Joginder Singh etc. vs State of Himachal Pradesh

D.B. Lal, J.—These are seven applications u/s 438 of the Code of Criminal Procedure, 1973, (hereinafter referred to as the new Code) for grant of bail to persons apprehending arrest under various non-bailable offences for which they have reason to believe that they may be arrested. When notices were issued to the learned Advocate-General he sustained a preliminary objection that these applications should have been filed, in the first instance, before the Court of Sessions and only thereafter the applicants could have asked the High Court to make an order u/s 438 of the new Code. The objection of the learned Advocate-General is essentially based on a rule of practice laid down by this Court in Gulam Ali v. State 1972 H.L.R. 8. As the question was likely to arise in a number of cases and was considered of some importance, the same was referred to a larger bench. This is how we are called upon to decide the question in controversy,

At the very outset, a little comparison of the corresponding provisions of revision as well as bail enumerated in the Code of Criminal Procedure, 1898, (hereinafter to be referred to as the old Code) and those in the new Code be made. First we take up the provisions regarding revision, Section 435 of the old Code gave revisional powers to High Court or Court of Sessions to call for and examine the record of any proceeding before any inferior criminal court to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceeding of any such inferior court. There is no restriction as to revision against interlocutory order or as to second revision before the High Court after the first has been preferred before the Court of Sessions. The corresponding Section 397 of the new Code engrafts both these restrictions. No revision against interlocutory order is permissible and if an application in revision has been made to the Court of Sessions a further application cannot be made to the High Court. In place of Section 438 of the old Code, Section 399 of the new Code has been provided for and the powers of Courts of Sessions have been made at par with the powers of the High Court u/s 401 of the new Code and as a necessary corollary to that, no second revision before the High Court is permissible. The powers of the High Court u/s 439 of the old Code are almost the same as the powers of that court given u/s 401 of the new Code. But a new Section 402 of the new Code has been provided for, but that applies to a case of conviction and in that case also a second revision to High Court is not permissible. In the present controversy, however, we are not concerned with Section 402 of the new Code.

As regards the provisions regarding bail, Section 497 of the old Code dealt with nonbailable offences where the person accused appears before a court either under arrest or otherwise. In those cases where he is not arrested, he may be suspected of the commission of any non-bailable offence. Under certain conditions the court can grant bail to such an accused person. Section 437 of the new Code has carefully avoided the words "suspected of the commission of any non-bailable offence" because Section 438 of the new Code has been provided for to look after that contingency-what we call the contingency of getting anticipatory bail. There was some confusion in the old Code as to the grant of anticipatory bail and someof the courts granted such bails u/s 497 of the old Code by taking aid of the words "suspected of the commission of any non-bailable offence" or u/s 498 which gave the jurisdiction to grant bail to a High Court or to a Court of Sessions "in any case" which obviously included a case where the person is not in custody. In order to set at rest that controversy, Section 438 of the new Code has been provided and that section clearly deals with those persons who are apprehensive of arrest for a non-bailable offence and who are not yet arrested for any offence. The present applications deal with such type of cases. Section 437 of the new Code does not deal with High Court or Court of Sessions, and deals with the court of the Magistrate, and we are not concerned with it. Section 498 of the old Code has been bifurcated in two Sections 438 and 439 of the new Code. The High Court or the Court of Sessions can grant bail u/s 438 if the person is not in custody, while u/s 439 if the person is in custody.

The vexed question that arises relates to Section 438 of the new Code, which is a provision for anticipatory bail. The power is given to the High Court or the Court of Sessions, and the learned Counsel representing the accused submit that the person should be at liberty to come to High Court direct instead of going to Sessions Court in the first instance. If the argument of the learned Advocate-General is accepted, it would be a case of first revision before the High Court. That is so because the order refusing bail would nonetheless be an order of the Sessions Judge for which a revision will be sought for in the High Court u/s 397 of the new Code. As a result to that revision, the High Court will, of course, be at liberty to grant anticipatory bail in a case where the same has been refused [by the Sessions Judge. If the order granting or refusing anticipatory bail is considered an interlocutory order there is a clear prohibition for a revision under Sub-section (2) of Section 397. It will then be proper to ascertain if the order granting or refusing bail will be an interlocutory order.

