Research › Search › Judgment

Madhya Pradesh High Court · body

2020 DIGILAW 1231 (MP)

Aniruddh Khehuriya v. State of M. P.

2020-11-24

VISHAL DHAGAT

body2020
ORDER 1. Petitioner has filed this petition under section 482 of Code of Criminal Procedure making a prayer for modification of order dated 29.8.2020 passed in Bail Application No. 1219/2020 and order dated 1.10.2020 passed in Bail Application No. 1448/2020 by Special Judge, Sagar (MP). 2. Petitioner Anirudh Khehuriya had filed an application for grant of bail under section 439 of Code of Criminal Procedure in Crime No. 305/2020 for offences punishable under sections 420 and 34 of Indian Penal Code. Learned trial Court allowed the application for bail on condition that applicant will deposit an amount of Rs.75,000/- in CCD. Thereafter, another application was filed before the Court stating therein that petitioner is a poor person and he cannot deposit Rs.75,000/-, therefore, condition to deposit the amount shall be scrapped by the Court. 3. Learned Court dismissed the application on the ground that changing of condition in bail order will amount to reviewing earlier order and there is no power of review, therefore, application was rejected. 4. Petitioner has approached this Court by filing the present petition under section 482 of CrPC making a prayer to modify order dated 29.8.2020 and order dated 1.10.2020. 5. It is submitted by the counsel for the petitioner that petitioner is a poor person and he cannot deposit Rs.75,000/-, therefore, said condition may be modified and he is ready to comply with rest of the conditions imposed upon him. 6. Heard the counsel for the petitioner as well as respondent. 7. Before adverting to merits of the case, relevant provisions for deciding the issue are as under : 8. Section 362 of Code of Criminal Procedure provides as under : "362. Court not to alter judgment -- Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error." 9. Court not to alter judgment -- Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error." 9. Section 439(1)(b) of Code of Criminal Procedure reads as under : "439(1) A High Court or Court of Session may direct- (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified : Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reason to be recorded in writing, of opinion that is not practicable to give such notice." 10. Section 437(5) of Code of Criminal Procedure reads as under : "(5) Any Court which has released a person on bail under sub-section (1), or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody." 11. Section 439(2) of Code of Criminal Procedure reads as under : "(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody." 12. The High Court of Karnataka in case of Brijesh Singh and etc. v. State of Karnataka and etc. reported in 2002 Cri.L.J. 1362 has held as under : "13. As regards compentency of the learned Sessions Judge to entertain revision against the order dated 12.7.2001 of the learned Magistrate in so far as it related to the bail for the husband, I find sufficient legal force and weight in the contention of Mr. M. T. Nanaiah. In the first instance, it must be pointed out that the argument of Smt. Pramila Nesargi for the wife highlighted to impress upon the Court that the trial Magistrate had no power to pass the subsequent order dated 12.7.2001 altering or amending or deleting the conditions of the earlier bail order dated 16.6.2001 in any manner whatsoever is unacceptable. In the first instance, it must be pointed out that the argument of Smt. Pramila Nesargi for the wife highlighted to impress upon the Court that the trial Magistrate had no power to pass the subsequent order dated 12.7.2001 altering or amending or deleting the conditions of the earlier bail order dated 16.6.2001 in any manner whatsoever is unacceptable. Of course, sub-section (2) of section 437, Cr.P.C., under which the application was filed by the husband, does not confer any such power on the learned Magistrate. But then, sub-section (5) impliedly confers such power on him. This provision reads : "(5) Any Court which has released a person on bail under sub-section (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody." Once by this provision in section 437, CrPC when the learned Magistrate is conferred with the power to cancel his order, then, as a logical corollary, it follows that he does have the power as well to amend or effect necessary alterations, short of cancellation, in the earlier bail order passed by him. Then, it is needless to state that any bail order passed by a trial Court is an interlocutory order within the meaning of sub-section (2) of section 397, CrPC (vide Usmanbhai Dawoodbhai v. State of Gujarat (1988) 2 SCC 271 : ( AIR 1988 SC 922 ). Therefore, the contrary view taken by the learned Sessions Judge in his impugned order that the order of the learned Magistrate dated 12.7.2001 passed modifying his earlier order dated 16.6.2001 was without jurisdiction and was, therefore, subject to revision before him, is wholly erroneous. In that view of the legal position, the learned Sessions Judge ought not to have entertained the State's