Satendra Kumar and Another vs State of U.P. and Another

A.N. Dikahita, J.—Applicant Satendra Kumar Singh aggrieved against the judgment and order dated 24-2-87 in Cr. Misc. Case No. 688 of 1986 of the Sessions Judge, Agra passed in Case Crime No. 59 of 1985 under Sections 304/302/498 IPC filed a revision on 27-2-87 before this Court. This Court passed the following orders:

Issue notice to opposite party No. 2 fixing 15th April, for showing cause why not revision may be admitted.

Heard the learned Counsel for the applicant. Let the applicant Satendra Kumar be enlarged on bail in Case Crime No. 59/85 under Sections. 302/304/498A IPG P.S. New Agra, District Agra, on his furnishing two sureties and a personal bond in the like amount to the satisfaction of Chief Judicial Magistrate, Agra. List the application before me on 5th May, 1987.

Sd/B.L.Y. 27-2-87.

Later on at the prayer of the applicant''s Counsel Sri. V.C. Tiwari that the revision (Cr. Revision No. 377 of 1987) be converted into one u/s 482 Code of Criminal Procedure. The revision was converted into a case u/s 482 Code of Criminal Procedure (Criminal Misc. Application No. 8798 of 1987)-vide the following order dated 12-8-87:

Mr. V.C. Tewari, learned Counsel for the applicant has prayed that this revision may be converted into application u/s 482 Code of Criminal Procedure. Let this revision be converted into application u/s 482 Code of Criminal Procedure. Office is directed to list this case before the Bench hearing applications u/s 482 Code of Criminal Procedure on 19th August, 1987 peremptorily.

Sd/B.L. Yadav, 12-8-87.

Facts in a narrow compass are that the applicant and one Damodar Das were involved in a case under Sections 302/304/498 IPC and were proceeded against. Applicant Satendra Kumar alias Munna as well as Damodar Das filed an application before the Sessions Judge Agra for their being released on bail. The incharge Sessions Judge vide his order dated 27-2-86 found that at that stage there was no sufficient evidence to indicate that the deceased died of poison. However, applicant Satendra Kumar and Damodar Das were released on bail with the condition that in case it is found at a later stage after the receipt of the report of the Chemical Examiner that the deceased died of poisoning then the bail shall be deemed to be cancelled and the applicant shall surrender in this Court. The applicants were directed to be released on bail on their furnishing a personal bond of Rs. 7000/- and 2 sureties each in the like amount to the satisfaction of the Magistrate concerned.

Aggrieved by the order dated 27-2-86 passed by the learned In-charge Sessions Judge, applicant preferred an application u/s 482 Code of Criminal Procedure for modification of the order dated 27-2-86. This Court vide order dated 20-3-86 quashed the order dated 27-2-1986 to the extent that the condition so imposed by the learned Incharge Sessions Judge that the bail would stand automatically cancelled held as under:

Of course this will leave the prosecution free to move an application for cancellation on the ground that the Chemical Examiner finds from the viscera that it was a case of poisoning or on any other ground that may be available under the law and that application, if it is moved at all will be disposed of according to law on merits.

Aran Kumar complainant filed an application before the Sessions Judge, Agra alleging that Smt. Pushpa, his sister and wife of Satendra Kumar died on 19-2-85. A report about the incident was lodged on the same day by her brother Arun Kumar stating that the marriage of Smt. Pushpa and Satendra Kumar had taken place four years prior to the incident and out of the wedlock two children were born. Satendra Kumar and other members of the family were demanding dowry and 5 of 6 days prior to the incident Smt. Pushpa was given a thrashing and was turned but of the house but later on returned to the former''s house on the pacifications of Arun Kumar, her brother the assurance of Sri. Satendra Kumar, her husband to maintain her properly. However, on the day of the incident at about 11.30 a.m. a message was received by Arun Kumar that the condition of his sister Smt. Pushpa wife of Satendra Kumar is very serious and an attempt had been made to kill her. It was also informed that she was being taken to the Emergency Ward of the hospital Arun Kumar rushed to the hospital but did not find her them and he then went to the house of his brother-in-law Satendra Kumar where he found his sister dead. Accordingly the report was lodged. The case was investigated. The postmortem was conducted but at that time the doctor could not come to any conclusion regarding the cause of the death. The viscera was kept and sent to the Chemical Examiner. The applicant Satendra Kumar and his father Damodar Das in view of the report of the post-mortem were released on bail. Consequently, on the receipt of the report of the Chemical Examiner it was found that poison if present in the viscera and this poison was described as "Aluminium phosphate".

With these allegations the application for the cancellation of the bail was filed before the Sessions Judge as stated above. Applicant Satendra Kumar and the other accused in the case contended that Smt. Pushpa died as a result of rash and negligent treatment by Dr. Ramesh Dhanefs. They denied their presence at the time of the incident. They did not know even that the death of Smt. Pushpa has taken place. However, on the receipt of the information Satendra Kumar came from the factory.

