HIGH COURT OF CHATTISGARH AT BILASPUR
Cr MP PR No 5958 of 2009
Manaram Sonkar
...Petitioners
Versus
1. Prabhat Kiran Girdoniya
2. Arvind Kulkarni
3. Shivnarayan Sahu
4. State of Chhattisgarh through the
Collector Raipur
...Respondents
PETITION UNDER SECTION 482 OF THE CODE OF CRIMINAL
PROCEDURE, 1973.
! Shri B.P. Sharma, Advocate for the petitioner
^ Shri Arvind Kumar Dubey, P.L. for the State/respondent No. 4
Honble Mr. T.P.Sharma, J
Dated:08/12/2009
: Judgment
ORAL- ORDER
(Passed on 08/12/2009)
1. This is a petition under Section 482 of the Code of
Criminal Procedure, 1973 (in short `the Code') for quashment
of the order dated 25/9/09 passed by Sessions Judge, Raipur
whereby learned Sessions Judge, Raipur allowed the
application for grant of bail to the respondents NO. 1 to 3.
2. Order is challenged on the ground that order impugned
is perverse and not sustainable under the law and Court has
utterly failed to exercise power vested on it and has not
considered the fact that respondent may temper with the
witnesses and possibility fleeing away the justice.
3. Facts necessary for disposal of this petition is the
criminal complaint case no. 52/08 was pending before the
Judicial Magistrate First Class, Raipur at the instance of
present complainant/petitioner against the respondents No. 1
to 3 for the offence punishable under Sections 420, 467,
468, 471 of the Indian Penal Code. The respondents No. 1 to
3 in custody and on application of the respondents No. 1 to
3 filed under Section 439 of the Code. After hearing the
parties learned Sessions Judge, Raipur has allowed the
petition for grant of bail to the respondents NO. 1 to 3.
4. The order granting bail is impugned by the present
petitioner.
5. Learned counsel for the parties are heard. Order
impugned and copy of other documents are perused.
6. Learned counsel for the petitioner submits that
previously petitioner has impugned the order before the High
Court in exercise of its revisional jurisdiction but
petitioner has withdrawn the criminal revision No. 550/09 on
19/11/09 for filing the appropriate petition. Learned
counsel for the petitioner argued that petitioner has been
able to make out an exceptional case for exercising the
extraordinary inherent jurisdiction against the order
impugned. At the time of passing the order Court was under
obligation to consider all aspects of the case. Learned
counsel for the petitioner also submits that after hearing
the parties Court has granted the bail therefore Court who
has granted the bail will not review its order under any
technical ground. There would be a futile exercise before
the Court concerned for filing a application under Section
439 (2) of the Code therefore the order has been assailed
under Section 482 of the Code before this Court.
7. Learned counsel for the petitioner placed reliance in
the matter of Satish Jaggi Vs. State of C.G. & Others
reported in 2008 (1) C.G.L.J. 228 in which this Court has
held that even the case of interlocutory order of grant of
bail the inherent jurisdiction under Section 482 of the Code
is not effected by the provisions of Section 397(3) of the
Code but the High Court may refuse to exercise its
jurisdiction under Section 482 of the Code on the basis of
self- imposed restriction is a different aspect. Learned
counsel for the petitioner further placed reliance in the
matter of Puran Vs. Rambilas and another reported in (2001)
6SCC 338 in which Apex Court has held that even in the case
of interlocutory order the High Courts inherent jurisdiction
under Section 482 of the Code is not effected by the
previsions of Section 397 (3) of the Code.
8. On the other hand learned counsel for the
State/respondent NO. 4 opposed the petition.
9. The copy of the order impugned, copy of the application
and other documents reveal that after hearing the parties
Court below has granted the bail to the respondents No. 1 to
3.
10. Order is impugned mainly on the ground that Court below
has not considered the most material aspect of the case
while granting bail that respondents has not complied the
condition earlier imposed by the Court and Court has not
considered that respondents No. 1 to 3 may temper with the
witnesses and they may fleed away from justice.
11. While dealing with the cancellation of bail by invoking
revisional jurisdiction this Court has held in case of
Satish Jaggi (Supra), after relying the case of Puran
(Supra) that inherent jurisdiction of the High Court is not
effected by the provisions of Section 397(3) of the Code.
Para -5 reads as under:-
In Puran’s case (supra), a contention was raised
before the Apex Court on the authorities in the
case of Usmanbhai Dawoodbhai Memon Vs. State of
Gujarat, Amar Nath Vs. State of Harayana & India
Pipe Fitting Co. Vs. Fakruddin M.A. Baker, that an
other granting bail was an interlocutory order and
the High Court could not exercise to the powers
under Section 482 of the criminal procedure Code
and thus the Court could not cancel the order of
bail. it was also argued that Section 439 of the
Criminal Procedure Code gives the powers for
cancellation of bail both to the Sessions Court and
the High Court therefore, the High Court and the
Sessions Court were co-ordinate Courts under this
Section and the High Court could not thus sit in
appeal or revision over an order of the Court of
Sessions. It was also submitted that under Section
439 (2) Cr. P.C. it is only the orders of the
Magistrate, which could be set aside by the High
Court or the Court of Session. The Apex Court ruled
that in the hierarchy of courts, the High Court is
the superior court. A restrictive interpretation
which would have the effect of nullifying Section
439 (2) cannot be given when Section 439 (2)
grants to the High Court the power to cancel bail,
it necessarily follows that such powers can be
exer4vised also in respect of orders passed by the
Court of Sessions. Of course cancellation of bail
has to be on principles set out for that and only
in appropriate case. The Apex Court further ruled
that even it is an interlocutory order, the High
Court’s inherent jurisdiction under Section 482 is
not affected by the provisions of Section 397(3) of
the Code of Criminal procedure. That the High Court
may refuse to exercise its jurisdiction under
Section 482 on the basis of self-imposed
restriction is a different aspect. The Apex Cour5t
finally ruled that it cannot be denied that for
securing the ends of justice, the High Court can
interference with the order which causes
miscarriage of justice or is palpably illegal or is
unjustified. The Apex Court also referred to the
decisions of Madhu Limaye Vs. State of Maharashtra
& Krishan Vs. Krishnaveni.
