State Of Madhya Pradesh vs Manoj Jatav

A co-ordinate Bench of this Court, while considering the bail application of the co-accused Jagdish, had issued a notice to the respondent to show

cause as to why the bail granted to him, by another Bench of this Court, by order dated 18-12-2017 passed in M.Cr.C. No.24878 of 2017 be not

cancelled. Accordingly, this case has been registered under Section 439(2) of Cr.P.C. for cancellation of bail granted to the respondent.

The necessary facts for the disposal of the present application in short are that the complainant Arvind Koli, lodged a F.I.R. on 91-2017 that his

brother Babulal was killed by the respondent, and co-accused persons by causing injuries by an axe, lathi etc. The respondent was having lathi,

whereas the co-accused Jagdish was having also having lathi. The dead body of the deceased Babulal was sent for postmortem, and in the

postmortem, multiple contusions and abrasions were found on the whole body with multiple fractures.Â

The respondent filed a repeat application for grant of bail, which was registered as M.Cr.C. No.24878/2017. The said application was allowed

observing that none of the injuries was caused by the respondent on any vital part of the body of the deceased.

Thereafter, the co-accused Jagdish filed an application for grant of bail, which was registered as M.Cr.C. No.510 of 2018. Another Bench of this

Court, noticed that in fact as per the postmortem report, multiple injuries were found on the whole of the body of the deceased, therefore, was of the

view that the coordinate bench has wrongly granted bail to the respondent/ Manoj Jatav, therefore, directed for issuance of notice to the respondent as

to show cause, as to why the bail granted by the co-ordinate Bench of this Court by order dated 18-12-2017 passed in M.Cr.C. NO. 24878 of 2017 be

not cancelled.

The respondent has entered appearance and has filed his reply and supported the order dated 18-12-2017 passed by the Coordinate bench of this

Court in M.Cr.C. No. 24878 of 2017.

Heard the learned Counsel for the parties.

If the facts of the present case are considered, then it is clear that there are specific allegations against the respondent as well as against all co-

accused persons of causing multiple injuries to the deceased. In the postmortem report, multiple abrasions and contusions over whole of the body of

the deceased were found and multiple fractures were also found and according to the Doctor, the cause of death of Babulal was due to hypovolemic

shock occurred due to hemorrhage and Neurogenic shock occurred due to multiple injuries on vital side of body.

Neurogenic Shock is a type of shock which is caused by sudden loss of signals from the sympathetic nervous system that maintain the normal muscle

tone in blood vessel walls, whereas Hypovolemic Shock is a life threatening condition that results when at least 20% of body's blood of fluid

supply is lost. This severe blood loss makes it impossible for the heart to pump a sufficient amount of blood in the body. Thus, the postmortem

report of the deceased Babulal clearly indicates, that the cause of death of Babulal was Hypovolemic Shock as well as Neurogenic Shock. Multiple

injuries with multiple fractures were found, and thus, it was incorrect for the Counsel for the respondent to submit that no injury on the vital part of the

body of the deceased was found. Thus, this Court is also of the considered opinion, that the bail to the respondent has been granted on incorrect

facts. When the submissions were made by the Counsel for the applicant at the time of argument of the first bail application, it was the duty of the

Public Prosecutor to point out the correct facts, but however, it appears that even the Public Prosecutor has failed to discharge his duty effectively.

There is no allegation against the respondent, that he obtained the bail, by playing fraud on the Court or by relying on any false document. Here, the

question is that the facts of the case were not completely placed before the Court, which has resulted in grant of bail to the respondent. Now, the next

question for determination is that whether the same Court, which has granted bail to the Court, is empowered to cancel the bail, in the light of

provisions of Section 362 of Cr.P.C. or not?

The question is no more in res integra.

The Supreme Court after considering the effect of Section 362 of Cr.P.C. has held in the case Abdul Basit Vs. Mohd. Kadir Choudhar, reported in

(2014) 10 SCC 754, as under :-

''21. It is an accepted principle of law that when a matter has been finally disposed of by a court, the court is, in the absence of a direct statutory

provision, functus officio and cannot entertain a fresh prayer for relief in the matter unless and until the previous order of final disposal has been set

aside or modified to that extent. It is also settled law that the judgment and order granting bail cannot be reviewed by the court passing such judgment

and order in the absence of any express provision in the Code for the same. Section 362 of the Code operates as a bar to any alteration or review of

the cases disposed of by the court. The singular exception to the said statutory bar is correction of clerical or arithmetical error by the court.

In Hari Singh Mann v. Harbhajan Singh Bajwa [(2001) 1 SCC 169 ], a criminal miscellaneous petition was filed by the petitioner therein in a writ

petition disposed of by the High Court. The High Court had not only entertained the said petition but also issued directions. In appeal, this Court

annulled the judgment and order passed by the High Court on grounds that practice of filing miscellaneous petitions after the disposal of the main case

and issuance of fresh directions in such miscellaneous petitions by the High Court are unwarranted, not referable to any statutory provision and in

substance the abuse of the process of the court as no review of a final order passed by the High Court is contemplated under the Code. This Court

has observed as under: (SCC pp. 173 & 175, paras 9-11) “9. There is no provision in the Code of Criminal Procedure authorising the High Court to

review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the

aid or under the cloak of Section 482 of the Code. …

Section 362 of the Code mandates thatno court, when it has signed its judgment or final order disposing of a case shall alter or review the same

except to correct a clerical or an arithmetical error. The section is based on an acknowledged principle of law that once a matter is finally disposed of

by a court, the said court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the

same relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. The court

becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting

a clerical or an arithmetical error. The reliance of the respondent on Talab Haji Hussain case [ AIR 1958 SC 376] is misconceived. Even in that case

it was pointed that inherent powers conferred on High Courts under Section 561-A (Section 482 of the new Code) has to be exercised sparingly,

carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. It is not disputed that the

petition filed under Section 482 of the Code had been finally disposed of by the High Court on 7-1-1999. The new Section 362 of the Code which was

drafted keeping in view the recommendations of the 41st Report of the Law Commission and the Joint Select Committees appointed for the purpose,

has extended the bar of review not only to the judgment but also to the final orders other than the judgment.