The learned Sessions Judge considered the various contentions of the parties, came to the conclusion vide order dated 24-2-87 without observing on merits that in view of the report of the Chemical Examiner and the other circumstances surrounding the case that the bail of Satendra Kumar husband of deceased Smt. Pushpa deserves to be cancelled and was accordingly cancelled While that of Damodar was not cancelled.

The applicant Satendra Kumar aggrieved by this order of cancelling the bail by Sessions Judge Agra preferred a revision (No. 377 of 1987) under Sections 397/401 Code of Criminal Procedure which was later on converted into an application u/s 482 Code of Criminal Procedure as stated above.

Heard the learned Counsel for the parties.

Learned Counsel for the applicant Sri. Y.C. Tewari has strenuously urged that once a bail has been granted by this Court, though while exercising power under revision, cannot be cancelled at this stage. It has further been contended that this application may be deemed to have become instructions in view of the ball having been granted by this Court. It has been submitted that this Court has no Jurisdiction how to cancel the bail which has already been granted while exercising the inherent jurisdiction. Learned Counsel for the applicant has even urged that a revision is also maintainable in view of the fact that the District Judge had no jurisdiction to assume a jurisdiction by cancelling bail which otherwise did not vest in it Lastly, learned Counsel for the applicant has, with his usual flair of persuasion tried to submit that the Sessions Judge had no power to cancel the bail is view of a solitary fact that it was only the High Court which had passed the order dated 20-3-96 quashing the order dated 27-2-86 and as such the Sessions Judge could not have cancelled the bail of the applicant Satendra Kumar.

Learned Counsel for the opposite party V.K. Chaturvedi has urged that the contentions so raised on behalf of the applicant have no merit Learned Counsel for opposite party No. 2 has submitted that the bail was granted to the applicant by this Court while exercising revisional jurisdiction and once that revision has been converted at the instance of the applicant into an application u/s 482 Code of Criminal Procedure that submission on behalf of the applicant that the bail cannot be cancelled fails. It has further been submitted that the contention that the application has become infructuous as bail has been granted is wholly follows in view of the fact that the bail was granted as an interim relief during the pendency of the case. It has also been submitted that tins Court while disposing of the application u/s 482- Code of Criminal Procedure had quashed the order only to certain extent that on the receipt of the report of the Chemical Examinee the bail would be cancelled. It does not imply that the bail was either granted or refused by this Court., Only a condition that was imposed by the learned Sessions Judge was removed. Lastly learned Counsel for opposite party No. 2 has submitted that the applicant adopted a circuitous way in filing a revision which otherwise was not maintainable as would be manifest from the revision allegations in allegation itself. It has been contended that the only remedy that was available to the applicant was to file an application for the bail before this Court. With the fairness at his command learned Counsel for the applicant Sri. V.C. Tiwari concedes to this but with the same promptness submits that besides the bail application the applicant had a right to file an application u/s 482 Code of Criminal Procedure and the bail application therein.

After hearing such erudite submissions on behalf of the learned Counsel for the parties and having given my anxious consideration to the controversy involved it is clear that initially the applicant was not sure about the maintainability of the revision or its ultimate success. It is not denied by either of the learned Counsel that the jurisdiction under Sections 397/401 Code of Criminal Procedure is limited while the one u/s 482 Code of Criminal Procedure is wide enough to secure the ends of justice and also to ensure that there is no abuse of the process of law. It is in this background and finding apprehension that the revision may ultimately not succeed a prayer for invoking a wider jurisdiction u/s 482 Code of Criminal Procedure was made. Whether a revision is maintainable or not is beyond the scope of the controversy at this stage as this, application is being, disposed of under the provisions, of 482 Code of Criminal Procedure. Nevertheless learned Counsel for the applicant has submitted that it was not necessary to have converted the revision into application u/s 482 Code of Criminal Procedure in view of the fact that the Sessions Judge has no jurisdiction to cancel the bail.

It has thus become necessary to find out as to whether this Court granted the absolute bail to the applicant vide its order dated 20-3-1986 or not or was it an interim relief during the pendency of the case.

The submission of the learned Counsel that the application has become infructuous as the bail has already been granted, on its own edifice is ill-merited and if this application has become infructuous, then nothing remains to the case and the order of the Sessions Judge cancelling the bail would enure for tine benefit of the complainant and against the applicant. But it is apparent that this plea has been subduedly pressed and in any case deserves to be discarded outright.

While filing the revision the applicant bad also filed an application for his release on bail. While filling this application under stations 397/401 Code of Criminal Procedure for allowing the revision and setting aside the order dated 24-2-1987 cancelling the bail of the applicant Satendra Kumar a further prayer was made which is recited herein below:

It is further prayed that the applicant may be released on bail during, pendency of the revision in this Hon''ble Court.

