Assistant Collector of Customs (P. ) vs Madam Ayabo Atanda Ciddipo Orisan and another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1991 Supreme(Bom) 487

IN THE HIGH COURT OF BOMBAY
M.F. Saldanha, J.
Assistant Collector of Customs (P.) .... Petitioner.
Versus
Madam Ayabo Atanda Ciddipo Orisan and another .... Respondents.
Criminal Revision Application No. 446 of l990 with Cri.R.A..No. 2486 of 1990, decided on 11-10-1991.
Advocates appeared:
B.V. Kulkarni, the petitioner.
A.N. Maniyar, for respondent No.1.
R.F. Lambay, A.P.P., for respondent No. 2-State.

Headnote:Section 439 (2) Ball order-Cancelled - Prosecution authority apprehending that on being enlarged on bail accused would abscond - Also taking the view that bail order Itself manifestly wrong/unfair.
       Held, No bar to prosecution asking for review of such - order-Actual physical release of accused not mandatory for considering application for review.
       Section 482 - Exercise of inherent jurisdiction- Cancellation of bail Improperly passed by Subordinate Court to a foreign national in a drugtrafflicking case-Revision for cancellation- Ground-On being enlarged on bail accused would not be available-Held-Revision would not lie-Issues Involved important-Opposite party to move High Court for revocation or stay of bail improperly granted by High Court even in exercise of High Courts power under Section 482.
       A reading of Section 482 of the Criminal Procedure Code will indicate that it is an overriding inherent power vested in the High Court which is a power parallel to the jurisdiction of the High Court under Article 226 of the Constitution wherein the High Court is invested with certain inherent powers, which is virtually an unfettered jurisdiction to pass all such orders as are necessary in the interest of justice. A situation often arises where specific provisions cannot be pointed out or where essentially 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 Criminal Procedure Code and they do not in any way limit the powers of the High Court.
       Section 37-Bail granted to accused before filing charge-sheet-Not nailed of-Charge-sheet filed- Whether earlier bail order survived even after charge-sheet filed -Held-Earlier hall order exhausted itself after charge sheet filed hereafter question of ball to be considered.
       When the initial bail order was passed 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 complaint, since under the relevant provisions of law on the filing of the complaint the Court has to enter into a de novo consideration with regard to whether the accused should be released on bail or whether the accused should be taken into custody. It follows that the life of the earlier order whether availed of or not availed of, is only of a limited duration upto that point of time, Therefore, in these circumstances it was unnecessary for the Court to have passed an order for revocation of bail under Section 439 of the Criminal Procedure Code before proceeding further when the complaint was filed. Such an order would only have been necessary if the prosecution applied for revocation of the order of bail passed on 9-6-1987 on the ground that the accused had given cause for revocation of that order.

JUDGMENT - M.F. SALDANHA, J.:---Points of law of some consequences have fallen for decision in this application. The accused is a Nigerian lady, who is alleged to have been arrested as long back as on 12-5-1987 by the Customs Officers while attempting to smuggle out of India narcotics valued at Rs. 2,00,000/-. The accused was placed under arrest on charges punishable under the Narcotic Drugs and Psychotropic Substances Act, 1985. The record indicates that on 9-6-1987, the learned Additional Chief Metropolitan Magistrate, before whom the accused was produced, ordered her release on bail in the sum of Rs. 1,50,000/- with one surety in the like amount along with certain conditions. The accused could not avail of the bail and continued to be in custody, though the Court record indicated that there was an order for her release on bail or rather that the original bail order dated 9-6-1987 was still valid.

2. On 13-8-1987, the Customs Department filed 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 I 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 Court. The learned Additional Sessions Judge thereafter heard the arguments, at which time the learned advocate, Mr. Maniyar, produced before the learned Additional Sessions Judge the order passed by this Court in Criminal Application No. 979 of 1990 pertaining to another case but in somewhat similar circumstances, wherein this Court has taken the view that it was possible in a given case to hold that an order of bail once granted continues until it has been set aside. Relying on this decision, the learned Additional Sessions Judge once again passed an order of bail on identical terms to the one passed by the learned Additional Chief Metropolitan Magistrate on 9-6-1987. This order is dated 27-11-1990.

3. The accused in this case is a Nigerian National and the Customs Department apprehended that if she is so much as released from custody that it may be difficult for them to trace the accused. Counsel for the Department forthwith filed an application before the learned Additional Sessions Judge praying for cancellation of the bail order that had just been passed. On this application, the learned Additional Sessions Judge granted stay of the operation of his order. The Department thereupon filed the present criminal revision application and obtained an ad-interim stay of the operation of the order dated 27-11-1990 granting bail to the accused.

4. When the criminal revision application came up for hearing, Mr. Maniyar, learned Counsel appearing on behalf of the accused, raised certain submissions on points of law which I shall presently enumerate. I, however, pointed out to Mr. Nadkarni, learned Counsel appearing on behalf of the Department, that it has been contended before this Court in some of the similar cases that any order relating to the grant of bail should be construed as an interlocutory order and, conse

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