regard which must accept the proper application under proper provisions of law in this regard. 7. It shall also not be out of place to mention here at this stage that when the matter was placed before this Court for the first time the Court had thought it fit to call the officials of registry in this regard in order to ascertain correct factual situation. The officials did not contradict the information furnished by the senior counsel and the Court was made to know that the application of the applicant moved under Section 389(2) of Cr.P.C. was indeed not accepted by the registry for want of the necessary systems in computer. 8. I have perused the entire record in the light of the submissions made at the bar and have also heard Shri Vimlendu Tripathi, learned A.G.A. 9. It may be relevant to extract the relevant provisions in this regard, which read as under : 389. Suspension of sentence pending the appeal; release of appellant on bail. (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. [Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offfence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release: Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.] (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. (3) .................... (4) ..................... 10. A bare perusal of the aforesaid provisions would be sufficient to indicate that the power with regard to granting or rejecting the bail exercisable by the lower appellate Court can very well be exercised by the High Court also, by virtue of sub-section (2) of Section 389 of Cr.P.C. If an appeal by a convicted person is filed in a Court subordinate to High Court then the powers which the subordinate Court of appeal would exercise are concurrent with the powers of the High Court in this regard by virtue of 389(2) of Cr.P.C. In fact just as has been provided by Section 439 of Cr.P.C. that a High Court or a Court of Session both may direct the release of an under trial accused on bail, similarly in case of an appeal filed by a convicted accused also the power of the subordinate appellate Court with regard to bail can also be exercised by the High Court to whom the lower appellate Court is subordinate to. There does not appear to be any ambiguity with regard to the aforesaid provisions. 11. There does not appear to be any ambiguity with regard to the aforesaid provisions. 11. This Court is also in complete agreement with the view taken by another Bench of this Court that the remedy to get bail cannot be obtained by the accused by way of filing a revision against the bail rejection order. The same has been rightly held to be an interlocutory order. When an under trial accused approaches this Court after getting his bail rejected from the Sessions Court and when the High Court grants bail to him, it is not in exercise of any revisional jurisdiction under Section 397 of Cr.P.C. but it is under Section 439 of Cr.P.C. that the High Court acts. Bail is granted by the High Court on the strength of its own independent powers to grant bail which have been bestowed upon it by the legislature. 12. So far as the refusal of Registry to accept the application moved on behalf of the convicted accused under Section 389(2) of Cr.P.C. is concerned, the same cannot be vindicated on the ground of any pragmatic difficulties which the Registry might be facing in this regard. If appropriate categories have not been carved out in this regard as yet, the Registry can always do so now. If appropriate systems are to be generated or improvised upon in this regard the same must also be done by the Registry. If there is a statutory remedy provided under law, it is the right of a person to invoke and seek the same. This Court does not feel persuaded to invoke or exercise its inherent jurisdiction for the purposes of granting the normal statutory reliefs which have been provided under law. The statutory schemes of law and the statutory remedies cannot and should not be bypassed in ordinary course. The inherent jurisdiction under Section 482 of Cr.P.C. is little known to be used for the purposes of releasing an accused on bail. There are sufficient statutory provisions provided for this purpose in the Code of Criminal Procedure and they must be adhered to. In this regard the alleged inconvenience which the Registry might confront in generating the requisite systems or in doing the needful in this regard cannot constitute a good ground for this Court to exercise its inherent jurisdiction. 13. There are sufficient statutory provisions provided for this purpose in the Code of Criminal Procedure and they must be adhered to. In this regard the alleged inconvenience which the Registry might confront in generating the requisite systems or in doing the needful in this regard cannot constitute a good ground for this Court to exercise its inherent jurisdiction. 13. It is almost ironical and not little embarrassing to see that an accused in custody has been shuttling from pillar to post, from one Court to another in the quest of justice for no fault which may be attributed to him. The period of incarceration is being perpetuated not because the Court has not found it fit to release him on bail but because the existing technical systems generated in the computers could not prove equal to the requirement of the situation. The registry must rise to the occasion and address the problem in right earnest. This Court can ill-afford to impart this impression to anyone, be he the victim or the accused, that the door’s of justice were not kept ajar for him. 14. This application, therefore, is being disposed off with the direction to the Registry of this Court to take necessary steps in this regard and do the needful forthwith. If a proper application under Section 389(2) of Cr.P.C. is moved by the accused-applicant the same shall be accepted by the Registry and shall be dealt with accordingly. 15. Office to place a copy of this order before the Registrar General, High Court, Allahabad forthwith for necessary compliance.