Skip to content


Bhanwar Lal and Dhan Raj Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Crim. Misc Application Nos. 70, 71 and 189 of 1978
Judge
Reported in1978(11)WLN546
AppellantBhanwar Lal and Dhan Raj
RespondentState of Rajasthan
Cases ReferredMadhu Limaye v. State of Maharashtra
Excerpt:
criminal procedure code - section 438 anticipatory bail order granting anticipatory bail is interlocutory & not final--bar of section 362 is not attracted.;the order granting anticipatory bail under section 438 of the code is merely an interlocutory order and not a final order within the meaning of section 362 of the code.;i accordingly hold that bar of section 362 of the code is not attracted as the order dated june 9, 1978 passed by the learned vacation judge is merely an interlocutory order.;(b) criminal procedure code - section 482 and 438--conditions laid down in section 482 satisfied--held court is empowered to modify order granting anticipatory bail--condition requiring to deposit rs. 15000/- with investigating officer be recalled.;i am of opinion that if any one of the.....s.k. mal lodha, j.1. i have heard all these three connected applications together and propose to decide them together by a common order. first of all, i deal with s.b. crime misc. application no. 71 of 1978.2. a resume of events leading to this application may be briefly noticed. the manager of the state bank of bikaner and jaipur, branch officer, pali, lodged a first information report before the station home officer, pali, on june 6, 1978, under sections 420, 467 and 458 of the indian penal code against the applicant and his father dan raj. it was alleged in that report that this firm m/s chandmal dhanraj dharoliya which is a partnership firm and whose partners amongst; others are applicant and his father dhanraj was having bill purchase account with the aforesaid bank. while operating.....
Judgment:

S.K. Mal Lodha, J.

1. I have heard all these three connected applications together and propose to decide them together by a common order. First of all, I deal with S.B. Crime Misc. Application No. 71 of 1978.

2. A resume of events leading to this application may be briefly noticed. The Manager of the State Bank of Bikaner and Jaipur, Branch Officer, Pali, lodged a first information report before the Station Home Officer, Pali, on June 6, 1978, under Sections 420, 467 and 458 of the Indian Penal Code against the applicant and his father Dan Raj. It was alleged in that report that this firm M/S Chandmal Dhanraj Dharoliya which is a partnership firm and whose partners amongst; others are applicant and his father Dhanraj was having bill purchase account with the aforesaid Bank. While operating the bill purchase account, the applicant took an advance of Rs. 14211.36 P. from the aforesaid bank on April 26, 1976 against the four Hundis and the relevant purchase vouchers, insurance declarations etc. It is further alleged that the entire documents were sent through the State Bank of India, Rohtak. As the consignee did not retire the documents by making the payment of the amount to the State Bank of India, Rohtak, it (State Bank of India, Rohtak) returned the unpaid Hundis and the relevant documents. As a result of this, Rs. 14241.36 were not credited to the account of M/S Chandmal Dhanraj Dharoliya. The amount of Rs. 14241.36 P, which was paid in advance by the aforesaid Bank on April 26, 1976, was thus not credited, This led to the lodging of the first information report against the applicant as well as his father under Sections 420, 467 and 468 IPC. The applicant Bhanwarlal and his father Dhanraj submitted an application under Section 438 CrPC. The application under Section 438 CrPC was submitted on behalf of the applicant and his father Dhanraj by Shri Deep Chand Sharma, Advocate. It needs to be mentioned here that power of attorney to Shri Deep Chand Sharma was given by the applicant alone. This application came up for orders before the learned Vacation Judge on June 9, 1978. The learned Vacation Judge passed the following order,-

I have heard the learned Counsel for the parties The principal contention of Mr. Deep Chand is that it has been a civil dispute which has been converted into a criminal case. He further submits that he is prepared to deposit Rs. 15000/-, in the first instance for being paid to the complainant.

