TMI Blog1991 (10) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... a complaint before the learned Chief Metropolitan Magistrate, Bombay, who was at that time the authority competent to entertain such a complaint. Thereupon, the Court, as and by way of issuance of process, passed an order entertaining the complaint and issued a non-bailable warrant. The Accused continued to be in custody and the case was thereafter committed to the Court of Session for trial. At that time, the Accused's Advocate made an application to the learned Sessions Judge in which he contended that the bail order passed on 9-6-1987 by the learned Additional Chief Metropolitan Magistrate was still in force in so far as it had not been set aside by any judicial authority and he, therefore, prayed for a direction that the Accused be permitted to avail of that order. The Registrar of the Court took up the contention that the order was of a subordinate Court and, therefore, could not be implemented by the Court of Sessions and accordingly informed the Advocate appearing on behalf of the Accused that if the Accused desired to be released on bail, it was necessary to obtain a bail order from the Court of Sessions or some Court superior thereto and referred the matter back to the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nadkarni has accordingly submitted an application to this effect. I need to record that Mr. Maniyar, learned Counsel appearing on behalf of the Accused, has objected to the maintainability of this application. He has contended that the only provision of law under which cancellation of bail can be asked for is Section 439 of the Code of Criminal Procedure and that, therefore, Mr. Nadkarni cannot be permitted to invoke the inherent powers. The choice as to which of the provisions of the law the Department desires to invoke is ultimately left to the Department and there are instances when it is open to a party to move the High Court for revocation or stay of a bail order which has been improperly passed by a subordinate Court, even in exercise of the High Court's powers under Section 482 of the Code of Criminal Procedure. Consequently, I have entertained the application because the issues involved in this case are of some importance and it is equally essential to brush aside technicalities and do substantial justice. 5. Mr. Nadkarni's principal ground of attack as far as the order of the Additional Sessions Judge is concerned proceeds on the footing that the Accused in this case is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court, by pointing out that subsequent developments in the course of the proceedings do not ipso facto have the legal effect of nullifying the affects of a bail order. Mr. Maniyar's contention is that the issuance of the non-bailable warrant in August, 1987 is a circumstance that will have to be ignored because the earlier bail order ought to have been first cancelled and since the Accused in any case was in custody, no cognizance should be taken of the issuance of the non-bailable warrant. I need to point out that factually this submission is completely misconceived. It is quite implicit when the initial bail order was passed on 9-6-1987 even if that order had been availed of, that the order was to be effective only until the filing of the complaint. On the filing of the complaint, one enters a different stage of the proceeding and even if the Accused was on bail at that point of time, it would have been essential for her to be released on bail by the Court once again, the earlier order having exhausted itself. The bail order of 9-6-1987 would, therefore, be an order that was current or an order that was capable of being availed of only until such time as the filing of the compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it was contended before Dhabe, J. that Section 439(2) of the Code of Criminal Procedure can have no application unless the Accused has, in fact, been released from custody. The argument proceeds on the footing that there can be no question of applying this section unless re-arrest and re-confinement to custody are both possible and if the Accused has not been released then Section 439(2) of the Code of Criminal Procedure cannot apply. Support was drawn heavily from the observations in Raghubir Singh's case and it was contended before Dhabe, J. that an application for cancellation without the Accused having been released is not legally feasible. I need to point out, in the first instance, that every decision is a decision on the facts of that particular case. A careful scrutiny of the Supreme Court judgment in Raghubir Singh's case will indicate that Justice Chinnappa Reddy, J. (as he then was) dealt with a situation of restrictive application, namely where the provisions of Section 167(2) of the Code of Criminal Procedure applied and the accused availed of bail as and by way of default. In this case and several other cases, the Supreme Court has very clearly enunciated the positi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person may not immediately avail of the bail order that is passed. If there is an apprehension in the mind of the prosecuting authority that the Accused will abscond immediately on bring released from custody, or in a given case where the prosecuting authority is of the view that the bail order itself is manifestly wrong or unfair, this Section would not provide any bar to the Prosecution from asking for a review of that order and the question as to whether the Accused is physically released or not is quite irrelevant. It is true that Section 439 of the Code of Criminal Procedure refers to re-arrest of the Accused and confinement in custody. It is on the basis of this wording that Mr. Maniyar submits that the Section presupposes that the Accused is, in fact, out of custody and, therefore, requires to be re-arrested. Mr. Maniyar submits that one cannot do violence to the wording of Section 439(2) of the Code of Criminal Procedure and that one will have to take the wording of the Section as a whole. It is necessary to point out that the clause "any person who has been released on bail under this Chapter" will have to be strictly construed as meaning any person who has been released ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the interests of justice require that the High Court has to exercise a sweeping overriding jurisdiction and in these circumstances for the purpose of securing the ends of justice such powers can be exercised. These powers are in addition to the Powers of the Court under the Code of Criminal Procedure and they do not in any way limit the powers of the High Court. To my mind, therefore, the submission advanced by Mr. Maniyar that the aforesaid decisions of the Supreme Court act as a fetter on the powers of this Court is not well-founded. 11. Coming to the facts of the present case, a strong plea has been advanced that the Accused is a young woman, and that she has been in custody for well over four years up to this point of time, Mr. Maniyar submits that this Court must adopt a humanitarian approach and must take into account the fact that the Accused is a foreign national and a woman and he reinforces his plea with the submission that the conditions in the jail are so difficult that the health of the Accused is in a precarious condition. These factors, undoubtedly, do require some consideration, but the legal difficulty in the way of Mr. Maniyar is that they are not factors which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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