In Webster''s Third International Dictionary, the expression "interlocutory" has been defined as: "not final or definite: made or done during the progress of an action: intermediate, provisional". The emphasis is, therefore, at the stage when the order is passed. Interlocutory stage is decidedly the stage between the cognizance taken by the court and the judgment pronounced. The interlocutory order is a supplemental proceeding which is a means to an end and not an end in itself. In Section 94 of the Civil Procedure Code, supplemental proceedings like issue of warrant to arrest the Defendant, direction to furnish security, grant of temporary injunction, appointment of receiver and such other interlocutory orders are considered. All such orders are means to an end and not an end in themselves. These orders are no doubt necessary to assist the court in arriving at a determination of the cause. The order granting or refusing bail is decidedly an interlocutory order in this sense of that term. It is an order which is a means to an end, namely the decision of the case against the accused. If he is let out on bail, a further assurance is forthcoming that he will be present on each date of hearing. That is necessary to decide the cause against him. Otherwise the decision will be difficult. If bail is refused he is detained in prison and again his persence is assured before the court on each date of hearing. Therefore, the order regarding bail being interlocutory in character is decidedly a step to assist the court in arriving at a determination of the case before it. The question pertaining to bail no doubt arises out of the proceeding itself. It is necessary to be decided to set at rest the controversy as to the presence of the accused at each day of hearing. It is also evident that granting or refusing bail will not affect the decision of the case. It will depend upon its own merit and a person under arrest can always be discharged or acquitted. Therefore, the order does not decide the cause itself. It is no doubt an interlocutory order which is passed during the progress of the action. In Sawal Ram Goenka and Another Vs. The State, a division Bench was considering Article 134(1)(c), and an order granting or refusing bail was considered an interlocutory order and hence not final. It was held that it is merely an interlocutory order which the High Court is not competent to grant the certificate under Article 134(1)(c) of the Constitution. Therefore, the order granting or refusing bail although with reference to Article 134(1)(c) yet, was considered an interlocutory order. The emphasis was obviously to the stage of the proceeding. The order is passed while action is in progress and the necessary nexus with the action is there. It is no doubt a supplemental order as contemplated u/s 94 of the Code of Civil Procedure. We can take the assistance of the ratio of that decision decidedly in the present dispute.

If the order u/s 438 granting or refusing anticipatory bail is an interlocutory order, there is a clear bar u/s 397 of a revision to High Court. There would be a finality to the order itself. Section 401 of the new Code will also be of no help. The powers of High Court in revision u/s 401, nonetheless, take their root in Section 397. It is only in that section that a party invites the attention of a High Court and asks it to call for the record from the court below and examine it. Therefore, the provision of ''no relief against interlocutory order contained in Section 397 will hold good even for Section 401, as what has been prohibited in that section cannot be held permissible in the other section. That apart, the relief claimed in revision is always discretionary and no court will exercise discretion in a manner so as to militate against a prohibition contained in Section 397. From that point of view as well, Section 401 will be of no avail. In fact Section 401 defines the powers of the High Court and enlarges the scope of enquiry resulting in orders which a court of appeal can pass. Section 401 has to be read with Section 397 while exercising the power of revision. Thus, in our opinion, the bar of Sub-section (2) of Section 397 will nevertheless be there even if the High Court exercises its revisional powers u/s 401 in a case otherwise brought to its knowledge. It will not be correct to say that a revision against an interlocutory order, prohibited under Sub-section (2), will be rendered not prohibited under that Sub-section, because the High Court chooses to exercise revisional jurisdiction u/s 401.

Gulam Ali (supra) dealt with a case of revision u/s 435 of the old Code. The division Bench was eager to lay down a rule of practice, as was the case in other High Courts. Being governed by the considerations that the High Court should get the advantage of the opinion of the Court of Sessions, that the work at the High Court level should not increase unduly and that the discretionary power conferred upon High Court u/s 435 gave it the implied authority to set out its own rules for the exercise of that discretionary power and so the rule of practice was necessary and hence evolved, the said decision was given. It was held that only in extraordinary and exceptional circumstances a party could come to High Court direct in revision by-passing the Court of Sessions. The position seems to be considerably altered in view of Section 397 of the new Code where no revision is provided for against an interlocutory order and the decision of the Court of Sessions is final. As we have already held that the order granting or refusing bail u/s 438 of the new Code will be an interlocutory order, the bar of Sub-section (2) of Section 397 of the new Code is very much there and Gulam Ali (supra) will be of no assistance. The presumption in Gulam Ali (supra) was that the second revision decidedly lay before the High Court and the first revision should invariably go to the Court of Sessions. As the scheme of the new Code points out, a second revision is totally prohibitive and hence in a case u/s 435 of the old Code or Section 397 of the new Code, perhaps Gulam Ali (supra) will not hold the field. At the same time, we desist from giving any opinion on this pointed question concerning revision because we are not called upon to decide in the present case about any criminal revision, but we are called upon to decide about an order of bail granted or refused u/s 438 of the new Code.

We are, therefore, of the opinion that if any person asks for anticipatory bail u/s 438 of the new Code before the Court of Sessions and is not granted bail, he would not be able to apply again for anticipatory bail under that section before the High Court. The order being interlocutory will not be revisable under Sub-section (2) of Section 397 of the new Code. Therefore, if a person so chooses, he can file a direct application to the High Court for anticipatory bail u/s 438 and the prohibition of the rule of practice evolved in Gulam Ali (supra) will not stand in his way.

These petitions may, therefore, be listed for appropriate orders on merit.