3. In view of the facts and circumstances of this case, it is ordered that the petitioners, if arrested, would be kept on bail in case they submit two sureties of Rs. 15000/-, each, and a personal bond of Rs. 30000/-, each to the satisfaction of the Munsiff Magistrate, Pali. This would be on the condition that they first deposit Rs. 15000/- with the Investigating Officer who would pay it to the complainant under proper receipt to be given to the accused after verification by the Station House Officer. The bail bonds would contain the following conditions:

(a) the petitioners would produce themselves before the investigation agency for interrogation or investigation as and when called upon;

(b) that they would further appear before the court as and when called upon;

(c) they would not tamper with the evidence and would not intimidate the witnesses;

(d) they would not leave India without the permission of the trial court.

4. Thereafter, on behalf of the applicant's father (Dhanraj), an application under Section 482 of the Code was moved by Shri Bilam Chind Mehta, Advocate on June 13, 1978 with the following prayer.-.prayed to either review or amend the order of this Hon'ble Court dated 9th June, 1978, while exercising the power under Section 482 CrPC to maintain the order in question of the fact relating to release of the petitioner on bail and by deleting the order in respect of discharging liability of Rs. 15000/- by the petitioner or to pass the suitable order which this Hon'ble Court deems proper and reasonable in the interest of justice.

This application was registered as S.B. Crime Misc. Application No. 70 of 1978 Another application was moved on behalf of the applicant's father on June 14, 1978 under Section 438 of the Code praying that 'a direction may be given to the Judicial Magistrate, First Class, Pali, to enlarge the petitioner on bail in the event of his arrest.' This application was registered as - S.B. Crime Bail Application No. 189 of 1978.

5. After passing of the order dated June 9, 1978, Shri M.C. Bhandari on behalf of the applicant had moved this application under Section 482 of the Code on June 15, 1978, as aforesaid,

6. The order granting anticipatory bail was passed by the learned Vacation Judge as mentioned above on June 9, 1978 which was his last sitting day in the Court in summer vacation This application along with the aforementioned two applications came up for Orders before me as I was appointed by the Hon'ble Chief Justice as Vacation Judge from June 12, 1978. Rule 65 of the Rajasthan High Court Rules, 1952 provides that no application to the same effect or with the same object as a previous application upon which a Bench has passed an order shall 'ordinarily' be heard by any other Bench. In other words, subsequent application on the same subject is to be heard by the same Bench. In the exercise of the power under Sub-section (2) of Section 10 of the Rajasthan High Court Ordinance, 1949 read with Sections 54 and 57 of the States Reorganisation Act, 1956, the learned Judge was nominated to sit at the Jaipur Bench from July 3, 1978 by the Hon'ble Chief Justice In these circumstances, it was not possible that these applications could have been heard by the learned Judge who passed the order dated June 9, 1978. The word 'ordinarily' came up for consideration before the Full Bench of the Andhra Pradesh High Court, in In re Putta Ranganayakalu A.I.R. 1956 A.P. 161. K. Subba Rao C.J. (as he then was) stated as follows,-

The words 'will ordinarily be heard by a Bench of two Judges' are clear and unambiguous and they cannot mean 'always'.

The question again arose before another Full Bench of the Andhra' Pradesh High Court in Public, Prosecutor Andhra Pradesh, v. Devireddi Naggi Reddi A.I.R. 1962 A.P. 4479 and the same view was reiterated, the same view was followed by the Madhya Pradesh High Court in Shyam Bihdri v. State of Madhya Pradesh 1973 Cr.L.J. 1673. While interpreting Rule 1(q)(iv) of the Rules of that court it was observed that the word 'ordinarily' in Rule 1(q)(iv) of the High Court Rules cannot mean 'always' Because of the aforesaid reasons, I was persuaded to hear arguments on these applications and to dispose them of. Learned Public Prosecutor raised a preliminary objection before me that this application is not maintainable under Section 482 of the Code in respect of the prayer made by the applicant in his application. According to the learned Public Prosecutor, the order passed by the learned Vacation Judge on June 9, 1978, which has been reproduced above, is a 'final order' under Section 362 of the Code and this order being final, amounted to disposing of the case and it cannot be altered or reviewed except to correct a clerical or arithmetical error. Learned Counsel for the applicant, however, argued that disposing of an application for grant of anticipatory bail under Section 438 of the Code is not a final order' and as such, Section 362 of the Code will not be a bar In this connection reliance was Dialed by him oh In re Balasundara Pavalar A.I.R. 11951 Madras 77, Dhola v. The State 1975 R.L.W. 22, Thukur Hariprasad v. State of A.P. 1977 Cr.L.J. & Jamodar Das Babaji v. Harihar Nahak and Ors. 19777 Cr.L.J. 1392. It was also submitted by him that even if Section 362 is held to be applicable, still Section 482 of the Code can be invoked provided the conditions mentioned therein are satisfied.

