{"id":232154,"date":"2007-04-27T00:00:00","date_gmt":"2007-04-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hamida-vs-rashid-rasheed-ors-on-27-april-2007"},"modified":"2017-10-03T17:29:40","modified_gmt":"2017-10-03T11:59:40","slug":"hamida-vs-rashid-rasheed-ors-on-27-april-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hamida-vs-rashid-rasheed-ors-on-27-april-2007","title":{"rendered":"Hamida vs Rashid @ Rasheed & Ors on 27 April, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Hamida vs Rashid @ Rasheed & Ors on 27 April, 2007<\/div>\n
Author: G P Mathur<\/div>\n
Bench: G.P. Mathur, A.K. Mathur<\/div>\n
           CASE NO.:\nAppeal (crl.)  632 of 2007\n\nPETITIONER:\nHamida\n\nRESPONDENT:\nRashid @ Rasheed & Ors\n\nDATE OF JUDGMENT: 27\/04\/2007\n\nBENCH:\nG.P. Mathur & A.K. Mathur\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
CRIMINAL APPEAL NO. 632 OF 2007
\n(@ Special Leave Petition (Crl.) No.4891of 2005)<\/p>\n
G. P. MATHUR, J.\n<\/p>\n
1.\tLeave granted.\n<\/p>\n
2.\tThis appeal, by special leave, has been filed by the complainant
\nHamida widow of Balla against the judgment and order dated
\n1.7.2005 of Allahabad High Court, by which the petition under
\nSection 482 Cr.P.C. filed by the accused respondents herein was
\ndisposed of with certain directions.  By the impugned order it was
\ndirected that the accused respondents, who had been initially granted
\nbail in offences under Sections 324, 352 and 506 IPC by the Chief
\nJudicial Magistrate, Muzaffarnagar, would continue to remain on bail
\neven after the offence had been converted to one under Section 304
\nIPC, if they furnished the requisite personal bonds and sureties before
\nthe concerned Court.\n<\/p>\n
3.\tThe appellant Hamida lodged an FIR at P.S. Kotwali,
\nMuzaffarnagar at 00.10 hours on 13.6.2005 alleging that when her
\nhusband Balla was participating in a Panchayat of the Biradari
\n(community) the four accused respondents lodged an attack upon him
\nwith licensed and illegal arms, exhorting that they would kill him.
\nNaushad accused assaulted him with a ‘chhuri’ (long knife) due to
\nwhich Balla received serious injuries. The other accused fired from
\ntheir respective weapons and thereafter ran away from the scene of
\noccurrence.  On the basis of the FIR lodged by the appellant, a case
\nwas registered as Crime No. 792 of 2005 under Sections 324, 352 and
\n506 IPC at P.S. Kotwali, Muzaffarnagar.  The injured Balla was
\nrushed to the District Hospital, where he was medically examined at
\n11.10 p.m. on 12.6.2005.  He had sustained serious stab wound in his
\nabdomen from which loops of intestines were coming out.\n<\/p>\n
4.\tTwo accused respondents were arrested by the police and were
\nproduced before the learned Chief Judicial Magistrate on 13.6.2005
\nfor the purpose of seeking remand. The accused also moved a bail
\napplication seeking bail in Case Crime No.792 of 2005 which had
\nbeen registered against them.  The complainant-appellant Hamida
\nalso put in appearance through a counsel and filed an affidavit stating
\nthat as a serious injury had been caused to the injured Balla and
\naccused had resorted to firing, the offence committed by them was
\none under Section 307 IPC, but the police in collusion with the
\naccused had registered the case only under Sections 324, 352 and 506
\nIPC.  It was also submitted that on account of the serious injuries
\nreceived by the injured Balla, he had been referred to the Medical
\nCollege, Meerut, and the bail application should be heard after
\nsummoning the medical examination report. The learned CJM,
\nhowever, observed that remand of the accused had been sought only
\nin the offences in which the case had been registered against them and
\nas the offences were bailable, they were entitled to bail. He
\naccordingly passed an order on the same day i.e. 13.6.2005 granting
\nbail to the accused Rashid and Arshad.   It was, however, made clear
\nin the order that if the case was converted into a more serious offence,
\nthe accused would not get any benefit of the bail being granted to
\nthem.  Subsequently, the remaining two accused were also released on
\nbail.  Balla succumbed to his injuries in the night intervening 16th and
