Cr.M.M.O. Nos.84 and 85 of 2011 v. Court on its own motion

notices that an application has been presented by Shri Paras Doger, Advocate on behalf of the accused Haresh Sood that a direction be issued to the police that he should be interrogated in the presence of this advocate.

6. On 28.5.2011, when the respondent was produced before the learned Magistrate, another application under Section 437 Cr.P.C. was filed on behalf of Shri Haresh Sood. The allegation is of his non-involvement in the case. The applicant further 5 states that nothing is required to be recovered from him and if he is released on bail there would be no likelihood of his absconding from justice. In reply filed on behalf of the State, it was alleged that the accused was not cooperating with the investigation and the presence of the advocate is hampering further progress of the investigation. The tenor of the reply is that the advocate is passing on the questions asked by the police to some other advocate present and the answers are not those of the accused, but of the advocate. The reply then continues that no recovery has been made as he is not co-operating with the investigation and the seals used/affixed on the forged order/judgment have not been recovered. The respondent is not disclosing the source of the seals etc. and as to in whose handwriting the blanks in the attestation seals etc. have been filled in. Reply asserts that if he is released on bail he will obstruct the smooth progress of the trial. Adverting to this argument, the Court continues that since he has been in the custody of the police from 24.5.2011 and there was sufficient time for the police to complete investigation, the presence of the counsel was only directed “to be present as far as is possible”. There is nothing on the record to suggest or indicate that either the respondents or the advocate are hampering the investigation. Merely because the police has not been able to effect any recovery from the accused is no 6 ground to deny bail. The Judge then takes of on a sermon of protecting personal liberty etc. and directed the release of the petitioner on bail. I need not remind the learned Judge as to the nature of the offence which has to be dealt with and the duty of the respondent herein. In Hargovind Dayal Srivastava and Another vs. G.N. Verma and Others, (1977)1 SCC 744, the Supreme Court holds: “13. It is the duty of lawyers to protect the dignity and decorum of the judiciary. If lawyers fail in their duty the faith of the people in the judiciary will be undermined to a large extent. It is said that lawyers are the custodians of civilisation. Lawyers have to discharge their duty with dignity, decorum and discipline.” (p.746)

7. Surely, the learned Court should have been alive to the noble duty required to be discharged by this respondent. To say that the order is conjectural and every line of it is judgmental not disclosing the principle on which it is based and the reasons for invoking the principles applicable would be stating the obvious.

8. The second accused in this case, Kuldip Rao, was sent to police custody by an order dated 25.5.2011 when he was admitted in the Indira Gandhi Medical College and Hospital, Shimla. The learned Judge 7 visited the hospital to meet him on that day on the request made by the police and in view of her report appended to the police zimini by one Dr.Santosh Dhir stating according to the learned Court that this person cannot be shifted to Court. He was admitted in Ward “Old CCU” Medical Unit No.2 in bed No.3 under the treatment of Dr.Vijay and Dr.Swatantar. He was in the custody of C.Santosh Kumar. The Magistrate notes that this respondent was admitted in Hospital as he was complaining of chest pain and was suffering with unstable angina and the police remand was ordered till

28.5.2011. On that date, an application under Section 437 Cr.P.C. was made on behalf of the respondent praying for release on bail and a prayer on behalf of the prosecution for judicial remand as he had been in hospital till that time and could not be interrogated. The Court holds that the trial of the case will take sometime and no useful purpose will be served by remanding the respondents to judicial custody. It is in these circumstances that the legality of the order has come up in challenge before this Court.

9. Submissions have been made on behalf of both the State as also each of the respondents herein. The case pleaded on behalf of the respondents is one of the cancellation of bail and the powers of this Court or the trial Court under Section 439 Cr.P.C. governing the recall/cancellation of bail orders and the principles 8 applicable. This point need not detain this Court any further.