7. The first question That arises for my consideration is whether, an order granting anticipatory bail is a 'final order' within the meaning of Section 362 of the Code or not. Scope and applicability of Sections 397(2) and 482 of the Code came up for consideration before their Lordships of the Supreme Court in Amar Math v. State of Haryana and Ors. : 1977CriLJ1891 . Their Lordships, while considering the term 'interlocutory order' used in Section 397(2), observed as follows,-

The term 'interlocutory order' is a term of well-known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code 6f Civil Procedure, Letters Patent of the High Courts and others like statutes. In Webster's New World Dictionary 'interlocutory' has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term 'interlocutory order' is Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important lights or the liabilities of the parties Any order which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would. He under Section 397(2) of the 1973 Code.

(emphasis added)

In Dhola v. State 1975 R.L.W. 22, while considering the import of the expression 'interlocutory order', Beri, C.J., (as he then was), made the following observations,

On the basis of the aforesaid survey, it is reasonable to say that an interlocutory order is one which is passed at some intermediate stage of a proceeding generally to advance the cause of justice for the final determination of the rights between the parties. I see no reason to hold that the expression 'interlocutory order' changes its complexion when applied to the Code of Criminal Procedure, and on the touch-stone of the authorities mentioned above. I am inclined to be of the view that the grant or refusal of a bail application is essentially an interlocutory order. My reasons briefly are that an accused is usually enlarged on bail in non-bailable cases to enable him to defend himself adequately and thereby assist the cause of justice. It is ordinarily, at some intermediate stage between the commencement and the end of criminal cases that it is granted and further that it is open to re-call or modification and it does not determine the guilt or innocence of the accused and thus fulfils all the characteristics usually attached to an interlocutory order.

(emphasis added)

8. The question whether orders granting bail or refusing bail or car calling bail are interlocutory or not came up for decision before the Andhra Pradesh High Court. In Thakur Hariprasad v. State of A.P. 1977 Cr.L.J. 471, it was held that the orders granting bail or refusing bail or canceling bail are merely interlocutory orders and as such, they cannot be revised by the superior court in view of the bar under Section 397(2) and that is why regarding the question of bail, the Legislature has invested the High Court and the Court of Sessions with special powers regarding bail under Section 439.

9. From the authorities referred to above, it is therefore clear that the order granting anticipatory bail under Section 438 of the Code is merely an interlocutory order and not a 'final order' within the meaning of Section 362 of the Cede. In these circumstances, the preliminary objection raised by the learned Public Prosecutor to the effect that the present application under Section 482 is not maintainable in view of Section 362, is overruled, I accordingly hold that bar of Section 362 of the Code is not attracted as the order dated June 9, 1978 passed by the learned Vacation Judge is merely an interlocutory order.

10. At this stage, I may read Section 362 of the Code,

362 Court not to alter judgment.

Save as other wise 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.

