Nitan Kumar @ Sital Kumar vs State of Punjab

A.P. Chowdhri, J.

Brief facts necessary for the disposal of this petition are as under :

A case under Sections 18 and 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and Sections 3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, was registered against the petitioner on 17.5.1988, when he was arrested. His application for bail was rejected by the learned Additional Sessions Judge, exercising powers of Designated Court on 23.6.1988 and again on 19.9.1988. A third bail application was rejected by this Court on 14.10.1988 with the observation that this Court had no jurisdiction in view of the law laid down Usmanbhai''s case, AIR 1988 Supreme Court 922. On completion of investigation, the police presented a challan on 18.2.1989 in which the accused had not been charged for any offence under the Terrorist and Disruptive Activities (Prevention) Act. On an application made to the Designated Court, the accused was allowed bail by order dated 18.2.1989. On 2.3.1989, the State moved for cancellation of bail on the ground that the fact of bail application having been dismissed by the High Court had been suppressed while securing order of bail and that the offence under the Narcotic Drugs and Psychotropic Substances Act was a serious one punishable with substantial imprisonment and fine. A prayer was also made in that application that pending decision on the application for cancellation of bail, the operation of order of bail dated 12.1.1989 be stayed. It so happened that the learned Presiding Officer of the Designated Court Shri Iqbal Singh was on leave and the said application for cancellation was entrusted by the learned Sessions Judge to another Additional Sessions Judge Shri S.S. Grewal, Shri S.S. Grewal directed notice of the application to the accused and in the meantime stayed the operation of the bail order. He observed in the order that the fact that earlier application of the accused made to the High Court had been declined, appears to have been suppressed from the learned Designated Court and that the order granting bail on furnishing amount of the surety ordered by the Court was evidently inadequate. It is against that order that the present petition was filed by the accused.

When the petition came up for hearing on March 10, 1989, the operation of the impugned order passed by Shri S.S. Grewal was stayed. In spite of the said order, learned Counsel for the petitioner states that the accused has not been released on bail.

Learned counsel for the petitioner has raised tow contentions. He contends that the learned Additional Sessions Judge (Shri S.S. Grewal), who passed the impugned order had no inherent powers to suspend the operation of the order granting bail passed by Shri Iqbal Singh. He relied on Rameshwar Prasad v. State, 1975 Crl. L.J. 658, Ramesh Kumar v. State of Himachal Pradesh, 1984 Crl. LJ 1956; and Gurcharan Singh and others v. State (Delhi Administration), AIR 1978 Supreme Court 179. Section 439(2) of Code of Criminal Procedure empowers, besides the High Court, the Court of Sessions to cancel the bail already granted, but the provision applies only in cases where the person "has been released on bail". Admittedly, the accused, who was granted bail by Shri Iqbal Singh, Additional Sessions Judge, has not been released on bail in pursuance of that order. Consequently, it was not open to Shri S.S. Grewal to have stayed the operation of the order granting bail to the accused as he had no inherent powers.

The second contention of learned Counsel for the petitioner is that it was not open to Shri S.S. Grewal, learned Additional Sessions Judge, to review the order passed by the Designated Court presided over by Shri Iqbal Singh, learned Additional Sessions Judge. Section 362 of the Code of Criminal Procedure debars a Court to alter or review any signed judgement or final order except to correct a clerical or arithmetical error or save as otherwise provided in the Code of Criminal Procedure.

I find force in both the contentions. All that learned Counsel appearing for the State argued was that the Court had adequate powers to cancel the bail under subsection (5) of Section 437 of the Code. There is no merit in this contention. The aforesaid provision applies only in cases where the person concerned has been released on bail under subsection (1) or subsection (2) of the said Section.

In the result, the petition is allowed and the order dated 2.3.1989, Annexure P3, passed by Shri S.S. Grewal, learned Additional Sessions Judge, Ferozepore, is hereby set aside. The accused shall be released on bail in accordance with order dated 18.2.1989, Annexure P1, passed by Shri Iqbal Singh, learned Additional Sessions Judge (Designated Court), Ferozepore.

Explanation why the order passed by this Court on March 10, 1989, was not complied with, be obtained from Shri S.S. Grewal, Additional Sessions Judge, and put up for necessary orders on 6.4.1989.