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2016 DIGILAW 821 (ALL)

B. K. Tiwari v. State of U. P.

2016-03-04

OM PRAKASH VII

body2016
JUDGMENT Om Prakash-VII,J. This criminal revision is directed against the order dated 4.2.2016 passed by learned Sessions Judge, Kanpur Nagar in criminal appeal no.15 of 2016 whereby the bail application moved on behalf of the revisionist in criminal appeal no.15 of 2016 has been rejected. 2. Heard Sri Manish Tiwary, learned counsel for the revisionist, Sri G.S. Chaturvedi, learned senior advocate assisted by Sri Rahul Agarwal and Sri Shishir Tandon, learned counsel for the informant and learned A.G.A. for the State. 3. Submission of the learned counsel for the revisionist is that the instant revision is maintainable. It cannot be treated as second revision, as the first revision was dismissed as not pressed with liberty to seek appropriate relief from the appropriate court. It is further submitted that the bail application of the applicant was rejected in criminal appeal no.15 of 2016 (B.K. Tiwari Vs. State of U.P.) under section 409 IPC pending before the Sessions Judge, Kanpur Nagar. Hence, order passed by the court below is revisable and the revision is maintainable. 4. At this juncture, learned counsel for the revisionist also referred to the provisions of sections 389 and 401 Cr.P.C. and submitted that under the Code of Criminal Procedure, it is clearly provided that the power vested in the appellate court under section 389 Cr.P.C. could be exercised by the revisional court in revision also. Hence, present revision is maintainable and it cannot be treated as second revision. 5. Sri Chaturvedi, learned senior counsel appearing for the opposite party no.2 argued that criminal revision is not maintainable as the order under challenge is an interlocutory order. 6. At this juncture, learned counsel for the opposite party no.2 referred to the paragraph 5 of the law laid down by the Division Bench of this Court in the case of Bhola Vs. State reported in 1979 LawSuit (All) 30, which is quoted below, and submitted that order granting, rejecting or cancelling the bail is an interlocutory order and it cannot be challenged by way of revision. "5. What is an 'interlocutory order' within the meaning of Section 397 (2) of the Code, has been considered in detail by the Supreme Court in Amar Nath Vs. State of Haryana and Madhu Limaye Vs. State of Maharashtra referred to by the learned Counsel for the parties. "5. What is an 'interlocutory order' within the meaning of Section 397 (2) of the Code, has been considered in detail by the Supreme Court in Amar Nath Vs. State of Haryana and Madhu Limaye Vs. State of Maharashtra referred to by the learned Counsel for the parties. The Supreme Court has held that though the expression 'interlocutory order' has not been used in Section 397 (2) of the Code in the restricted sense of an order which is converse to the term 'final order' as in that case it would almost have rendered nugatory the revisional powers of the Court of Session or the High Court conferred by Section 397 (1) of the Code, an order which does not decide any of the matters in dispute, or substantially decide any vital issue in the case against the accused touching the merits of the case or the rights of the parties, will be an 'interlocutory order.' It has been observed that it is not possible to make a catalogue of orders to demonsrate which would be purely 'interlocutory orders' within the meaning of S, 397 (2) of the Code and that whether an order is an 'interlocutory order' has to be adjudged keeping in view its effect on the questions or rights of the parties involved in the case. In our view, an order cancelling bail granted to an accused does not in any way affect the questions involved in the criminal case pending against the applicants or the rights of the parties in relation to any of the questions that may be involved in that case. It may be that an order of cancellation of bail deprives an accused of his liberty and for him it may be a matter of moment, but because of the reasons discussed, it cannot escape the bar imposed by Section 397 (2) and is purely an 'interlocutory order'. It may be mentioned that in Amar Nath Vs. State of Haryana (supra), while giving examples of what is an 'interlocutory order1 within the meaning of S, 397 (2) of the Code, the Supreme Court mentioned 'passing orders for bail'. In our opinion 'passing orders for bail' would include 'granting, rejecting or cancelling bail'. It may be mentioned that in Amar Nath Vs. State of Haryana (supra), while giving examples of what is an 'interlocutory order1 within the meaning of S, 397 (2) of the Code, the Supreme Court mentioned 'passing orders for bail'. In our opinion 'passing orders for bail' would include 'granting, rejecting or cancelling bail'. We may repeat that nothing could be brought to our notice due to which it could be said that the impugned order was passed substantially touching some aspect of the case or the merits of the case pending against the accused or affecting some vital question involved in the case." 7. It is further contended that revisionist had earlier filed a criminal revision no.427 of 2016, which was dismissed vide order dated 18.2.2016 with liberty to seek appropriate relief from the appropriate court. It clearly shows that the court concerned was of the view that revision was not maintainable. 8. I have considered the rival submissions raised by the learned counsel for the parties on the point of maintainability of the revision and have gone through the entire record. 9. A perusal of the record would show that order under challenge in the instant revision is the order passed by the court below on the bail application moved in criminal appeal no.15 of 2016 pending in the court of Sessions Judge, Kanpur Nagar whereby the bail application of the revisionistppellant was rejected vide order dated 4.2.2016. Thus, the question is whether revision could be filed against the order rejecting the bail application taking recourse of the provisions of section 389 (1) & (2) Cr.P.C. 10. As is apparent from the record itself that earlier applicant's revision was dismissed as not pressed on 18.2.2016 with liberty to seek appropriate relief from the appropriate court. Without entering into this question that earlier revision filed by the revisionist was dismissed as above and on that ground the present revision would be maintainable or not, the Court proceeds to decide whether criminal revision could be filed against the order under challenge or not. 11. As has been quoted above in paragraph 5 of the Bhola's case (supra), the order passed on the bail application whether granting, rejecting or cancelling the bail does not come under the purview of section 397 / 401 Cr.P.C., thus criminal revision against such order is not maintainable. 11. As has been quoted above in paragraph 5 of the Bhola's case (supra), the order passed on the bail application whether granting, rejecting or cancelling the bail does not come under the purview of section 397 / 401 Cr.P.C., thus criminal revision against such order is not maintainable. So far as the submission raised by the learned counsel for the revisionist regarding applicability of provisions of Section 389 (1) & (2) Cr.P.C. is concerned, intention of the Statute is very much clear that power exercised by the appellate court under section 389 (1) & (2) Cr.P.C. could also be exercised by the revisional court. It is made clear that this situation will arise only when the criminal revision is maintainable against the impugned order. 12. In view of the law laid down by the Apex Court as has been discussed by the Division Bench of this Court in the case of Bhola (supra), criminal revision against the order passed on the bail application whether allowing, rejecting or cancelling the bail is not maintainable. 13. In this factual and legal situation, the present revision, being not maintainable, is liable to be dismissed at this stage itself and it is accordingly dismissed.