From the above prayer this submission of the learned Counsel for the applicant loses all its force. This Court while passing order dated 17-2-1987 had directed the applicant to be released on bail during the pendency of the revision as prayed by the applicant. The order would not be deemed to be such which may have granted bail to the applicant. It is absolutely clear that the bail was granted only during the pendency of the revision or later on when it was converted into an application u/s 482 Code of Criminal Procedure during the pendency of the latter.

The submission that once bail has been granted by the order dated 27-2-1987 cannot be cancelled by this Court deserves to be spurned as discussed above that the order granting bail was only during the pendency of the case.

The most significant aspect in this case is whether bail could not have been cancelled by the Sessions Judge-vide his order dated 24-2-1987. This order would have to be read in not in isolation and it would be imperatively necessary to peruse the order of modification passed by this Court on 20-3-1986, ''If has already been mentioned above that this Court while passing the order dated 20-3-1986 had quashed the condition imposed by Incharge Sessions Judge that on the receipt of the report of the Chemical Examiner and on being found that poison was found in viscera the bail would stand automatically cancelled view of such modification it has been urged that the learned Sessions Judge had no jurisdiction to cancel the bail and it was only this Court; which could have done so. It is very difficult to agree to such a submission howsoever persuasive it may be. Learned Counsel for the applicant has placed reliance in the ease of Km. Ranjana R. Massey v. Ujjawal Prakash Laland State 1980 CriLJ 136. In this case the Court had held that once a bail application has been rejected by the High Court, Sessions Court was not competent to grant bail. It is apparent from the view taken in this case that the Sessions Judge who had himself rejected the bail had no jurisdiction later to grant the bait as his order rejecting bail was upheld by the High Court It is in such cases where the order has been affirmed by the High Court that the Sessions Judge ceases to exercise any jurisdiction to entertain any application either for grant or cancellation of the bail.

Learned Counsel for the applicant then placed reliance on the case of Kamla Shanker Singh v. State of U.P. 1988 ACR 187, the same view has been taken and has found favour. In the above case the bail was rejected by the Sessions Court and the order rejecting the bail was upheld by the High Court. However, concealing this fact and in a fraudulent manner another bail application was filed before the Sessions Judge without disclosing that the High Court has also upheld the earlier order rejecting the bail the Court below granted bell When this fact was brought to the notice of the High Court, the bail was cancelled.

I am unable to find any material on record which may invite application of the above two cases in the instant case. The ratio of the case before me with that of the two cited at the Bar are distinctly at variance with each other. This Court while exercising power u/s 482 Code of Criminal Procedure had by his order dated 20-3-86 quashed the order to the extent that the conditions so imposed by the Court below was set aside. It had never granted the bail and as such it is difficult to agree that the Court below while cancelling the bail had no power.

An identical and similar controversy arose in the case of Om Prakash v. State of U.P. 1983 ACR 426. In this ease the applicants were granted bail by the Sessions Judge. However, the applicants were directed that they are admitted to bail till the time of their commitment to the Court of session only Bell were liable to be taken to the custody at the time of their commitment. It was held that, instead of availing the forum as provided in law if such tendency is permitted in law by invoking the jurisdiction u/s 482 Code of Criminal Procedure it has to be curbed. The remedy available was not availed of. It is well settled and equally sacrosanct that provisions u/s 482 Code of Criminal Procedure are not abused. It itself provides for interference by this Hon''ble Court where there is an abuse of the process of the Court. Evidently a wrong forum has been chosen and the exercise resorted till now is a reflection of such abuse. The application being wholly misconceived and highly ill-merited deserves to be dismissed. Accordingly, the application fails and is hereby dismissed.

It is further made clear that the order granting bail during the pendency of the case does not exist any more and the order cancelling the bail of the applicant being justified is maintained.

It has been mentioned at the Bar that the trial is proceeding. Learned Counsel for the applicant Sri. V.C. Tiwari has informed that few witnesses have already been examined during the trial and the trial is in progress. Conscious of this fact that no useful purpose would be served at this stage to confine the applicant into custody but still realising the constraints that this Court while exercising jurisdiction u/s 482 Code of Criminal Procedure cannot grant such relief for the enlargement of the applicant on bail. It would however, be open to the applicant to seek redressal of his grievance by filing an application for being released on bail in the appropriate Court which may consider it and dispose it of according to law. It has also not been shown until now as to how the applicant in the circumstance being released on bail would hamper the prosecution or the trial. Coupled with this fact and the surrounding circumstances the applicant may have to surrender for a short while and then seek bail from the appropriate Court. It would not be appropriate to exercise such a jurisdiction as stated above. Consciously such cases do not deserve the aid of Section 482 Code of Criminal Procedure.

In the result the application is hereby dismissed.