CASE NO.: Appeal (crl.) 1508 of 2007 PETITIONER: Savitri Goenka RESPONDENT: Kusum Lata Damant and Ors DATE OF JUDGMENT: 02/11/2007 BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 1508 OF 2007
(Arising out of SLP (Crl.) No. 3151 of 2006)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Though many points were urged in respect of the appeal,
we find that the impugned order of the High Court cannot be
maintained on one ground. Though it had issued notice to the
appellant, the matter was disposed of without hearing the
appellant. It appears that respondent no.1 had filed the bail
application, that is, Criminal Misc. Petition No.2945/2004 on
10.12.2004. The court directed service on the appellant.
There is no dispute that there was no service of notice on the
appellant. According to the appellant, on learning about the
proceedings, Criminal Misc. Application No.4653/05 was filed
in Criminal Miscellaneous Application No.2945/04. The High
Court was pleased to issue notice on 14.7.2005 on the said
application and the High Court directed the accused to
implead the appellant. Learned Additional Sessions Judge
dismissed the bail application of the accused, respondent No.1
on the ground that relief had already been obtained by her
from the High Court. On 22.9.2005, without service on the
appellant, the High Court converted the application under
Section 482 of the Code of Criminal Procedure, 1973 (in short
‘Cr.P.C.’), to one under Section 438 Cr.P.C. and granted
interim protection.
3. Learned counsel for the appellant submitted that several
facts were suppressed. By giving wrong impression about the
factual scenario, the appellant persuaded the High Court to
pass the impugned order. In response, learned counsel for the
respondent submitted that there is in fact no infirmity in the
order. In any event, the charge sheet has been filed and
respondent no.1-accused has already been granted regular
bail. A copy of the order passed on the bail application has
been filed for records.
4. It is to be noted that the practice of converting
applications filed under Section 482 Cr.P.C. to one for bail in
terms of Section 438 or 439 Cr.P.C. has not been approved by
this Court. Additionally, direction was given for issuance of
notice and service on the appellant which has not been done
by respondent no.1-accused. The fact that the charge-sheet
has been filed or bail has been granted is really of no
consequence because of the fact that relief in the regular bail
application appears to have been granted to respondent no.1
in view of the interim protection given by the High Court to the
accused by the impugned order.
5. In view of the aforesaid position, the impugned order is
set aside and the matter is remanded for fresh consideration.
We make it clear that we have not expressed any opinion on
the merits of the case. To avoid unnecessary delay let the
parties appear without further notice on 23rd November, 2007,
before learned Single Judge. If any party does not appear on
that day, needless to say learned Single Judge shall deal with
the matter in accordance with law. Learned Chief Justice of
the High Court is requested to direct listing of the matter
before learned Single Judge according to the roaster.
6. The appeal is allowed to the aforesaid extent.