\n17th of June, 2005.   Thereafter, the offence was converted into one
\nunder Section 304 IPC. It was at this stage that the four accused
\nrespondents filed a petition under Section 482 Cr.P.C. before the High
\nCourt seeking a direction to the Chief Judicial Magistrate,
\nMuzaffarnagar, to permit them to remain on same bail even after
\nconversion of the offence into one under Section 304 IPC.  The only
\nsubmission made before the High Court was that on the same facts
\nand circumstances, the accused had been granted bail by the learned
\nChief Judicial Magistrate and they had not misused the privilege of
\nthe bail and, therefore, they should be allowed to remain on bail even
\nafter conversion of offence.  The High Court accepted the prayer
\nmade on behalf of the accused respondents and the relevant part of the
\norder, which is under challenge, is being reproduced below :-
\n“In view of the facts and circumstances of the case
\nand the submissions made by the learned counsel for the
\napplicants, it is directed that if the applicants appear
\nbefore the court concerned and furnish their personal
\nbonds and two sureties each in the like amount to the
\nsatisfaction of the court concerned the same shall be
\naccepted under Section 304 I.P.C.\n<\/p>\n
\tWith these observations, the application is
\ndisposed of finally.”\n<\/p>\n
5.\tWe have heard learned counsel for the parties.  The principal
\nsubmission of learned counsel for the appellant (complainant) is that
\nthe power under Section 482 Cr.P.C. could not have been exercised
\nby the High Court in granting bail to the accused respondents as there
\nis a specific provision in the Code of Criminal Procedure viz. Section
\n439 under which the accused could approach the appropriate Court
\nfor grant of bail to them.  It has been further submitted that while
\nexercising power under Section 482 Cr.P.C. the High Court has
\ncommitted grave error in issuing the direction that the bail granted to
\nthe accused for an offence under Sections 324, 352 and 506 IPC will
\nenure to their benefit even after conversion of the case which was
\nregistered against them into one under Section 304 IPC. The
\nsubmission is that the accused respondents ought to have surrendered
\nand after they had been taken into custody, they should have applied
\nafresh for bail in the offence under Section 304 IPC.\n<\/p>\n
6.\tWe are in agreement with the contention advanced on behalf of
\nthe complainant appellant.  Section 482 Cr.P.C. saves the inherent
\npowers of the High Court and its language is quite explicit when it
\nsays that nothing in the Code shall be deemed to limit or affect the
\ninherent powers of the High Court to make such orders as may be
\nnecessary to give effect to any order under the Code, or to prevent
\nabuse of the process of any Court or otherwise to secure the ends of
\njustice.  A procedural Code, however exhaustive, cannot expressly
\nprovide for all time to come against all the cases or points that may
\npossibly arise, and in order that justice may not suffer, it is necessary
\nthat every court must in proper cases exercise its inherent power for
\nthe ends of justice or for the purpose of carrying out the other
\nprovisions of the Code.  It is well established principle that every
\nCourt has inherent power to act ex debito justitiae to do that real and
\nsubstantial justice for the administration of which alone it exists or to
\nprevent abuse of the process of the Court.  As held by the Privy
\nCouncil in Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18 with
\nregard to Section 561-A of the Code of Criminal Procedure, 1898
\n(Section 482 Cr.P.C. is a verbatim copy of the said provision) gives
\nno new powers.  It only provides that those which the Court already
\ninherently possesses shall be preserved and is inserted, lest it should
\nbe considered that the only powers possessed by the Court are those
\nexpressly conferred by the Code and that no inherent power had
\nsurvived the passing of the Act.\n<\/p>\n
7.\tIt is well established principle that inherent power conferred on
\nthe High Courts under Section 482 Cr.P.C. has to be exercised
\nsparingly with circumspection and in rare cases and that too to correct
\npatent illegalities or when some miscarriage of justice is done.   The
