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2017 (12) TMI 1819 - SC - Indian LawsSeeking summon for the purpose of facing the trial - offences punishable Under Sections 120-B, 363, 366, 368, 370(4) and 376 of the Indian Penal Code, 1860 read with Section 3/4 and 16/17 of POCSO Act - HELD THAT:- The Single Judge seemed to have passed the impugned order without application of judicial mind inasmuch as he committed two glaring errors while passing the order. First, he failed to see that the Complainant at whose instance the Sessions Judge had passed the order and had allowed his application Under Section 193 of the Code was a necessary party to the criminal revision along with the State. Therefore, he should have been impleaded as Respondent along with the State in the revision. In other words, the Complainant also had a right of hearing in the Revision because the order impugned in the Revision was passed by the Session Judge on his application. This aspect of the case was, however, not noticed by the Single Judge. The High Court had no jurisdiction to direct the Sessions Judge to "allow" the application for grant of bail. Indeed, once such direction had been issued by the High Court then what was left for the Sessions Judge to decide except to follow the directions of the High Court and grant bail to Respondent Nos. 2 and 3. In other words, in compliance to the mandatory directions issued by the High Court, the Sessions Judge had no jurisdiction to reject the bail application but to allow it. When an order is passed, it can be questioned by the aggrieved party in appeal or revision, as the case may be, to the superior Court. It is then for the Appellate/Revisionary Court to decide as to what orders need to be passed in exercise of its Appellate/Revisionary jurisdiction. Even while remanding the case to the subordinate Court, the Superior Court cannot issue a direction to the subordinate Court to either "allow" the case or "reject" it. If any such directions are issued, it would amount to usurping the powers of that Court and would amount to interfering in the discretionary powers of the subordinate Court. Such order is, therefore, not legally sustainable - It is the sole discretion of the Sessions Judge to find out while hearing the bail application as to whether any case on facts is made out for grant of bail by the Accused or not. The High Court could have made an observation to the effect that the Respondent Nos. 2 and 3 (Accused persons) are at liberty to approach the Sessions Judge for grant of bail and, if any application is filed, it would be decided by the Sessions Judge on its merits and in accordance with law expeditiously but not beyond it - Appeal allowed.
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