The impugned orders of the High Courtdated 30-4-1999 and 21-7-1999 which are not referable to any statutory provisions, having been passed

apparently in a review petition in a criminal case are without jurisdiction and liable to be quashed.â€​

This Court in Gian Singh v. State of Punjab (2012) 10 SCC 303] has extended the bar under Section 362 as a necessary check on inherent powers

of the High Court under Section 482. This Court has opined that the inherent power of the Court is not contemplated by the saving provision contained

in Section 362 and, therefore, the attempt to invoke that power can be of no avail. This Court has observed as under: (SCC p. 324, para 27)

“27. … ‘5. Section 362 of the Code expressly provides that no court when it has signed its judgment or final order disposing of a case, shall alter

or review the same except to correct a clerical or arithmetical error save as otherwise provided by the Code. Section 482 enables the High Court to

make such order as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to

secure the ends of justice. The inherent powers, however, as much are controlled by principle and precedent as are its express powers by statute. If a

matter is covered by an express letter of law, the court cannot give a go-by to the statutory provisions and instead evolve a new provision in the garb

of inherent jurisdiction.’*â€​

This Court in para 36 of its decision in CBI v.V. Vijay Sai Reddy [(2013) 7 SCC 452] has cautioned that: (SCC p. 465)

“36. … cancellation of bail necessarily involves the review of a decision already made, it should always be exercised very sparingly by the court of

law.â€​

It is a well-settled proposition of law that“what cannot be done directly, cannot be done indirectlyâ€. While exercising a statutory power a court

is bound to act within the four corners of the statute. The statutory exercise of the power stands on a different pedestal than the power of judicial

review vested in a court. The same has been upheld by this Court in Bay Berry Apartments (P) Ltd. v. Shobha [(2006) 13 SCC 737], U.P. State

Brassware Corpn. Ltd. v. Uday Narain Pandey [(2006) 1 SCC 479] and Rashmi Rekha Thatoi v. State of Orissa [(2012) 5 SCC 690]. It is the duty of

the superior courts to follow the command of the statutory provisions and be guided by the precedents and issue directions which are permissible in

law.

In the instant case, the order for bail in thebail application preferred by the accusedpetitioners herein finally disposes of the issue in consideration

and grants relief of bail to the applicants therein. Since, no express provision for review of order granting bail exists under the Code, the High Court

becomes functus officio and Section 362 of the Code applies herein barring the review of judgment and order of the Court granting bail to the

petitioner-accused. Even though the cancellation of bail rides on the satisfaction and discretion of the court under Section 439(2) of the Code, it does

not vest the power of review in the court which granted bail. Even in the light of fact of misrepresentation by the petitioner-accused during the grant

of bail, the High Court could not have entertained the respondent/informant’s prayer by sitting in review of its judgment by entertaining

miscellaneous petition.

Herein, the High Court has assigned anerroneous interpretation to the well settled position of law, assumed expanded jurisdiction onto itself and

passed an order in contravention of Section 362 of the Code cancelling the bail granted to the petitioners herein. Therefore, in our considered opinion,

the High Court is not justified in reviewing its earlier order of grant of bail and thus, the impugned judgment and order requires to be set aside.

Thus, it is clear that concept of setting aside an incorrect order is different from cancellation of bail. In view of the specific bar as contained under

Section 362 of Cr.P.C., the Court which had granted bail, cannot review its own order. If the Court is of the view that the bail has been granted on

the basis of incorrect facts, then under the garb of cancellation of bail, the order cannot be reviewed. Under these circumstances, only the Superior

Court can consider that whether the bail has been granted on incorrect facts or not? Bail granted to an accused can be cancelled by the Same

Court, only when there is an allegation of misuse of liberty or new facts having surfaced after grant of bail, however, the Court granting bail, cannot

reconsider the merits as the same cannot be done in absence of any specific provisions of law.Â

Thus, this Court is of the considered opinion, that although the co-ordinate Bench of this Court has wrongly granted bail to the respondent on the basis

of incorrect facts but, this Court is not competent to cancel or recall or set aside the order passed by the Co-ordinate Bench. The only option available

in this circumstance is to approach the Superior Court, for cancellation of bail.Â

However, this Court can always hold that the principle of Parity would not apply as the bail has been granted to the co-accused on the incorrect

facts.Â

Accordingly, it is held that the order dated 18-12-2017 passed by a Co-ordinate Bench of this Court, in M.Cr.C. No. 24878 of 2017, shall never be

treated as a precedent, and the co-accused persons shall not be entitled to take benefit of the liberty granted to the respondent Manoj Jatav. It is

further directed that whenever, an application for grant of bail is filed by the co-accused persons before the Sessions Court, then the Sessions

Court/Trial Court, shall not apply the principle of parity.

With aforesaid observations, the application is dismissed.

Let a copy of this order be sent to the Trial Court, for necessary information.