TMI Blog2014 (9) TMI 1132X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 accused-Petitioners. 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 accused-Petitioners 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 an erroneous 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. The judgment and order passed by the High Court is set aside. The interim order granted on 02.09.2013 by this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther investigation by an independent agency, more particularly the CID, by its order dated 29.01.2013. 4. The Trial Court in Sessions Case No. 182 of 2012 directed further investigation by the CID, stayed the trial proceedings and rejected the bail application of accused-Petitioners herein by a common order dated 18.02.2013. 5. Against the aforesaid order passed by the Trial Court, the accused-Petitioners had approached the High Court with the limited prayer of grant of bail. The High Court being of the view that since direction of further investigation has been issued by the learned Sessions Judge, the charge sheet submitted earlier by the police had become infructuous and the accused-Appellants were entitled to seek relief Under Section 167(2), proviso (A)(1), by its order dated 12.03.2013 in Bail Application No. 593 of 2013 had granted bail to the three accused-applicants therein (the Petitioners before us). On the basis of the aforesaid order of the High Court, three other co-accused-Petitioners were released by order dated 20.03.2013 in Bail Application No. 654 of 2013. Subsequently, by order dated 20.03.2013 in Bail Application No. 664 of 2013, other three co-accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents on record including judgment(s) and order(s) of the Courts below. 12. The short question that falls for our consideration and decision is whether the exercise of jurisdiction by the High Court Under Section 439(2) of the Code justified in the instant case. 13. To appreciate the law on the issue, we would analyse provisions of the Code relevant for the disposal of this case. 14. Proviso (a) to Section 167(2) of the Code provides for release of the accused person in case of failure of the investigating agency to complete the investigation in stipulated time. It reads as under: Section 167-Procedure when investigation cannot be completed in twenty-four hours (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d cannot, therefore, claim any special right to remain on bail. If the investigation reveals that the accused has committed a serious offence and charge-sheet is filed, the bail granted under proviso (a) to Section 167(2) could be cancelled on an application by the prosecuting agency. 18. Under Chapter XXXIII, Section 439(1) empowers the High Court as well as the Court of Session to direct any accused person to be released on bail. Section 439(2) empowers the High Court to direct any person who has been released on bail under Chapter XXXIII of the Code be arrested and committed to custody, i.e., the power to cancel the bail granted to an accused person. Generally the grounds for cancellation of bail, broadly, are, (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a person, already admitted to bail, to custody, is lifted in the new Code Under Section 489(2). Under Section 439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIIL by any Court including the Court of Session to custody, if it thinks appropriate to do so, it must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused, person has been admitted to bail by the High Court. If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily,' therefore, to that Court. The State may as well approach the High Court being the superior Court Under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of accused's misconduct or new adverse facts having surfaced after the grant of bail which require such cancellation and a perusal of the aforesaid decisions would present before us that an order granting bail can only be set aside on grounds of being illegal or contrary to law by the Court superior to the Court which granted the bail and not by the same Court. 24. In the instant case, the Respondents herein had filed the criminal miscellaneous petition before the High Court seeking cancellation of bail on grounds that the bail was obtained by the Petitioners herein by gross misrepresentation of facts, misleading the Court and indulging in fraud. Thus, the petition challenged the legality of the grant of bail and required the bail order to be set aside on ground of it being perverse in law. Such determination would entail eventual cancellation of bail. The circumstances brought on record did not reflect any situation where the bail was misused by the Petitioner-accused. Therefore, the High Court could not have entertained the said petition and cancelled the bail on grounds of it being perverse in law. 25. It is an accepted principle of law that when a matter has been fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sposing 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 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. 11. The impugned orders of the High Court dated 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. 27. This Court in Gian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 accused-Petitioners. 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 accused-Petitioners 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. 31. Herein, the High Court has assigned an erroneous 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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