10. Learned counsel appearing for the respondents then urged that recalling of the order at this stage tantamounts to exercise of powers under Section 439(2) of the Code of Criminal Procedure and that no intervening/supervening events after the grant of bail has been brought on record of the case to show that the bail order deserves to be recalled. (See: The State through the Delhi Administration vs. Sanjay Gandhi, AIR 1978 SC 961, Ramesh Kumar vs. State of Himachal Pradesh, Bachan Singh vs. State of Punjab, AIR 1980 SC 267, 1984 Sim.L.C.11, State of Himachal Pradesh vs. Nand Lal, 1989(2) Sim.L.C.197, Aslam Babalal Desai vs. State of Maharashtra, AIR 1993 SC 1, Daulat Ram and Others vs. State of Haryana, (1995)1 SCC 349, State of U.P. through CBI vs. Amarmani Tripathi, (2005)8 SCC 21, Nityanand Rai vs. State of Bihar and another, (2005)4 SCC 178 in support of this proposition).

11. There is no denying the fact that bail once granted by a reasoned judgment cannot be recalled unless the necessary ingredients of Section 439(2) of the Code are satisfied, but at the same time, this Court has jurisdiction to look into the legality, propriety and regularity of an order passed by the learned trial Court to satisfy itself that the order conforms to and is in concord with the established principles of law. 9

12. What is being determined in the present case is whether the order is within the confines of the jurisdiction of the learned trial Court. What cancellation of bail envisages is that the order granting bail has been abused by the person set at liberty and therefore the powers under Section 439(2) are exercised by the Court.

13. The powers of High Court under Sections 397 and 401 of the Code of Criminal Procedure have been subject matter by the decision of the Supreme Court in a number of cases. Only a few illustrative cases may be noticed. In Nadir Khan Vs. State (Delhi Administration),AIR 1976 SC 2205, the Court holds:- “4. It is well known and has been ever recognised that the High Court is not required to act in revision merely through a conduit application at the instance of an aggrieved party. The High Court, as an effective instrument for administration of criminal justice, keeps a constant vigil, and wherever it finds that justice has suffered, it takes upon itself as its bounden duty to suo motu act where there is flagrant abuse of the law. The character of the offence and the nature of disposal of a particular case by the subordinate court prompt remedial action on the part of the High Court for the ultimate social good of the community, even though the State may be slow or silent in preferring an appeal provided for under the new Code. The High Court in a given case of public importance e.g. in now too familiar cases of food adulteration, reacts to public concern over 10 the problem and may act suo motu on perusal of newspaper reports disclosing imposition of grossly inadequate sentence upon such offenders. This position was true and extant in the old Code of 1898 and this salutary power has not been denied by Parliament Code rearrangement of the sections. It is true, the new Code has expressly given a right to the State under Section 377, Cr. P. C. to appeal against inadequacy of sentence which was not there under the old Code. That however exclude revisional jurisdiction of the high Court to act suo motu for enhancement of sentence in appropriate cases. What is an appropriate case has to be left to the discretion of the High Court. This Court will be slow to interfere with exercise of such discretion under Art. 136 of the Constitution.” (p-2205)

14. To similar effect is the judgment of Supreme Court in Municipal Corporation of Delhi Vs. Girdharilal Sapuru & others, (1981) 2 SCC 758 that such powers cannot be fettered by limitation and Sahab Singh Vs. State of Haryana (1990) 2 SCC 385 holding that Section 397 confers the revisional powers of the High Court as also the Court of Sessions and provide that High Court as well as the Court of Sessions may call for and examine the record in any proceeding before any inferior criminal Court for the purposes of satisfying itself as to the correctness, legality or propriety of any finding etc. as provided. Section 401 further 11 confers the powers of the High Court to exercise any of the powers under Sections 386, 389, 390 and 391 of the Code. This judgment was considering the question for enhancement of sentence by the Court in its revisional jurisdiction.

15. Under the revisional powers of this Court under Sections 397 and 401, this Court can call for and examine the record of any proceeding before any Criminal Court inferior to it for the purposes of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order or the regularity of any proceeding etc. Similarly, under Section 401, this Court in any proceeding, the record of which has been called for by itself or which otherwise constitutes knowledge, the High Court may in its discretion exercise any of the powers which has been conferred upon a Court of appeal. I need not reiterate that cognizance of the order in this case had been taken by this Court on its own motion and record called for and it is in this jurisdiction that the order of the learned trial Court is being examined.