12. While dealing with the question of cancellation of bail
under Section 439(2) of the Code in case of Puran (Supra)
Apex Court has held that High Court’s inherent jurisdiction
under Section 482 (2) is not effected by the provisions of
Section 397 (3) of the code. Para 17 reads as under :-
17. Further, even if its is an interlocutory
order, the High Court’s inherent jurisdiction
under Section 482 is not affected by the
Provisions of Section 397 (3) of the Code of
Criminal Procedure. That the High Court may
refuse to exercise its jurisdiction under
Section 482 on the basis of self imposed
restriction is a different aspect. It cannot
be denied that for securing the ends of
justice, the High Court can interfere with the
order which causes miscarriage of justice or
is palpably illegal or is unjustified (Madhu
Limaye v. State of Maharashtra and Krishnav v.
krishnaveni).
13. Admittedly, inherent jurisdiction of the High Court is
not effected by the provisions of Section 397 (3) of the
Code, specific provision for cancellation of the bail has
been provided under Section 439(2) of the Code but despite
the fact petitioners is not prevented from making out an
exceptional case for invoking extraordinary inherent
jurisdiction. In all cases of illegality or irregularity
High Court is not required to exercise its inherent
jurisdiction. It should be used sparingly in an exceptional
circumstances, while dealing with exercise of power under
Section 482 of the Code in the matter of M/s. Zandu
Pharmaceutical Works Ltd. and others v. Md. Sharaful Haque
and others1 the Apex Court has held thus,
“8. Exercise of power under Section 482 of
the Code in a case of this nature is the
exception and not the rule. The Section does
not confer any new powers on the High Court.
It only saves the inherent power which the
Court possessed before the enactment of the
Code. It envisages three circumstances under
which the inherent jurisdiction may be
exercised, namely, (i) to give effect to an
order under the Code, (ii) to prevent abuse
of the process of court, and (iii) to
otherwise secure the ends of justice. It is
neither possible nor desirable to lay down
any inflexible rule which would govern the
exercise of inherent jurisdiction. No
legislative enactment dealing with procedure
can provide for all cases that may possibly
arise. Courts, therefore, have inherent
powers apart from express provisions of law
which are necessary for proper discharge of
functions and duties imposed upon them by
law. That is the doctrine which finds
expression in the section which merely
recognizes and preserves inherent powers of
the High Courts. All courts, whether civil or
criminal possess, in the absence of any
express provision, as inherent in their
constitution, all such powers as are
necessary to do the right and to undo a wrong
in course of administration of justice on the
principle “quando lex aliquid alicui
concedit, concedere videtur et id sine quo
res ipsae esse non potest” (when the law
gives a person anything it gives him that
without which it cannot exist). While
exercising powers under the section, the
court does not function as a court of appeal
or revision. Inherent jurisdiction under the
section though wide has to be exercised
sparingly, carefully and with caution and
only when such exercise is justified by the
tests specifically laid down in the section
itself. It is to be exercised ex debito
justitiae to do real and substantial justice
for the administration of which alone courts
exist. Authority of the court exists for
advancement of justice and if any attempt is
made to abuse that authority so as to produce
injustice, the court has power to prevent
abuse. It would be an abuse of process of the
court to allow any action which would result
in injustice and prevent promotion of
justice. In exercise of the powers court
would be justified to quash any proceeding if
it finds that initiation/continuance of it
amounts to abuse of the process of court or
quashing of these proceedings would otherwise
serve the ends of justice. When no offence is
disclosed by the complaint, the court may
examine the question of fact. When a
complaint is sought to be quashed, it is
permissible to look into the materials to
assess what the complainant has alleged and
whether any offence is made out even if the
allegations are accepted in toto.”
14. In the present case the offence has been registered on
the basis of complaint made to the Court by the petitioner,
respondents No. 1 to 3 were in custody after rejection of
their bail petition by the trial Court. After considering
the material learned Sessions Judge has granted bail to the
petition under Section 439 of the Code.
15. Order impugned reveals that prima facie Court below has
not committed any grave illegality or irregularity in
exercising the jurisdiction under Section 439 of the Code, I
do not find any exceptional case for invoking extraordinary
inherent jurisdiction in terms of Section 482 of the Code.
Consequently, this petition is liable to be dismissed and it
is hereby dismissed.
JUDGE