\ncontent and scope of power under Section 482 Cr.P.C. were examined
\nin considerable detail in Madhu Limaye v. State of Maharashtra AIR<\/a>
\n1978 SC 47 and it was held as under :\n<\/p>\n
“The following principles may be stated in relation to the
\nexercise of the inherent power of the High Court –
\n(1) That the power is not to be resorted to if there is a
\nspecific provision in the Code for the redress of the
\ngrievance of the aggrieved party;\n<\/p>\n
(2) That it should be exercised very sparingly to prevent
\nabuse of process of any Court or otherwise to secure the
\nends of justice;\n<\/p>\n
(3) That it should not be exercised as against the express
\nbar of law engrafted in any other provision of the Code.”\n<\/p>\n
8.\tIn State v. Navjot Sandhu (2003) 6 SCC 641 (para 29), after a
\nreview of large number of earlier decisions, it was held as under :
\n \t“29.\t The inherent power is to be
\nused only in cases where there is an abuse of the process
\nof the Court or where interference is absolutely necessary
\nfor securing the ends of justice. The inherent power must
\nbe exercised very sparingly as cases which require
\ninterference would be few and far between. The most
\ncommon case where inherent jurisdiction is generally
\nexercised is where criminal proceedings are required to
\nbe quashed because they are initiated illegally,
\nvexatiously or without jurisdiction. Most of the cases set
\nout herein above fall in this category. It must be
\nremembered that the inherent power is not to be resorted
\nto if there is a specific provision in the Code or any other
\nenactment for redress of the grievance of the aggrieved
\nparty.  This power should not be exercised against an
\nexpress bar of law engrafted in any other provision of the
\nCriminal Procedure Code.  This power cannot be
\nexercised as against an express bar in some other
\nenactment.”\n<\/p>\n
9.\tIn Arun Shankar Shukla v. State of U.P. (1999) 6 SCC 146 the
\nHigh Court had entertained a petition under Section 482 Cr.P.C. after
\nan order of conviction had been passed by the Sessions Judge and
\nbefore the sentence had been awarded and further proceedings in the
\ncase had been stayed.   In appeal this Court set aside the order of the
\nHigh Court after reiterating the principle that it is well settled that
\ninherent power is not to be invoked in respect of any matter covered
\nby specific provisions of the Code or if its exercise would infringe
\nany specific provision of the Code.  It was further observed that the
\nHigh Court overlooked the procedural law which empowered the
\nconvicted accused to prefer statutory appeal against conviction of the
\noffence and intervened at an uncalled for stage and soft-pedalled the
\ncourse of justice at a very crucial stage of the trial.  The order of the
\nHigh Court was accordingly set aside on the ground that a petition
\nunder Section 482 Cr.P.C. could not have been entertained as the
\naccused had an alternative remedy of an appeal as provided in the
\nCode.   It is not necessary to burden this judgment with other
\ndecisions of this Court as the consistent view throughout has been that
\na petition under Section 482 Cr.P.C. cannot be entertained if there is
\nany other specific provision in the Code of Criminal Procedure for
\nredress of the grievance of the aggrieved party.\n<\/p>\n
10.\tIn the case in hand, the accused respondents could apply for
\nbail afresh after the offence had been converted into one under
\nSection 304 IPC.  They deliberately did not do so and filed a petition
\nunder Section 482 Cr.P.C. in order to circumvent the procedure
\nwhereunder they would have been required to surrender as the bail
\napplication could be entertained and heard only if the accused were in
\ncustody.  It is important to note that no order adverse to the accused
\nrespondents had been passed by any Court nor there was any
\nmiscarriage of justice or any illegality.  In such circumstances, the
\nHigh Court committed manifest error of law in entertaining a petition
\nunder Section 482 Cr.P.C. and issuing a direction to the subordinate
\ncourt to accept the sureties and bail bonds for the offence under
\nSection 304 IPC.  The effect of the order passed by the High Court is