16. In Purshottam Vijay and etc. vs. The State and others, 1982 Crl.L.J. 243, the High Court of Madhya Pradesh, relying upon the judgment of the Supreme Court in Pratap vs.State of U.P., 1973 Cri.L.J. 565 at page 575 holds:- “10. … … … … … … From the nature of these powers, it follows that the High 12 Court can act either of its own motion or on the motion of even a stranger, who may be instrumental in bringing to the knowledge of the High Court a matter which otherwise the High Court may not have known. Of course, the normal course for the High Court to be seized of a matter is either at the instance of the prosecutor or the accused or the High Court itself but in some rare cases information may be received by the High Court even from a stranger. Thus, the High Court can interfere on information contained even in the newspaper or a placard on a wall or on anonymous postcard, provided considers that sufficient ground has been established to justify its so doing. At the same time the High Court has to be loath to take action on an application for revision presented by a third party on its own responsibility and without authority from either of the parties. It becomes the duty of the High Court to see that a stranger to the proceedings does not employ his information as an instrument of vengeance on the accused or attempt to serve his own private end. An application by a third party, therefore, merely serves the function of bringing the matter to the knowledge of the Court and in such a proceeding his counsel should not expect to be heard. (See Shailabala v. Emperor (AIR 1933 All 678) : (1933-34 Cri LJ 1115) (FB)).” (pp-248-249)

17. The difference between an application for cancellation of bail and a revision reviewing that order has been brought out by the High Court of Bombay 13 in R.Shakuntala vs. Roshanlal Agarwal, 1985 Cri.L.J.68 at page 76 holding:- “13. … … …When an order is passed by the trial Court and the High Court is later on approached for the purpose of the cancellation of the bail, the basic postulate is that the order was valid when it was passed, but that on account of supervening circumstances it needed to be varied or modified or cancelled. When you file a revision application against the order granting bail, your grievance is that the order was bad from its inception. … … … … … …” (P.76 - emphasis supplied)

18. Sections 397 and 401 are complete in themselves providing for the grounds on the basis of which jurisdiction may be exercised.

19. Precedent need not be multiplied the revisional and inherent powers of the High Court which are considered by the Supreme Court in Janta Dal Vs. H.S.Chowdhary and others (1992) 4 SCC 305, the Court held:- “128. Sections 397, 401 and 482 of the new Code are analogous to Sections 435, 439 and 561-A of the old Code of 1898 except certain substitutions, omissions and modifications. Under Section 397, the High Court possesses the general power of superintendence over the actions of courts subordinate to its which discretionary power when administered on administration side, is known as the power 14 of superintendence and on the judicial side as the power of revision. In exercise of the discretionary powers conferred on the High Court under the provisions of this section, the High Court can, at any state, on its own motion, if it so desires and certainly when illegalities and irregularities resulting in injustice are brought to its notice, call for the records and examine them. The words in Section 435 are, however, very general and they empower the High Court to call for the record of a case not only when it intends to satisfy itself about the correctness of any finding, sentence or order but also as to the regularity of any proceeding of any subordinate court.

129. ………………………………………………………………. 130 131 ……………………………………………………………….. ……………………………………………………………….

132. The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles.” (pp.354-355) 15

20. To put the entire controversy at rest this Court can even exercise powers under Section 482 as held by the Supreme Court in Puran vs. Rambilas AIR 2001 SC 2023, the Supreme Court has reiterated the powers of the High Court under Section 482 and for cancellation of bail bonds. The Court holds:- “10. Further, it is to be kept in mind that concept setting unjustified, illegal or perverse order is totally different from the concept of cancelling the bail on the ground that accused has misconducted himself or because requiring cancellation. This position is made clear by this Court in Gurucharan Singh v. State (Delhi Admn.), reported in AIR 1978 SC 179 : (1978 Cri LJ 129). In that case the Court observed as under (Para 16) : "If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arise which were not earlier State necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under S. 439 (2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for 16 the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows subordinate position of the Court of Session vis-a-vis the High Court.

11. It must be mentioned that in support of the above submission Mr. Lalit had also relied upon the authorities in the cases of Subhendu Mishra v. Subrat Kumar Mishra, reported in 1999 Cri LJ 4063 : (1999 AIR SCW 2955 : AIR 1999 SC 3026), State (Delhi Administration) v. Sanjay Gandhi, reported