The alternative submission of the learned Counsel for the applicant is that even if Section 362 of the Code is held to govern the order dated June 9, 1978, still the provisions of Section 362 should be read as subject to other provisions of the Code. Section 482 of the Code (corresponding to Section 561A of the Code of Criminal Procedure, 1898) deals with the inherent powers of the Com t for making such orders as maybe necessary (i) to give effect to any order passed under the Code or (ii) to prevent abuse of the process of any court or (iii) otherwise to secure the ends of justice Learned Counsel for the applicant in this connection placed reliance upon Ganesh v. State of Rajasthan 1968 Cr.L.J. 1672, Lal Singh and Ors. v. State and Ors. , Mahesh v. State A.I.R. 1945 P.C. 94 and Damodar Das Babaji v. Hari Nahak and Ors. . Mr. M.D. Purohit, learned Public Prosecutor on the other hand, on the basis of the decisions reported Lata Jairam Das and Ors. v. Emperor A.I.R. 1945 P.C. 94; Dhanna and Ors. v. State of Rajasthan , Talab Haji Hussain v. Madhukar and Ors. : 1958CriLJ701 and P. Kanak Kanhimangala v. The Food Inspector Cannaore Municipality A.I.R. 1985 Kerala 37 contended that Section 482 of the Code cannot be invoked for review OT reconsideration of the order once made. There is a sharp cleavage of judicial opinion on this point. Some of the courts have taken the view that the High Court has no such power. The other High Courts namely the High Courts of Allahabad, Madhya, Bharat, Mysore, Punjab, Madras, Kerala, Patna, Rajasthan, Oudh Chief Court and the Himachal Pradesh Judicial Commissioner's Court have taken the view that Section 561A of the Code of Criminal Procedure 1898 (Section 482 of the Code) confers such powers. It may also be mentioned that the Bombay High Court has held that no power to review exist, unders Section 561A of the Code of Criminal Procedure, 1898, except where the previous judgment was rendered without jurisdiction, or it was in violation of the principles of natural justice or where it was obtained by an abuse of the powers of the court. A somewhat similar view was taken by the Madhya Pradesh High Court. In Sri Ram and Anr. v. Emperor A.I.R. 1948 All. 106, the Allahabad High Court took the view that the High Court indisposing of an application for revision when overlooked a mandatory provision of law contained in a certain Ordinance and when this was brought to the notice of the High Court, it has power to set aside its previous order holding that it had inherent power to do so and that such inherent power was covered by the express words 'save as otherwise provided by this Code' and therefore in exercising such power, the High Court was not doing anything which was in conflict with the provisions of Section 369 of the Code of Criminal Procedure, 1898, now Section 362 of the Code. The question that arose before the Allahabad High Court in Jagannath Singh v. Bidheshi and Ors. : AIR1955All712 was whether the High Court has a power to revoke, review recall or alter its own earlier decision passed in the exercise of its revisional jurisdiction and rehear the same. The majority (Mootham, C.J. Contra) held that an inherent power implies by its very nature a power that cannot be expressed in terms but which must reside in a court for achieving the higher and the main purpose of a court, namely, the purpose of doing justice in a case before it and for seeing that the act of the court does no injury to any of the suitors. The learned Judges were of the opinion that the circumstances requiring the use of such a power cannot be foreseen. According to them, the Legislature enacts provisions to meet such circumstances which can be foreseen. Once provision has been made in the statute on account of certain circumstances, the action to invoke inherent power in that circumstances practically vanishes. An occasion to invoke the inherent power will not then arise for the simple reason that when the court has provided for that contingency, that provided method must be considered and any other method thought of by the court cannot then be said to be a method which would advance the interest of justice. It is in this sense that no occasion for the exercise of any inherent power arises when the statute expressly or by necessary implication provides for action to be taken in that situation The matter again came up for consideration before the Full Bench of the Allahabad High Court consisting of five learned Judge in Mahesh v. Stale 1971 Cr.L.J. 1674 Para 23 may be reproduced:

Briefly speaking, therefore, the inherent power under Section 561-A, Criminal PC cannot be invoked in respect of any matter covered by the specific provisions of the Code, nor can it be exercised contrary to or inconsistent with such provisions. It is only when the matter is not covered by the provisions of the Code that the inherent power under Section 561-A, can be availed of for doing justice in the cases or for preventing the abuses of the process of the Court. The inherent power cannot be exercised to do what the Code prohibits, expressly or by implication, the Court from doing. Prohibitions cannot be presumed where there exists no express prohibition the Court shall have to see whether prohibition can be implied from the various provisions of the Code. Further, when no provision exists in the Code to govern certain matter, it shall have to be considered whether the omission is deliberate or is by oversight or inadvertence. The inherert power cannot affect the substantive rights. It can be invoked only to lay down the procedure in cases not covered by the provisions of the Code The inherent power is to be exercised in exceptional cases, and even then carefully and with caution, when there is no other remedy which can be effectively availed of. The High Court will also be justified to exercise its inherent power in those exceptional cases which could not be in the mind of the legislature at the time of enacting the Code even though for usual cases a provision was made therein. Whenever the inherent power is exercised, it shall be for one of the three purposes mentioned in Section 561-A, Criminal PC, that is, to give effect to an order under the Code, or to prevent the abuse of the process of the Court or to secure the ends of justice.

In Garesharam v. State of Rajasthan 1968 Cr.L.J. 1672 V.P. Tyagi J. (as he then was), in para 7 of the report observed as under:.it only saves such inherent power which the Court possessed before the Cede of Criminal Procedure was enacted. If such a power is so included it can be exercised for the purposes mentioned in the section and it would be a matter for determination by the Court in each individual case whether the circumstances obtaining in that case make out that purpose and make it incumbent on the Court to exercise such a power to achieve the objects mentioned in the section.

I respectfully agree with the view expressed by the Allahabad High Court and V.P. Tyagi J. (as he then, was) in the decisions referred to above. While considering the provisions of Section 482 and 397(2) of the Code their Lordships of the Supreme Court in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 laid down the following principles in relation to exercise of the inherent power of the High Court.

(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;

(2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;

(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.

Therefore, I am of opinion that if any one of the conditions laid down in Section 482 of the Code is satisfied, then in exercise of the inherent power under Section 482, this Court has power to modify the order passed on June 9, 1978, which has been reproduced above. The application was moved by Mr. Deep Chand Sharma on behalf of the applicant as well as his father Dhanraj Under Section 438 of the Code which provides for grant of bail to a person apprehending arrest Sub-section (2) of Section 438 provides that when the High Court or the Court of Sessions considers necessary to make a direction for releasing the person accused of having committed a non-bailable offence in the event of arrest, it may include such conditions in such directions in the light of the facts of that case as it may consider proper including,-

(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or 10 any police officer;

(iii) a condition that the person shall not leave India without the previous permission of the Court;

(iv) such other condition as maybe imposed under Sub-section (3) of Section 437, as if the bail were granted under that section.

Now, let me refer to the condition that can be imposed under Sub-section (3) of Section 437 of the Code. Sub-section (3) of Section 437 amongst others provides that the Court may impose any condition which the Court considers necessary.

(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or

(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or

(c) otherwise in the interest of justice.