revision in CrRP No. 218/2001 by which the modified bail order of the learned Magistrate was challenged. As a necessary legal consequence, the order of the learned Sessions Judge dated 26.7.2001 passed setting aside the order dated 12.7.2001 of the learned Magistrate, by allowing the State's revision in CrRP No. 218/2001, is obviously an order without jurisdiction and is of no effect in the eye of law. The resultant legal position, therefore, would be that the order dated 12.7.2001 of the learned Magistrate passed in modification of his earlier order dated 16-6-2001 stands unaffected. The resultant legal position, therefore, would be that the order dated 12.7.2001 of the learned Magistrate passed in modification of his earlier order dated 16-6-2001 stands unaffected. Therefore, the husband's CrP No. 2571/2001 is entitled to succeed, without more." 13. Considering the aforesaid provisions of law and also the judgment passed by the High Court of Karnataka in matter of Brijesh Singh (supra), I am of considered opinion that section 439(1)(b) of CrPC is enabling provision which gives express power to High Court and Court of Session to modify or alter the conditions imposed by Magistrate while grating bail. High Court and Sessions Court cannot modify or alter the conditions of bail order passed by it by a subsequent order. The High Court of Karnataka has held that since sections 437(5) and 439(2) of CrPC give power to concerned Court, if it considers necessary, to direct a person who is released on bail to be arrested and commit him to custody, therefore, there is implied power to the concerned Court to modify or alter the conditions imposed in the bail order. I do not agree with the law laid down by the Single Bench of Karnataka High Court in matter of Brijesh Singh (supra). Legislature has expressly and directly provided power to change the condition of bail order passed by a Magistrate to the Court of Sessions and High Court. If legislature intended that Magistrate can also alter or change the condition of the bail order passed by it than such power could have been provided to the Magistrate. Since Legislature has not expressly given power to Magistrate to change or alter the conditions of bail order, such power cannot be exercised by Magistrate impliedly under section 437(5) and 439(2) of CrPC. 14. Though bail order in an interlocutory order, but it has to be kept in mind that CrPC does not provide power of review to Courts exercising power under criminal jurisdiction and same has been provided to Courts exercising civil jurisdiction. Section 362 of CrPC is mandatory in nature and it provides that only clerical and arithmetical errors can be corrected in judgments signed or in final order disposing off a case. Final order and judgment shall not be reviewed but only for arithmetical or clerical errors. Condition of bail order is not a clerical or arithmetical error. Section 362 of CrPC is mandatory in nature and it provides that only clerical and arithmetical errors can be corrected in judgments signed or in final order disposing off a case. Final order and judgment shall not be reviewed but only for arithmetical or clerical errors. Condition of bail order is not a clerical or arithmetical error. Said condition is intentionally imposed by the Court granting bail to an accused person. Though, altering or modifying the condition will not change the tenor of bail order and order will remain same even if condition attached to bail is altered or reviewed, but such power has not expressly been provided to the Court which has passed the order. Therefore, power not directly and expressly provided to a Court cannot be said to be impliedly provided under section 437(5) and 439(2) of CrPC Moreover, section 439(1)(b) expressly gives power to High Court and Sessions Court to alter or modify the condition of bail order passed by Magistrate. Court after deciding bail application become functus-officio. 15. In these circumstances, I do not find any error in the order dated 1.10.2020 passed in Bail Application No. 1448/2020. Sessions Court has rightly refused to modify the condition of bail order. 16. Though petitioner ought to have filed an application under section 439(1)(b) of CrPC for modification or deletion or alteration of condition of bail order, but, petitioner has filed present petition under section 482 of CrPC for modifying the condition. In such circumstances, without entering into the technicalities of the issue, as the matter relates to liberty of petitioner who is in jail in spite of bail order, I find it fit to interfere in the matter and delete the condition mentioned in bail order to deposit Rs.75,000/- in CCD, as imposed upon the petitioner vide order dated 29.8.2020. 17. In this view of the matter, this miscellaneous petition is disposed off and condition to deposit Rs.75,000/- in CCD mentioned in order dated 29.8.2020 passed in Bail Application No. 1219/2020 is deleted. The trial Court shall forthwith release the petitioner on furnishing bail bonds to the satisfaction of the trial Court. Naveen Giri Goswami for applicant, H.S. Hora, Panel Lawyer for respondent/State.