\nthat the accused after getting bail in an offence under Section 324,
\n352 and 506 IPC on the very day on which they were taken into
\ncustody, got an order of bail in their favour even after the injured had
\nsuccumbed to his injuries and the case had been converted into one
\nunder Section 304 IPC without any Court examining the case on
\nmerits, as it stood after conversion of the offence.  The procedure laid
\ndown for grant of bail under Section 439 Cr.P.C., though available to
\nthe accused respondents, having not been availed of, the exercise of
\npower by the High Court under Section 482 Cr.P.C. is clearly illegal
\nand the impugned order passed by it has to be set aside.\n<\/p>\n
11.\tLearned counsel for the appellant has submitted that charge
\nunder Section 302 IPC has been framed against the accused
\nrespondents by the trial court and some subsequent orders were
\npassed by the High Court by which the accused were ordered to
\nremain on bail for the offence under Section 302 read with Section 34
\nIPC on furnishing fresh sureties and bail bounds only on the ground
\nthat they were on bail in the offence under Section 304 IPC.  These
\norders also deserve to be set aside on the same ground.\n<\/p>\n
12.\tIn the result, the appeal is allowed.  The impugned order dated
\n1.7.2005 passed by the High Court and all other subsequent orders
\nwhereby the accused respondents were directed to remain on bail for
\nthe offence under Section 302 read with Section 34 IPC on furnishing
\nfresh sureties and bail bonds are set aside.  The accused respondents
\nshall be taken into custody forthwith.  It is, however, made clear that
\nit will be open to the accused respondents to apply for bail for the
\noffences for which they are charged before the appropriate Court and
\nin accordance with law.\n<\/p>\n
13.\tBefore parting with the case, we feel constrained to observe that
\nin spite of repeated pronouncements of this Court that inherent power
\nunder Section 482 Cr.P.C. should be exercised sparingly with
\ncircumspection in rare cases and that too when miscarriage of justice
\nis done, the High Court entertained the petition under Section 482
\nCr.P.C., the ultimate result whereof was that the order of bail granted
\nin favour of the accused for an offence under Sections 324, 352 and
\n506 IPC enured to their benefit even after the offence had been
\nconverted into one under Section 304 IPC and also subsequently
\nwhen charge had been framed against them under Section 302 read
\nwith Section 34 IPC.   The accused did not remain in custody even for
\na single day nor did they approach the Court of Chief Judicial
\nMagistrate or Sessions Judge for being granted bail under Section 304
\nor 302 IPC, yet they got the privilege of bail under the aforesaid
\noffences by virtue of the order passed by the High Court. The dockets
\nof the High Courts are full and there is a long pendency of murder
\nappeals in the High Court from which this case has arisen. Ends of
\njustice would be better served if valuable time of the Court is spent in
\nhearing those appeals rather than entertaining petitions under Section
\n482 Cr.P.C. at an interlocutory stage which are often filed with some
\noblique motive in order to circumvent the prescribed procedure, as is
\nthe case here, or to delay the trial which will enable the accused to
\nwin over the witnesses by money or muscle power or they may
\nbecome disinterested in giving evidence, ultimately resulting in
\nmiscarriage of justice.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Hamida vs Rashid @ Rasheed & Ors on 27 April, 2007 Author: G P Mathur Bench: G.P. Mathur, A.K. Mathur CASE NO.: Appeal (crl.) 632 of 2007 PETITIONER: Hamida RESPONDENT: Rashid @ Rasheed & Ors DATE OF JUDGMENT: 27\/04\/2007 BENCH: G.P. Mathur & A.K. Mathur JUDGMENT: J U D G M […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-232154","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nHamida vs Rashid @ Rasheed & Ors on 27 April, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/hamida-vs-rashid-rasheed-ors-on-27-april-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Hamida vs Rashid @ Rasheed & Ors on 27 April, 2007 - 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