The case of the applicant is that the condition relating to the deposit of Rs. 15000/- was made because of erroneous assumption According to him, it has been made ignoring the circumstances in which submission relating to the readiness to deposit the money was made. This condition is onerous and should be recalled and the order dated June 9, 1978 should be modified to secure the ends of justice. A perusal of the order dated June 9, 1978 shows that Mr. Deep Chand Sharma learned Counsel for the applicant during the course of arguments submitted that there is a civil dispute which has been converted in to a criminal case and that he is prepared to deposit Rs. 15,000/- in the first instance for being paid to the complainant. Learned Counsel for the applicant is correct when be contends that the circumstances under which the order dated June 9, 78 has been made should be considered and if the court finds that those circumstances do not warrant such an order, inherent power to recall that order can be exercised. An alternative submission was made that on paying the entitle amount to the complainant, the complainant bank should be directed to return the goods received under the documents consignment notes handed over by the application. Having regard to the circumstances and the events leading to the filing of the application Under Section 438 of the Code for grant of anticipatory bail, it appears to me that the learned Counsel Shri Deep Chand Sharma had made an alternative submission which I have referred to above & therefore, the condition of payment of Rs. 15,000/- was imposed on an erroneous assumption. This conclusion of mine is further strengthened from the fact that in the first para of the order, it is mentioned that 'He (Shri D.C. Sharma, Adv. is prepared to deposit Rs. 15,00/- in the first instance for being paid to the complainant,' but in the second para of the order, it is mentioned 'this would be on the condition that they first deposit Rs. 15,000/- with the Investigating Officer who would pay it to the complainant under proper receipt to be given to the accused after verification by the Station House Officer. The matter does not rest at that. It has been specifically mentioned in the order that the bail bonds would contain four conditions. Those conditions need not be repeated here as the entire order dated June 9, 1978 has already been reproduced above. The conditions which the learned Judge though proper to impose for granting anticipatory bail to the applicant and his father Dhan Raj Under Section 438 are the conditions referred to as (a) to (d) for which a specific direction has been given that they should be incorporated in the bail bonds. These were the conditions which were considered proper by him to be imposed for granting the application anticipatory bail as provided in Sub-Section (2) of Section 438 of the Cod Next question is whether this could be a condition under Clause (c) of Section 437(3) of the Code which is otherwise in the interest of justice. It need not abstain me long because the object of imposing conditions while granted anticipatory bail is that the concession which is extended is not misused. The condition to deposit Rs. 15000/- with the investigating officer with the direction that he should pay to the complainant has got nothing to do with the object of granting anticipatory bail to the applicant and his father in that case. There is directly no specific provision in the Code dealing with such a situation as is before me and as such, inherent jurisdiction of the Court can be exercised. If the law prohibits the modification of an order, it is true it cannot be modified, but if there is no specific provision the Code for modifying the order & there is no prohibition either, then, in my humble opinion, inherent power under Section 482 can be invoked for modifying, or recalling or reviewing or altering the order once made by the Court provided one of the three conditions laid down in Section 482 of the Code is fulfilled There is no room for debate that in the present case, 'to secure the ends of justice' the condition regarding payment of Rs. 15000/- can be recalled. As this condition was imposed, as stated above by me, under an erroneous assumption of facts and as it was not warranted by the provisions of Section 437 or 438, justice and equity require that inherent power under Section 482 should be called in aid. After bestowing my most anxious and thoughtful consideration to this matter, I have reach-d the conclusion that to secure the ends of justice, the condition to first deposit Rs. 15000/- with the Investigating Officer who would pay it to the complainant after verification by the Station House Officer,' should be recalled and in exercise of the power under Section 482 of the Code, the order dated June 9, 1978 is modified accordingly. No. 71 of 1978 is accepted and the order dated June 9, 1978 passed in S.B. Cr. Misc. Bail Application No. 186 of 1978 is modified as indicated above.

(2) S.B. Crim. Misc. Bail Application No. 189 of 1978:

11. So far as this application is concerned, no fresh order for the grant of anticipatory bail is necessary in view of the fact that the applicant Dhanraj has already been granted anticipatory bail vide order dt. June 9. 1978. With these observations, the application is disposed of accordingly.

(3) S.B. Crim. Misc Application No. 70 of 1978:

12. In this application, it has been prayed that the condition in respect of discharging liability of Rs. 15,000/- may be deleted I have already made an order in S.B. Crime Misc. Application No. 71 of 1978 by which the aforesaid condition has been recalled and the order dated June 9, 1978 has been modified to this extent. In this view of the matter, it is not necessary to pass any separate order on this application. The relief which the applicant has prayed for has already been granted while accepting S.B. Crime Misc. Application No. 71 of 1978. With these observations, the application is also decided accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //